Becker v. IRM Corp.

• Decision Date: 24 June 1983
• Citation: 192 Cal.Rptr. 570,144 Cal.App.3d 321
• Court: California Court of Appeals Court of Appeals
• Parties: George BECKER, Plaintiff and Appellant, v. IRM CORPORATION, Defendant and Respondent. A014367.

Page 570

192 Cal.Rptr. 570

144 Cal.App.3d 321

George BECKER, Plaintiff and Appellant, v. IRM CORPORATION, Defendant and Respondent.

A014367.

Court of Appeal, First District, Division 1, California.

June 24, 1983.

For Opinion on Hearing, see 213 Cal. Rptr. 213, 698P.

Meyer & Mitchell, Jack P. Dougherty, Oakland, for plaintiff and appellant.

Kincaid, Gianunzio, Caudle & Hubert, John P. Caudle, Robert W. Brower, Oakland, for defendant and respondent.

NEWSOM, Acting Presiding Justice.

This is an appeal from a summary judgment dismissing appellant's causes of action for negligence and strict products liability. Declarations submitted by respondent in support of its motion for summary judgment reveal the following pertinent facts, which we summarize as necessary to a resolution of the issues raised on appeal.

Appellant was seriously injured on November 21, 1978, when he slipped and fell against the untempered glass shower door of his rented apartment, which is in a 36-unit apartment complex owned, operated and maintained by respondent. The apartment complex was built in 1963 and acquired by IRM Corporation in 1974. According to undisputed evidence, had the shower door been made of tempered glass, the risk of serious injury to appellant would have been reduced.

The declarations submitted in support of the summary judgment motion state that between the time respondent acquired the building and appellant's injury none of the tenants either complained that the shower doors were made of unsafe untempered glass or reported injuries similar to those suffered by appellant. Appellant's shower door was in place when IRM purchased the apartment complex. Of the 36 showers in the apartment building prior to appellant's accident, 31 had untempered and 5 had tempered glass.

It is difficult to visually distinguish tempered from untempered glass. The apartment manager for IRM declared that he walked through most of the bathrooms prior to appellant's accident, and found the two types of shower doors to be highly similar: he said both had a "frosted glass" appearance. After the accident, at respondent's request, a maintenance man for IRM and an expert from Diablo Glass & Paint Company inspected the shower doors. According to the maintenance man, "from my own examination following the ... accident, there was no visible difference between the tempered or the nontempered glass in terms of visible appearance." But he also explained: "The only way that I was able to differentiate ... was by looking for a very small mark in the corner of each piece of glass." After the inspection, the 31 shower doors without tempered glass were replaced with doors made of tempered glass.

The summary judgment procedure authorized by section 437c of the Code of Civil Procedure is a " ' "drastic procedure to be used sparingly and with circumspection." ...' " (Harris v. De La Chapelle (1976) 55 Cal.App.3d 644, 647, 127 Cal.Rptr. 695.) A defendant moving for summary judgment has the burden of establishing that the action is without merit; a factual showing negating all causes of action on all theories is required. (Tresemer v. Barke (1978) 86 Cal.App.3d 656, 666, 150 Cal.Rptr. 384; Harris, supra, at p. 647, 127 Cal.Rptr. 695.) "If he fails in that burden, summary judgment must be denied despite the lack of opposing declarations." (Tresemer, supra, at p. 666, 150 Cal.Rptr. 384.) But if all material issues of fact are eliminated and the declarations filed in support of the motion establish that the defendant is entitled to judgment as a matter of law, summary judgment should be granted. (Tauber-Arons Auctioneers Co. v. Superior Court (1980) 101 Cal.App.3d 268, 273, 161 Cal.Rptr. 789.) " 'Applicable substantive law determines the facts necessary to support a particular theory of relief and hence the sufficiency of properly framed factual statements in declarations to support a summary judgment.' " (Tresemer, supra, at pp. 666-667, 150 Cal.Rptr. 384.)

Appellant claims that his negligence cause of action presents issues of fact which must be litigated at trial. He insists that respondent's declarations do not sufficiently negate the elements of his action for negligence.

Respondent submits that it had no duty of care to appellant, absent actual notice of the dangerous condition of the shower doors, and that its declarations disprove such notice.

