Chance v. Lawry's, Inc.

• Decision Date: 18 January 1962
• Citation: 18 Cal.Rptr. 596
• Court: California Court of Appeals Court of Appeals
• Parties: Virginia CHANCE, Plaintiff and Respondent, v. LAWRY'S, INC., a corporation, John Krenz, and Donald F. Shaw, Individually, and doing business as Donald F. Shaw, General Contractor, Defendants and Appellants. Civ. 25143.

Page 596

18 Cal.Rptr. 596

Virginia CHANCE, Plaintiff and Respondent, v. LAWRY'S, INC., a corporation, John Krenz, and Donald F. Shaw, Individually, and doing business as Donald F. Shaw, General Contractor, Defendants and Appellants.

Civ. 25143.

District Court of Appeal, Second District, Division 2, California.

Jan. 18, 1962.

Hearing Granted March 14, 1962.

Opinion vacated 24 Cal.Rptr. 209, 374 P.2d 185.

Carol G. Wynn and Anthony M. Wynn, Los Angeles, for appellants Lawry's, Inc. and John Krenz.

Frank W. Woodhead, Robert E. Morrow and Henry F. Walker, Los Angeles, for appellant Donald F. Shaw.

I. B. Kornblum and David H. Kornblum, Los Angeles, for respondent.

ASHBURN, Justice.

Personal injury action. Defendants Lawry's, Inc., John Krenz, and Donald F. Shaw doing business as Donald F. Shaw, General Contractor, appeal from a judgment in favor of plaintiff Virginia Chance for $15,000, and from an order denying their respective motions for judgment notwithstanding the verdict. After renewed meticulous examination of the evidence we have concluded that both motions should have been granted and that we should direct judgment for all defendants pursuant to § 629, Code of Civil Procedure.

We recognize and apply the rule that such a motion is to be governed by the same rule as nonsuit,--that it can be granted at the instance of defendant only when there is no substantial evidence to support the plaintiff's alleged cause of action. (Perumean v. Wills, 8 Cal.2d 578, 581, 67 P.2d 96; Neel v. Mannings, Inc., 19 Cal.2d 647, 649, 122 P.2d 576; Owen v. Beauchamp, 66 Cal.App.2d 750, 753, 152 P.2d 756.)

On July 15, 1958, defendant Lawry's Inc. made a contract with defendant Shaw, as general contractor, to do certain remodeling of its restaurant building located at 55 North La Cienega Boulevard, in Beverly Hills. A part of the work was construction in the foyer or vestibule of a planter box, which was completed except for some details at the time of the accident in question, namely the evening of September 29, 1958; but the entire job was not finished until about November 1, 1958. Shaw was not required to fill the planter box with dirt or to plant the same. His work with respect to it had been finished except for minor details but, as stated above, his entire job had not been completed or accepted.

Plaintiffs Mr. and Mrs. Chance were members of a dinner party given at Lawry's, and the other persons in the group were Mr. and Mrs. Roland Martini, Mr. and Mrs. Jules Miller, Mr. Robert Piggott and Mr. Champ Humphrey. Humphrey was vice president of Gardner Advertising Company in charge of the Pet Milk account; Martini was its vice president in charge of television, and plaintiff Alfred Chance was West Coast manager for that firm; Mr. Miller was executive vice president of Pet Milk Company which was sponsor of a Red Skelton television show. Mr. Piggott was also an officer of Pet Milk Company. The wives of Messrs. Miller, Martini and Chance were the other members of a party of eight. They arrived at Lawry's about 8:30 p. m. and left between 10:00 and 10:30 p. m. While waiting for a table they had one round of drinks but had no more there or in the restaurant or bar.

Entrance to the restaurant building is on the south side. Guests go north through a foyer or vestibule which is about ten feet long and six or seven feet wide. Mr. Donald F. Shaw estimated its area at 77 square feet; probably it was only 60 square feet. In it on the west side, is the planter box built in a recess against the west wall and its height is 18 inches. (Counsel for plaintiff called the east side of the box a 'wall' throughout most of the trial but it was nothing of the sort.) The box was about 30 inches in width and six feet in length. It was joined to the floor by a coved base of smooth terrazzo which had maximum width of six inches and at the bottom a maximum diameter of one inch; it was built in accordance with architects plans and specifications. In all respects the planter box had been installed in conformity with 'standards of good architectural and construction practice.' The foyer area was well lighted and the planter box in plain sight of one who looked in that direction. It was in no sense an open pit (as plaintiffs' counsel called it), nor was it a trap. 'The theory of liability for a 'trap' is not in point * * * for all the 'trap' cases involved defective or concealed hazards while in the present case as indicated earlier the danger was obvious.' (Obrien v. Fong Wan, 185 Cal.App.2d 112, 119, 8 Cal.Rptr. 124, 129.)

