Mariotti v. Berns

• Citation: 114 Cal.App.2d 666,251 P.2d 72
• Decision Date: 12 December 1952
• Docket Number: No. 15317,15317
• Court: California Court of Appeals Court of Appeals
• Parties: MARIOTTI v. BERNS

Page 72

251 P.2d 72

114 Cal.App.2d 666

MARIOTTI v. BERNS

No. 15317.

District Court of Appeal, First District, Division 1, California.

Dec. 12, 1952.

Hearing Denied Feb. 5, 1953.

Bronson, Bronson & McKinnon, San Francisco, for appellant.

James F. Boccardo, San Jose, Edward J. Niland, Santa Clara, of counsel, for respondent.

FRED B. WOOD, Justice.

Defendant Herman Berns owned an office building and adjacent parking area in San Jose which was leased to the State Department of Motor Vehicles. The department had sublet a portion of the building to the California Highway Patrol.

The lease provided that 'The lessor shall * * * maintain the demised premises in good repair and tenantable condition during the continuance of this lease.'

The parking area was not in repair at the time of plaintiff's accident. It was full of ruts and holes, a condition of which defendant was aware. Plaintiff, a member of the highway patrol, also knew it was full of holes.

Plaintiff, under orders from his employer to attend a meeting at this place on May 20, 1949, at 7:30 P.M., drove his car to the meeting and parked it at the edge of the parking area, arriving at dusk, about 7:25 P.M. Two cars were already parked there. He got out of his car and started to walk across the parking area toward the building, a distance of about 20 feet. His left foot slipped and he fell into a chuckhole. He knew the holes were there, saw them along the driveway and avoided the ones he saw. He said he was going very carefully. As he walked along he could see other chuckholes there. He said he did not trip on some part of the chuckhole but that his foot slipped right by the chuckhole and he went down. His foot probably slipped right on the edge of the chuckhole. He was not hurrying.

Plaintiff's back and his left knee were affected by the fall. He brought this action to recover damages for the injuries sustained. The jury gave him a verdict for $12,000. Defendant Berns has appealed from the judgment entered upon that verdict.

The sole error assigned by the defendant is the rejection by the trial court of two instructions requested by the defendant, defining the duties of the defendant toward the plaintiff under the circumstances narrated. The rejected instructions read as follows: 'While as I have told you, it is the duty of the owner of real property to exercise ordinary care to maintain the premises in a reasonably safe condition, this does not mean that his duty is to keep the premises absolutely safe. The real ground of liability, if any there is, is the owner's superior knowledge of an unsafe condition on the premises and the danger, if any therefrom, to persons entering said premises. It is only when a voidable, dangerous condition exists and is known to the owner, or should, in the exercise of ordinary care, be known to him, and not to the person injured, that a recovery is permitted.' (Defendant's proposed instruction No. 11.) 'Should you find from a preponderance of the evidence that a dangerous condition existed in the parking area in question at the time of the accident, but if you should also find from the evidence that such condition, if any, was an obvious one; that is, a condition that was as apparent to plaintiff Gus Mariotti as it was to defendant, then I instruct you that plaintiff is not entitled to recover against the defendant, but your verdict must be against the plaintiff and in favor of the defendant, providing, of course, that you find plaintiff's failure to observe said condition contributed directly and proximately to the injuries sustained.' (Defendant's proposed instruction No. 13.)

The first sentence of instruction No. 11 is accurate as far as it goes, but was adequately covered by an instruction given. The remainder of Nos. 11 and 13 was based upon descriptions of the obligation which the law imposes upon the owner of property toward his own invitees in the absence of a contract by the owner to make repairs. See Shanley v. American Olive Co., 185 Cal. 552, 555, 197 P. 793; Blodgett v. B. H. Dyas Co., 4 Cal.2d 511, 512, 50 P.2d 801; Dingman v. A. F. Mattock Company, 15 Cal.2d 622, 624, 104 P.2d 26; Blumberg v. M. & T. Incorporated, 34 Cal.2d 226, 229, 209 P.2d 1; Restatement of the Law of Torts, §§ 340 and 343. In such a case, it is said, the duty of the property owner is reduced to the extent that the duty of self-protection rests upon the invitee; e. g., if the dangerous condition is known to the invitee and he realizes the risk, the owner is absolved from responsibility. That obligation, says the defendant, passes to the tenant when the owner leases the property unless the owner covenants to keep the premises in good repair, in which case he simply retains that obligation unchanged in character and scope. That may be the law in some jurisdictions, but not in California.

In this state, when an owner leases real property and in the lease obligates himself to keep the property in good repair, his obligation toward the lessee and invitees of the lessee is as expressed in section 357 of the Restatement of the Law of Torts: 'A lessor of land is subject to liability for bodily harm caused to his lessee and others upon the land with the consent of the lessee or his sub-lessee by a condition of disrepair existing before or arising after the lessee has taken possession, if (a) the lessor, as such, has agreed by a covenant in the lease or otherwise, to keep the land in repair, and (b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor's agreement would have prevented.' That was the holding in Scholey v. Steele, 1943, 59 Cal.App.2d 402, 138 P.2d 733, limited 'to the case of an express covenant to make the repairs included in the terms of the lease or otherwise supported by consideration.' 59 Cal.App.2d at page 405, 138 P.2d at page 735. In overruling a contention that the lessee's knowledge of the dangerous condition (defective steps and railing) should be imputed to the invitee, the court made this additional comment: 'even if the doctrine of imputed negligence is applicable, it would still present a question of fact for the trial court as to whether a person of ordinary prudence with the tenant's knowledge would continue to use the steps.' 59 Cal.App.2d at page 406, 138 P.2d at page 735.

The Scholey ruling was followed in Singer v. Eastern Columbia, Inc., 1945, 72 Cal.App.2d 402, 164 P.2d 531, in which it appeared that the lessee may have known of the dangerous condition (insecurely fastened window panes) but the injured invitee did not. 'The rule, insofar as liability to an invitee is concerned, is not predicated upon the tenant's lack of knowledge of the defective condition, and this the court in the Scholey case no doubt had in mind when following the rule, since the tenant in that case had full knowledge of the condition. The fact that the tenant has knowledge of a defective condition although it relieves the landlord of liability where there is no agreement upon his part to repair, does not relieve him where there is such an agreement. This is entirely reasonable, for when the duty rests upon the landlord the tenant will naturally depend upon him to make the repairs and allow conditions to exist which he would otherwise cause to be corrected. Under defendant's theory a landlord having contracted to keep premises in repair would be under no greater liability for injuries to his tenant, or the latter's invitees, than if there had been no such covenant. But the agreement of the landlord to correct a condition which is dangerous places him under a duty which would not exist otherwise, and in order to relieve himself of responsibility he must correct the condition as agreed, and not merely notify the tenant that it exists.' 72 Cal.App.2d at pages 411-412, 164 P.2d at page 536. In the Singer case, as in the Scholey case, a petition for a hearing by the Supreme Court was denied.

The Scholey and Singer decisions are in line with the trend of decision elsewhere. Prosser, writing in 1941, observed that an increasing minority of the courts had worked out a liability in tort and that the 'minority view has been slowly gaining ground, and has received the approval of the Restatement of Torts,' citing sections 357 and 378 of the Restatement. Prosser on Torts, p. 661. The author of the note in 163 A.L.R. 300, writing in 1946, observed that at...