The essential elements of a cause of action for negligence are: (1) defendant's legal duty of care to plaintiff, (2) defendant's breach of duty--by negligent act or omission, (3) injury to plaintiff as the result of the breach, and (4) compensable damages. (Rosales v. Stewart (1980) 113 Cal.App.3d 130, 133, 169 Cal.Rptr. 660; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 450, p. 2103.) Liability for negligent conduct may only be imposed where it is found that defendant owed a duty of care to the plaintiff or to a class of persons of which the plaintiff is a member. (J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803, 157 Cal.Rptr. 407, 598 P.2d 60; Rogers v. Jones (1976) 56 Cal.App.3d 346, 350, 128 Cal.Rptr. 404.) The duty may arise by statute, contract, the general character of the activity in which the defendant engaged, the relationship of the parties, or even the interdependent nature of human society. (J'Aire, supra, at p. 803, 157 Cal.Rptr. 407, 598 P.2d 60.) "Whether a duty is owed is simply a shorthand way of phrasing what is ' "the essential question--whether the plaintiff's interests are entitled to legal protection against the defendant's conduct." ' " (Ibid.)

The crucial issue before us is, therefore, whether plaintiff has established that his corporate landlord owed a duty of care to protect him against the particular risk of harm which caused his injury. (Evans v. Thomason (1977) 72 Cal.App.3d 978, 984, 140 Cal.Rptr. 525.) " 'While the question whether one owes a duty to another must be decided on a case-by-case basis, every case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as a result of their conduct....' " (J'Aire, supra, at p. 806, 157 Cal.Rptr. 407, 598 P.2d 60; Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) In Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561, our high court enumerated the following factors as relevant to a determination of whether a possessor or owner of land owes a duty of care to injured victims: the foreseeability of the harm to the plaintiff; the degree of certainty that the plaintiff suffered injury; the closeness of the connection between defendant's conduct and the injury suffered; the moral blame attached to the defendant's conduct; the policy of preventing future harm; the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach; and the availability, cost and prevalence of insurance for the risk involved. (See also Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750, 167 Cal.Rptr. 70, 614 P.2d 728; Sun N' Sand, Inc. v. United California Bank (1978) 21 Cal.3d 671, 695, 148 Cal.Rptr. 329, 582 P.2d 920; Rosales v. Stewart, supra, 113 Cal.App.3d 130, 134, 169 Cal.Rptr 660; DeSuza v. Andersack (1976) 63 Cal.App.3d 694, 702, 133 Cal.Rptr. 920.)

But in all cases, the primary consideration in establishing the element of duty is the foreseeability of the risk. (Sun N' Sand, supra, at p. 695, 148 Cal.Rptr. 329, 582 P.2d 920; Weirum, supra, at p. 46, 123 Cal.Rptr. 468, 539 P.2d 36; DeSuza, supra, at p. 702, 133 Cal.Rptr. 920.) " ' "As a general principle, "a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous." ' " (Tresemer v. Barke, supra, 86 Cal.App.3d 656, 670, 150 Cal.Rptr. 384.) The question of whether a legal duty exists is one of law (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750, 167 Cal.Rptr. 70, 614 P.2d 728), but if the issue depends upon the foreseeability of the risk it becomes a question of fact for resolution by the jury (Weirum v. RKO General, Inc., supra, 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36; Harris v. De La Chapelle, supra, 55 Cal.App.3d 644, 647, 127 Cal.Rptr. 695). ¹

It is now settled that a landlord generally owes a tenant a duty of reasonable care in maintaining the rented premises in a safe condition. (Evans v. Thomason, supra, 72 Cal.App.3d 978, 985, 140 Cal.Rptr. 525; Golden v. Conway (1976) 55 Cal.App.3d 948, 955, 128 Cal.Rptr. 69; Brennan v. Cockrell Investments, Inc. (1973) 35 Cal.App.3d 796, 800-801, 111 Cal.Rptr. 122.) In Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 924, 162 Cal.Rptr. 194, the court explained: "In the typical rental situation involving a dwelling house, the foreseeability of harm to a tenant from the landlord's failure to maintain the premises in a habitable condition is obvious; the degree of certainty that the tenant suffered injury and the closeness of the connection between the landlord's conduct and the injury is readily ascertainable by proof in each case; the moral blame attached to the landlord's conduct in not complying with the habitability requirements articulated in the Civil Code and the policy of preventing future harm are present. Nor can we say that the imposition of a duty to exercise care with resulting liability for breach would unduly extend a landlord's burden insofar as the availability, cost and prevalence of insurance for the risk involved. In short, we believe that under the policy standards articulated in Rowland, a due regard for human safety and health compels the imposition on a landlord of a duty of due care in the maintenance of the premises."

And in Golden v. Conway, supra, 55 Cal.App.3d at page 55, 128 Cal.Rptr. 69, this court adopted the standard expressed in Brennan v. Cockrell Investments,...