Erde v. City of Los Angeles

California Court of Appeal Mar 6, 1953 No. Civ. 19238Published

Before: White

AI Brief

AI-generated · verify before citing

Holding. The court held that a complaint should not be dismissed on demurrer based on an affirmative defense of assumption of risk derived from a pre-litigation claim, as the elements of that defense present factual issues for trial.

Issues

Whether a pre-litigation claim incorporated into a complaint can establish the affirmative defense of assumption of risk as a matter of law on demurrer.
Whether the issues of actual knowledge of danger and voluntary exposure to risk are questions of fact for trial rather than matters for determination on demurrer.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“We hold, therefore, that whether plaintiff had actual knowledge of the hazard, whether he voluntarily exposed himself to the risk, or whether he was guilty of contributory negligence, in the circumstances, are issues to be determined from the evidence”

“We cannot infer voluntary exposure to risk from the fact of injury.”

WHITE, P. J.

Plaintiff and appellant seeks reversal of a judgment entered upon the sustaining of a general demurrer to his complaint without leave to amend.

By his complaint plaintiff sought to recover damages for injuries alleged to have been sustained when he was struck by a falling “light standard.” The injuries, it was alleged, were caused by the negligence of the defendants in knowingly permitting a defective light standard to remain unrepaired and failing to place warnings to persons in its vicinity. In its general demurrer the Department of Water and Power of the City of Los Angeles contended that the complaint did not state facts constituting a cause of action, in that it alleged that plaintiff, “with knowledge of the alleged dangerous condition of public property and of its alleged potentiality to

[567]

canse harm, voluntarily assumed the risk, as a matter of law.” This contention is based upon the fact that attached to the complaint was a copy of a “Claim for Damage” filed with the city of Los Angeles prior to the commencement of the action, and with reference to which it is alleged in the complaint “that a true copy of said Claim for Damage is attached hereto and identified as ‘ Exhibit A’ and is hereby incorporated by reference so as to be made a part of this complaint just as if set forth in full hereat.”

The claim filed by plaintiff contained the following language pertinent to the question here under consideration:

“What particular act or omission do you claim caused the injury or damage? When reporting for work Wednesday A. M., we notice that shade was broken and in a position likely to fall. We reported this fact to traffic officer and also called the Light & Power Co. Also Light & Power truck arrived to put in line and we asked him to fix but he stated that he was unable to do so.”

It is the position of respondent that the quoted language of the claim shows that plaintiff-appellant was aware of the dangerous condition of the light standard, but voluntarily chose to expose himself to the risk of remaining in its vicinity; that the allegations of the claim having been incorporated by reference in the complaint and “made a part” thereof, the complaint upon its face discloses all the elements of the affirmative defense of assumption" of risk.

Erde v. City of Los Angeles

AI Brief

WHITE, P. J.

More from California Court of Appeal

Related research

AI Brief