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Higgs, Fletcher & Mack, San Diego, and Hill & Hill, Eureka, for appellants.
Harold L. Hammond, Falk & Falk, and Mitchell & Henderson, Eureka, for respondents.
VAN DYKE, Presiding Justice.
This is an appeal from a judgment entered upon a jury's verdict in favor of all the defendants in an action to recover damages for personal injuries sustained by the minor appellant Ralph Litzmann and medical expenses incurred on his behalf by his mother and guardian ad litem, appellant Jacquie Litzmann.
The accident which gave rise to this litigation occurred on the Humboldt County Fair Grounds in the City of Ferndale on the afternoon of August 14, 1949, when the appellant minor, who was then nine years of age, ignited what he testified he thought was a 'flare' that he found on the grounds. There was an immediate explosion which severely burned and injured appellant minor and so badly mangled his left hand that it had to be amputated. This action for damages was brought against the seven named respondents upon the theory that the object found by the minor was an undischarged aerial bomb which one or more of the respondents had negligently permitted to remain there. The answers of respondents denied negligence and alleged contributory negligence. Upon the issues so framed a trial by jury was had and verdicts adverse to appellants were returned. Motions for new trial were denied.
Appellants assign as error the trial court's refusal to give certain requested instructions. They maintain that the following evidence entitled them to the benefit of the doctrine of res ipsa loquitur and also to have the case submitted to the jury upon theories of alternate and absolute liability. To determine the merit of these contentions we must review the factual situation.
Appellant minor was injured on the last day of the 1949 Humboldt County Fair which had been in progress since August 10th. It is not disputed that the respondent Humboldt County Fair Association acted as the agent of the respondent Humboldt County in conducting the fair on the latter's property, and that the respondent Dr. Hindley was the secretary-manager of the Humboldt County Fair Association and as such was charged with the management of the grounds and broadly with selection of entertainment events and supervision thereover. Dr. Hindley contracted with the respondent Golden State Fireworks Manufacturing Company (hereinafter called 'Golden State') to stage the fireworks display which was given on the evening of August 12th. He also engaged the respondent Monte Brooks, doing business as Monte Brooks Attractions (hereinafter called 'Brooks') to furnish the daily afternoon and evening entertainment. Brooks in turn contracted with the minor appellant's mother and stepfather to perform an acrobatic act as a part of the two daily performances and it was for this purpose that they were on the fair grounds on the afternoon in question. As was customary, the minor appellant accompanied them. It was while assisting his stepfather in carrying part of their equipment from near a dressing room to their car that the minor saw and later picked up the object which exploded and injured him. The explosion, however, occurred when, having examined the object and noted an opening in it, the minor secured a match from the family car, lit it and inserted it into the opening. It was undisputed that Brooks brought a supply of so-called aerial bombs to the fair grounds which he kept in one of the dressing rooms, and that on each night of the fair, in order to signal the
Page 85commencement of the evening show, he caused his employee, one Melvin Wolf, to discharge one of the bombs in the air. It was undisputed that Golden State also brought to the grounds similar bombs and other supplies for a fireworks display and that while putting on the display three of these bombs were discharged. There was no evidence that there was any other similar bombs brought to the grounds by anyone but Golden State and Brooks. Although the minor's description of the object which injured him did not exactly tally with the description of the aerial bombs which Golden State and Brooks brought to the fair grounds, yet the jury could have concluded that the object which injured the minor was such an aerial bomb. Golden State and Brooks, each admitting that it brought a supply of such bombs to the fair grounds, produced testimony as to the exact number of bombs brought in, the exact number fired and the exact number taken away, so that, if believed by the jury, the proof was adequate that neither of them brought to and left upon the fair grounds the object which injured the minor. It further stands undisputed that there was no connection whatever between the activities of Golden State and those of Brooks. They were completely independent of each other, brought bombs to the fair grounds separately and used them for different purposes. One bomb only caused injury to the minor and so, as a matter of law, it must be said that both could not have been responsibly negligent in respect of the appellant's injuries and that if liability should be fastened upon both the result would be that the innocent would be held for the fault of the guilt. Say the appellants in their brief: 'In the present case appellants admit that one of the two defendants who previously had exploded fireworks probably is blameless. It could not be otherwise. Only one bomb blew off Ralph Litzmann's left hand. That bomb belonged to one or the other of the defendants, Golden State or Brooks. It did not belong to both.' We think there is no mere 'probability' about the blamelessness of one or the other of said two defendants and that the situation is as we have above stated it, that is, if one is found guilty, that finding, under the evidence in this case, exonerates the other.
