Bazzoli v. Nance's Sanitarium

• Decision Date: 14 February 1952
• Citation: 109 Cal.App.2d 232,240 P.2d 672
• Parties: BAZZOLI v. NANCE'S SANITARIUM, Inc. et al. Civ. 7951.
• Court: California Court of Appeals Court of Appeals

Page 672

240 P.2d 672

109 Cal.App.2d 232

BAZZOLI v. NANCE'S SANITARIUM, Inc. et al.

Civ. 7951.

District Court of Appeal, Third District, California.

Feb. 14, 1952.

Geary, Spridgen & Moskowitz, Santa Rosa, for appellant.

Brown, Smith & Ferguson, Oakland, King & Ghidella, Napa, for respondent.

SCHOTTKY, Justice pro tem.

Respondent, admittedly a business invitee on premises owned and operated by appellant corporation, suffered personal injuries when his foot went through the floor and was plunged into a tank of hot water beneath it. He commenced an action for damages against appellant, and a jury rendered a verdict in his favor for the sum of $15,000. This appeal is from the judgment entered upon the verdict.

In arguing for a reversal of the judgment appellant makes four main contentions: (1) The evidence is insufficient to support a finding of negligence in appellant; (2) The trial court erred in applying the doctrine of 'res ipsa loquitur' to the evidence in this case, and in instructing the jury thereupon; (3) The language of the res ipsa loquitur instructions given did not state the law, or was otherwise defective, to appellant's prejudice; (4) The amount of damages awarded to respondent is excessive.

Before discussing these contentions we shall summarize briefly the factual situation as disclosed by the record, bearing in mind the familiar rule that all conflicts must be resolved in favor of respondent and all reasonable inferences must be indulged in to support the verdict.

The defendant and appellant, Nance's Sanitarium, Incorporated (sued herein as Nance's Sanitorium, Inc.), owned and was in possession of a building in Calistoga, Napa County, California. The portion of the building which is concerned in this case was floored with cement and divided, by partitions, into separate rooms. One such room was called, and is referred to in the evidence and herein as, the 'laundry room.' It adjoined a hall space and was connected therewith by a doorway two feet, eight inches in width.

Prior to May, 1949, a fire had destroyed the roof and most of the walls of the laundry room, and, in May, it was exposed to the sky and to view from outdoors. From the hall space to the floor of the laundry room proper, through the aforementioned doorway, the concrete floor was continuous and descended in a slight slope, also referred to as a 'ramp.' Originally the floor was of planks. Later concrete was poured over the planks. There had been a fire in the building. Then defendant contracted with plaintiff, a licensed cement contractor, to pour another layer over the first layer of cement. To do that, plaintiff said it was necessary to chip or scarify the first cement so that the next layer would stick. It was agreed that defendant would build the forms and do the chipping. It hired an man from the city of Calistoga and that city's jackhammer to do the chipping. This man took his orders from defendant. This man was Kenneth Grimsley, and on May 9, 1949, he was sent to do some work at the sanitarium. He took his compressor and jackhammer with him, and when he arrived at the job he met Mr. Johnson, admittedly a carpenter employed by defendant. Johnson instructed Grimsley where to work and the chipping he was to do. Then Mr. Hughes, president, and Nance, vice president, of defendant appeared and instructed him to 'break up some more cement along in here for a vent of some kind or other, a trough that went along in through there and over around the area of the door here was to be scarified, and also to take out a piece of pipe that was all the way across here * * * and I was to break that out of there.' The jackhammer went on through the floor and almost lost the hammer, and he asked what was under the floor and was told there was a reservoir there and he saw steam coming through where he bored through the floor.

Respondent testified that he and his two helpers went to the laundry room about 8:10 a. m. to pour the cement, and the accident happened at 8:15 a. m.; he looked through the hole made by the jackhammer and saw and knew there was a water reservoir or tank under the floor and saw steam coming up from the water; his foot did not go through any hole made by the jackhammer; his leg went through the floor up to three inches above his knee, and he felt the hot water burning his leg.

Other material facts will be hereinafter set forth.

Appellant's first two contentions that the evidence is insufficient to support a finding of negligence in defendant and that the trial court erred in applying the doctrine of 'res ipsa loquitur' to the evidence in the case will be discussed together as they are to a certain extent interrelated.

