Chance v. Lawry's, Inc.

• Decision Date: 28 August 1962
• Citation: 58 Cal.2d 368,374 P.2d 185,24 Cal.Rptr. 209
• Parties: , 374 P.2d 185 Virginia CHANCE, Plaintiff and Respondent, v. LAWRY'S, INC., John Krenz and Donald F. Shaw, Defendants and Appellants. L. A. 26767
• Court: California Supreme Court

Page 209

24 Cal.Rptr. 209

58 Cal.2d 368, 374 P.2d 185

Virginia CHANCE, Plaintiff and Respondent, v. LAWRY'S, INC., John Krenz and Donald F. Shaw, Defendants and Appellants.

L. A. 26767.

Supreme Court of California

Aug. 28, 1962.

Carol G. Wynn, Anthony M. Wynn, Frank W. Woodhead, Robert E. Morrow and Henry F. Walker, Los Angeles, for defendants and appellants.

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

PETERS, Justice.

Plaintiff, Virginia Chance, was awarded a unanimous verdict of $15,000 against defendants Lawry's, Inc., a restaurant, John Krenz, its manager, and Donald F. Shaw, the general contractor who was engaged in remodeling the premises. Defendants appeal from the judgment entered on this verdict, and from the order denying their motions for judgment notwithstanding the verdict. The same jury also returned a verdict against Alfred Chance, husband of Virginia, on his cause of action seeking to recover 'damages for loss of consortium and services'. He has not appealed from this adverse judgment.

On September 29, 1958, Virginia Chance was injured when she fell in the foyer of Lawry's restaurant. Earlier in that year Lawry's had started to remodel the restaurant, including the foyer, under the supervision of defendant Shaw, a general contractor. One feature of the remodeling was the installation of a planter box in the foyer of the restaurant. The foyer was approximately 6 feet wide and 10 feet long, and was enclosed by glass double swinging doors at each end. The planter box, recessed into the west wall of the foyer (to the right-hand side of one leaving the restaurant), was about 30 inches in width, 6 feet in length and 18 inches in depth. It was joined to the floor by a coved base of smooth terrazzo. On September 29th Shaw was still doing some construction work in the foyer, although the carpenter work on the planter box had been completed. At the time of the injury the workday was over and Shaw's workmen and subcontractors had left the premises.

Mrs. Chance was one of a party of 8 who had dined at Lawry's on the night of the accident. After they had finished dining and were about to depart, Mr. Martini, one of the party, opened the right-hand glass door into the foyer and then stepped partly in front of it holding the door open to permit the others to pass through. Mrs. Chance followed and stood next to Mr. Martini, at his right. Mr. Humphrey, also in this party, was standing on Mrs. Chance's right. Thus the 3 stood with their backs to the planter box and to the west wall of the foyer waiting for the rest of the group. As Mrs. Chance entered the foyer another party was either going out of or coming into Lawry's. This resulted in considerable crowding. To relieve the congestion and to permit someone to pass, both Humphrey and Mrs. Chance stepped backward. Humphrey bumped against the planter box and momentarily lost his balance. When he recovered his balance he saw that Mrs. Chance had not been so fortunate. As she stepped backward she struck the back of her knee on the wall of the planter box, lost her balance and fell into the open box. There is no dispute but that the foyer was then well lighted. Mrs. Chance, Martini and Humphrey testified that they had not observed the planter box either when they entered Lawry's before dinner or when they reentered the foyer after dining. They admitted, however, that they could have seen it had they looked.

Admittedly Mrs. Chance was an invitee of Lawry's. The duty imposed on the invitor is clear. 'It is the general rule that the proprietor of a store who knows of, or by the exercise of reasonable care could discover, an artificial condition upon his premises which he should foresee exposes his business visitors to an unreasonable risk, and who has no basis for believing that they will discover the condition or realize the risk involved, is under a duty to exercise ordinary care either to make the condition reasonably safe for their use or to give a warning adequate to enable them to avoid the harm.' (Bridgman v. Safeway Stores, Inc., 53 Cal.2d 443, 446, 2 Cal.Rptr. 146, 147, 348 P.2d 696, 697; see also, Neel v. Mannings, Inc., 19 Cal.2d 647, 652, 122 P.2d 576; Blumberg v. M. & T., Inc., 34 Cal.2d 226, 229, 209 P.2d 1.) It is also the law that a business invitee is not obliged to make a critical examination of the surroundings he is about to enter, but on the contrary has the right to assume that hose in charge have exercised due care in the matter of inspection, and have taken proper precautions for the safety of the patrons, and will use reasonable care in guarding him against injury. (Chardon v. Alameda Park Co., 1 Cal.App.2d 18, 23, 36 P.2d 136.)

