Hansen v. Richey

• Decision Date: 13 October 1965
• Citation: 46 Cal.Rptr. 909,237 Cal.App.2d 475
• Court: California Court of Appeals Court of Appeals
• Parties: Juanita HANSEN and Peter Cooper, Plaintiffs and Appellants, v. Thomas RICHEY and Ruth Richey, husband and wife, Defendants and Respondents. Civ. 10999.

Page 909

46 Cal.Rptr. 909

237 Cal.App.2d 475

Juanita HANSEN and Peter Cooper, Plaintiffs and Appellants, v. Thomas RICHEY and Ruth Richey, husband and wife, Defendants and Respondents.

Civ. 10999.

District Court of Appeal, Third District, California.

Oct. 13, 1965.

David C. Dormeyer, Sacramento, for appellant.

McGregor, Bullen & Erich, by Donald McGregor, Sacramento, for respondent.

FRIEDMAN, Justice.

Plaintiffs were the parents of Joseph Cooper, who was accidentally drowned at the age of 19. Their wrongful death action went to trial, and at the close of the plaintiffs' evidence the defendants moved for a nonsuit, which was granted. Plaintiffs appeal from the judgment.

Joseph Cooper and his friend, William Young, attended a teen-age party at the home of the defendants, Mr. and Mrs. Thomas Richey, on an evening in January. Between 100 and 150 youthful guests were present. Many of the guests were school acquaintances of the Richeys' daughter and had never been at the house before. The party ended shortly after midnight. Joseph Cooper could not be found by his friends, who left the party without him. The following day about noon defendants found Joseph's body lying at the deep end of their swimming pool. The pool had been emptied, but several feet of rainwater had accumulated at the deep end. Joseph had fallen into the pool and sustained a skull fracture. The cause of death, however, was drowning.

At the rear of the Richey home was an enclosed patio room, forming a corner of the house. The pool was L-shaped, bordering each outer wall of the corner patio. At two corners of the patio room a door opened outward to the pool area. Outside one of these doors only three feet of concrete deck separated the pool from the outer wall of the patio. A cleaning brush at the end of a long metal pole was found lying on the pool deck at a corner of the pool away from the house. Joseph's body was lying at that corner of the pool.

The party took place in the Richeys' living room, in the family room and in the rear enclosed patio. Mr. Richey testified that he announced to some of the guests that no one was to go outside the patio area. He did not tell the guests that there was an empty swimming pool just outside the patio door. William Young, Joseph Cooper's companion, testified that he heard no instruction not to go outside the patio. He did not even see Mr. Richey during the evening.

In anticipation of the party Mr. Richey had placed an industrial heater in front of one of the doors leading out to the pool area. The other door from the patio to the pool was in a corner of the room and had been blocked by a serving bar placed at an angle across the doorway. A bartender was behind the bar to serve soft drinks. Mr. Richey stated that 'to his knowledge' the bartender remained behind the bar during the entire evening. During the party Mr. and Mrs. Richey were playing cards with another couple in another part of the house, but occasionally visited the area where the youngsters were. On one occasion during the party Mr. Richey went out into the patio and saw the heater exactly where he had placed it.

William Young, Joseph's companion, testified that he saw the bartender in other parts of the house at various times during the evening. He also saw the heater, which had been pushed back against the wall. William himself went out into the pool area briefly and saw other youngsters out there. The pool area was unlighted, but the pool and its relatively empty condition were visible. No one had told him that there was a pool just outside the patio door. He and Joseph had never visited the Richey house previously. While he was in the patio he saw two youths dance from the patio out through the door to the pool area.

Although only soft drinks were served by the hosts, William and Joseph had brought with them a half-pint of vodka. Joseph had not only consumed some vodka but also had drunk a can of ale given him by another boy. An autopsy disclosed that Joseph had a blood alcohol level of .095 per cent at the time of his death.

A motion for nonsuit may be granted only when plaintiff's evidence, given all value to which it may be entitled and drawing from it every legitimate inference, is not of sufficient substantiality to support a verdict in favor of the plaintiff. (Plaimquist v. Mercer, 43 Cal.2d 92, 95, 272 P.2d 26.)

