Brunelle v. Signore

Citation263 Cal.Rptr. 415,215 Cal.App.3d 122
Decision Date31 October 1989
Docket NumberNo. E006398,E006398
CourtCalifornia Court of Appeals
PartiesDavid BRUNELLE, Plaintiff and Appellant, v. Anthony SIGNORE, Defendant and Respondent.
Charles M. Finkel, Beverly Hills, for plaintiff and appellant
OPINION

THE COURT. **

Plaintiff David Brunelle has appealed from a judgment entered following the trial court's granting of defendant's (Anthony Signore's) motion for summary judgment. On appeal, plaintiff contends that the trial court abused its discretion in granting summary judgment in favor of defendant. He argues that the questions of foreseeability and reasonableness of defendant's actions are questions of fact for the jury to decide. After consideration of the factors discussed in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, we have determined that defendant owed no duty of care to plaintiff to prevent his injury as a result of a spider bite, where (1) as a matter of law, injury to the plaintiff was unforeseeable by defendant, owner of a private residence; (2) the burden to the homeowner of preventing injury would be great; and (3) the task of defining the scope of the duty and the measures required of the homeowners would be extremely difficult. Therefore, we shall affirm the judgment.

FACTS & PROCEDURAL HISTORY

In September 1986, plaintiff spent the weekend at defendant's vacation home in Cathedral City, a structure which abutted the desert. During the weekend, plaintiff was bitten by a Brown Recluse Spider. 1 As a result of the spider bite, plaintiff was severely injured: The venom released by the spider bite destroyed tissue in plaintiff's right foot, his foot was swollen, infected and had ulcerated lesions. Within 24 hours plaintiff was unable to walk or even stand as a result of swelling and Plaintiff filed a complaint for damages for personal injuries, alleging that defendant negligently "entrust[ed], permitt[ed], manag[ed], maintain[ed], servic[ed], repair[ed], inspect[ed], test[ed], controll[ed] and operat[ed] [his] property," and failed to warn plaintiff regarding the property's safe use, and thus caused "his property to be in a dangerous condition...." which proximately caused plaintiff's injuries.

intense pain. Because of the severity of his injury, plaintiff was required to take a two-month medical leave from his work. He then returned to work part-time in a wheelchair for almost two months, before resuming work on a full-time basis. Approximately eighteen months after the bite, plaintiff described his foot as being totally fatigued after a day at the office, and stated that dress shoes aggravated his foot and caused swelling and discomfort.

Before filing an answer, defendant filed his motion for summary judgment. In support of his motion, defendant argued that: (1) he acted as a reasonably prudent person would under the same or similar circumstances; and (2) an owner of premises is not liable for injuries suffered as a result of a dangerous condition of which he has no knowledge. In support of these arguments, defendant submitted a statement of undisputed material facts, stating: (1) "plaintiff was bitten by a Brown Recluse Spider"; (2) "plaintiff had not at any time seen a Brown Recluse Spider on defendant's property"; (3) "plaintiff did not see any spiders" in defendant's house the night he was bitten; (4) "defendant has never seen anything around his house that looked like a Brown Recluse Spider"; (5) "defendant was unaware that Brown Recluse Spiders were in the California area"; (6) "defendant had not seen a Black Widow Spider in his house before plaintiff was bitten by a spider"; (7) "defendant removed the spiders he found inside his house"; (8) "defendant sprayed the entire inside and outside of his property to get rid of the bugs"; and (9) "defendant did not see any insects in his home during the 4 months" before plaintiff was bitten by a Brown Recluse Spider.

In support of his motion, defendant submitted excerpts from plaintiff's responses to interrogatories and from his [defendant's] deposition testimony.

