O'Keefe v. South End Rowing Club

• Decision Date: 06 June 1966
• Docket Number: S.F. 22116
• Citation: 414 P.2d 830,64 Cal.2d 729,51 Cal.Rptr. 534
• Court: California Supreme Court
• Parties: , 414 P.2d 830, 16 A.L.R.3d 1 Michael Anthony O'KEEFE, a Minor, etc., Plaintiff and Appellant, v. SOUTH END ROWING CLUB, Defendant and Respondent

Page 534

51 Cal.Rptr. 534

64 Cal.2d 729, 414 P.2d 830, 16 A.L.R.3d 1

Michael Anthony O'KEEFE, a Minor, etc., Plaintiff and Appellant, v. SOUTH END ROWING CLUB, Defendant and Respondent.

S.F. 22116.

Supreme Court of California

June 6, 1966.

Rehearing Denied July 6, 1966.

Silvers, Hauer & O'Neill, Jeremiah F. O'Neill, Jr., Oakland, and Morton L. Silvers, San Francisco, for plaintiff and appellant.

O'Connor, Moran, Cohn & Lynch, George Olshausen and Harold H. Cohn, San Francisco, for defendant and respondent.

MOSK, Justice.

In this action for personal injuries plaintiff appeals from a judgment of nonsuit entered at the close of the presentation of his evidence. The rule is familiar that 'A nonsuit may be granted only where, disregarding conflicting evidence on behalf of the defendants and giving to plaintiff's evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.' (Reynolds v. Willson (1958) 51 Cal.2d 94, 99, 331 P.2d 48; Blumberg v. M. & T. Incorporated (1949) 34 Cal.2d 226, 229, 209 P.2d 1; Estate of Lances (1932) 216 Cal. 397, 400, 14 P.2d 768.) A careful analysis of the record of this brief trial impels us to the conclusion, however, reluctant, that it contains no substantial evidence to support a verdict for plaintiff under any tenable theory of liability, and hence that the judgment should be affirmed.

The general factual background of the case will be given first, and further facts will be developed where relevant. Defendant South End Rowing Club leases from the City and County of San Francisco certain waterfront property adjoining its premises near Aquatic Park on San Francisco Bay, and maintains thereon a boat-launching pier for the use of its members. The pier extends across a sandy, sloping beach and out over the water. It appears to be constructed generally perpendicularly to the shoreline, which at this point runs east and west.

About noon on March 14, 1959, plaintiff and two friends arrived at defendant's pier. Their purpose, as plaintiff testified, was to 'have fun' with the other youths who congregated at that spot and, in particular, to go swimming and diving from the pier. Plaintiff was 15 years and 8 months old at the time, and his companions were of similar age. They changed into bathing trunks at the Aquatic Park facilities, then made Upon arriving at the premises plaintiff 'swam around' and dived several times from Both sides of the pier, at a point about midway in its length. At the trial he could not recall which side he dived off first, but testified that in diving several times off the east side he swam 'a little ways in' before touching bottom and walking up on the beach. Plaintiff's last dive was made off the west side of the pier, directly across from the place where he had made his dives on the east side. At that point the pier was some 15 feet wide. He testified that the dive was a 'regular' one, i.e., outwards from the pier rather than straight downwards into the water. Nevertheless, he apparently struck his head either on the bottom or on some submerged object, and sustained severe injury to the spinal cord resulting in quadriplegic paralysis. He has regained partial use of his arms, but will always require some assistance in taking care of his personal physical needs. ¹

[414 P.2d 833] their way to defendant's property by walking some 50 yards along the beach and passing under an adjacent pier. They had been swimming and diving at this location on [64 Cal.2d 734] several prior occasions, including three or four times that year, and had never asked or been given permission by defendant to use the premises. On the other hand, they had never been specifically told not to swim and dive there, but had only been forbidden to light fires on the beach.

The question whether there were warning signs on defendant's pier was raised at the trial. Plaintiff testified he saw no such signs. Photographs purporting to depict signs mounted on the pier were marked for identification only and were shown to plaintiff's witness Joe Cardinale. None of these photographs was admitted into evidence, however, for in each instance the witness failed to provide satisfactory identification. The remaining testimony on this point was to the same effect: Janice Babcock testified she did not recall seeing any signs on defendant's pier, and Tom Zaloco testified by deposition that 'we didn't see no signs at all.' Accordingly, if the case had gone to the jury on the plaintiff's evidence alone, the jurors could not properly have considered that there were any signs on the pier warning against swimming or diving. Since our function on this appeal is limited to determining whether a judgment for plaintiff based on plaintiff's evidence and legitimate inferences drawn therefrom would require reversal for insufficient evidentiary support, we are likewise prohibited from speculating what may have been the wording on any signs posted on defendant's pier.

