Fisher
Fisher v. Morrison Homes, Inc.
Opinion
Opinion
Dearman, J.
In August of 1973, six-year-old Brian Fisher was struck and killed by an automobile as he rode his bicycle from a pedestrian pathway out into traffic on the intersecting street. The pathway was designed and constructed by defendant and respondent Morrison Homes, dedicated to the City of Pleasanton, and accepted as public property in 1965.
Brian’s parents brought a wrongful death action against several defendants, among them Morrison Homes, suing on theories of negligence and strict liability. Morrison Homes was granted a nonsuit after opening argument (Code Civ. Proc., § 581c) on facts which we must accept as true for the purpose of review. (Smith v. Roach) (1975) 53 Cal.App.3d 893, 897 [ 126 Cal.Rptr. 29 ]; Timmsen v. Forest E. Olson, Inc. (1970) 6 Cal.App.3d 860, 867-868 [ 86 Cal.Rptr. 359 ].)
I.
The facts alleged are as follows.
Morrison Homes originally built the pathway as part of a subdivision, intending that it be used by both pedestrians and cyclists. Failure to incorporate barriers at the point of intersection with adjoining streets proximately caused Brian Fisher’s death and constituted either negligence or a defect in design for which the developer may be…