California doctrine on the subject of landowner's negligence liability consists of a system of traditional tests evolved in the course of common law development. The injured plaintiff is classified as an invitee licensee or trespasser on the premises, according to the circumstances of his presence. These three status descriptions evoke descending gradations in the level of care demanded of the landowner. Suffice it to say here--and plaintiff's counsel correctly concedes the point--that Joseph Cooper was purely a social visitor, or in technical parlance, a licensee, in the Richeys' home. (Huselton v. Underhill, 213 Cal.App.2d 370, 373-374, 28 Cal.Rptr. 822; Bylling v. Edwards, 193 Cal.App.2d 736, 742, 14 Cal.Rptr. 760.) According to established California case law, a licensee takes the premises as he finds them; toward him, the landlord is not liable for a defective condition of the premises except one which amounts to a trap; there is, however, a distinction between passive and active conduct; thus, while the landowner is not liable for his passive neligence, he is liable to the licensee for 'wanton or wilful injury' and for negligent 'active conduct.' (Palmquist v. Mercer, supra, 43 Cal.2d at pp. 101-102, 272 P.2d 26; Oettinger v. Stewart, 24 Cal.2d 133, 137-139, 148 P.2d 19, 156 A.L.R. 1221 (overruling prior cases); Turnipseed v. Hoffman, 23 Cal.2d 532, 534-535, 144 P.2d 797; Huselton v. Underhill, supra, 213 Cal.App.2d at pp. 374-375, 28 Cal.Rptr. 822; Bylling v. Edwards, supra, 193 Cal.App.2d at pp. 742-743, 14 Cal.Rptr. 760; Nelsen v. Jensen, 177 Cal.App.2d 270, 271-272, 2 Cal.Rptr. 180; Free v. Furr, 140 Cal.App.2d 378, 383, 295 P.2d 134; Fisher v. General Petroleum Corp., 123 Cal.App.2d 770, 779-780, 267 P.2d 841; 35 Cal.Jur.2d, Negligence, sec. 101, p. 611; 2 Witkin, Summary of California Law, pp. 1448-1450.)

Both in its national and California manifestations, this traditional doctrine has aroused criticism from jurists and commentators. (Gould v. DeBeve, 117 U.S.App.D.C. 360, 330 F.2d 826; Potts v. Amis, 62 Wash.2d 777, 384 P.2d 825; Palmquist v. Mercer, supra, 43 Cal.2d at pp. 103-107, 272 P.2d 26, concurring opinion; Scheurer v. Trustees of Open Bible Church, 175 Ohio St. 163, 192 N.E.2d 38, dissent; Prosser, Torts (3d ed.) p. 388; 2 Harper & James, Torts, pp. 1476-1478; 1964 Annual Survey of American Law, Bloustein, Torts, pp. 429-433; Comment, 7 Stan.L.Rev. 130.) Expressive of a 'newer' approach which eschews the rigid traditional classification is the test of 'reasonable care under the circumstances' toward anyone whose presence is known or reasonably to the expected. (Potts v. Amis, supra, 384 P.3d at p. 829.) A parallel approach, described in section 342, Restatement of Torts, Second, would retain the traditional licensee classification but would elevate the landowner's duty by requiring him either to remedy the danger or warn the licensee. ¹ This Restatement rule was embraced in Newman v. Fox West Coast Theatres, 86 Cal.App.2d 428, 432, 194 P.2d 706, decided in 1948. The Newman case, however, has had no progeny and was inferentially renounced when the court which decided it concluded in 1954 that Restatement section 342 was not the law of California. (Fisher v. General Petroleum Corp., supra, 123 Cal.App.2d at p. 780, 267 P.2d 841.)

It has been suggested that the California Supreme Court decisions embracing the 'active conduct' rule involved dangerous conditions and not a failure to warn; hence, that these decisions do not prevent intermediate appellate courts from embracing--as did the Newman case--the demand for a warning of danger proclaimed by Restatement section 342. (7 Stan.L.Rev. at p. 138.) The suggestion is inacceptable. A rule which permits a landowner to remain passive in the face of his licensee's proximity to danger permits no demand for affirmative action, either to remedy the danger or to warn of it. A doctrine may be undesirable which exculpates for inaction, yet imposes liability for action, in the face of recognizable danger to a recognized visitor. Nevertheless--as did the court in Fisher v. General Petroleum Corp.--we believe that application of Restatement section 342 is precluded by the California doctrine enunciated in Supreme Court decisions such as Palmquist v. Mercer, supra, and Oettinger v. Stewart, supra.

The partially empty pool, however dangerous, was an inactive factor in the accident. In possessing this dangerous condition and in failing to convey warning of it, defendants were at most passively negligent. In California such passive negligence constitutes no ground of liability for the death or injury of a social visitor.

The evidence did not justify submission of the case to the jury on the theory that the partially empty pool was a trap. A trap is a concealed danger known to the defendant, that is, a danger clothed with a deceptive appearance of safety. (Nelsen v. Jensen, supra, 177 Cal.App.2d at p. 272, 2...