Heskel v San Diego (2014) H&FLR 2014-47

Menahem Heskel v City of San Diego (2014) H&FLR 2014-47

California Court of Appeal (Fourth Appellate District)

13 June 2014

Coram: Huffman APJ, McDonald and O’Rourke JJ

Appearing for the Plaintiff: Mr Michael Feldman (of Law Offices of Michael A Feldman)
Appearing for the Defendant: Messrs Jan Goldsmith and Andrew Jones and Mesdames Jennifer Gilman and Stacy Plotkin-Wolff (of the San Diego City Attorney’s Office)

Catchwords: California – San Diego – negligence – pedestrian – sidewalk – trip – fall – constructive notice

Facts: On the night of 29 September 2009 the plaintiff was walking on the sidewalk of Mission Gorge Road between Jackson Street and Echo Dell Road, San Diego. He tripped on the protruding base of a hollow metal post which was cemented into the sidewalk, causing him to fall and suffer injury. The base appears to have been a few inches tall, but the evidence adduced by the plaintiff was unclear as to how obvious it in fact was.

Section 835 of the Californian Government Code renders a public entity liable for injury caused by a dangerous condition of its property, subject to a plaintiff establishing (a) the dangerous condition of the property at the time of injury, (b) that the dangerous condition proximately caused the plaintiff’s injury, (c) that the dangerous condition created a reasonably foreseeable risk of injury of the kind which was sustained* and (d) the entity had constructive notice of the dangerous condition for a sufficient time prior to the accident to have addressed it. Constructive notice exists where the dangerous condition existed for so long and was so obvious that the entity should have identified it by (inter alia) an adequate inspection system.

The defendant sought and was grated summary judgment on the grounds that it lacked constructive notice: Heskel v City of San Diego (Superior Court of San Diego County, Taylor J, 21 November 2011, unreported). The plaintiff appealed.

Held: Dismissing the appeal, that –

1. A claim of constructive notice has two elements: the plaintiff must establish that the dangerous condition existed for a sufficient period of time, and that it was obvious. Here, the evidence was that the base had been present for up to two years, but did not make a prima facie showing that the condition was obvious. Accordingly summary judgment was properly given.

State v Superior Court (1968) 263 Cal.App.2d 396, followed.

2. The fact that the base was above ground and visible was not enough to require the defendant, in the exercise of reasonable care, to identify it. Semble, for a hazard to be identifiable in the exercise of reasonable care, it should be of a substantial size or visible from public thoroughfares**.

Judgment

The Court’s judgment is available here.

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* Cf Hughes v Lord Advocate [1963] AC 837, [1963] 2 WLR 779, [1963] 1 All ER 705, 1963 SC (HL) 31
** Cf Inquest into the Death of Stephen Clough (Coroners Court of Victoria, Coroner Olle, 4 March 2010, unreported)

 

 

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Custodi v Town of Amherst (2012) H&FLR 2014-18

Robin Custodi v Town of Amherst & Ors (2012) H&FLR 2014-18

New York Court of Appeals

30 October 2012

Coram: Lippman CJ, Ciparick, Read, Smith, Pigott, Jones and Graffeo JJ

Appearing for the Appellant: Joel B Schechter (of Bennett, Schechter, Arcuri & Will LLP)

Appearing for the Respondent: Robert J Maranto

Catchwords: New York – rollerblading – residential street – fall – assumption of risk – duty of care – athletic or recreational activities

Facts: In July 2007 Robin Custodi (respondent) was injured while rollerblading in a residential street when she hit a two inch height differential where the driveway belonging to one Muffoletto (appellant) met a drainage culvert, causing her to fall. 

The respondent commenced proceedings in negligence against the defendant.  The appellant sought summary judgment from the Supreme Court which was granted on the basis of the respondent’s voluntary assumption of risk*.  On appeal, the Appellate Division found that the doctrine of primary assumption of risk did not apply and that there was a triable issue of fact with regard to proximate cause**.  The appellants appealed to the Court of Appeals.

Held: Per curiam, dismissing the appeal –

1. The principle of “primary assumption of risk” means that a plaintiff who freely accepts a known risk commensurately negates any duty of a defendant to protect them from that risk.  This principle applies when a consenting participant in a relevant activity is aware of an understand the risks and voluntarily assumes them.  The risks must be known, apparent or reasonably foreseeable to the plaintiff.

Trupia v Lake George Central School District, 14 NY.3d 392 (2010), Bukowski v Clarkson University, 19 NY.3d 353 (2012) and Benitez v New York City Board of Education, 73 NY.2d 650 (1989), followed.

2. Where a plaintiff has made a primary assumption of risk, the defendant’s duty is to make the conditions as safe as they appear to be.

Turcotte v Fell, 68 NY.2d 432 (1986), followed.

3. A plaintiff does not assume risks which are concealed, unreasonable enhanced, or caused by reckless or intentional conduct of other people.

Morgan v State of New York, 90 NY.2d 471 (1997), followed

4. The principle of primary assumption of risk is in general limited to particular athletic and recreational activities on the grounds that while they involve increased risks, they have significant social value and it is appropriate to shield coparticipants, sponsors and venue providers from liability.  The appellants were not providers of a means of a means of athletic or recreational activities and so this case was not appropriate for the application of the principle.  Further, it would be an excessive expansion of the doctrine to treat sidewalk defects or dangerous premises as inherent risks assumed by joggers, runners, cyclists and rollerbladers.

Ashbourne v City of New York, 82 NY.3d 461 (2011), Cotty v Town of Southampton, 64 AD.3d 251 (2009), Trupia v Lake George Central School District, 14 NY.3d 392 (2010), Bukowski v Clarkson University, 19 NY.3d 353 (2012) and Benitez v New York City Board of Education, 73 NY.2d 650 (1989), considered.

Judgment

The Court’s judgment is available here.

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*   Custodi v Town of Amherst (Supreme Court of New York, Feroleto J, 24 February 2010, unreported).

**  Custodi v Town of Amherst, 81 AD.3d 1344 (2011)