Becker v. Irm Corp.

• Decision Date: 29 April 1985
• Docket Number: S.F. 24618
• Citation: 38 Cal.3d 454,213 Cal.Rptr. 213,698 P.2d 116
• Court: California Supreme Court
• Parties: , 698 P.2d 116, 48 A.L.R.4th 601, 53 USLW 2566 George BECKER, Plaintiff and Appellant, v. IRM CORPORATION, Defendant and Respondent

Page 213

213 Cal.Rptr. 213

38 Cal.3d 454, 698 P.2d 116, 48 A.L.R.4th 601, 53 USLW 2566

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

S.F. 24618.

Supreme Court of California

April 29, 1985.

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

Leonard Sacks, Encino, Edwin Train Caldwell, San Francisco, McNamara, Houston, Dodge, McClure & Ney and Edward Kelly Shinnick, Walnut Creek, as amici curiae on behalf of plaintiff and appellant.

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

Rogers, Joseph, O'Donnell & Quinn, Joseph W. Rogers, Jr., Nance F. Becker, San Francisco and Jon D. Smock, Sacramento, as amici curiae on behalf of defendant and respondent.

BROUSSARD, Justice.

In this personal injury action plaintiff's complaint asserted causes of action of strict liability and negligence against defendant landlord. Defendant moved for summary judgment urging that a landlord is not liable to a tenant for a latent defect of the rented premises absent concealment of a known danger or an expressed contractual or statutory duty to repair. The trial court granted the motion and denied a motion for reconsideration. Plaintiff appeals. ¹

We have concluded that the trial court erred as to both causes of action.

The complaint alleged that plaintiff was injured when he slipped and fell against the frosted glass shower door in the apartment he leased from defendant. The door was made of untempered glass. It broke and severely lacerated his arm. It is undisputed that the risk of serious injury would have been substantially reduced if the shower door had been made of tempered glass rather than untempered glass.

Defendant's affidavits in support of the motion for summary judgment may be summarized as follows: Plaintiff's apartment is part of a 36-unit apartment complex built in 1962 and 1963 and acquired by defendant in 1974. Prior to the acquisition, two officers of defendant walked through most of the apartments and observed that all of the shower doors were of frosted glass and appeared to be the same. The officials, one of whom managed the property from the time of its acquisition, stated that prior to plaintiff's accident in 1978 there were no accidents involving the shower doors and that they were not advised Defendant's maintenance man stated that after the accident he examined the glass doors, and that 31 of the doors with untempered glass were replaced by him. He also stated that in looking for the untempered glass shower doors "there was no way that a layperson could tell any difference by simply looking at the shower doors. 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."

[698 P.2d 118] that any of the shower doors were made of untempered glass. They first learned that some of the shower doors were of untempered glass after the accident. Their inspection of shower doors after the accident provided "no visible difference between the tempered and untempered glass in terms of visible appearance."

Plaintiff did not file affidavits in opposition to defendant's.

The summary judgment procedure is drastic and should be used with caution so that it will not become a substitute for a full trial. A summary judgment is proper only if the affidavits of the moving party would be sufficient to support a judgment in his favor and doubts as to the merits of the motion should be resolved in favor of the party opposing the motion. (Rowland v. Christian (1968) 69 Cal.2d 108, 111, 70 Cal.Rptr. 97, 443 P.2d 561.)

STRICT LIABILITY

In Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897, we established the rule: "A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. Recognized first in the case of unwholesome food products, such liability has now been extended to a variety of other products that create as great or greater hazards if defective. [Citations.]" The court recognized that the cases imposing strict liability had "usually been based on the theory of an express or implied warranty running from the manufacturer to the plaintiff." (59 Cal.2d at p. 63, 27 Cal.Rptr. 697, 377 P.2d 897.) The justification for departing from warranty theory and for establishing a doctrine of strict liability in tort was the recognition that the liability was imposed by law and the refusal to permit the manufacturer to define the scope of its own liability for defective products. (Ibid. )

