Winston v. Hansell

In Winston v. Hansell (1958) 160 Cal. App. 2d 570, the plaintiff alleged with regard to a public sidewalk that she fell and was injured on that sidewalk and that the defendant owners of the abutting property "'did make special use of said sidewalk in that said sidewalk was used as a driveway for automobiles,'" and that "'as a direct and proximate result of the carelessness and negligence of said defendants, and as a direct and proximate result of said special use of said sidewalk, it was maintained and kept in a dangerous and defective state of disrepair in that said sidewalk was worn, broken, cracked and uneven; . . .'" (Winston, at p. 572.) The court affirmed the judgment of the trial court sustaining a demurrer without leave to amend, stating: "There is no allegation that the sidewalk was specially constructed or altered to meet some peculiar need of the abutting property and that such construction created a defective condition. There is no allegation of any affirmative act committed by the abutting owner, or by a predecessor in interest, that contributed to the condition. There is no allegation that the public authorities notified defendants to repair the defective condition. There is no contention made that under the facts the complaint could be amended so as to add any one of such omitted allegations. All that is alleged is that the sidewalk was used as a driveway by the abutting owners, and that such constituted a 'special use' of the sidewalk by the property owners. Certainly, in this day and age, the use of a sidewalk as a driveway to the abutting property is not a peculiar or unusual use of such sidewalk. It is one of the ordinary and accustomed uses for which sidewalks are designed. Private garages cannot be built to open directly onto the street, but must be set back at least to the property line in order to allow for sidewalks upon which pedestrians may travel. The use of part of the sidewalk as a driveway is imperative in most, if not all, locations. Such use is no more peculiar or unusual than using the sidewalk for pedestrians who desire to visit the owners of the abutting property." ( Winston v. Hansell, supra, 160 Cal. App. 2d at pp. 576-577.)