Laidlaw v. Perozzi

• Court: California Court of Appeals
• Writing for the Court: FINLEY; VAN DYKE, P. J., and SCHOTTKY
• Citation: Laidlaw v. Perozzi, 130 Cal.App.2d 169, 278 P.2d 523 (Cal. App. 1955)
• Decision Date: 10 January 1955
• Parties: Grace A. LAIDLAW, Plaintiff and Appellant, v. Louise PEROZZI, Defendant and Respondent. Civ. 8474.

Page 523

278 P.2d 523

130 Cal.App.2d 169

Grace A. LAIDLAW, Plaintiff and Appellant, v. Louise PEROZZI, Defendant and Respondent.

Civ. 8474.

District Court of Appeal, Third District, California.

Jan. 10, 1955

Hugh B. Collins, Medford, Or., & Barr & Hammond by J. Everett Barr, Yreka, for appellant.

Tebbe & Correia, by Joseph P. Correia, Yreka, for respondent.

FINLEY, Justice pro tem.

In this action appellant seeks damages from respondent for personal injuries sustained by appellant when by mistake she opened and stepped through a door leading from respondent's kitchen to a basement stairway and fell down the stairway. The trial court granted respondent's motion for a nonsuit and entered judgment thereon, specifically basing its judgment on the ground that appellant by her own proof had established that she was guilty of contributory negligence as a matter of law. The only question involved is whether the trial court erred in so holding or whether under the circumstances as disclosed by the evidence the question of contributory negligence was one of fact which should have been left to the jury for determination.

Appellant and respondent had known each other for many years, but appellant had been inside respondent's house on only a few occasions. Each had social obligations to fulfill and it was agreed between them that as co-hostesses they would give a luncheon party at respondent's house to which they would invite their respective friends. Respondent admits that according to her understanding they were to divide the cost. Respondent is crippled and has difficulty in walking. It was a part of appellant's obligation as co-hostess to assist in respondent's kitchen in preparing the refreshments. In the kitchen there are three doorways, two of which are side by side, perhaps a foot and a half or two feet apart, and similar in appearance, although one is somewhat smaller than the other. The larger of the two side by side doors opens outward from the kitchen into a hallway which leads to the front door. The smaller door which is to the left of the larger door as one faces them from the kitchen also opens outward but onto a steep basement stairway with no landing at the top, but which drops abruptly from the threshold of the door to the first step of the stairway. On this door there is, in addition to the customary knob and spring catch, a common type of sliding bolt which at the time that appellant opened the door and fell down the stairway was not engaged so as to lock the door. The evidence shows that shortly before appellant's fall respondent drew this bolt, opened the door and cast some laundry through it either onto the stairway or down into the basement, leaving the bolt unengaged when the door was closed.

At the time of the accident not all of the guests had arrived. While appellant was working in the kitchen there was an alarm at the front door which appellant sought to answer, but by mistake, instead of opening the kitchen door into the hallway leading to the front door, she opened the door leading to the stairway and basement, stepped through it and fell down the stairway, thus sustaining her injuries.

Counsel in their briefs discuss at some length the question whether appellant was an invitee or merely a licensee on respondent's premises, the established rule being that a higher degree of care is owed to an invitee than to a mere licensee. The distinction between 'invitation' and 'license' to go on another's premises is that the former is inferred where there is a common interest or mutual advantage and the latter where the object is the mere pleasure or benefit of the licensee. Sills v. Forbes, 33 Cal.App.2d 219, 91 P.2d 246; Fraters v. Keeling, 20 Cal.App.2d 490, 67 P.2d 118. A licensee is a person whose presence is not invited but merely tolerated. Strong v. Chronicle Pub. Co., 34 Cal.App.2d 335, 93 P.2d 649; Colombo v. Axelrad, 45 Cal.App.2d 439, 114 P.2d 425.

It is the general rule that the owner of premises is under no obligation to keep his premises in a safe condition for trespassers or licensees. Such persons enter at their own risk, and the only duty imposed upon the proprietor is to abstain from wilful or wanton injury. Sheridan v. Ravn, 91 Cal.App.2d 112, 204 P.2d 644; Fraters v. Keeling, supra. Where, however, a licensor is aware of a licensee's presence, the licensor is charged with the duty of exercising reasonable care to avoid injuring the licensee by any active or overt act of negligence. Hamakawa v. Crescent Wharf & Warehouse Co., 4 Cal.2d 499, 50 P.2d 803. In case of an invitee on the other hand, not only must an owner of land or a proprietor of premises abstain from wilful or wanton injury, but he owes such person the duty of maintaining his property in a reasonably safe condition, and of exercising reasonable care in protecting the invitee from injury. Chafor v. City of Long Beach, 174 Cal. 478, 163 P. 670, L.R.A.1917E, 685. He has a duty not to expose an invitee on the premises to dangers known to him without giving adequate warning thereof to the invitee. Shanley v. American Olive Co., 185 Cal. 552, 197 P. 793; Sheyer v. Lowell, 134 Cal. 357, 66 P. 307; Gastine v. Ewing, 65 Cal.App.2d 131, 150 P.2d 266. This applies to dangers that are obvious as well as those which might well go unnoticed. Vitrano v. Westgate Sea Products Co., 34 Cal.App.2d 462, 93 P.2d 832; Jones v. Bridges, 38 Cal.App.2d 341, 101 P.2d 91; Dingman v. A. F. Mattock Co., 15 Cal.2d 622, 104 P.2d 26; Royal Ins. Co. v. Mazzei, 50 Cal.App.2d 549, 123 P.2d 586.

Even though appellant here be considered a mere licensee it was incumbent upon respondent to commit no overt act to increase the hazards of the premises to appellant while she was there and using that portion of the premises within the reasonable contemplation of the parties. Here appellant was in and using respondent's kitchen by prearrangement between the parties. Respondent entered the kitchen while appellant was there engaged in the duties contemplated by the parties in their agreement to act as co-hostesses, and while appellant was so engaged respondent drew and left drawn the bolt in the cellar door, which door respondent admitted constituted a hazard by reason of its position and the construction of the stairway over which it opened. The very bolt which respondent had caused to be placed on the door as a safety measure respondent actively rendered ineffective during appellant's presence in and while she was using the kitchen. Thus it was respondent's affirmative act which, if not the sole proximate cause, at least proximately contributed to the happening of the accident and, in the absence of contributory negligence on the part of appellant, would render respondent liable for resultant injuries or damage to her whether appellant's status be that of licensee or invitee.

In appellant's opening brief it is stated that: 'The trial court, believing he was following an intermediate appellate decision, Standard Oil Company of Indiana v. Henninger, 100 Ind.App. 674, 196 N.E. 706, and electing to do so because he knew of no Oregon or California cases in point held it negligence as a matter of law to open the wrong door.' This statement is borne out by the...