Our concern was not that warranty law failed to adequately define the manufacturer's duty but that the " 'intricacies of the law of sales' " applicable to commercial transactions might defeat the obvious representation of safety for intended use made by the manufacturer. (Id., at pp. 63-64, 27 Cal.Rptr. 697, 377 P.2d 897.) In declining to discuss the basis of the strict liability, Greenman pointed out that the basis of it had been fully articulated, citing to the classical concurring opinion in Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, 461, 150 P.2d 436. (Id., 59 Cal.3d at p. 63, 27 Cal.Rptr. 697, 377 P.2d 897.) In the concurring opinion in Escola, Justice Traynor pointed out: "The retailer, even though not equipped to test a product, is under an absolute liability to his customer, for the implied warranties of fitness for proposed use and merchantable quality include a warranty of safety of the product. [Citations.]" (24 Cal.2d at p. 464, 150 P.2d 436.) It was also pointed out that the retailer should not bear the burden of his warranty alone but that he could recoup any losses by means of the warranty of safety attending the wholesaler's or manufacturer's sale to him. (Ibid. )

Greenman also noted that the purpose of strict liability in tort is "to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves." (59 Cal.2d at p. 63, 27 Cal.Rptr. 697, 377 P.2d 897; see Daly v. General Motors (1978) 20 Cal.3d 725, 732-733, 736, 144 Cal.Rptr. 380, 575 P.2d 1162.)

We follow a stream of commerce approach to strict liability in tort and extend liability to all those who are part of the "overall producing and marketing enterprise that should bear the cost of injuries from defective products." (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262 et seq., 37 Cal.Rptr. 896, 391 P.2d 168.) The doctrine of strict liability in tort has been applied not only to manufacturers but to the various links in the commercial marketing chain including a retailer (id.), a wholesale-retail distributor (Barth v. B.F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 251 et seq., 71 Cal.Rptr. 306), personal property lessors and bailors (Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 251-253, 85 Cal.Rptr. 178, 466 P.2d 722), and a licensor of personalty (Garcia v. Halsett (1970) 3 Cal.App.3d 319, 324-326, 82 Cal.Rptr. 420). In holding that strict liability in tort was applicable to lessors and bailors in Price v. Shell Oil Co., supra, 2 Cal.3d at page 254, 85 Cal.Rptr. 178, 466 P.2d 722, it was pointed out that strict liability does not apply to isolated transactions such as the sale of a single lot.

Application of warranty doctrine has not been limited to those engaged in commerce in personalty but has been applied where appropriate to those engaged in the real estate business. Traditionally, the courts applied the doctrine of caveat emptor with the buyer assuming the risk on quality unless there was express warranty, fraud or misrepresentation. (E.g., Gustafson v. Dunman, Inc. (1962) 204 Cal.App.2d 10, 13, 22 Cal.Rptr. 161.)

However, the courts have recognized that a contract to build is in effect one of material and labor, that implied warranties are not limited to sales transactions, and that building contracts give rise to a warranty of merchantability and suitability for ordinary use. (Aced v. Hobbs-Sesack Plumbing Co. (1961) 55 Cal.2d 573, 580-583, 12 Cal.Rptr. 257, 360 P.2d 897; Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 378, 115 Cal.Rptr. 648, 525 P.2d 88; Green v. Superior Court (1974) 10 Cal.3d 616, 626, 111 Cal.Rptr. 704, 517 P.2d 1168.) And in Pollard v. Saxe & Yolles Dev. Co., supra, 12 Cal.3d 374, 377-380, 115 Cal.Rptr. 648, 525 P.2d 88, it was held that an implied warranty of quality attaches to the sale of new construction. The court pointed out that the doctrine of implied warranty in a sales contract is based on the actual and presumed knowledge of the seller, reliance on the seller's skill and judgment, and the ordinary expectations of the parties. The court reasoned that "the builder or seller of new construction--not unlike the manufacturer or merchandiser of personalty--makes implied representations, ordinarily indispensable to the sale, that the builder has used reasonable skill and judgment in constructing the building. On the other hand, the purchaser does not usually possess the knowledge of the builder and is unable to fully examine a completed house and its components without disturbing the finished product." (12 Cal.3d at p. 379, 115 Cal.Rptr. 648, 525 P.2d 88.) The court concluded that "builders and sellers of new construction should be held to what is impliedly represented--that the completed structure was designed and constructed in a reasonably workmanlike manner." (Id. at p. 380, 115 Cal.Rptr. 648, 525 P.2d 88.)

Similarly, application of strict liability in tort has not been limited to those engaged in commerce in personalty but has been applied where appropriate to those engaged in real estate businesses who impliedly represent the quality of their product. In Kriegler v....