Albaeck v. County of Santa Barbara

MOORE, P. J.

Appeal from judgment after demurrer to the complaint had been sustained and no amended pleading filed.

The complaint alleges that defendant maintained the “Carpinteria Dump” on a public ocean beach where the residents of the county were allowed to dump their garbage and rubbish on payment of a fee and wheré children frequently played and which was made especially attractive to children by the large number of sea gulls which congregate there by reason of the garbage dumped thereon; the attraction to the children caused by the sea gulls was known to defendant or should have been in the exercise of ordinary care; the burning of large quantities of combustible materials on the dump was so negligently conducted that live coals were covered with sand, dirt and ashes creating a concealed danger to persons who might walk on the dump, and causing a visual appearance of a public open beach, with no visible line of demarcation between the dump and the ocean beach; no walls, fences or other barriers, no signs or warning devices were maintained to warn children not to enter or cross the dump; the maintenance of such dump under the conditions described constituted a public and attractive nuisance.

[338]

That on September 8, 1951, plaintiff was 11 years of age; while playing with other children on the public ocean beach and trying to catch sea gulls then present in such numbers as would and did attract him, appellant walked upon said dump in pursuit of the sea gulls; his body suddenly sank through the sand, dirt and ashes and came in contact with the live coals then beneath the surface, causing serious and permanent injuries to plaintiff to his damage in the sum of $50,000. That on May 26, 1952 (8% months after the accident), plaintiff filed his claim with the board of supervisors for damages “in accordance with the provisions of Section of the of the State of California. ’ ■ Such claim was rejected on July 8, 1952. This action was filed September 8, 1952.

No essential allegation to a valid cause of action appears to have been omitted from the pleading except a declaration of the filing of the claim with the clerk of the board of supervisors within 90 days after the claimant had “been injured as a result of the dangerous or defective condition of public property” requirement of Government Code section 53052, whereas sections 29702 et seq. of the same code allow the claimant one year “after the last item accrued.”