Smith v. City of San Jose

California Court of Appeal Dec 7, 1965 No. Civ. 22467Published

Before: Devine

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Holding. The court held that the city was not liable for injuries sustained by a visitor on its premises because the stairway design was not negligently maintained as a matter of law and the city had no duty to supervise children absent evidence of prior notice of dangerous conduct.

Issues

Whether the absence of a middle handrail on a six-foot-wide stairway constitutes negligent maintenance of property.
Whether a property owner has a duty to supervise children on its premises absent evidence of prior dangerous conduct or notice of peril.

Disposition. affirmed

Quotations verified verbatim against the opinion

“we hold that as a matter of law it is quite unnecessary to have such a rail on an ordinary staircase 6 feet wide in order to avoid a charge of negligence.”

“To say that such an accident could happen is to state a mere possibility which is common to a multitude of situations. Eventuality alone does not create duty.”

“To impose a duty of supervision of stairways merely because of the presence of children, without more, would place an unreasonable burden on proprietors.”

DEVINE, J.

Summary judgment was granted to respondent, defendant in an action for personal injuries. Appellant was run into from behind by a running seven-year-old girl while she was descending a backstage stairway in the San Jose Municipal Auditorium. The auditorium was owned by the city, but was being used by a light opera association for rehearsal of a play. The association paid no rent. (The association and the girl, Karen Kersey, were made defendants but are not parties to this appeal.) Appellant had brought her two children to the rehearsal, and was descending the stairs with them. She saw no one else on the stairway. About halfway down, the child ran into her.

[601]

Condition of the Property

Appellant’s first contention is that the property was negligently maintained. As to the condition of the property, exclusive of handrails, appellant admits in her deposition that the stairway was adequately lighted, that there was no unevenness of the surface, and that there was no slippery substance on the steps. Appellant argues that the statements made by plaintiff in her deposition could only be used at trial for impeachment; but this is not correct. Admissions against interest may be incorporated by reference in a motion for summary judgment.

(Newport

City of Los Angeles,

184 Cal.App.2d 229, 235, 236 [7 Cal.Rptr. 597].)

But appellant contends that although the stairway was but 6 feet wide, and had a handrail on each side, to one of which she was holding, there should have been a third, a middle, handrail and that had there been, she would not have fallen. We reject this proposition. To have a middle handrail on so narrow a stairway might actually be dangerous at a time when rapidity of exit were demanded; but, anyway, we hold that as a matter of law it is quite unnecessary to have such a rail on an ordinary staircase 6 feet wide in order to avoid a charge of negligence. (See

Darrach

Trustees of San Francisco County Medical Assn.,

Smith v. City of San Jose

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DEVINE, J.

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