Evans v. Thomason

• Decision Date: 29 August 1977
• Citation: 72 Cal.App.3d 978,140 Cal.Rptr. 525
• Court: California Court of Appeals Court of Appeals
• Parties: William L. EVANS et al., Plaintiffs, Cross-Defendants and Respondents, v. John W. THOMASON et al., Defendants, Cross-Complainants and Appellants. Civ. 38920.

Page 525

140 Cal.Rptr. 525

72 Cal.App.3d 978

William L. EVANS et al., Plaintiffs, Cross-Defendants and Respondents, v. John W. THOMASON et al., Defendants, Cross-Complainants and Appellants.

Civ. 38920.

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

Aug. 29, 1977.

Hearing Denied Oct. 27, 1977.

Michael P. Diepenbrock, Santa Rosa, for appellants.

Albert G. Rizzo, Jr., Healdsburg, William B. Boone, Santa Rosa, for respondents.

TAYLOR, Presiding Justice.

John W. Thomason, Craig Kimball and Calvin Ford, the landlords, appeal from an adverse judgment entered after a court trial in an action brought by the tenants, William L. Evans, et al., ¹ for personal injuries and property damages sustained in a fire. The landlords contend that: 1) the trial court's finding that the landlords' negligence was the proximate cause of the fire is not supported by the evidence; and 2) the tenants failed to establish a legal duty as to the particular risk. For the reasons set forth below, we have concluded that the judgment must be affirmed.

Viewing the record most strongly in favor of the judgment, as we must, the following pertinent facts appear: On August 10, 1972, the tenants signed a month-to-month lease at $100 a month for the rental of an unfurnished one-bedroom duplex apartment in Healdsburg, with M. T. Sager. On October 21, 1972, the landlords purchased the duplex. Although no new lease was signed, the tenants continued to occupy the premises and pay rent pursuant to the terms and conditions of their August 1972 lease with the former owner.

The landlords maintained a joint bank account for the deposit of rental receipts and payment of the cost of repairs. The first months (November and December) after the landlords acquired the duplex, two of them (Kimball and Ford) worked as carpenter and electrician to renovate the unoccupied apartment adjacent to the one rented by the tenants. The landlords' acts in owning, operating, repairing and controlling the premises constituted a joint venture.

In December the bottom unit of a double plug electrical receptacle into which the freezer and refrigerator ² were plugged ceased to function. There was no other outlet for these two appliances in kitchen. The tenants then purchased a lightweight extension cord, attached both the freezer and refrigerator into two of the multiple prongs provided by the cord, and plugged the cord into the top unit of the receptacle.

In December, the tenants first advised the landlords of the defective kitchen outlet. At this time, the landlords were working on the apartment adjacent to that of the tenants. On at least two occasions, the landlords saw the tenants' extension cord with the freezer and refrigerator plugged into the top unit of the receptacle. The landlords promised the tenants that the defective outlet would be repaired, but never did so. The tenants were unable to find other comparable housing. On May 9, 1973, a fire in the extension cord caused severe personal injuries and property damage to the tenants and their household goods.

The landlords first argue that the evidence does not support the finding that their failure to repair the defective wall receptacle was the proximate cause of the fire. ³ It is readily apparent from the preceding summary of the record that there was ample substantial evidence to sustain the trial court's finding. ⁴ Questions of credibility must be resolved in favor of the determination of the trier of fact. When two or more inferences can reasonably be drawn from the evidence, a reviewing court may not substitute its deductions for those of the trier of fact. If on any material point the evidence is in conflict, it must be assumed that the court resolved the conflict in favor of the prevailing party (Nestle v. City of Santa Monica, 6 Cal.3d 920, 925, 101 Cal.Rptr. 568, 496 P.2d 480; Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782, 784, 59 Cal.Rptr. 141, 427 P.2d 805). Here, the conflicting evidence as to whether and when the landlords were told about the defective receptacle and whether or not they saw the extension cord attached to the two appliances was resolved in favor of the tenants by the trier of fact.

The uncontroverted evidence indicates that the tenants originally used both plug units of the kitchen double plug receptacle. After the bottom unit of the receptacle ceased to function the tenants asked the landlords to fix it and were told that the necessary repairs would be made. No other outlet was available for the freezer and refrigerator. Thereafter, the tenants connected both appliances to the extension cord and plugged the cord into the top socket. The landlords had notice of this fact and saw the two appliances attached to the extension cord on at least two occasions.

The landlords complain that although the expert testified that the overload on the extension cord caused the fire, the court found that the fire was caused by the defective outlet and not by the cord. In considering the question of proximate cause, foreseeability is a principal element (Curley v. Vick, 211 Cal.App.2d 670, 673, 27 Cal.Rptr. 501). The precise consequence of a wrongful act or omission, however, need not be foreseeable. 'The question is not whether defendant did foresee, or by the exercise of ordinary care should have foreseen the identical consequence that happened, in order that its acts or omission be a proximate cause of the injury or damage. The question is whether it (is) reasonably foreseeable that injury or damage would likely occur' (Osborn v. City of Whittier, 103 Cal.App.2d 609, 616, 230 P.2d 132, 136; Herrera v. Southern Pacific Co., 155 Cal.App.2d 781, 786, 318 P.2d 784).

In light of the dangerous nature of electricity, ⁵ which is a matter of common knowledge in this technological society, the landlords should have foreseen that their failure to repair the defective outlet might result in serious harm to the tenants and the tenants' household goods. In addition, two of the landlords (Kimball and Ford) had special expertise as electricians; they had notice of the defective unit and had seen the extension cord with the two large appliances plugged into the top unit. The landlords also acknowledged the immediate need for repairing electrical disorders, and indicated that their custom and past practice had been always to make repairs as expediently as possible. In the instant case, they apparently deviated from this beneficial past practice.

We think that the trial court properly concluded that, as a result of the landlords' repeated promises to repair, which lulled the tenants into a sense of security, and the landlords' subsequent failure to warn and to promptly repair the defective outlet, the tenants continued to use the extension cord for both appliances for a period of over two months and the fire resulted from this continued use. We therefore hold that the court was correct in its conclusion that the landlords' failure to remedy the defective outlet was the proximate cause of the fire.

We turn to the question of whether the tenants established that the landlords had a duty ⁶ toward them as to the particular risk. In recent years, the courts of this state have departed from the traditional common law doctrines of nonliability (Golden v. Conway, 55 Cal.App.3d 948, 128 Cal.Rptr. 69) and applied the ordinary rules of negligence to actions for damages between landlords and tenants (Brennan v. Cockrell Investments, Inc., 35 Cal.App.3d 796, 111 Cal.Rptr. 122).

Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, summarized the applicable rules of liability at pages 112 and 118--119, 70 Cal.Rptr. 97, 443 P.2d 561. The basic policy of this state is set forth in section 1714 of the Civil Code. ⁷ Every person is responsible for injuries caused to others by failure to use ordinary care or skill in the management of his property. This fundamental principle should prevail in the absence of statutory exception or overriding public policy. ⁸ Among the criteria for determining whether a landlord acted with ordinary care in the management of his property are: the likelihood of injury, the probable seriousness of such injury, the burden of reducing or avoiding the risk, and his degree of control over the risk creating defect (Brennan, supra, 35 Cal.App. at p. 801, 111 Cal.Rptr. 122).

In the instant case, the landlords had a duty to the tenants under the usual standards of reasonableness. The tenants on at least two occasions notified the landlords that the kitchen outlet was defective....