Edler v. Sepulveda Park Apartments

This is a personal injury action brought by a boy who was about 3 years old at the time of the accident. A jury rendered a verdict for defendant which appeals from an order granting plaintiff a new trial upon the expressed ground of insufficiency of the evidence to sustain the verdict.

Upon motion for new trial it is the function of the trial judge to make an independent appraisal of the evidence, including all permissible inferences, and to exercise a sound judicial discretion in determining whether the verdict effects a miscarriage of justice, and a reviewing court cannot disturb the order unless an abuse of discretion clearly appears.

Defendant owned and operated a rental project of some 60 units which were laid out in courts, each building having front and back yards. Plaintiff’s parents were tenants in one of the apartments. The yards were equipped with sprinkler systems, the sprinkler heads being approximately flush with the lawn and scattered at intervals throughout the grass. This was true of the lawn in front of each of the apartments. These lawns were 50 by 100 to 125 feet in dimensions and were separated by ordinary cement walks. The accident happened on February 24, 1953. On that morning plaintiff’s grandfather, Warren Lincoln, and a neighbor, Mrs. Kryske, saw defendant’s gardeners cutting the grass and earth from around the sprinkler heads in front of the Edler residence. They made a hole around each, which was about 6 inches in diameter and 3 inches in depth. This hole extended beyond the sprinkler head to a width of about 2 inches. Though it was customary for a workman to follow with a wheelbarrow of sand the one who reamed out the hole and to fill the hole with sand, it is a fair inference that that did not happen with respect to the hole involved in the accident. When Mr. Lincoln and Mrs. Kryske looked at it after that occurrence it was still 6 inches in diameter and 3 inches in depth. The practice of filling the holes, as explained by Joe Mesa, defendant’s head gardener, was an

In the afternoon of February 24th plaintiff’s grandparents took him to market. Upon their return they were busy unloading the automobile when the grandmother heard plaintiff scream. She started toward him and her husband then heard and saw the plaintiff. He was lying on his back with his feet close to the sprinkler head, not quite touching it, and no one was near him. He had received a spiral fracture of the femur described by the specialist as a twisting injury from a fall with the leg in a twisted position. Appellant argues that the evidence does not warrant a finding of negligence or, assuming negligence, that it was the proximate cause of plaintiff’s injury.

As to negligence, the above recital of facts shows inferentially a failure to fill the hole around the particular sprinkler head, a precaution that was considered to be necessary to the safety of children. Moreover, these were Moody sprinklers. Mr. Wallace F. Hammer, who specializes in the installation of that particular type of sprinkler, testified that if the sprinkler head for any reason becomes lower than the lawn the remedy is to install a longer nipple and thus raise it as desired. Also, that a hole dug around the head fills with water and if the head is flush with the earth there is no purpose in making a hole around it. A1 Jennings, gardener for the City of Santa Monica for over 12 years, testified to long familiarity with Moody sprinklers and further said he had not found it necessary in those years of experience to cut holes around the Moody heads and that he had never done so. It appears therefore that an inference of negligence could be drawn from the making of the holes around the sprinkler heads in an area frequented by young children with the knowledge and consent of defendant. Also from the fact that the particular hole had not been filled in the manner required by ordinary care.

Appellant argues further that only through speculation and conjecture can the conclusion be reached that the injury was proximately caused by the sprinkler head or the hole around it. This was a small child, 3 years old, with a small foot which would easily go into the hole and cause a twist

Appellant’s counsel also argue that there can be no recovery because defendant owed no duty to exercise care toward plaintiff with respect to the sprinklers. This brings forth an argument by counsel for both sides as to what plaintiff’s status was,—whether a tenant, invitee, licensee or trespasser. The argument is misplaced. If it were found that plaintiff, a small infant, was a mere trespasser in a place belonging to defendant in which his presence was normally to be expected by defendant, then it owed him a duty of reasonable care.

In Kading v. Willis, 135 Cal.App.2d 82 [ 286 P.2d 861 ], which involved an injury to a 5%-year-old boy when upon or near a delivery truck, it was held reversible error to instruct the jury: “ ‘If plaintiff had gotten upon the truck of the defendant without being expressly or impliedly invited so to do, and defendant’s driver was unaware of his presence, then plaintiff was a trespasser and defendant owed no duty to plaintiff except to refrain from intentional harm or from willful reckless or wanton injury. There is no liability for mere failure to exercise ordinary care under such circumstances. . . .’ ” (P. 92.)

Copfer v. Golden, 135 Cal.App.2d 623 , 627 [ 288 P.2d 90 ] : “Thus one is negligent in maintaining an agency which he knows or reasonably should know to be dangerous to children of tender years at a place where he knows or reasonably should know such children are likely to resort or to which they are likely to be attracted by the agency unless he exercises reasonable care to guard them against danger which

The order granting a new trial is affirmed.

Moore, P. J., and Pox, J., concurred.