Minoletti v. Sabini

• Decision Date: 18 August 1972
• Citation: 103 Cal.Rptr. 528,27 Cal.App.3d 321
• Parties: Caterina MINOLETTI, Plaintiff and Appellant, v. Leo R. SABINI, Defendant and Respondent. Civ. 28716.
• Court: California Court of Appeals Court of Appeals

Page 528

103 Cal.Rptr. 528

27 Cal.App.3d 321

Caterina MINOLETTI, Plaintiff and Appellant, v. Leo R. SABINI, Defendant and Respondent.

Civ. 28716.

Court of Appeal, First District, Division 3, California.

Aug. 18, 1972.

Hoberg, Finger, Brown & Abramson, San Francisco, for plaintiff and appellant.

L. F. Haeberle, III by Robert E. Jensen, San Francisco, for defendant and respondent.

CALDECOTT, Associate Justice.

Appellant Mrs. Caterina Minoletti was injured when the top part of a double-hung window in the kitchen of her apartment came down and amputated a part of her third right finger.

Appellant had asked respondent Leo R. Sabini, the landlord, to repair two of the windows in her kitchen, apparently because the rope was broken. The record does not disclose the length of time this condition existed. Approximately one month before the accident, Mr. Sabini's son came to fix the windows but did not have enough rope to fix both windows.

He repaired the small window and removed the rope from the top of the large window. Although Mrs. Minoletti saw him removing the rope, she paid little attention to the remainder of his work, because she was cooking. She knew, however, that he did not fix the large window at that time. She told him that since he had a key to the apartment, he could let himself in and fix it if she were not there; he told her he would be back to fix it. The record does not reflect that he warned her of the dangerous condition of the window.

During the month prior to the accident, Mrs. Minoletti spent the daytime at her son's house, and her son drove her home almost every day. On the day of the accident, she lifted the bottom part of the window a slight bit to see if the window had been repaired. As her fingers were protruding slightly through the space between the bottom of the window and the window frame, the top part of the window suddenly came down, causing the above-described injury to her finger. She had opened the window prior to the accident while it was in a broken condition, but the top had never come down before.

At the close of the presentation of plaintiff's case, the trial court granted defendant's motion for a nonsuit. Plaintiff appeals from that judgment.

Appellant contends that there is a duty on a landlord to use ordinary care in making repairs to the premises, citing Callahan v. Loughran (1894) 102 Cal. 476, 36 P. 835. Respondent maintains, citing Sherrard v. Lidyoff, 108 Cal.App.2d 325, 239 P.2d 28, that the mere failure to make repairs after notice or a promise to do so imposes no tort liability upon the landlord. Sherrard also states, 'The general rule that a landlord who gratuitously undertakes to repair a defect in the leased premises, is liable for negligence in repairing the defect, is restricted in its sweep in this state by the statute mentioned. (Civil Code § 1942.)' ¹

Sherrard did not mention Callahan v. Loughran, Supra. Callahan pointed out at page 481 of 102 Cal., at page 836 of 36 P., that though the rights of the tenant to have repairs made can be measured by Civil Code section 1942 '. . . when the landlord undertook to make the repairs, whether pursuant to a contract, or an obligation imposed by statute, or as a volunteer, he was in duty bound to use ordinary care in the conduct of the work.' Thus, regardless of whether a landlord in a particular situation is bound to make repairs, once he undertakes a repair, he must then use ordinary care.

In addition to the duty imposed on a landlord by Civil Code section 1942, Civil Code section 1714 ² also imposes a duty. As stated in the case of Rowland v. Christian (1968) 69 Cal.2d 108, 112--113, 70 Cal.Rptr. 97, 100, 443 P.2d 561, 564, "All persons are required to use ordinary care to prevent others being injured as the result of their conduct.' (Citations.) Although it is true that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of statutory provision declaring an exception to the fundamental principle enunciated by section 1714 of the Civil Code, no such exception should be made unless clearly supported by public policy. (Citations.)

'A departure from this fundamental principle involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and...