Merrill v. Buck

• Decision Date: 23 October 1962
• Citation: 375 P.2d 304,58 Cal.2d 552,25 Cal.Rptr. 456
• Parties: , 375 P.2d 304 Bette Davis MERRILL, Plaintiff and Respondent, v. Ronald L. BUCK, Ann M. Buck, Lelah T. Pierson, Jeanette M. Clark, and Lelah T.Pierson, Inc., Defendants and Appellants. L. A. 26830
• Court: California Supreme Court

Page 456

25 Cal.Rptr. 456

58 Cal.2d 552, 375 P.2d 304

Bette Davis MERRILL, Plaintiff and Respondent, v. Ronald L. BUCK, Ann M. Buck, Lelah T. Pierson, Jeanette M. Clark, and Lelah T.Pierson, Inc., Defendants and Appellants.

L. A. 26830.

Supreme Court of California

Oct. 23, 1962.

Rehearing Denied Nov. 21, 1962.

Schell & Delamer, Richard B. Goethals, Earle K. Stanton, Crider, Tilson & Ruppe and Henry E. Kappler, Los Angeles, for defendants and appellants.

Steinmetz & Murrish, Hollywood, Magana & Olney, Los Angeles, William B. Murrish, Fred H. Steinmetz, Hollywood, and Raoul D. Magana, Los Angeles, for plaintiff and respondent.

DOOLING, Justice (pro tem.).

Plaintiff as lessee of a dwelling house brought this action for damages for personal injuries sustained as the result of her fall down a flight of basement stairs. Defendants were Mr. and Mrs. Buck, the owners of the house; Mrs. Clark, the real estate saleswoman who showed the house to plaintiff and negotiated the lease; and Lelah T. Pierson, the real estate agent employing Mrs. Clark. The jury returned a verdict of $65,700 against all defendants and judgment was entered accordingly. Defendants appeal from the judgment and from the order denying their motions for a judgment notwithstanding the verdict or, in the alternative, for a new trial. They contend that (1) the evidence does not sustain the verdict and judgment and (2) there was error in the instructions.

On June 22, 1957, Mrs. Clark took plaintiff to see the Buck's house, a furnished one-story ranch type dwelling in the Brentwood area of Los Angeres. They spent approximately one to one and one-half hours inspecting the premises, with Mrs. Clark pointing out various features considered important to a prospective tenant. That evening plaintiff telephoned Mrs. Clark that she would rent the house. Mrs. Clark prepared the lease, and on June 24 plaintiff and the Bucks signed it. The lease was for one year at a rental of $675 a month commencing June 29, 1957, and it provided that the lessor 'shall not be called upon to make any improvements or repairs whatsoever upon the said premises, or any part thereof, but the said Lessee agrees to keep the same in good order and condition at her own expense.'

On June 29, 1957, plaintiff moved into the house. That afternoon she opened a door in the central hall of the house, took a step forward and fell down a flight of stairs into the basement. She suffered a broken back, a broken right index finger, and a blackout coma from the fall.

The door to the gasement opened inward over the top step which was nine inches wide and 7 3/4 inches below the level of the hall floor. There was no landing at the top of the stairway and only a three-and-one-half-inch sill. The stairway was a little less than four feet across, had cement walls at its sides and no handrails. There were no windows in the basement but there was a light switch on the wall at the top of the stairs inside the basement. The stairway descended seven feet to the basement floor and it was the only means of access to the basement.

Upon entering the one-floor house there was a circular entry hall, with a den on one side and a living room on the other. Running from the entry hall through the center of the house there was a narrow central hall, with several doors on either side leading into adjoining rooms. At the commencement of the central hall there was on one side a large linen closet and directly opposite on the other side was the door leading to the basement. There was a door, with its top half louvered, between the entry hall and the central hall. The louvered door and the basement door were each 28 inches wide and when opened against the central hall wall, the louvered door practically covered the basement door.

Plaintiff testified that when she and Mrs. Clark inspected the house, the louvered door between the entry hall and the central hall was open, and she did not see the basement door. Mrs. Clark neither mentioned the concealed door nor told her there was a basement under the house. Plaintiff did not again visit the house until she moved there. That afternoon in the process of moving, plaintiff closed the louvered door and then discovered the previously hidden door (leading to the basement). She 'could tell from the door jamb' that the door 'obviously went in' but she nevertheless assumed that it was a door to another closet. With 'natural curiosity' she opened the door, 'went with the knob,' took a 'tiny step' forward, and was 'propelled through black, into black space.' Sometime later she discovered that she was on the floor of the basement.

