Monsch v. Pellissier

In Monsch v. Pellissier (1922) 187 Cal. 790, the plaintiff appealed from a judgment of dismissal based on an order sustaining a demurrer without leave to amend. The complaint had alleged the following facts. The defendant owned real property in Los Angeles that abutted a public sidewalk and included an area, described as a vault, under the public sidewalk. The defendant maintained light-wells, consisting of iron grating and inlaid glass, in the public sidewalk over the vault for the defendant's sole and exclusive use to supply light to the vault and to the basement of a building that stood on the defendant's property. Plaintiff maintained the light-wells in a negligent and dangerous condition in that there were holes in the surface as a result of broken out or chipped glass, and boards had replaced some of the glass. The defendant knew or should have known of the condition of the light-wells. Plaintiff stepped into a hole in one of the light-wells while walking over them, causing her to fall and sustain various injuries. The court reversed the judgment, stating in part: "In the instant case the grating and glass became part of the surface of the sidewalk over which pedestrians could walk, but it performed an additional and distinct office, namely, the passage of light to the basement of the defendant's building, in which use it was, as such, no part of the sidewalk. The fact that what may be termed its secondary use was to provide light, as stated (the same being for defendant's sole benefit), should not relieve her from keeping the light-well in safe repair, even though the primary use of the sidewalk is for the public to walk over, and is, in such use, under the supervision of the city." (Monsch, supra, 187 Cal. at p. 792.) The court distinguished the case of Martinovich v. Wooley (1900) 128 Cal. 141, 60 P. 760 wherein "the injury was due to a 'decayed and rotten' plank in the sidewalk, which was essentially a component part and portion of the structure and placed therein solely and entirely for the use of the public, and not, as here, for the special accommodation of the owner and his property." (Monsch, at p. 792.) The court quoted with approval the holding in a New York case with similar facts: "'It grating was built for his defendant's accommodation and was a benefit to his property only, and the law placed upon him the obligation of using due care to keep it in a suitable and safe condition for the public to walk over as a part of the sidewalk. Proper construction, in the first place, was not enough to relieve him from liability; but the duty of inspection and repair continued while he owned and was in the exclusive possession of the premises. The duty ran with the land as long as the grate was maintained for the benefit of the land. . . . The duty sprang from the necessity of having safe sidewalks and, as the necessity is continuous, so is the duty. Upon no other ground can the construction of a grate in a sidewalk, which is an interference with a public highway, be justified, even when permission is duly granted.'" (Monsch, supra, 187 Cal. at pp. 792-793.)