Gallin v. Poulou

• Decision Date: 10 April 1956
• Citation: 295 P.2d 958,140 Cal.App.2d 638
• Court: California Court of Appeals Court of Appeals
• Parties: Lena GALLIN, Plaintiff and Appellant, v. Jeanne POULOU, Defendant and Respondent. Civ. 16602.

Page 958

295 P.2d 958

140 Cal.App.2d 638

Lena GALLIN, Plaintiff and Appellant, v. Jeanne POULOU, Defendant and Respondent.

Civ. 16602.

District Court of Appeal, First District, Division 1, California.

April 10, 1956.

Hearing Denied June 6, 1956.

Joseph L. Bortin, San Francisco, for appellant.

Boyd & Taylor, San Francisco, for respondent.

PETERS, Presiding Justice.

Plaintiff is a tenant in an apartment house owned by defendant. Defendant employed a contractor to construct some garages in the basement of the apartment building. Thereafter, some plaster fell from the ceiling in plaintiff's apartment, injuring her. This action was brought on the theory that the construction work caused the building to vibrate, causing the plaster to fall, and that such constituted a trespass for which the landlord is responsible. The trial court granted defendant's motion for a nonsuit. From the judgment based thereon, plaintiff appeals.

In May of 1953 plaintiff, then 68, occupied a first-floor apartment in an apartment house then owned by defendant. She had occupied the apartment for about 12 years. The defendant had purchased the apartment house in 1947. Defendant, who did not live in San Francisco, did not visit the property very often, nor did she employ a manager to supervise it.

For several years prior to 1953 the ceiling in the bathroom of plaintiff's apartment was cracked, and pieces of plaster hung down over the tub. No plaster had ever fallen, however. This condition had existed for several years. Plaintiff never reported this condition to defendant, nor did defendant know about it. There is no evidence that defendant was under any duty to repair this condition.

In March of 1953 the defendant engaged a Mr. Folino, whether as an employee or independent contractor does not clearly appear, to construct four garages in the basement of the apartment house directly below plaintiff's apartment. The plaintiff testified that the construction work caused her apartment to vibrate. Plaintiff complained to one of the workmen who came into the apartment and saw the condition of the plaster. Who this workman was, what was his position, and what was his authority, if any, do not appear. At any rate, plaintiff made no complaint to defendant.

On May 3, 1953, while plaintiff was bending over her bathtub, a piece of plaster, larger than a dinner plate, fell and hit her on the head and shoulders, causing the injuries for which this action was brought. Prior to this date no plaster had fallen in plaintiff's apartment, nor, so far as is known, had plaster fallen any place else in the building. While the garages were being constructed defendant never visited the premises during working hours, nor did she know what equipment the workmen used, nor how they performed their work. She did visit the premises once or twice a week during the construction period, but such visits were always after the workmen had quit for the day. On this evidence the trial court granted a nonsuit, and plaintiff appeals from the judgment based thereon.

The plaintiff expressly renounces any theory of liability based on the violation of any duty owed by a landlord to a tenant, or on negligence. The theory relied upon is disclosed by the allegation of the complaint to the effect that defendant 'undertook substantial repairs, alterations, and improvements * * * which * * * in the normal course thereof, were apt to, and did set up severe vibrations,' and that as a 'direct and proximate result of said dangerous and defective condition, and said vibration, a certain piece of plaster * * * was caused to * * * fall * * * striking plaintiff on her head.' In other words, plaintiff contends that the acts complained of constituted a trespass and are actionable regardless of negligence. She places particular reliance on the rule stated in the case of Green v. General Petroleum Corp., 205 Cal. 328, 333, 270 P. 952, 955, 60 A.L.R. 475, where it is stated: 'Where one, in the conduct and maintenance of an enterprise lawful and proper in itself, deliberately does an act under known conditions, and, with knowledge that injury may result to another, proceeds, and injury is done to the other as the direct and proximate consequence of the act, however carefully done, the one who does the act and causes the injury should, in all fairness, be required to compensate the other for the damage done.'

