Hamilton v. Gage Bowl, Inc.

• Decision Date: 04 June 1992
• Docket Number: No. B055904,B055904
• Citation: 6 Cal.App.4th 1706,8 Cal.Rptr.2d 819
• Court: California Court of Appeals Court of Appeals
• Parties: Jean HAMILTON, Plaintiff and Appellant, v. GAGE BOWL, INC., Defendant and Respondent.

Page 819

8 Cal.Rptr.2d 819

6 Cal.App.4th 1706

Jean HAMILTON, Plaintiff and Appellant, v. GAGE BOWL, INC., Defendant and Respondent.

No. B055904.

Court of Appeal, Second District, Division 7, California.

June 4, 1992.

Review Denied Aug. 20, 1992.

Gelfand & Gelfand and Gary B. Gelfand, Beverly Hills, for plaintiff and appellant.

Long, Brown & Weisberg, Pasadena, and Elizabeth Ashley Rosebrock, Los Angeles, for defendant and respondent.

LILLIE, Presiding Justice.

In an action for damages for personal injuries based on premises liability, plaintiff appeals from judgment of nonsuit in favor of defendant Gage Bowl, Inc., entered after the conclusion of plaintiff's opening statement. (Code Civ.Proc., § 581c.)

FACTS

The complaint alleged: In a parking lot owned and operated by defendant Gage Bowl, Inc., plaintiff sustained personal injuries when she was struck by a sign which fell from a building adjacent to the parking lot owned by defendants General Veneer and Geneerco, Inc., and occupied by defendant Howard Manufacturing, Inc. Defendants negligently maintained, managed and operated the parking lot and the adjacent building.

Plaintiff settled with defendants General Veneer, Geneerco and Howard Manufacturing for $220,000 and the action was dismissed with prejudice as to those defendants.

The action was ordered to arbitration as to the remaining defendant, Gage Bowl, Inc. Following rendition of an arbitration award of $130,000 in favor of plaintiff, Gage Bowl timely requested a trial de novo by jury. (Code Civ.Proc., § 1141.20.)

Plaintiff's opening statement, made at that trial, set forth the following facts which plaintiff intended to prove: On February 23, 1987, plaintiff participated in a senior citizens' bowling tournament at defendant's place of business, the Gage Bowling Alley. At about 2:30 p.m., after the tournament concluded, plaintiff returned to her car in the parking lot owned by defendant and provided by it for patrons of its bowling alley. The north side of the parking lot extended to and abutted the south wall of a building owned by General Veneer and Geneerco and leased by Howard Manufacturing (the building). The asphalt surface of the lot had stripes designating parking spaces painted up to the wall. While there was no access to the building from defendant's parking lot, a sign was attached to the south wall of the building which read "Howard Ladders--Ventwood" and gave Howard's address. The sign, approximately 10 feet long and four feet high, was made of steel and was located about 12 feet up the wall from the surface of defendant's parking lot. The sign extended one or two inches out from the wall.

Plaintiff's car was parked on the portion of defendant's lot adjacent to the south wall of the building. As plaintiff was preparing to put her bowling ball and bowling shoes into the trunk of her car, the sign fell from the wall and struck plaintiff inflicting personal injuries.

The sign was on the south wall of the building in 1979 when Ray Sevela purchased Gage Bowling Alley and its parking lot. Thereafter, someone from Howard Manufacturing removed the sign, placed another sign over it, and reattached the finished product to the south wall. The refurbished sign (the one which fell) was fastened to the wall by nails driven into grout, a method which did not conform to the building code. Mr. Sevela, the owner of the bowling alley and parking lot, did not inspect the sign before the accident.

When Sevela bought the bowling alley and the parking lot a sign reading "Additional parking across street" (Gage sign), three feet by three feet, was affixed to the south wall of the building eight or 10 feet above the surface of the parking lot and east of the sign that fell from the wall. Sevela took down the Gage sign, refurbished it, and put it back up (with lug bolts) without asking permission from the owners or the tenant of the building. Sevela also painted a small portion of the south wall to cover graffiti, again without permission from the owners or the tenant. Sevela would testify that he exercised control over the wall by rehanging the Gage sign on it and repainting parts of it.

After completion of plaintiff's opening statement, the trial court noted that one cannot be held liable for a dangerous condition of property which he does not own, possess or control. The court concluded that plaintiff's proposed evidence did not show that defendant exercised such control over the south wall as to render defendant liable for the injuries sustained by plaintiff when the sign fell from the wall.

