Coughlin v. Harland L. Weaver, Inc.

• Citation: 103 Cal.App.2d 602,230 P.2d 141
• Court: California Court of Appeals
• Decision Date: 19 April 1951
• Parties: COUGHLIN v. HARLAND L. WEAVER, Inc., et al. Civ. 17771.

Page 141

230 P.2d 141

103 Cal.App.2d 602

COUGHLIN v. HARLAND L. WEAVER, Inc., et al.

Civ. 17771.

District Court of Appeal, Second District, Division 3, California.

April 19, 1951.

Gandy & Cockins, Santa Monica, for appellant.

Tripp & Callaway and Toxey Hall Smith, Los Angeles, for respondent Harland L. Weaver, Inc.

Crider, Runkle & Tilson, Los Angeles, for respondent Marshall D. Graham Corp.

PARKER WOOD, Justice.

Action for damages for personal injuries. At the close of plaintiff's case the defendant corporations made motions for nonsuit. The motion of the Graham Corporation was granted, and the motion of Weaver, Inc. was denied. The verdict was in favor of defendant Weaver, Inc. Plaintiff appeals from the judgment of nonsuit and from the judgment entered on the verdict.

Defendant Harland L. Weaver, Inc., a corporation, was the builder and owner of a dwelling house in Los Angeles. That defendant authorized the defendant Marshall D. Graham Corporation, a real estate broker, to sell the property at a certain price and it agreed to pay the broker a commission for its services. On November 28, 1948, a Miss Hanen, who was an employee of the Graham Corporation, was at the property for the purpose of showing the property to prospective purchasers. In front of the house there was a sign which stated 'Open for Inspection.' About 4 p. m. of said day the plaintiff, who intended to buy a house, and three of her friends entered the house, upon invitation by Miss Hanen, for the purpose of inspecting it. Miss Hanen proceeded to show the house to them, and as they went from room to room she talked to them about the house. They all went into a hall and then two of plaintiff's friends went into a bedroom. The hall was well lighted. On one said of the hall there was a door to a linen closet and across the hall from that door there was a door to the basement. The basement door was constructed so that it opened away from the hall and over the stairway leading to the basement. There was no landing at the top of the basement stairway--the stairway was flush with the bottom of the door or the floor of the hall. The stairway did not have a handrail. While Miss Hanen and plaintiff's friend (who remained in the hall) were looking toward the linen closet door, the plaintiff opened the basement door, stepped forward and through the doorway as the door opened, and fell into the basement. No one saw her open the door or saw her fall.

On the basement door there was a doorknob, and about 5 inches above the doorknob there was a smaller knob which was a part of a bolt lock. The bolt part of the lock was concealed in the wood of the door, and the bolt was operated by turning the small knob. Plaintiff testified that she did not see the lock above the doorknob; she went to the door, put her right hand on the doorknob, and said, 'What's this room?'; then she turned the doorknob, opened the door, and stepped 'with it' through the doorway into dark space. Miss Whittle, an employee of the Graham Corporation, who was called as a witness by defendant Weaver, Inc., testified that she opened the house about 10 a. m. on the day of the accident; that she left the house about 2 p. m., after Miss Hanen arrived there; and that the basement door was locked when she left. Miss Hanen, who was called as a witness by defendant Weaver, Inc., testified that she arrived at the house about 1 p. m.; and that the basement door was locked when she took plaintiff and her friends through the house. Mr. Weaver, president of defendant Weaver, Inc., testified that his company owned several houses in the tract where this house is located; that he had given instructions to the people in charge of the property that all basement doors had to be locked; and that the doors were locked, as a precautionary measure, to keep children from opening them. He also testified that about 4 p. m. on a clear day the visibility at the top of the basement stairway was fair.

Ordinances of the City of Los Angeles required that there should be a landing at the top of the basement stairway, and that the stairway should have a handrail.

Appellant contends that the granting of the motion for a nonsuit as to the Graham Corporation was erroneous. She alleged in her complaint that the Graham Corporation was an independent contractor. At the close of plaintiff's case, as above stated, defendant Weaver, Inc. made a motion for a nonsuit upon the grounds: that any violation of the ordinance is not a proximate cause of any injury sustained by plaintiff; and that plaintiff was guilty of negligence as a matter of law. The motion was denied. Thereupon counsel for defendant Graham Corporation made a motion for a nonsuit and stated that it was made upon the same grounds that were advanced by defendant Weaver, Inc. The trial judge said: '[T]he motion will be denied on that ground, but there is a ground upon which the Court will entertain a motion, and that is upon the ground that * * * there has been no evidence to substantiate the plaintiff's contention in his pleadings that this real estate company was an independent contractor. * * * And furthermore, there is nothing in his pleadings * * * basing any liability on the ground of an agency.' Thereupon the court granted the motion of defendant Graham Corporation for a nonsuit. Counsel for plaintiff then asked to be heard, and he argued that plaintiff was a business invitee of both defendants. Thereafter the court said: 'Had you proceeded on the theory of agency the Court would have sustained you, but you chose to proceed on a tenuous theory here which the Court is not going to grant. I grant you that the--it might have been the agent of either or both parties.' Then counsel for plaintiff said that if the defendant Graham Corporation was not an independent contractor and was merely an agent that he (counsel) thought said defendant would not be liable. The court said: 'The only question before the Court is one of an independent contractor. That is your pleading, and that is what you chose to stand on. * * * The motion will be granted.' The evidence was sufficient to prove that plaintiff was a business visitor. In the Restatement of the Law of Torts, section 343, it is stated in part that a possessor of land is subject to liability for bodily harm caused to business visitors by a condition thereon if he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care to make the condition reasonably safe or to give a...