As the party of eight passed through the foyer on arrival, none of them who testified noticed the planter box (Mr. Miller, Mrs. Miller, Mrs. Martini and Mr. Piggott did not testify); but they were invitees of this public restaurant and as such entitled to assume that it was reasonably safe for their use and they were not required to make any inspection of the premises as they walked through,--entitled to make that assumption so long as they used the same for the purposes and in the manner implied in their invitation to enter. (Chardon v. Ala meda Park Co., 1 Cal.App.2d 18, 23, 36 P.2d 136; Johnson v. Bimini Hot Springs, 56 Cal.App.2d 892, 901, 133 P.2d 650.) The premises were not then in such shape as to charge these patrons of the restaurant with knowledge that they were entering or within a building which was under construction. As they entered the dining room from the lounge they negotiated without mishap some two or three steps and did so on their way out, did so because they looked where they were going. From the dining room they went straight to the foyer. It has at each end double glass doors which open outward only, i. e., toward the parking lot. Mr. Chance had preceded the rest of the group and was outside getting their automobiles when the accident happened. Of course he saw no part of it except when he saw Humphrey and Martini help his wife outside and into the car.

As they entered the foyer upon their departure, Mr. Martini stepped ahead of the ladies, opened the right hand door, stood partly in front of it to permit them to pass. Mrs. Chance came through and took a position at X2 on defendants' exhibit B; Martini stood at X1; then came Mr. Humphrey stopping at H1. The three of them were thus standing in line with their backs to the planter box and the west wall. None of them had looked and hence none of them had seen the planter box; each assumed that he or she was standing in front of a wall, the west wall which was some 30 inches away. Each conceded that the lighting was such that the box could have been seen readily had he or she looked in that direction.

Though these invitees when entering the restaurant through the foyer were entitled to assume that it was reasonably safe for their then use and were not obligated to make any sort of inspection to discover danger, that was because they were using that portion of the premises for its intended use. But when they were leaving the situation was changed. Mrs. Chance, Mr. Humphrey and Mr. Martini undertook to use the planter box as a supporting wall when they backed up to it. They merely assumed that it was a wall and did not look. Used for that purpose the planter box did present a hazard but it was on open and obvious one, defendant was not obligated to foresee such a departure from normal behavior of an invitee, and the latter was bound to see the hazard involved in using the box for her intended purpose,--as a supporting wall.

Counsel for respondent in their petition for rehearing say, with respect to our former opinion: 'The Opinion states, on p. 4, that the evidence on which the verdict was based is 'close and conflicting'. Contrary to this conclusion, all the material facts on which liability of both defendants was established were proved by evidence which was never really even disputed. The Court does not point out, nor could it, one instance of conflicting evidence as to a material fact.' We agree that the evidence which is determinative of liability herein is not contradicted and find that proof of absence of liability proceeds primarily from Mrs. Chance's own testimony. The following quotations from same are her exact language and the many repetitions of damaging facts are hers.

Direct Examination: 'Mr. Martini went ahead and opened the door for me.' 'He opened this door, and then he stood beside it, beside the door holding it. I had to pass in front of him, and this wall was adjacent. There is a wall there that is adjacent with the door, a glass door, so it was impossible to see anything going through except a wall to my right. * * * I just know he opened this door and I passed through. Then, it was crowded. Someone was standing almost directly in front of me, and I stopped and someone was either coming or going through. I have no way of knowing which way they were going because as I passed Mr. Martini, walking in such a fashion, I just stepped back to let someone pass.' 'Q This wall, on the other side of the door here, there is a wall, is that right? A I don't know what is there. Q Well, this is the door and--A This is the opening, right here, I came through. There is a door here that is open. Mr. Martini was holding the door. There is a wall directly behind the door.' 'And I walk through. As I said, the lobby was crowded. There was someone directly in front of me going out of the door, and as I got into this area someone was either going one way or the other. I have no way of knowing, but this was a crowded area anyway. I stepped back with just one foot and just as I did, ¹ I was standing next to Mr. Martini, at least I had thought I was, would be standing next to Mr. Martini, but this wall hit me just about back of my knee.' 'I am sorry, but the edge of this box, planter, or whatever it is, was in the process of being built. I did not know there was anything there. I hadn't seen it. I believe the measurements later stated it was 18 inches...