Mrs. Clark testified that when she and plaintiff inspected the house, she had her car keys in her hand and as she passed the door leading to the basement, she tapped the door with her keys and said, 'Basement Door.' At that time plaintiff was three or four feet behind her in the central hall, and she did not know whether plaintiff heard her statement. The next day after plaintiff had said she would rent the house but before the lease was signed, she asked plaintiff if the Bucks could leave 'some things stored in the basement' and plaintiff agreed that they could. Mrs. Clark had herself been in the basement some six months to a year prior to showing the house to plaintiff as part of a group of about twenty members of the Pierson realty organization making a tour of the house and knew of the condition of the stairway leading to the basement.

Plaintiff testified that she never met the Bucks prior to the accident and that she had no recollection of any conversation with Mrs. Clark relative to the basement or the Bucks' use of any portion thereof for storage. We must assume that the jury found on this conflicting evidence the facts most favorable to the plaintiff.

Plaintiff sought recovery against the owners Buck upon the basis of common-law principles of landlord and tenant negligence law, that they were liable for failure to warn plaintiff of the known latent danger behind the basement door, the precipitous stairway becoming a veritable trap causing plaintiff's injuries. She also contended that the construction of the stairway violated the Los Angeles Building Ordinance and within its application constituted a 'danger to life and limb.' Her claim against the defendant realtors, Pierson and Clark, rested on their voluntary undertaking to show her the house and their negligence, as business volunteers, in failing to warn her of the existence of the doorway, the stairs and the basement.

Plaintiff relies, as against defendants Buck, upon the rule 'that, if there is some hidden defect in the premises, or danger thereon, which is known to the lessor at the time of making the lease, but which is not apparent to the intending lessee, the lessor is bound to inform the latter thereof, and failing so to do, he is liable for injuries to the tenant arising therefrom. (Citations.)' (Shotwell v. Bloom, 60 Cal.App.2d 303, 309-310, 140 P.2d 728, 732; Stanley v. Lander, 3 Cal.App.2d 284, 289, 39 P.2d 225.) This is a case where the danger was not patent but latent; the danger of the basement stairs was a concealed hazard. A distinction must be drawn between patency of exterior visibility and patency of content of danger. True, the basement door was visible for anyone to see, and from this premise defendants Buck argue that plaintiff had every reasonable opportunity to discover where such door led; and since she failed to make use of such opportunity, she failed to observe care with respect to a patent, not a latent, matter within the rule of nonliability of the landlord. But 'patent' in the test of duty to warn refers to the patency of danger and not merely to exterior visibility, and the cases so hold: e. g., Shotwell v. Bloom, supra, 60 Cal.App.2d 303, 140 P.2d 728 (where a crack in the fireplace was physically visible but the hazard of using the fireplace and thereby causing the fire was obscured so as to create a latent rather than patent danger); Couch v. Pacific Gas & Elec. Co., 80 Cal.App.2d 857, 183 P.2d 91 (where the tenant did not know that some wires protruding through a hole in the kitchen floor were energized; the wires were visible and so patent but the danger was latent; and therefore the landlord was under the duty to warn the tenant of the latent defect in the premises). Similarly here, the danger inhering in the precipitous basement stairs, without landing or handrail, lying immediately behind the inward swinging basement door, was a concealed hazard. The basement door was a visible object but the jury under the prevailing circumstances might well find that the danger of the precipitous basement stairway was not creating a latent, not a patent, defect in the leased house. Cases cited by defendants are distinguishable on their facts: the dangers were not merely patent but admittedly known to the tenant in full prior to the accident concerned (e. g., Sherrard v. Lidyoff, 108 Cal.App.2d 325, 239 P.2d 28 (cracked stairway board); Zavalney v. Donovan, 70 Cal.App.2d 182, 160 P.2d 558 (cracked porcelain faucet handle); Dorswitt v. Wilson, 51 Cal.App.2d 623, 125 P.2d 626 (cracked ceiling); Colburn v. Shuravlev, 24 Cal.App.2d 298, 74 P.2d 1060 (defective rug)) or the dangers were so open and obvious to reasonable inspection that no question of a latent defect could be raised (e. g., Powell v. Stivers, 108 Cal.App.2d 72, 238 P.2d 34 (visible coils of cord lying in the passageway); De Motte v. Arkell, 77 Cal.App. 610, 247 P. 254 (shrunken and warped wooden railing)) or the dangers were not even known to the landlord (e. g., Shanander v. Western Loan & Bldg. Co., 103 Cal.App.2d 507, 229 P.2d 864, 26 A.L.R.2d 1039 (concealed defective plumbing system); Ayres v. Wright, 103 Cal.App. 610, 284 P. 1077 (concealed defect of wood rot in a porch guardrail).)

As a further basis of liability of defendants Buck, plaintiff submitted that the construction of the...