DiMare v. Cresci

• Decision Date: 02 August 1962
• Parties: , 373 P.2d 860 Joseph DIMARE et al., Plaintiffs and Respondents, v. Rosina CRESCI, Defendant and Appellant. S. F. 20943
• Court: California Supreme Court

Page 772

23 Cal.Rptr. 772

58 Cal.2d 292, 373 P.2d 860

Joseph DIMARE et al., Plaintiffs and Respondents, v. Rosina CRESCI, Defendant and Appellant.

S. F. 20943.

Supreme Court of California

Aug. 2, 1962.

Healy & Robinson, John J. Healy and Robert K. Barber, San Francisco, for defendant and appellant.

Lewis & Stein and Marvin E. Lewis, San Francisco, for plaintiffs and respondents.

GIBSON, Chief Justice.

A jury returned a verdict of $100,000 in favor of June DiMare (hereinafter referred to as plaintiff) and for $1,000 in favor of her husband, Joseph DiMare. Defendant has appealed from the ensuing judgment.

The DiMares occupied an apartment on the third floor of defendant's building. An outside wooden stairway used by them and other tenants led from the ground to the various floors of the building, and a garbage chute was located on a landing, between the second and third floors. A step of the stairway gave way beneath plaintiff when she was descending from her apartment for the purpose of disposing of some garbage, and she fell through the resulting opening up to her waist, injuring her hip and leg. She extricated herself from the hole, crawled up the stairs to her apartment, and telephoned her husband, who returned home within five minutes. He found his wife lying on the floor in a highly emotional state, crying and moaning, and yelling that she was 'falling down.' That night she awoke repeatedly, saying that someone was on the roof and that the chandelier and ceiling were falling down. She had not suffered any such delusions prior to the accident. Thereafter she developed numerous symptoms of mental disorder and was hospitalized.

The stairway was installed in 1936 when the building was remodeled. At the time of the accident the contact between the treads and the risers was not tight, and water could thus gain access to the unpainted surface of the risers below the level of the treads they supported. The nails were not properly placed to give maximum support, there was dry rot and discoloration of the wood from corrosion of the nails, and the wood on either side of each of the nails was in a decomposed condition. The stairs were 'creaky,' and the paint had worn off the treads so that the protection from painting was 'very poor.' There was expert testimony that proper painting prevents deterioration such as dry rot and rusting of nails.

The decomposition of the wood was not apparent from a visual inspection, but an expert observing the cracks between the tread and the riser would have suspected such a condition. The testimony was conflicting as to whether the cracks between the treads and the risers would constitute a danger signal to a layman.

It is settled that a lessor who leases a portion of his property and retains control of another part which the lessee is entitled to use, such as common walks or passages, is subject to liability to the lessee for personal injuries caused by a dangerous condition existing on the part of the premises under the lessor's control if, by the exercise of reasonable care, the lessor could have discovered the condition and made it safe. (Burks v. Blackman, 52 Cal.2d 715, 718, 344 P.2d 301; Harris v. Joffe, 28 Cal.2d 418, 423, 170 P.2d 454; cf. Johnston v. De La Guerra Properties, Inc., 28 Cal.2d 394, 399, 170 P.2d 5; see Rest., Torts, § 360.) The stairway on which plaintiff was injured clearly comes within this rule.

Defendant asserts that the trial court imposed a greater duty of care on her than is required by this basic rule when it gave the following instruction: 'Ordinary care in relation to a common stairway includes not only keeping the premises safe but also requires reasonably careful inspections at reasonable intervals to learn of dangers not apparent to the eye.' The quoted language, considered by itself, is too broad in that it might be understood as meaning that a lessor has an absolute duty to keep the property 'safe,' whereas the law requires only the exercise of reasonable care. ¹

Previous instructions, however, stated that defendant was not an insurer and was only required to use the care expected of an ordinarily prudent apartment house owner, and the instruction was immediately preceded by another which applied these principles to the facts of the case by stating in substance that if the stairway failed because of some latent defect which was not manifest to an ordinarily prudent person making an inspection and could not by the exercise of ordinary care have been discovered, there could be no liability. Use of the words 'not only' in the instruction complained of, considered together with its position directly following instructions specifically limiting defendant's duty to that of ordinary care, show that the court had no intention of declaring that there was an absolute duty to make the premises safe, and there is no reasonable likelihood that the jury was misled.

