Buniger v. Buniger
| Decision Date | 28 February 1967 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Sylvia BUNIGER, Plaintiff and Appellant, v. Charles E. BUNIGER et al., Defendants and Respondents. Civ. 718. |
The plaintiff, Sylvia Buniger, sued her son and daughter-in-law for damages resulting from the negligent construction and maintenance of stairs between their garage and kitchen proximately resulting in her falling and breaking her thigh bone; the suit was for $35,000. The jury returned a verdict for the plaintiff in the amount of $2,500. As the special damages were $1,976.21, this left $523.79 as the allowance for her pain and suffering and her permanent damages. After a motion for a new trial was denied, the plaintiff appealed to this court 'from the judgment entered in the above-entitled Court on December 30, 1965, and from the whole thereof.' While, as just stated, the appeal was not restricted to any specific part of the judgment, the appellant seriously asks that this court limit the reversal to the question of damages only. The respondents ask that the judgment be affirmed, but that if there is a reversal it should extend to the whole judgment. This latter contention apparently is based on the thought that the liability is questionable and that the size of the verdict for general damages must have been due to a compromise on the part of the jury; among the factors cited to support this contention is the fact that the plaintiff is the mother of Charles E. Buniger, and that she and her retired husband were visiting with him and his family at the time of the injury, although it is claimed that the mother was an employee of her son for the purpose of 'baby-sitting' and doing light housework in return for the board and lodging of herself and her husband; also stressed is the fact that the jury was divided nine to three in favor of the verdict actually brought in.
There are thus, upon a survey of the record, two questions actually to be decided. There is substantial evidence of negligence on the part of defendant householders which would justify a finding by the fact finders of negligence, on the part of the defendants, which was a proximate cause of the damage sustained by the plaintiff. The two questions for us to decide are (1) whether the award of general damages is so small as to require a reexamination by the trial court and jury of that issue, and (2) whether, if the answer to the first question is affirmative, this court should grant a new trial on all issues rather than to restrict it to the question of damages only.
Plaintiff, Sylvia Buniger, was 63 years old at the time of the trial. She was married and lived with her husband in Loma, Colorado. Mr. Buniger had been a farmer, and she had lived her life as a housewife rearing five children, one of whom was Charles Buniger, defendant. She had gone to Bakersfield to the home of this son in response to a letter from his wife saying that they were having economic difficulties, and that she could go to work outside the home if plaintiff would come and take care of the children. Plaintiff and her husband arrived in Bakersfield about April 10. She had visited with her son's family three times before. After her arrival in April, she did such things as fix breakfast for the children, get them dressed and ready for school, and perform general light housework. She and her husband planned to stay until the last of June. On April 24, about 5:00 or 5:30 p.m., plaintiff and her daughter-in-law were fixing dinner. The daughter-in-law had not worked that day. Plaintiff had taken care of the children, made the beds, straightened up the house and picked up the soiled clothes. At the time of the accident, Charles, having left with his truck for several days, was gone. Plaintiff's husband was in the front room; the two children were home. The nine-year-old boy's chore was to empty the garbage, and on this particular day the sister had been asked to help him. The children picked up the garbage to take it out, and a milk carton with a residue of milk in it fell off the top of the garbage and milk spilled on the floor. Plaintiff went to get the mop to clean up the milk from the linoleum so that the children would not slip and fall; the mop was in the garage. Four doors opened out from the kitchen; one door let out into the backyard, one door went into the front room, one opened toward the back of the house to a bedroom, and the fourth door opened into the garage where the mop was kept. Plaintiff went through this door to get the mop. The door into the garage opened out onto the steps going down to the floor of the garage. As plaintiff proceeded through the door, her daughter-in-law was in the kitchen preparing to put the dinner on the table and the two children were on their way outside. Plaintiff opened the door into the garage with her right hand, held onto the door jamb and reached toward the light switch to turn on the light, because the garage was very dark. She took a step and there was no step beneath her; she fell on her right side. Her left hand had been holding onto the door jamb as she stepped out with her foot; the floor is concrete.
Plaintiff had been in the home for about 14 days at the time she fell, and she had used the steps almost every day; before her fall, she had noticed that one of the steps was deeper than the others. After she had fallen, she called for help; she was in pain and her leg was numb. A doctor was sent for; neighbors came and plaintiff was taken to the hospital by car; X-rays were taken; Dr. Iger, a bone specialist, saw plaintiff; she had improper...
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