The basic question presented is whether or not an absolute liability exists in the case of a constructive trespass, or whether such liability only exists in this state when the defendant engages in an extra-hazardous activity or commits an intentional or negligent trespass. At common law the action of trespass was limited to a direct invasion of property. In such action the defendant was held strictly liable for all damages regardless of negligence. But where, as here, the invasion was indirect or constructive the form of action was on the case. In such an action proof of negligence and improper intent were essential. Prosser on Torts, 2d ed., pp. 54 to 56. This distinction between direct and indirect invasions is not recognized in this state. In Coley v. Hecker, 206 Cal. 22, 28, 272 P. 1045, 1048, it was said that the 'trend of decisions of this court is generally in accord with the doctrine, whenever the question has come before it, that trespasses may be committed by consequential and indirect injuries as well as by direct and forcible injuries.' Vibrations, under certain circumstances, can constitute a trespass. McNeill v. Redington, 67 Cal.App.2d 315, 154 P.2d 428. In McKenna v. Pacific Electric Ry. Co., 104 Cal.App. 538, 286 P. 445, the plaintiff's property was damaged by vibrations caused by the blasting operations of defendant. The court said in 104 Cal.App. at page 543, 286 P. at page 447: 'We see no reason for differentiating between responsibility for damage done by physical projectiles or missiles and responsibility for damage done by vibration or concussion.' See generally Robinson v. Black Diamond Coal Co., 57 Cal. 412; McGrath v. Basich Brothers Const. Co., 7 Cal.App.2d 573, 46 P.2d 981; Colton v. Onderdonk, 69 Cal. 155, 10 P. 395.

The real question involved is not whether there is a distinction between direct or indirect trespass, in this state, because there is not, but what the rule of liability in such cases is. Does California apply the rule of strict liability as to all trespasses, or has California imposed liability only for intentional trespasses and trespasses caused by reckless, negligent or extra-hazardous activities? The Restatement of Torts has clearly adopted the latter rule. Section 158 provides:

'One who intentionally and without a consensual or other privilege

'(a) enters land in possession of another or any part thereof or causes a thing or third person so to do * * * is liable as a trespasser to the other irrespective of whether harm is thereby caused to any of his legally protected interests.'

Section 165, and several of the comments to the section, provide:

'One who recklessly or negligently, or as a result of an extra hazardous activity, enters land in the possession of another or causes a thing or third person so to enter is subject to liability to the possessor if, but only if, his presence or the presence of the thing or the third person upon the land causes harm to the land, to the possessor thereof or to a thing or a third person in whose security the possessor has a legally protected interest.

'Comment a. To come within the rule stated in this Section, the conduct of the actor either must involve an unreasonable risk of invading the possessor's interest in his exclusive possession of the land or some other interest connected therewith or must be caused by an extra hazardous activity carried on by the actor which, although carefully carried on, involves a risk of invading such an interest * * *.'

'Comment d. The rules which determine whether the actor's conduct is reckless or is negligent as involving an unreasonable risk of an invasion of the other's interest in the exclusive possession of land are the same as those which determine the recklessness or negligence of conduct as threatening bodily harm * * *.

'The rules which determine whether an activity carried on by the actor is so especially hazardous that it must be carried on at the risk of answering for any intrusion on another's land caused by the miscarriage of the activity are the same as determine the ultra hazardous character of an activity, the miscarriage of which is likely to result in bodily harm * * *.

'Comment e. There is this difference between liability for harm caused to the possessor of land by a negligent or reckless intrustion thereon or by an intrusion resulting from the conduct of an extra hazardous undertaking and the liability for harm so caused otherwise than upon land in the other's possession. In the latter case, the actor's conduct is not negligent unless there is an unreasonable risk of causing some such harm as that which the other sustains. In the situation dealt with in this Section, the actor's conduct is sufficient to subject him to liability for any harm which is done to the possessor if such conduct contains an unreasonable risk of resulting in an intrusion upon the possessor's land. If...