Ackers v. City of Los Angeles

WOOD, Acting P. J.

Plaintiff seeks by this action to recover a judgment against the City of Los Angeles for injuries which she suffered when she fell upon a defective sidewalk. The demurrer of defendant city to the second amended complaint was sustained without leave to amend and the appeal is taken from the resulting judgment.

The question presented for determination is whether paragraph IV of the second amended complaint sets forth facts sufficient to attach liability to the city. The allegations in this paragraph are as follows: ‘ ‘ That for a long time prior to the 26th day of November, 1938, a portion of the sidewalk in front of the Canyon Drive Super Station located on the westerly side of Canyon Drive near its intersection with Hollywood Boulevard was insufficient and defective and in need of repairs in this: That the concrete upon said sidewalk was old, decayed and broken with holes and openings in and through the same, and on the 26th day of November, 1938 and for a long time prior thereto there was a dangerous depression in said concrete which was about 12 inches long, about 3 inches wide and about 2 inches deep; that no barrier or guard had been or was placed around said hole and by reason of the aforesaid condition of the sidewalk it was unsafe and dangerous to walk upon; that said condition had existed for a period of over one year prior to the 26th day of November, 1938, and during that time said hole had been by the defendants carelessly and negligently and with knowledge thereof permitted and suffered to be and remain in that condition. A photograph of which defective portion of sidewalk is hereto attached, marked ‘Exhibit A’, and made a part hereof. ’ ’

Plaintiff’s action is predicated upon the Public Liability Act of 1923, which provides that cities shall be liable for injuries to persons resulting from the dangerous or defective condition of public streets and highways in all cases in which the governing board or persons in "authority had knowledge or notice of the defective or dangerous condition and failed or neglected for a reasonable time after acquiring such knowl

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edge or notice to remedy such condition. Many decisions have been rendered by the reviewing courts of California in actions predicated upon this act. From these decisions it is established that no hard and fast rule can be laid down in such cases as to the character or extent of the defect in the sidewalk or street but each case must stand upon its own particular facts; that as a general rule it is a question for the jurjl to determine whether a defect in the sidewalk or street is of such a nature as to render the city liable.