Plaintiff contends that the evidence would support a verdict in his favor on either of two theories of liability: first, that he was an invitee to whom defendant owed a duty of ordinary care to keep the premises reasonably safe for him and to discover hidden dangers thereon; and second, that if in the alternative plaintiff was only a trespasser or implied licensee, defendant was nevertheless liable under the special rule governing trespassing children. We shall consider these theories in the order presented.

In Oettinger v. Stewart (1944) 24 Cal.2d 133, 136, 148 P.2d 19, 156 A.L.R. 1221, this court quoted the definition of 'business visitor' set forth in section 332 of the first Restatement of Torts: 'A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.' Under the rules of the first Restatement, only a 'business visitor' thus defined enjoyed the privileged status of 'invitee'; any other person entering In the obvious case of a customer intending to do business and entering upon premises open to the public, such as a shopper in a store, a guest in a hotel, a patron in a restaurant or theater, or a passenger in a railroad station, the 'economic benefit' theory usually produces a satisfactory result. So, also, is it appropriate when the premises are private but the visitor comes for a business purpose which is connected with a use to which the possessor puts the land, such as when a deliveryman or repairman is invited to enter a private residence. But there remain a number of situations in which the courts have extended the 'economic benefit' theory to confer the status of invitee upon an injured plaintiff who had little if any direct 'business' relationship with the possessor. (See, e.g., Blumberg v. M. & T. Incorporated (1949) supra, 34 Cal.2d 226, 229, 209 P.2d 1 (social guests of a tenant of an office building, walking through the lobby); Kircher v. Atcheson T. & S.F. Ry. Co. (1948) 32 Cal.2d 176, 186, 195 P.2d 427 (person entering railroad depot to meet arriving passenger); Crane v. Smith (1943) 23 Cal.2d 288, 297, 144 P.2d 356 (child accompanying mother into store, 'regardless of whether it is necessary for the customer to have the child with her in order to shop'); see generally Prosser on Torts (3d ed. 1964) pp. 396--398, and cases cited; Notes 93 A.L.R.2d 784, 23 A.L.R.2d 1135.)

[414 P.2d 834] property at the express or implied invitation of the possessor was relegated to the category of 'gratuitous licensee,' with correspondingly diminished rights against the possessor (first Rest., Torts, § 331). This 'economic benefit' theory has been the one most frequently invoked in California when courts have been called upon to determine who is an invitee. For example, In Popejoy v. Hannon (1951) 37 Cal.2d 159, 169--170, 231 P.2d 484, we approved of an instruction that is typical in this respect: "Whether a person entering the premises of another bears the legal status of an invitee or of a mere licensee depends upon the purpose of the visit. So long as its object is the pleasure of only the visitor or of some third party, or of a purely social nature, then he is, at most, only a licensee. When, however, the visitor has a purpose that is related to the occupant's business or that involves some matter of mutual business interest or advantage, then an invitation to use the premises may be inferred, and whether so inferred or expressed, the invitation and the purpose make the guest an invitee." (Accord, Smith v. Kern County Land Co. (1959) 51 Cal.2d 205, 208, 331 P.2d 645; Speece v. Browne (1964) 229 Cal.App.2d 487, 490--491, 40 Cal.Rptr. 384; Clawson v. Stockton Golf etc. Club (1963) 220 Cal.App.2d 886, 896, 34 Cal.Rptr. 184; Bylling v. Edwards (1961) 193 Cal.App.2d 736, 739--740, 14 Cal.Rptr. 760.)

A second theory, however, has long coexisted with that based on 'economic benefit,' and has been termed the 'public invitation' theory. It declares that 'the basis of liability is not any economic benefit to the occupier, but a representation to be implied when he encourages others to enter to further a purpose of his own, that reasonable care has been exercised to make the place safe for those who come for that purpose.' (Prosser on Torts (3d ed. 1964) p. 398.) As that author has elsewhere explained, 'When land is thus thrown open to the public, the condition of the premises begins to affect the public interest. The occupier does not, of course, become a public utility or a public servant, like a common carrier; nor is his land dedicated irrevocably to public use, since he may always withdraw his invitation and exclude anyone he likes. But when the public, as such, is led to believe that premises...