The evidence shows without conflict that respondent was a business invitee upon the premises of appellant. And as stated in the recent case of Raber v. Tumin, 36 Cal.2d 654, at page 658, 226 P.2d 574, at page 576: 'Plaintiff was a business visitor toward whom Tumin, together with the servant through whom he was acting in altering the premises, 'was obliged to exercise ordinary care to keep the premises in a reasonably safe condition, or to warn * * * of danger. The duty was not limited to conditions actually known * * * to be dangerous, but extended also to conditions which might have been found dangerous by the exercise of reasonable care. [Citations.]' (Blumberg v. M. & T. Incorporated (1949), supra, 34 Cal.2d 226, 229, 209 P.2d 1.)'

Appellant contends that Grimsley, who did the actual work of chipping the floor with the jackhammer, was the agent of respondent. However, the record shows that appellant arranged with the city of Calistoga to have the chipping done and that the city sent Grimsley to appellant's premises to do the work, and that Grimsley was told what to do by appellant's officers and employee. Even though we were able to agree with appellant's contention that Grimsley was an independent contractor, this would not relieve appellant from its obligation and duty toward an invitee as hereinbefore set forth. The following language of our Supreme Court in Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 260, 143 P.2d 929, 930, is applicable: 'The general rule is set forth in the Restatement of the Law of Torts, Negligence, page 1138, section 422, as follows: 'The duty which a possessor of land owes to others to put and maintain it in reasonably safe condition is non-delegable. If an independent contractor, no matter how carefully selected, is employed to perform it, the possessor is answerable for harm caused by the negligent failure of his contractor to put or maintain the buildings and structures in reasonably safe condition, irrespective of whether the contractor's negligence lies in his incompetence, carelessness, inattention or delay.''

The jury impliedly found that appellant realized or should have realized that the floor of its building on May 10th involved an unreasonable risk to business visitors and that respondent did not have the knowledge thereof. There is ample support in the record for this finding.

Nor can we agree with appellant's contention that upon the record here, if there was a risk, respondent as a matter of law assumed it. At appellant's request the court correctly instructed the jury:

'One is said to assume a risk when he freely, voluntarily and knowingly manifests his assent to dangerous conduct or to the creation or maintenance of a dangerous condition, and voluntarily exposes himself to that danger or when he knows, or in the exercise of ordinary care would know, that a danger exists in either the conduct or condition of another, or in the condition, use or operation of property, and voluntarily places himself, or remains, within the area of danger.

'One who thus assumed a risk is not entitled to recover for damage which resulted from the dangerous condition or conduct to which he thus exposed himself.'

The implied finding of the jury was that respondent did not assume the risk and that the chipped floor did not, of itself, demonstrate that the floor was a dangerous instrumentality, and also that appellant had no reason to believe that respondent would realize the risk involved.

The record shows that the condition of the floor made it dangerous, that appellant and its employees were aware of it, that they did not warn respondent of such dangerous condition and that respondent was not aware of it.

We believe that the record would support a finding that defendant was negligent and that such negligence was a proximate cause of the injuries to plaintiff, even without the application of the doctrine of res ipsa loquitur. But we believe also the doctrine was clearly applicable to the instant case.

In Raber v. Tumin, supra, the court said, 36 Cal.2d at page 659, 226 P.2d at page 577: 'As declared in Ybarra v. Spangard (1944), supra, 25 Cal.2d 486, at page 489, 154 P.2d 687 , 'The doctrine of res ipsa loquitur has three conditions: '(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.' (Prosser, Torts, p. 295.)' A more detailed explanation of the applications, limitations and effects of the doctrine may be found in Dierman v. Providence Hospital (1947), 31 Cal.2d 290, 295, 188 P.2d 12. It has also been more specifically pointed out that 'the applicability of the doctrine of res ipsa loquitur depends on whether it can be said, in the light of common experience, that the accident was more likely than not the result of their [defendants'] negligence. [Citations.] 'Where no such balance of probabilities in favor of negligence can be found, res ipsa loquitur does not apply.' (Prosser on Torts [1941], p. 297.)' (La Porte v. Houston (1948), 33 Cal.2d 167, 169, 199 P.2d 665.)

'We are satisfied that a...