Under the facts, the jury could have concluded that the open planter box, situated as it was in a narrow foyer of a busy restaurant, and which constituted a hazard when a patron merely stepped aside, as a matter of courtesy, to let another person pass, was a dangerous condition. There were no signs, barricades or warnings in front of the trench. There is substantial evidence to support the jury's conclusion that in the exercise of ordinary care in these circumstances Lawry's should have either obviated the danger or warned Mrs. Chance of its existence.

It is Lawry's main contention that, under the facts, it was under no duty to warn its patrons because the danger of the open planter box was so obvious that it could reasonably anticipate that patrons would see and apprehend the danger. Therefore, so it is argued, Lawry's owed no duty to warn Mrs. Chance of such a danger. (2 Witkin, Summary of Cal.Law (7th ed. 1960) p. 1957; Seavey, Swift & Co. v. Schuster Liability to One Aware of Danger (1952) 65 Harv.L.Rev. 623, 625; Keeton, Personal Injuries Resulting From Open And Obvious Conditions (1952) 100 U.Pa.L.Rev. 629, 634.)

On our opinion this was a fact question for the jury. Under the evidence the jury could reasonably conclude that Lawry's could not have reasonably expected that its patrons would necessarily see the planter box and apprehend the danger. Lawry's knew that its restaurant and bar could accommodate as many as 300 persons at any one time, and that the small and narrow foyer, measuring only 6 by 10 feet, would be crowded during the dinner hours. Moreover, Lawry's must be held to know that the members of a dinner party working their way through a crowded restaurant foyer cannot be expected to be as observant as a pedestrian in the open street (see Blodgett v. B. H. Dyas Co., 4 Cal.2d 511, 513, 50 P.2d 801). Whether the danger created by the open planter box was sufficiently obvious to relieve Lawry's of its duty to warn Mrs. Chance of its existence was peculiarly a question of fact to be determined by the jury. (Revels v. Southern California Edison Co., 113 Cal.App.2d 673, 679, 258 P.2d 986.)

Defendants also urge that even if Lawry's was under a duty to warn its patrons of the danger, the danger was so obvious that Mrs. Chance must be held guilty of contributory negligence as a matter of law in not seeing it. 'To establish the defense of contributory negligence as against the verdict of a jury, the evidence must be such that the appellate court can say that there is no substantial conflict on the facts, and that from the facts reasonable men can draw but one inference, which inference points unerringly to the negligence of the plaintiff proximately contributing to his own injury.' (Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183, 184; see also, Florez v. Groom Development Co., 53 Cal.2d 347, 354, 1 Cal.Rptr. 840, 348 P.2d 200.) Defendants urge that this inference must be drawn since Mrs. Chance, Humphrey and Martini all testified that if they had looked they would have seen the planter box. Defendants rely on the familiar proposition that a person is under a duty to look where he is going and to see that which is in plain sight in front of him (Atherley v. MacDonald, Young & Nelson, Inc., 142 Cal.App.2d 575, 585, 298 P.2d 700; Blodgett v. B. H. Dyas Co., supra, 4 Cal.2d 511, 513, 50 P.2d 801). But, as this court said in Laird v. T. W. Mather, Inc., 51 Cal.2d 210, 218, 331 P.2d 617, 622, 'There are many cases involving accidents in mercantile establishments where the question of plaintiff's contributory negligence has been held to be a question for the jury even though the plaintiff failed to observe what may have been an obvious danger.' (See, e. g., Neel v. Mannings, Inc., supra, 19 Cal.2d 647, 655-656, 122 P.2d 576 (ceiling board over stairway); Hodge v. Weinstock, Lubin & Co., 109 Cal.App. 393, 397, 293 P. 80 (platform); Brinkworth v. Sam Seelig Co., 51 Cal.App. 668, 671, 197 P. 427 (boxes in aisle); Walsh v. Maurice Mercantile Co., 20 Cal.App.2d 45, 48-49, 66 P.2d 181 (scale protruding into aisle); Wills v. J. J. Newberry Co., 43 Cal.App.2d 595, 601-602, 111 P.2d 346 (vomitus in aisle); Madigan v. O. A. Hale & Co., 90 Cal.App. 151, 158, 265 P. 574 (cleats missing on slide).) It cannot be said as a matter of law that Mrs Chance was contributively negligent for not seeing the planter box or in not looking back before she stepped backward. Admittedly she did not know of the existence of the planter before her fall. She had only been to Lawry's a few times previously, the last being long before the remodeling began. As she entered the foyer from the restaurant she did not face the planter and it was therefore not within her scope of vision. Furthermore, even if she had looked to the side as she entered the foyer, with the distractions of the crowded foyer and after dinner conversation she might not have immediately apprehended the danger of the 18-inch-high planter box recessed into the west wall. Lulled by the realization that she was in a good Beverly Hills restaurant, Mrs. Chance was entitled to assume that there would not be a dangerous cavernous box in the crowded foyer. Whether she made a reasonable use of her faculties...