Appellants requested the trial court to give an instruction based upon the doctrine of res ipsa loquitur and substantially taken from B.A.J.I. 206, 206-B, 206-C and 206-D. We have concluded that an instruction upon the doctrine ought to have been given. Using the yardstick furnished by Ybarra v. Spangard, 25 Cal.2d 486, 489, 154 P.2d 687, we think it is apparent from the evidence: 1. That there was evidence sufficient to establish the accident was one which ordinarily does not occur in the absence of someone's negligence; 2. That it was caused by an agency or instrumentality within the exclusive control of one of the two defendants, Golden State or Brooks; and, 3. That it could be found from the evidence it was not due to any legally material voluntary action or contribution on the part of appellant minor. Although there were two defendants, of whom it must be said if one was negligent, the other was not, yet the doctrine was applicable on the authority of Zentz v. Coca Cola Bottling Company, 39 Cal.2d 436, 445, 247 P.2d 344, even though appellants were unable to point out from the evidence which of the two was responsible for their injuries. See also Cavero v. Franklin etc. Benevolent Society, 36 Cal.2d 301, 311, 223 P.2d 471; and Raber v. Tumin, 36 Cal.2d 654, 660, 226 P.2d 574, 577, wherein the court said: 'The fact that plaintiff is by the very circumstances under which he was injured unable to specifically identify, as between master and servant, the actively negligent person does not deprive him of the aid of the doctrine of res ipsa loquitur.'
Appellants contend that their requested instruction concerning alternate liability should have been given. This instruction which the court refused read as follows:
'If you should find that the negligence of one or more, but less than all, of the defendants [naming all defendants],
Page 86was the proximate cause of injury to plaintiff, Ralph J. Litzmann, and if you should find that said plaintiff was not guilty of contributory negligence, and if the evidence shows by the greater weight of probability that as to any one or more of such defendants above named, who are not charged absolutely with negligence in this case, that a reasonable uncertainty exists in respect to his, its or their alternative liability, and if you find that negligence has been proved against some one of such defendants, without identifying which one, you shall hold all of said defendants liable for such injuries unless the evidence shows by the greater weight of probability that the conduct of any one of said defendants, whom you can identify, was not approximate cause of the injury; and in such case you shall find such defendant not liable and the others liable.
'In further explanation of this instruction: The plaintiff in this kind of case is required to show prima facie proof that he suffered loss which reasonably may be charged to one or the other of the defendants, arising apparently either from the fault of one or the other. The defendants are then called upon to exhibit their conduct and thus fix the liability as between themselves. In order for this rule to apply there must be established facts from which, in the absence of an explanation, liability properly could be inferred as against any defendant, but such liability need not be definitely fastened by plaintiff on any one precise defendant. In brief: When plaintiff, who is not guilty of contributory negligence, has proved facts from which it reasonably would be inferred that one or another of several defendants was negligent, and that such negligence was the proximate cause of plaintiff's injuries, then each and all of such defendants is and are liable to plaintiff except as each can establish that he was not negligent by evidence which shows the greater weight of probability.'