In his opposition, plaintiff argued that foreseeability and whether defendant exercised reasonable care to prevent plaintiff's injury were questions of fact for the trier of fact to determine. In support of his response, plaintiff submitted objections to defendant's statement of undisputed facts and his own statement of undisputed facts. Plaintiff objected to defendant's facts nos. 5, 8 and 9, ante, arguing that statements nos. 5 and 9 were contrary to the facts and statement no. 8 was misleading when compared to defendant's deposition testimony. Plaintiff also filed a separate statement of undisputed facts, in which he listed 19 undisputed facts. 2 In support of these facts, plaintiff submitted excerpts from defendant's deposition testimony to show that defendant had knowledge that Brown Recluse Spiders were prevalent in rocky areas of the United States and were "found in storage areas such as closets and also clothing that has been put away or not worn recently."

The trial court granted defendant's motion for summary judgment, and plaintiff then appealed from the judgment entered in defendant's favor.

Additional matters reflected by the record and pertinent specific issues raised by this appeal are set forth in the discussion that follows.

DISCUSSION

Plaintiff contends that the trial court abused its discretion in granting defendant's motion for summary judgment. More specifically, he argues that the questions of foreseeability and reasonableness of defendant's actions are questions of fact for the jury to decide. Defendant argues, however, as a matter of law, that he owed no duty of care to plaintiff with reference In any action or proceeding, a party may move for summary judgment "if it is contended that the action has no merit or that there is no defense thereto." (Code Civ. Proc., § 437c, subd. (a).) The motion determines whether "there are any triable issues of material fact, or whether the moving party is entitled to judgment as a matter of law. [Citation.]" (Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 361-362, 212 Cal.Rptr. 395.) Where the defendant moves for summary judgment, he must either disprove at least one essential element of every cause of action in the plaintiff's complaint or prove an affirmative defense that would bar every cause of action in the complaint. (Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 637-639, 177 Cal.Rptr. 445.)

to the risk to which plaintiff was exposed. We agree with defendant.

The trial court properly grants summary judgment "only when the evidence in support of the moving party establishes that there is no issue of fact to be tried. [Citations.]" (Lee v. Electric Motor Division (1985) 169 Cal.App.3d 375, 381, 215 Cal.Rptr. 195.) Only after it has determined that the moving defendant's declarations, " 'considered in light of the issues raised by the pleadings together with the admissions and affirmative allegations set forth in the pleadings of the plaintiff would, standing alone support the summary judgment motion does the court look to any counteraffidavits and counterdeclarations.' " (Conn v. National Can Corp., supra, 124 Cal.App.3d at p. 639, 177 Cal.Rptr. 445; quoting Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117, 127, 109 Cal.Rptr. 724.)

In order to maintain an action for negligence, plaintiff must be able to show that: (1) defendant owed a legal duty of care; (2) he breached that duty; and (3) defendant's breach was the proximate or legal cause of plaintiff's injury. (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 820, 131 Cal.Rptr. 854; 6 Witkin, Summary of Cal.Law (9th ed.1988) § 732, p. 60.) Thus, in order to determine whether the trial court properly granted summary judgment in this case, we must first consider whether defendant owed plaintiff a duty of care to protect plaintiff from or prevent plaintiff's injury as a result of a spider bite in defendant's home.

The general rule in California is that all persons have a duty " 'to use ordinary care to prevent others being injured as a result of their conduct.' [Citations.]" (Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561; Civ.Code, § 1714; see Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)

As explained by the California Supreme Court, " 'duty' is not an immutable fact of nature ' "but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." ' " (Ballard v. Uribe, supra, 41 Cal.3d at p. 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624, citations omitted.) Whether a duty of care exists "is a question of law to be determined on a case-by-case basis." (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124, 211 Cal.Rptr. 356, 695 P.2d 653.)

In making its determination, the court must weigh several factors: "[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the 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 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. [Citations.]" (Rowland v. Christian, supra, 69 Cal.2d at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561; Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at pp. 124-125, 211 Cal.Rptr. 356, 695 P.2d 653.)

Plaintiff has not cited nor has our research revealed any California...

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