Brennan v. Cockrell Investments, Inc.

• Citation: 35 Cal.App.3d 796,111 Cal.Rptr. 122
• Court: California Court of Appeals
• Decision Date: 06 December 1973
• Parties: William M. BRENNAN, Plaintiff and Appellant, v. COCKRELL INVESTMENTS, INC., Defendant and Respondent. Civ. 13037.

Page 122

111 Cal.Rptr. 122 35 Cal.App.3d 796 William M. BRENNAN, Plaintiff and Appellant,
v.
COCKRELL INVESTMENTS, INC., Defendant and Respondent. Civ. 13037. Court of Appeal, Fourth District, Division 2, California. Dec. 6, 1973.

Page 123

[35 Cal.App.3d 797] Edward M. Daley, Long Beach, and Francis Robert Bergmann, Los Alamitos. for plaintiff and appellant.

Ives, Kirwan & Dibble, and John Brevidoro, Los Angeles, for defendant and respondent.

35 Cal.App.3d 798

OPINION

KERRIGAN, Acting Presiding Justice.

This is an action to recover damages for personal injuries sustained by a tenant who fell off the back stairs of a house he rented from the owner when the handrail broke. The tenant appeals from a judgment entered on a jury verdict in the landlord's favor.

Plaintiff appeals on the ground that the court erred in refusing to give BAJI 8.00 (Duty of Owner or Occupant of Premises) ¹ and also erred by rendering

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the instruction based on BAJI 8.40 (Landlord's Liability for Accident on Leased Premises). ² In substance, the refused instruction [35 Cal.App.3d 799] stated that the owner of premises is under a duty to exercise ordinary care in the management of the premises in order to avoid exposing persons thereon to an unreasonable risk of harm. (BAJI 8.00; Civ.Code, § 1714.) Instead, the court instructed that ordinarily the owner of premises leased to a tenant is not liable for any injury to the tenant that results from a dangerous condition which existed when the tenant took possession. (BAJI 8.40.)

In November 1968, William M. Brennan ('Plaintiff') rented a single family residence from Bill D. Cockrell dba Cockrell Investments, Inc. ('Defendant'). The back stairway of the house had a platform at the top and four steps leading to a concrete walkway. The stairway was equipped with wrought iron railings. Each railing was affixed to the concrete steps by three wrought iron stanchions. Before plaintiff took possession of the premises, defendant noted that the concrete had chipped away from a stanchion on the right railing. However, the railing appeared to be structurally firm.

On October 25, 1969, while plaintiff was descending the back stairway, the right railing broke and plaintiff fell to the ground, sustaining injuries.

Reduced to the simplest terms, the only issue is whether the court correctly stated the law to the jury.

Historically, the liability of landlords to tenants injured on demised premises has been governed by the principles of law contained in BAJI 8.40, which was given by the trial court herein. Even today, in a majority of jurisdictions, it is still the rule that, absent fraud or deceit on the part of the landlord in concealing latent defects, or a covenant or statutory duty to repair, he is not liable for injuries to the tenant caused by defects in leased premises. (Prosser, Law of Torts (4th ed. 1971) § 63, p. 399; 2 Witkin, Summary of California Law (7th ed.) Torts, § 280, p. 1479.) However, the majority rule is no longer the law of this state.

California departed from the traditional rules governing the liability of the owners and occupiers of land in the case of Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, when the court held that section 1714 of the Civil Code controlled the liability of tenants for injuries to their social guests. That statute provides as follows: [35 Cal.App.3d 800] 'Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. . . .' Under this section, the Rowland court stated the correct test to be applied in determining the liability of the land possessor '. . . is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.' (Ibid, at p. 119, 70 Cal.Rptr. at p. 104, 443 P.2d at p. 568.)

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The basic policy of this state, as contained in section 1714 of the Civil Code, is that every person is responsible for injuries caused to others by his failure to use ordinary care or skill in the management of his property. (Ibid, at pp. 118--119, 70 Cal.Rptr. 97, 443 P.2d 561.) '. . . (I)n the absence of statutory provision declaring an exception to the fundamental principle enunciated by section 1714 . . . no such exception shall be made...