Gibbons v. City of San Bernardino

California Court of Appeal Dec 5, 1951 No. Civ. 4197Published

Before: Mussell

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Holding. The court held that a contractor is not liable for injuries caused by a dangerous condition created by the city, rather than the contractor, in an area of the street over which the city retained control.

Issues

Whether a contractor has a common law duty to warn the public of dangerous conditions created by the city in a street under the city's control.
Whether the contract between the city and the defendant imposed a duty on the defendant to warn of hazards not created by the defendant's construction work.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence clearly shows that defendant did not construct or maintain the dangerous condition which caused the accident.”

“Unquestionably, defendant had a duty to warn the traveling public of dangers, if any, which it created in the course of its work, but there was no duty to protect the public against obstructions placed in the street by the city.”

MUSSELL, J.

Plaintiff Rosemary Gravatt Gibbons appeals from a judgment of nonsuit in favor of defendant Herz Paving Company in an action for the wrongful death of plaintiff’s 20-year-old son, Charles Gravatt. The action was filed by the appellant and one Harry R. Berkheimer against the City of San Bernardino, its mayor, councilmen, and street superintendent, and Herz Paving Company, a copartnership. Prior to trial, a covenant not to sue was executed by - the city and each of the plaintiffs, pursuant to which the record indicates that the sum of $12,000 was paid by the city to plaintiffs. The city, its officers and plaintiff Berkheimer did not appear at the trial. The Herz Paving Company will be referred to as the defendant.

Charles Gravatt was fatally injured when his automobile, traveling west, struck a raised manhole on Highland Avenue, a public street in the city of San Bernardino. The accident occurred on September 10, 1948, at about 7:30 p.m. on a section of the avenue, between “I” Street and Mt. Vernon Avenue, upon which defendant had agreed to perform certain construction work under a contract with the .said city. Pursuant to the terms of the contract, defendant had removed the old curbs and gutters and had widened the avenue 4% feet on the north and south sides. This work had been completed prior to September 8, 1948, and no further construction work was done by the defendant until September 17th of that year. At the time of the accident there was a caution or warning sign at the east end of the construction zone and red warning lights were placed near it.

On or before September 10th the city of San Bernardino had raised the manhole involved so that its cover was approximately 4 inches higher than the surrounding surface of Highland Avenue. There is no evidence in the record indicating that the defendant participated in the raising of this manhole as a part of the work or that it was required to do so under the terms of the contract. A notation upon the plans “Raise manhole to grade (work to be done by the city)” clearly indicates that this work was not a part of the contract.

The contract contained provisions requiring the defendant to provide at least 26 feet of surfaced roadbed on Highland Avenue for use by the public at all times during the work,

[35]

Gibbons v. City of San Bernardino

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MUSSELL, J.

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