Suess v. Westwood

FILES, P. J. Plaintiffs brought an action for the wrongful death of their minor son. Judge Lucas sustained defendants’ general demurrer to the second amended complaint with leave to amend, and when plaintiffs offered no amendment, Judge Allen signed an order dismissing the action. Plaintiffs appeal from that order.

The facts alleged in the second amended complaint are as [850]follows: On June 19, 1963, defendants had parked their Oldsmobile automobile in a trailer park in Sun Valley. Prior to this time defendants had installed on the vehicle a radio antenna which extended beyond the rear bumper of the automobile at approximately eye level. The car was parked in such a position that the antenna extended into an area of the trailer park ordinarily used by pedestrians. The antenna was dull in texture and difficult to see under the lighting conditions existing at the time of the accident. At about 9 p.m. plaintiffs’ 15-year-old son, who resided on the premises, was playing when he collided with the radio antenna, sustaining injuries which resulted in his death.

In Mosley v. Arden Farms Co., 26 Cal.2d 213, 216-217 [157 P.2d 372,158 A.L.R 872], the court said:

“It is well settled that one test for determining the issue of negligence is whether a person of ordinary prudence should have foreseen or anticipated that someone might be injured by his action or nonaction. (19 Cal.Jur. 583, 563-4; 1 Shearman & Redfield on Negligence, § 24.) Or as stated in different terms: ‘Negligent conduct may be either: (a) an act which the actor as a reasonable man should realize as involving an unreasonable risk of causing an invasion of an interest of another; or, (b) a failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to do.’ (Rest., Torts, § 284.) . . . The actor is bound to know ‘the qualities and habits of human beings and animals and the qualities, characteristics and capacities of things and forces in so far as they are matters of common knowledge at the time and in the community.’ (Rest., Torts, § 290.)

“Whether or not the test has been met is generally one of fact for the trier of fact. ”

Considering the circumstances alleged in this complaint, the trier of the facts may reasonably conclude that a person of ordinary prudence should have forseen that parking that vehicle in that place at that time would subject persons, such as the plaintiffs’ son, to an unreasonable risk of bodily harm. Proof of such conduct will support a judgment against the defendants.