Carlson v. Ross, I--

• Decision Date: 24 March 1969
• Docket Number: I--,D
• Citation: 76 Cal.Rptr. 209,271 Cal.App.2d 29
• Court: California Court of Appeals Court of Appeals
• Parties: Calvin Rick CARLSON, a minor, by and through Calvin Ray Carlson, his Guardian ad litem, Plaintiff and Appellant, v. Leonard ROSS, Belle Ross, and Doesefendants and Respondents. Civ. 11715.

Page 209

76 Cal.Rptr. 209

271 Cal.App.2d 29

Calvin Rick CARLSON, a minor, by and through Calvin Ray Carlson, his Guardian ad litem, Plaintiff and Appellant, v. Leonard ROSS, Belle Ross, and Does I--X, Defendants and Respondents.

Civ. 11715.

Court of Appeal, Third District, California.

March 24, 1969.

Hearing Denied May 21, 1969.

Jordan N. Peckham, Chico, for plaintiff-appellant.

Rust & Hoffman, Sacramento, and Ellis J. Horvitz, Los Angeles, for defendants-respondents.

REGAN, Associate Justice.

Plaintiff appeals from a judgment after a jury verdict for defendants in this personal injury action.

Plaintiff, a minor of the age of 12 years, was a social licensee on defendants' home premises after dark, and while playing a game of tag with defendants' children plaintiff fell over defendants' bulldog and severely injured his hand when it came in contact with a broken, rough and jagged pipe which protruded 'an inch or two' above ground level. The pipe had been broken by one defendant and left in this condition for several years. Plaintiff was unaware of the pipe's existence prior to the accident.

The trial court gave the following instruction on the duty of care based on BAJI 212--B (Revised).

'When the licensee's presence on the premises of another is known to the licensor, or when the latter has good reason to expect, or in the exercise of ordinary care ought to know, of the presence of the licensee, the licensor is bound to exercise ordinary care to avoid injuring the licensee; except, however, that the owner of premises is under no duty to a licensee to alter or repair the premises as they existed when the licensee entered.

'Take note also that everything I have said and may say on the duty of a licensor is subject to this overlying principle, that if and when a licensor actually learns that a licensee is in imminent danger of injury, and if, by exercising ordinary care, the licensor can minimize or thwart that danger, his duty is to apply such care to such a purpose.'

Plaintiff contends that it was error to give this instruction, and urges that the true and correct rule is expressed by his proposed instruction based upon the Restatement of Torts (Second) § 342, page 210. ¹ That instruction, which was refused by the court, states:

'A person who is in possession of land is legally liable for injuries to a social guest (in the absence of contributory negligence) if the injuries were caused by a dangerous condition on the land if the following conditions have been established by the evidence:

'First, that the possessor knows or has reason to know of the condition, and should realize that it involves an unreasonable risk of harm to such guest, and should expect that he will not discover or realize the danger; and

'Second, the possessor fails to exercise reasonable care, in either one of two ways, either by making the condition safe, or by warning the guest of the condition and the risk involved; and

'Third, the guest did not know or have reason to know of the condition and the risk involved.'

Plaintiffs state the crux of the question to be as follows. The instruction given contains the clause:

'* * * (T)he owner of the premises Is under no duty to alter or repair the premises * * *.' (Emphasis added.)

The proposed instruction, however, contains this clause:

'* * * (T)he possessor fails to exercise reasonable care in either one of two ways, either by Making the condition safe, or by warning the guest of the condition * * *.' (Emphasis added.)

The law in California on the subject of a landowner's negligence as it existed in 1965 was outlined in our opinion in Hansen v. Richey (1965) 237 Cal.App.2d 475, 477--479, 46 Cal.Rptr. 909. Therein we stated that the injured plaintiff was classified either as an invitee, licensee or trespasser on the premises, according to the circumstances of his presence; that as to a licensee, a landowner was not liable for a defective condition not amounting to a trap--if the landowner's conduct was passive. He was, however, liable for negligent active conduct. We pointed out that the California rule had been criticized and two newer tests suggested (1) that the landowner must exercise reasonable care under the circumstances toward anyone whose presence is known or reasonably to be expected and (2) the rule of the Restatement which retains the traditional classifications stated but (regarding licensees) in section 342 sets forth the provisions recited above. (See fn. 1.) Plaintiffs urge this court to adopt the rule of the Restatement and the views found in Harper and James (vol. 2, §§ 27.8 to 27.11, pp. 1470--1478). Defendants, on the other hand, contend that the jury was properly instructed and that the instruction given substantially incorporates the legal principles embodied in section 342 of the Restatement.

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