Arguing that this instruction stated the law and ought to have been given, appellants say that they proved by more evidence than the minimum required by law that the bomb that mained Ralph Litzmann was made accessible to him by the negligence of either the defendant Golden State or the defendant Brooks; they say they have not proved and could not prove that the negligence existed only on the part of one of said two defendants; they say that under the circumstances of this case their burden of proof went no further than that of proving that one or the other of the two last-named defendants was negligent and they did not have to prove that a specified one of said defendants was negligent in order to be entitled to a verdict of the jury. They point to the instructions given which repeatedly told the jury that no defendant could be held responsible unless plaintiffs proved by a preponderance of evidence that that particular defendant was negligent and that such negligence was the proximate cause of the minor's injuries; they say such instructions placed upon them a prejudicial burden which the law did not require them to bear. Specifically, they refer to given instructions such as this: 'If it is just as probable that (a) * * * defendant was not negligent * * * then a case against the defendant has not been established.'
It is, of course, a general rule, which has its exceptions, that there is no liability without fault and that before a plaintiff in a negligence action can recover he must prove by a preponderance of evidence that the one from whom he seeks recovery has been guilty of actionable negligence toward him. But appellants say that under the circumstances of this case they were entitled to recover from both Golden State and Brooks if there was evidence sufficient to prove 'only that one or the other' was negligent. Appellants refer to Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1, 3, 5 A.L.R.2d 91, in support of the position which they take herein. In that case one of two hunters fired toward plaintiff and two pellets of shot struck him. They might have come both from the gun
Page 87of one hunter or one from the gun of each. The trial court found that both defendants were negligent and that as a direct and proximate result of the shots fired by them a bird shot pellet was caused to and did lodge in plaintiff's right eye and another bird shot pellet was caused to and did lodge in plaintiff's upper lip.' Interpreting these findings the Supreme Court said: 'Implicit in such finding is the assumption that the court was unable to ascertain whether the shots were from the gun of one defendant or the other or one shot from each of them.' By the finding, said the court, the trial court determined that the negligence of both defendants was the legal cause of the injury--or that both were responsible. Yet it was obvious in that case that if the pellets came from the gun of one appellant only, holding the other was to punish the innocent for the wrong done by the guilty. After discussing the principles involved, the Supreme Court closed by saying: 'We have seen that for the reasons of policy discussed herein, the case is based upon the legal proposition that, under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently.' We are unable to distinguish Summers v. Tice from the case on appeal. Obviously the doctrine of res ipsa loquitur was applicable in that case to each defendant and it followed that the plaintiff had made out a prima facie case against each. This was no less true in the situation where the plaintiff had sued the two together than it would have been had he sued them separately. It was of course the duty of the trier of fact in that situation to determine from all the evidence, if that could be done, which of the two was in fact guilty of actionable negligence toward the plaintiff. The same thing was true in the case before us and the jury were instructed that if that could be done they were to fix the liability in accordance. In the Tice case, however, the situation also encompassed a possibility that the trier of fact would be unable to determine that proof of fault preponderated in favor of or against either of the two defendants. That same situation conceivably could have confronted the triers of fact in this case. And if it could be said in Summers v. Tice that concert of action was not necessary to holding two where only one was at fault and that such could be done even though the two acted independently, then we think it must be said in this case that if the triers of fact were unable to ascertain which of the two involved was guilty of the actionable negligence which injured the appellants, they should have been told that then in that situation they could hold and should hold both defendants. If we have correctly analyzed Summers v. Tice then we need not discuss the logic upon which it is based, for we are bound by it. Under the instructions given the jury, if they were unable from the evidence to determine which of the two respondents, Golden State or Brooks, was actionably negligent toward the minor, they were compelled to exonerate both. In short, they were told that in that event the appellants had failed to prove a case. We hold that under Summers v. Tice they should have been told that in that event they could render a verdict against both. This was done by the trial court in Ybarra v. Spangard, supra.
Appellants contend that the same result of alternate liability under the same conditions results independently of case law from the provisions of Section 379c of the Code of Civil Procedure which provides that: 'Where the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants, with the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined between the parties.' We think it unnecessary, in view of what we have said, to decide whether or not this legislative provision sets up the same conditions for alternative liability as does the case law which we have held entitled the appellants to the requested instruction upon that subject, since, when the case is retried, the instruction will be given and it matters not from what legal source flows the right to it.
