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The parents of Isabel Ortiz, who was badly injured in California’s famous Loma Prieta earthquake on Oct. 17, 1989, said they had a right to sue the city and county of San Jose for letting their daughter play in a park with the city’s children on that dangerous day.
But the court said that when the child was hurt she had not been a “public invitee” as defined by law and had not been injured on property that the city owned.
“The public has a public duty to take measures to protect its children from open and obvious dangers and to warn them of these dangers,” the three-judge panel of the 9th US Circuit Court of Appeals wrote in its ruling.
Ortiz sustained severe injuries when the branch of an oak tree she was playing under toppled over.
“The loss of Isabel’s future, human life, is tragic. But that tragedy is not the same thing as negligence,” San Jose city attorney Rick Doyle said Wednesday.
“Our clients are satisfied with the decision,” he said in an e-mail.
The plaintiffs’ lawyers had argued that the girl was a “public invitee” under California law, as defined by a 1981 state law that expressly states that children between the ages of 5 and 9 can play only on private property.
“We are grateful for the court’s decision,” said the plaintiffs’ attorney, Frances Cress Wambaugh.
“They reviewed the case and recognized that if Isabel was not a ‘public invitee,’ there was no negligence to be proved.”
Isabel and her parents are now looking for their new jobs, Wambaugh added.
“We’re grateful that it’s over. We’ve been really happy with the way things worked out,” Ortiz said, speaking for herself and her parents, when contacted by telephone at her Oakland, California home.
The lawsuit had named San Jose City Attorney John Cote as defendant, but the appeals court threw out his name as well, leaving only the county as a defendant.
Ortiz was paralyzed for life when she fell
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