Under the circumstances of this case it was proper to instruct that ordinary care required that defendant make reasonably careful inspections of the stairway at reasonable intervals to learn of dangers not apparent to the eye. It is undisputed that the stairway was old and exposed to the elements, that it lacked adequate protective paint, and that it was discolored in places and creaked. Obviously this condition called for some type of inspection for latent defects, and the instruction correctly permitted the jury to determine what type of inspection would have been reasonable.

The jury was instructed: 'From the happening of the accident involved in this case, an inference arises that a proximate cause of the occurrence was some negligent conduct on the part of the defendant. That inference is a form of evidence and unless there is contrary evidence sufficient to meet or balance it, the jury should find in accordance with the inference. * * * In order to meet or balance the inference of negligence, the defendant must present evidence to show either (1) a satisfactory explanation of the accident, that is, a definite cause for the accident, in which there is no negligence on the part of the defendant, or (2) such care on the defendant's part as leads to the conclusion that the accident did not happen because of want of care by her, but was due to some other cause, although the exact cause may be unknown * * *.' (Cal.Jury Instns., Civ. (Pocket Supp.1962) pp. 30-31, No. 206.)

The doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible. (Faulk v. Soberanes, 56 Cal.2d 466, 470, 14 Cal.Rptr. 545, 363 P.2d 593; Guerra v. Handlery Hotels, Inc., 53 Cal.2d 266, 271, 1 Cal.Rptr. 330, 347 P.2d 674; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446, 247 P.2d 344.) On the basis of the existence of such probabilities, the doctrine has been applied where the defendant was responsible for construction, maintenance, or inspection of the defective premises which caused the injury. (Rose v. Melody Lane, 39 Cal.2d 481, 485-487, 247 P.2d 335; Nolen v. F. O. Engstrum Co., 175 Cal. 464, 466, 166 P. 346; Calame v. Stevens, 110 Cal.App.2d 45, 48-49, 242 P.2d 109.)

The introduction of evidence of specific acts of negligence does not deprive the plaintiff of the benefit of the doctrine unless the facts as to the cause of the accident and the care exercised by the defendant are shown as a matter of law thus eliminating any justification for resort to the inference of negligence. (Borenkraut v. Whitten, 56 Cal.2d 538, 548, 15 Cal.Rptr. 635, 364 P.2d 467; Leet v. Union Pac. R. R. Co., 25 Cal.2d 605, 620-622, 155 P.2d 42, 158 A.L.R. 1008; see Prosser on Torts (2d ed. 1955) 214.) The doctrine may be invoked whether or not the defendant was in a better position than the plaintiff to explain what occurred so long as it appears more probable than not that the injury resulted from the defendant's negligence. (Seffert v. Los Angeles Transit Lines, 56 Cal.2d 498, 501, 15 Cal.Rprt. 161, 364 P.2d 337; Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d 436, 445, 247 P.2d 344.) If the rules were otherwise, a plaintiff would be penalized for producing all of the evidece he has as to the cause of the accident, and in some cases the trier of fact might be denied evidence useful and relevant to the proper determination of the case. Language in McKenzie v. Pacific Gas & Elec. Co., 200 A.C.A. 743, 747, 19 Cal.Rptr. 628; Grigsby v. Pacific Gas & Elec. Co., 182 Cal.App.2d 64, 65, 5 Cal.Rptr. 616; Hendershott v. Macy's, 158 Cal.App.2d 324, 327-329, 322 P.2d 596; and Billeter v. Rhodes & Jamieson, Ltd., 104 Cal.App.2d 137, 147, 231 P.2d 93, is disapproved insofar as it is inconsistent with the views expressed above.

Ordinarily steps which are part of a common stairway do not collapse when used by a tenant in a normal manner unless the landlord who has had the duty to maintain and inspect them was negligent. It is undisputed in the present case that the step collapsed and that plaintiff was using it in a proper manner when she was injured. The testimony as to the condition of the step and the cause of its collapse did not necessarily exclude the use of inference in determining whether there was negligence and thus did not preclude resort to the doctrine.

The facts giving rise to the doctrine being undisputed, the jury was properly instructed that the inference of negligence arose as a matter of law. This, of course, does not mean that there was liability as a matter of law but only that defendant had the burden of meeting or balancing the inference (Burr v. Sherwin Williams Co., 42 Cal.2d 682, 691, 268 P.2d 1041), and the instruction given in the present case recognized that the inference could be balanced by defendant by showing that she did, in fact, exercise due care or that the accident was caused by factors which did not...