Gaw v. McKanna

• Decision Date: 07 July 1964
• Court: California Court of Appeals Court of Appeals
• Parties: Charles S. GAW, Plaintiff and Appellant, v. Edmund P. McKANNA, dba Civic Center Realty, a fictitious firm name, Defendant and Respondent. Civ. 27607.

Page 428

39 Cal.Rptr. 428

228 Cal.App.2d 348

Charles S. GAW, Plaintiff and Appellant, v. Edmund P. McKANNA, dba Civic Center Realty, a fictitious firm name, Defendant and Respondent.

Civ. 27607.

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

July 7, 1964.

Jones & Tollefson and Philip F. Jones, San Fernando, for appellant.

John F. McKenna, Jr., Los Angeles, for respondent.

FOX, Presiding Justice.

Plaintiff brought this action for damages for personal injuries allegedly arising from a trip-and-fall incident which occurred on defendant's property. He appeals from a judgment entered on a verdict for defendant following a trial by jury.

At the time of his injury plaintiff was employed by Pacific Inspections, Inc., a company which was in the business of making inspections and reports on properties for which insurance had been sought. His duties consisted of personally inspecting such properties as were assigned to him for this purpose, and making a written report to his employer for transmittal to the insurance company that had requested it. This report was then used by the insurance company in deciding whether a policy of insurance would be issued or renewed.

On May 31, 1960, plaintiff was instructed by his employer to inspect and report on the real property and improvements located at 440 North Alvarado Street in Los Angeles. This property was owned by defendant, a licensed real estate broker, having been acquired by him about a year previously for investment and income purposes. The improvements on the property consisted of: an unoccupied store building which fronted on the street; an asphalt driveway from the street to the rear of the store building; an asphalt walkway extending from the driveway along the rear of the store building; and an old vacant house located a few feet to the rear of the store building on the back part of the lot. On an adjoining lot, also owned by defendant, was another dwelling which defendant rented out and which was occupied continuously from the time he purchased it. At the time he purchased the property defendant made an arrangement with these tenants to keep the property clean and free of foreign matter in return for an allowance on their rent.

On the day plaintiff arrived to inspect the property, the store building and grounds were concededly in a state of disrepair. Glass panes were broken in the store building and there was trash and debris inside. Plaintiff walked down the driveway to the rear of the house, where he noticed some clumps of grass and some trash strewn about in the back yard. At the end of the driveway he turned to walk along the asphalt walkway that went across the rear of the store. After taking only two or three steps, however, his left foot tripped over a tree stump which was growing up through the asphalt walk and which, according to plaintiff's testimony, was concealed by a clump of grass so that he didn't see it. The ensuing fall resulted in the injuries of which plaintiff here complains.

The asphalt walk upon which the injury occurred had been installed before defendant had purchased the property. He had inspected the property prior to the purchase and was personally present on the property every ten days to two weeks, during which occasions he noticed that the property was unclean and unkempt. He knew there were clumps of grass at the rear of the building but was unaware of the existence of the tree stump.

Prior to trial it was stipulated (by virtue of defendant's failure to respond to plaintiff's request for admissions) that on the date in question plaintiff came on defendant's property and on the asphalt walkway as a business invitee of defendant's, for the purpose of inspecting the property and to make a report to the insurance company to which defendant had applied for public liability insurance.

At the conclusion of the trial the jury was instructed generally on the law of negligence, the duties of a landowner to a business invitee, contributory negligence, and assumption of the risk. Certain instructions requested by plaintiff, however, were refused, and this refusal forms the basis for plaintiff's principal claim of error on this appeal.

Plaintiff contends, among other things, that the following special instruction should have been given to the jury: 'Title 8, Section 3250(b) of the California Administrative Code, in the subchapter entitled 'General Industry Safety Orders' provides as follows:

'Permanent roadways, walkways and material storage areas in yards shall be maintained reasonably free of dangerous depressions, obstructions and debris.

'If you should find from the evidence in this case that the defendant conducted himself in violation of the safety order just read to you, you are instructed that such conduct constituted negligence as a matter of law.'

This instruction embodies the terms of General Industry Safety Order section 3250(b), which plaintiff asserts is applicable in the instant case. Essentially, plaintiff's position is that defendant, as a property owner, here occupied the status of an 'employer' under the definition set forth in the Labor Code, and that as such he had the duty of complying with all applicable general safety orders of the Division of Industrial Safety. We have concluded, for the reasons set forth below, that the case authority in this state supports plaintiff's contention. Therefore, since the failure to give the requested instruction necessitates a reversal of the judgment, we shall confine our discussion to that particular point.

According to Labor Code section 6304 the term 'employer' includes 'every person having direction, management, control, or custody of any * * * place of employment * * *.' 'Place of employment' means any place where employment is carried on. (Labor Code § 6302.) The cases construing these sections make clear that their meaning is not to be restricted by the traditional concept of an employer as one who hires another to work for him. Rather, 'This definition is obviously intended to enlarge the meaning of 'employer' beyond its usual meaning for the purposes of Division 5 of the Labor Code in which it is found and which deals specifically with 'Safety in Employment.' Where an owner of real property contracts to have work done on his property such property becomes a place 'where employment is carried on' and hence a place of employment under the definition of section 6302. Since the owner has 'custody and control' of his own property, he then has custody and control of a 'place of employment' and hence is an 'employer' within the definition of section 6304. This was the specific holding of the court in Maia v. Security Lumber & Concrete Co., 160 Cal.App.2d 16, 324 P.2d 657. * * *

'We are satisfied that as to unsafe conditions of employment which exist in the place of employment at the time that it is turned over by the owner to an independent contractor the owner is an 'employer' within the meaning of Labor Code, section 6304. This being so the owner's duty as 'employer' under 6304 [was] obviously greater than his common-law duties as invitor to an invitee. As 'employer' under that section he was obliged under section 6400, Labor Code, to furnish a place of employment which was 'safe for the employees therein.' This is a statutory duty which cannot be satisfied by mere warning or obviousness, those questions going only to the question of the injured party's contributory negligence. (Atherley v. MacDonald, Young and Nelson, supra, 142 Cal.App.2d at page 587, 298 P.2d 700.)' (Johnson v. A. Schilling & Co., 170 Cal.App.2d 318, 322, 324, 339 P.2d 139, 141, 142. See also: Williams v. Pacific Gas & Elec. Co., 181 Cal.App.2d 691, 708, 5 Cal.Rptr. 585; Johnson v. A. Schilling & Co., 194 Cal.App.2d 123, 128-131, 14 Cal.Rptr. 684.) Thus, the owner of property as an 'employer' must comply with applicable safety orders even though a business invitee who is injured is actually the employee of someone else,...