The court invited defendant to move for a nonsuit. Defendant did so. The motion was granted (Judge Birney) and judgment of nonsuit entered (Judge Torribio). Plaintiff appeals from the judgment.

DISCUSSION

I STANDARD OF REVIEW

A motion for nonsuit is tantamount to a demurrer to the evidence by which a defendant contests the sufficiency of plaintiff's evidence before presenting his or her own. (Loral Corp. v. Moyes (1985) 174 Cal.App.3d 268, 272, 219 Cal.Rptr. 836.) It presents a question of law, namely, whether the evidence offered in support of plaintiff's case would support a judgment for plaintiff. (Ibid.) In considering a motion for nonsuit on an opening statement, a trial court " 'must accept as true all of the Since a motion for nonsuit after plaintiff's opening statement is designed to call attention to correctable defects, granting such a motion is proper only where it is clear that counsel has stated all of the facts he expects to prove. (John Norton Farms, Inc. v. Todagco (1981) 124 Cal.App.3d 149, 161, 177 Cal.Rptr. 215.) The record discloses that plaintiff's counsel was given every opportunity to state all of the facts he hoped to prove to establish plaintiff's case.

                facts set forth in the statement, must give those facts all the value to which they are legally entitled, and must indulge in every legitimate inference which may be drawn therefrom.'  [Citation.]  '[p] In an appeal from a judgment of nonsuit, the reviewing court is guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff.'  [Citation.]"  (Dong v. Board of Trustees (1987) 191 Cal.App.3d 1572, 1577, 236 Cal.Rptr. 912.)   The evidence offered in the opening statement must, however, be substantial evidence sufficient to support a judgment in favor of plaintiff.  (Hays v. Vanek (1989) 217 Cal.App.3d 271, 288, 266 Cal.Rptr. 856.)
                

II PREMISES LIABILITY

The issue presented by defendant's motion for nonsuit is whether defendant owed any duty to plaintiff. Without a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member, no negligence is established. (Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656, 663, 250 Cal.Rptr. 57.) Whether a defendant owes a duty of care in a given situation is a question of law for the court to determine. (Brown v. Department of Veterans Affairs (1986) 178 Cal.App.3d 392, 406, 224 Cal.Rptr. 149.)

Generally, a landowner has no right to control and manage property owned by another. (Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 725, 246 Cal.Rptr. 199.) Accordingly, a defendant cannot be held liable for a defective or dangerous condition of property which defendant did not own, possess, or control. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.) "[T]he duty to take affirmative action for the protection of individuals coming onto one's property 'is grounded in the possession of the premises and the attendant right to control and manage the premises.' [Citation.] Without the 'crucial element' of control over the subject premises [citation], no duty to exercise reasonable care to prevent injury on such property can be found." (Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81, 256 Cal.Rptr. 877.)

A

Plaintiff contends the sign that fell and injured her was part of the parking lot which defendant owned. In support of this theory plaintiff argues as follows: Civil Code section 659 defines land to include "free or occupied space for an indefinite distance upwards as well as downwards, subject to limitations upon the use of airspace imposed, and rights in the use of airspace granted by law." Civil Code section 829 provides: "The owner of land in fee has the right to the surface and to everything permanently situated beneath or above it." The sign, which extended one or two inches out from the wall, occupied the airspace above defendant's parking lot and therefore was part of the lot.

A literal interpretation of Civil Code sections 659 and 829 was rejected in Hinman v. Pacific Air Transport (9th Cir.1936) 84 F.2d 755, certiorari denied 300 U.S. 654, 57 S.Ct. 431, 81 L.Ed. 865, wherein the court stated: "Title to the airspace unconnected with the use of land is inconceivable. Such a right has never been asserted. It is a thing not known to the law.... [p] We own so much of the space above the ground as we can occupy or make use of, in connection with the enjoyment of our land. This right is not fixed. It varies with our varying needs and is coextensive with them. The owner of land owns as much of the space above him as he uses, but only so long as he uses it. All that lies beyond From the facts set forth in plaintiff's opening statement, it may reasonably be inferred that defendant "used" the airspace above its parking lot adjacent to the south wall of the building to a height necessary to permit its patrons to park their cars abutting the wall. It may not be inferred, however, that defendant used, or even needed, the airspace 12 feet above the surface of its parking lot into which the sign intruded. Accordingly, we reject plaintiff's contention that under Civil Code sections 659 and 829 defendant owned the sign because it was within the air space above defendant's parking lot.

belongs to the world." (84 F.2d at...