Kempen v. Hayward Area Park, Recreation & Park District

Opinion

KANE, J.

Plaintiffs Isaac Van Kempen, a minor, by Arnold C. A. Van Kempen, his guardian ad litem, and Arnold C. A. Van Kempen appeal from a judgment entered on a jury verdict in favor of respondent Hayward Area Park, Recreation and Park District.

The accident giving rise to this case took place in the Palma Ceia Park, maintained by respondent, in the City of Hayward, California, on April 25, 1965. At the time of the accident there was a construction project in

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progress in the park under the supervision of one Walter Silva, an employee of respondent. For the use of the workmen on the construction site a work bench was made by one Osmund Mikesell, another employee of respondent. The bench was left on the construction site each night for the members of an informal citizens group for night work.

Despite its weight—approximately 250-300 pounds—the bench was removed from its normal place by unknown persons and was used by children as a runway between the roof of a clubhouse and the roof of a storage building. In order to prevent such misuse, the bench was then secured to a chain link fence by a chain and padlock. Prior to- the accident, however, the bench was again broken away, and was seen prior to- and on the day of the accident as standing on end leaning against a wall. Isaac and his three brothers were playing in the vicinity of the bench when it fell, inflicting serious injuries upon Isaac’s leg. There was no evidence as to what caused the bench to- fall.

Appellants contend that the trial court erred in (1) refusing to- instruct the jury on the common law “attractive nuisance” theory of negligence (Rest., Torts, § 339) and (2) instruction on contributory negligence.

While there is merit as to point (2), it is totally meaningless in view of our determination that respondent’s motion for nonsuit should have been granted.

Theory of the Case

A simple reading of appellants’ complaint leaves no doubt that the basis of alleged liability was claimed maintenance of a dangerous condition of public property. The very same theory as a basis for recovery was reiterated by appellants’ counsel who stated in his argument to- the jury that “this accident shouldn’t have happened except for a dangerous condition existing on public property.” At the same time, the record is devoid o-f any indication that appellants even sought to introduce a new theory of recovery during the trial or moved the court to amend their complaint to conform to proof of any different theory.