Pappas v. Carson

Citation50 Cal.App.3d 261,123 Cal.Rptr. 343
CourtCalifornia Court of Appeals Court of Appeals
Decision Date30 July 1975
PartiesGeorge PAPPAS and Georgia Pappas, Plaintiffs and Appellants, v. Norma CARSON aka Norma C. Lee and Norma Lee Pfannenstiel, Individually and dba Beach Boy Coiffures, Defendant and Respondent. FIREMEN'S INSURANCE COMPANY OF NEWARK, NEW JERSEY, a corporation, and National Automobile and Casualty insurance Company, a corporation, plaintiffs and Appellants, v. Hulet GEE, Individually and doing business as Gee's Electric, Defendant. Civ. 45079.

Bogert, Ehrmann, Halpern, Haile & Buckner; Gordon, Lipstone & Jacoves, and Lawrence B. Haile, Los Angeles, for appellants.

Dunne, Shallcross & Kane, and Mark C. Kane, Los Angeles, for respondent.

THOMPSON, Associate Justice.

In this appeal from a judgment for defendant-respondent in an action for damage to property, appellants contend the trial court prejudicially erred in refusing requested conditional res ipsa loquitur instructions and in commenting to the jury so as to confuse it and prejudice the plaintiffs' case. We conclude that the trial court prejudicially erred in not instructing on the applicability of conditional res ipsa loquitur to the case at bench and accordingly reverse the judgment.

In 1965, Mr. Norman Gordon leased a segment of plaintiffs Pappas' shopping center to establish Beach Boy Coiffures. His interest apparently included one-half of the walls that separated his premises from those of tenants on either side and the back wall of the shop. Gordon assigned his lessee's interest to defendant Norma Carson. The lease provided, in relevant part, that no alterations or improvements were to be made without express consent of the landlord and that the lessee, at her own expense, should keep and maintain the premises in good condition.

In July 1965, when Mr. Gordon and his then 'silent' partner, defendant, were setting up shop, they added 10 new electrical outlets to accommodate hair dryers. In February 1967, when defendant was in partnership with Lisa Johansen, 21 new electrical outlets and 12 new fixtures were installed. In the summer of 1967, defendant noticed that circuit breakers were tripping on three or four of the dryers whenever maximum use was made of the facilities. She contacted Mr. Hulet Gee, a licensed electrician, to remedy the problem. Gee determined that most parts of the system needed rewiring to accommodate the level of amperage used in the shop. With one exception, all the wiring was pulled from the conduits and replaced with wire that could withstand a higher amperage than that which defendant was using. A 7-to-8-inch segment which ran within the wall from the pull box to one of the two circuit breakers was not changed, Gee having determined it was adequate to withstand electrical demand upon it. In November 1969, the circuit breakers began to trip once again. Defendant requested another electrician, Mr. Clewis, to make additional modifications 'to bring additional electric current into the beauty shop area.' Defendant was fearful the facilities would otherwise be inadequate during the coming Christmas rush.

On December 23, 1969, defendant closed her shop at 7 p.m., after a very busy day. She left the premises about midnight. Around 4 a.m., a fire broke out in the shopping center causing extensive damage.

Several legal actions resulted. Pappas, their insurers, and Dominick De Francesco, the lessee of premises adjoining defendant's, separately sued defendant and Gee, her contractor. Defendant sued Gee. Gee was dismissed as a party and the actions against defendant were consolidated.

Undisputed expert testimony at trial indicated that: (1) the cause of the blaze was electrical and that its origin was in the back wall of defendant's premises, either at the pull box or the 7-inch segment of wiring traveling within the wall; (2) the fire was started by defendant repeatedly overloading the system producing a gradual disintegration of the wire which caused its overheating and the subsequent fire; and (3) given the reinstallation of the wires, the fact that a fire resulted indicated that the equipment was misinstalled or the wrong parts used.

The trial court denied plaintiffs-appellants request for instructions on conditional res ipsa loquitur (BAJI Nos. 4.00 and 4.02). The court instructed on negligence generally and on contributory negligence (BAJI Nos. 3.01, 3.10, 3.11, 3.50, 3.75, 3.12, and 3.13), and on negligence per se by violation of Los Angeles Electrical Code sections 3.01 and 3.14 (BAJI No. 3.45). The jury was instructed that under the repair provision in the lease, defendant was obligated to maintain the premises in good repair; that the duty which a possessor of property owes to others to put premises in a safe condition is nondelegable; when a tenant is obligated to maintain the leased premise's electrical system; and that a tenant's hiring of an independent contractor to do the work on the system will not shield the tenant from damage from negligent work done.

After the jury deliberated for a short period, they returned with the following question: 'We would like to read the pertinent laws pertaining to this case; that is, those instructions defining negligence, statements pertaining to permits, et cetera, and nondelegable duties.'

The trial court responded: 'I would like to say this. First of all, negligence--the ones that are in question here, first of all, Norma Carson. You are to evaluate her conduct. Did she do something that a reasonable prudent person would not do; or did she fail to do something that a reasonable prudent person would do? ( ) Now, if you find that she did not, then she's not negligent. ( ) If you find that she did, or failed to do something, then she is negligent. ( ) And then the question is did that cause the fire; because the fire is the thing we're concerned about here. ( ) I'd like to point out to you that the fact that the fire occurred doesn't mean that somebody has to be responsible for it. It's a question for you to evaluate what has been proved by the evidence here by a preponderance of the evidence that shows that something she did was wrong; or, something that she failed to do was wrong. ( ) The next thing is when you start to talking about nondelegable duties, this goes to the conduct of the people who worked for her. ( ) Now, the evidence indicates that Mr. Gee did a job for her. It also indicates that another man came in there just a month before the fire; and nondelegable duties simply means that where you have a positive duty to take care of something, you can not shift the responsibility of that because you've gotten somebody else to do it. ( ) Now, this is a touchy subject in this particular case, because we're not quite in accord that it should even be applicable in this case; however, I have instructed you in that regard. ( ) But the point I'm trying to get at is it depends whose conduct you are concerned about--whether you're concerned about what the electrical contractors did that went in there, or whether you're talking about Mrs. Carson. ( ) Nondelegable duties has no application to the conduct of Mrs. Carson, because she's not delegating anything. ( ) Nondelegable duties only arises in the event you're evaluating the work done by Mr. Gee or this other electrician that went in there. ( ) I hope you understand that.'

The jury returned a verdict for defendant. The plaintiffs in the consolidated actions, except for De Francesco, prosecuted the appeal from the resulting judgment which brings the case to us.

The trial court erred in refusing plaintiffs' proposed instructions on conditional res ipsa loquitur. In California, the doctrine of res ipsa loquitur is applicable "where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one...

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