Gibbons v. City of San Bernardino

In Gibbons v. City of San Bernardino (1951) 108 Cal.App.2d 33, plaintiff's decedent was killed in a solo car accident when his car hit a raised manhole. At the time of the accident, defendant, pursuant to a contract with the city, was performing construction work on the roadway. The city had raised the manhole on or before the date of the accident. The manhole was 21 feet south of the north line of Highland Avenue, in the portion of the paved roadbed which defendant was required to keep open for public travel and over which the city reserved control and authority. By the terms of the contract, defendant was prohibited from blockading the street or otherwise interfering with traffic in the area involved. There was a note on the construction plan, "Raise manhole to grade (work to be done by the city)." As stated by the court, "undoubtedly, defendant was under a duty to use reasonable care to see that the portion of the street under its control and upon which it had worked was reasonably safe, but the defendant assumed no obligation for the raising of the manhole or other work performed by the city at points in the street where defendant was not performing construction work." (Gibbons v. City of San Bernardino, supra, at p. 35.) In alluding to the notation on the plans of "raise manhole to grade (work to be done by the city)," the court stated that the note "clearly indicates that this work was not a part of the contract." (Id. at p. 34.) Relative to the clause of the contract dealing with defendant's obligation to warn, the court indicated, "this clause refers to work done by the defendant and to excavations made and materials placed in the avenue by defendant. It does not require defendant to give warning of obstructions or dangers created by the city on a portion of the street under its control and upon which no construction had been commenced." (Id. at p. 36.) In Gibbons, the contract provided, "'The contractor shall furnish, erect, and maintain such fences, barriers, lights, and signs as are necessary to give adequate warning to the public at all times that the road or street is under construction and of any dangerous conditions to be encountered as a result thereof and he shall also erect and maintain such warning and directional signs as may be furnished by the City.'" (Gibbons v. City of San Bernardino, supra, 108 Cal.App.2d at p. 35) The Gibbons court held the clause required only "that defendant give adequate warning to the public of any dangerous condition to be encountered as a result of such construction." (Id. at p. 36.) "It does not require defendant to give warning of obstructions or dangers created by the city on a portion of the street under its control and upon which no construction had been commenced." (Ibid.)