Appellants asked the court to instruct the jury on the rule of absolute
Page 88liability of one engaged in ultrahazardous activities. For the refusal to give such instruction they assign error. The instruction requested was taken from B.A.J.I., 1950 Supp., 223-223-D. 'It appears to be settled that the question of whether the case is a proper one for imposing absolute or strict liability is one of law for the court.' Luthringer v. Moore, 31 Cal.2d 489, 496, 190 P.2d 1, 5. From the evidence in this case we think it apparent that the activities in which Golden State and Brooks were engaged, that is, the handling and discharge of fireworks at the Humboldt County Fair Grounds, were not such as to come within the definition of ultrahazardous activities. In Luthringer v. Moore, supra, the Supreme Court stated the rules for determining the ultrahazardous nature of an activity. Quoting from Restatement, Torts, Sections 519-524, the court said: "An activity is ultra-hazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care". The risks involved here were: 1. The risk that members of the public might be injured while the actors were discharging fireworks, or, 2. The risk that members of the public might be injured by failure of the actors to keep live fireworks inaccessible. The testimony was generally to the effect that these risks could be eliminated by a degree of care far within the bounds of 'utmost care'. It goes without saying that ordinary care could and would prevent the leaving of such matter upon the fair grounds through failure of proper custodial care. The testimony showed also that by the method of firing adopted it was a reasonably easy matter to direct the firing so that injury would not arise through misdirection of the missiles; and that observation by those skilled enough to be licensed to explode fireworks was adequate to detect the lack of explosion of the material shot into the air. It appears, therefore, that the activities engaged in and charged to be ultrahazardous were in fact risks which could be and would be eliminated if commensurate care had been exercised. It was the failure of care that caused the injuries and not the nature of the risks involved. Under such circumstances the court was justified in refusing to instruct upon the doctrine of absolute liability.
Respondents Humboldt County Fair Association and Dr. Hindley urge that their motions for a nonsuit should have been granted. They contend no cause of action against them was established because it was neither alleged nor proved that appellants had served a notice of claim upon them as required by the provisions of Section 1981 of the Government Code. Although the complaint alleged that a duly verified claim was filed with the clerk of the respondent county within the time required by law, it is silent as to service thereof on these respondents. It is true that it was incumbent upon appellants to both allege and prove that respondents Humboldt County Fair Association and Dr. Hindley were duly served with a copy of said notice of claim as it was alleged that at all times involved they were acting within the course and scope of their employment with the respondent county. Veriddo v. Renaud, 35 Cal.2d 263, 217 P.2d 647. However, no issue was raised as to such service and it does not appear from the record whether or not appellants could allege and prove compliance with the statutory requirement in this respect. The issue should have been tendered by demurrer or answer, or advanced as a ground for the motions for new trial. Since it does not appear that the objection could not be met, the judgments cannot be affirmed for this defect. Ransome-Crummey Co. v. Bennett, 177 Cal. 560, 564-565, 171 P. 304.
Because this case must be remanded for a new trial, it should be observed that after the trial herein the Supreme Court held that the exhibition of fireworks by the State or one of its political subdivisions is not a governmental activity to which sovereign immunity extends. Guidi v. State of California, 41 Cal.2d 623, 262 P. 3. Therefore, upon a new trial the jury should not be instructed, as was done at this trial, that the only cause of action which would lie against the respondent
Page 89county is under the statute commonly known as the Public Liability Act and that said respondent County can only be liable thereunder for failure to repair within a reasonable time a defective or dangerous condition of the property of which it had actual or constructive knowledge.
The judgments appealed from are reversed.
PEEK and SCHOTTKY, JJ., concur.
* Dismissed Nov. 16, 1954.
May 21, 2013
273 P2d 82
District Court of Appeal, Third District, California
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