Edwards v. City of San Diego

California Court of Appeal Sep 14, 1932 No. Docket No. 925.Published

Before: Barnard

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Holding. The court held that constructive notice of a dangerous condition in a public park is sufficient to establish municipal liability under the 1923 statute, and that the evidence presented was sufficient to support the jury's finding of such notice.

Issues

Whether constructive notice of a dangerous condition is sufficient to establish municipal liability under the 1923 statute.
Whether the evidence was sufficient to support the jury's finding that the city had constructive notice of the tree's dangerous condition.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It has now been settled that constructive notice in such a case is sufficient and that this may be established by showing long continued neglect of conditions that should have been known and seen.”

“The usual rule is that where there is any substantial evidence of a state of facts or circumstances which should impute notice, the question as to whether such facts are sufficient to constitute notice to a party is one of fact for the jury.”

BARNARD, P. J.

On July 28, 1930, while standing in what is known as the “Plaza” in the city of San Diego, Dorothy Edwards, a girl of nineteen, was struck and killed by the falling top of a palm tree. This is an action for damages brought by her parents under the provisions of the statute adopted in 1923 (Stats. 1923, p. 675). The Plaza is a small public park in the heart of the business section of San Diego. Around this park and just within the sidewalk lines there is a row of cocos plumosa palms, the trees being approximately 35 or 40 feet in height. The park is much used by the general public, including some 3,500 to 5,000 people who daily wait there for street-cars. On the day named, Dorothy Edwards was standing in the park awaiting a street-car. Without sound or other warning the top of one of these palm trees, weighing from 350 to 400 pounds, suddenly fell, striking the girl and causing injuries from which she died. There is evidence that the day was calm and clear with only a slight breeze blowing. While the head of the tree which fell was green and to all appearances like the other trees growing near by, it appears that the trunk of the tree was affected with dry rot and badly decayed. The break occurred about one and a half or two feet below the point where the fronds of the palm branched out and some 25 or 30 feet above the ground. At the point of the break the tree had a diameter of about ten inches but that portion of the trunk inside the bark was decayed to within a couple of inches of the center, leaving only a central heart through the tree about two inches in diameter which was not decayed.

A verdict for $20,000 was returned by a jury, which was later reduced by the court to $12,000 in connection with a motion for a new trial. Prom the judgment which followed, this appeal is taken.

[3]

The first point raised is that actual knowledge of the condition of the tree was not brought home to the appellant and that constructive notice thereof is not sufficient under the statute. It has now been settled that constructive notice in such a case is sufficient and that this may be established by showing long continued neglect of conditions that should have been known and seen.

(Boyce

San Diego High School Dist.,

Edwards v. City of San Diego

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BARNARD, P. J.

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