Post v. Camino Del Properties, Inc.

• Decision Date: 28 August 1959
• Citation: 173 Cal.App.2d 446,343 P.2d 294
• Court: California Court of Appeals Court of Appeals
• Parties: Ernest R. POST, Plaintiff and Appellant, v. CAMINO DEL PROPERTIES, INC., Mission Valley Country Club, a non-profit corporation, Defendants and Respondents. Civ. 5898.

Page 294

343 P.2d 294

173 Cal.App.2d 446

Ernest R. POST, Plaintiff and Appellant, v. CAMINO DEL PROPERTIES, INC., Mission Valley Country Club, a non-profit corporation, Defendants and Respondents.

Civ. 5898.

District Court of Appeal, Fourth District, California.

Aug. 28, 1959.

Kimball & Smith, San Diego, for appellant.

Higgs, Fletcher & Mack, San Diego, for respondents.

GRIFFIN, Presiding Justice.

Plaintiff and appellant brought this action against defendant Camino Del Properties, against defendant Camino Del Properties, Valley Country Club, a non-profit corporation (hereinafter referred to as the Club), alleging that on August 19, 1956, both defendants operated and maintained a recreational area within which was a swimming pool; that on that day plaintiff, as an invitee, went into that area, slipped and fell as a direct result of defendants' negligent maintenance of the surface of the recreational area in a slippery, hazardous and unsafe condition. Plaintiff claimed injuries and damage to the extent of $24,440.

Defendants answered and claimed respondent Club was lessee in possession of the premises and defendant Camino Del Properties, Inc., was lessor and that respondent Club maintained and operated the premises. Each defendant denied generally any negligence and affirmatively pleaded contributory negligence on the part of the plaintiff. When plaintiff rested his case, both defendants moved for a nonsuit. It was granted as to defendant Camino Del Properties, Inc. and denied as to defendant Club. Upon the conclusion of the case defendant Club moved for a directed verdict in its favor which was denied. The jury returned a verdict against it for $9,150. It then moved for judgment notwithstanding the verdict or in the alternative grant it a new trial under section 629 of the Code of Civil Procedure, on the ground of insufficiency of the evidence and error at law in admitting certain evidence at the trial. Both motions were granted. Plaintiff appealed from this judgment and the alternative order granting a new trial, which order provided it was only effective in case the trial court was in error in granting respondents' motion for judgment notwithstanding the verdict.

The issues presented are: (1) Whether there was sufficient substantial evidence to support the verdict of the jury and whether the trial court was precluded from granting defendant Club a judgment notwithstanding the verdict; and (2) If so, did the trial court err in granting a new trial upon the grounds stated? In determining these questions a resume of the evidence is necessary.

Plaintiff Post, then about 42 years of age, had been a member of the Club for 3 1/2 years. On this particular morning he played 18 holes of golf and concluded about noon time. He and his golfing friends visited the snack bar. He had two Bourbon and Sodas and lunch, and donned a swimming suit. Thus clad and barefooted he seated himself near the swimming pool for about 30 minutes, where his two children were playing. The area around the pool was of roughened surface concrete. Before reaching the pool and sunken below this level was an area of smooth concrete for a distance of 12 to 15 feet from the pool. A set of two steps, 12 to 14 inches wide with 6 or 2 inch risers, was constructed between these areas and extends on three sides of the pool. The steps were of a black cement and not roughened. Plaintiff walked towared these steps, from where he was seated. They were wet from other bathers' dripping suits. Somewhere thereon plaintiff's foot slipped out from under him and he fell. His head struck the concrete and knocked him unconscious. He received injuries resulting in a fracture of the four thoracic vertebrae, which might necessitate the fusion of the third, fourth and fifth thoracic vertebrae. Certain steps, at the opposite and shallow end of the pool, which was similar in construction, where children generally played and entered the pool, black Carborundum abrasive tape or material, in strips, had been placed on each of the treads of the steps by officials of the Club to prevent slipping or falling of the children. No such strips had been placed on the steps where plaintiff was about to enter the pool near the deep end.

Plaintiff testified he walked in the usual manner to the steps, slipped on the top one, and fell down on the cement; that he had visited the pool and used it on four or more previous occasions; that he was familiar with the rough cement area; that he was not familiar with the smooth black cement area where he fell, but did know a tape was applied in the shallow portion where he usually went to enter the pool and assumed it extended around the pool; that ordinarily, for reading purposes, he required eye-glasses but did not need or use them to see where he was going on this occasion.

Plaintiff's golfing partner testified he believed plaintiff had some form of drink after the game but he was 'completely sober'; that after that, he went home and did not see the plaintiff or the accident happen.

Another witness for plaintiff testified he had seen swimming that day and was seated near the pool; that he saw a man walk very casually toward the pool and his feet flipped up in the air about 3 or 4 feet and he came down with a resounding smack.

Plaintiff called a witness under section 2055 of the Code of Civil Procedure, the pool manager and life guard, who testified generally that he was such manager for about two years guarding the people to make sure no one drowned; that he was there when the pool first went into operation; that he put stripping along the west step to stop the slipping because there was another accident where most of the people walked and they had quite a few falls in that area. (A motion to strike that last statement as to prior falls was denied by the trial court and exception is here taken to that ruling.) He then testified the reason he put the stripping down was because of the smooth concrete and 'the minute people become wet and hit the concrete they would slip'; that on occasions prior to August 19, 1956, he requested his superior or officials of the Club to place stripping along the steps east of the planter-box (apparently in the vicinity where plaintiff fell); that they kept saying they would obtain it but did not do so; that he put on a wax called 'sure grip' and it was supposed to be very good and would prevent bare feet slipping; that he put it on twice a year but eventually it would wear and then when the water hit it, it would be very slippery; that after a few months (3 or 4) it was not very effective and he put new was on it; that the last time he remembered putting it on prior to August 19 was about April. After further examination it appears that this witness was acquainted with counsel for plaintiff, taught his daughter how to swim, and sought some legal advice from him in reference to his own problems, without cost, just before the instant action was filed, and that this witness' employment as guard was terminated in January, 1957. He then testified that he was not influenced in his testimony by these facts; that before August 19, he had personally never seen anybody fall in the area on the north side of the pool where plaintiff fell and that he was at the pool nearly every day during those years; that he previously brushed these steps with wax but did not examine them on August 19th as to further need; that on August 19th as to further used these same steps, going and coming, and he saw no one slip or fall.

A life guard testifying for defendants said he saw the accident, saw someone (Mr. Post) 'lose their balance and fall'; that he was coming toward the pool towards the steps, in a 'rather hurriedly walk' and as he reached the second step 'his feet went out from under him and he fell back'; that he did not see Mr. Storey, the pool manager, in the area just before the fall but did see him shortly thereafter and that there was water on the steps but no foreign substance on which plaintiff could have slipped. After full instructions on the law and on this evidence the jury rendered its finding against the...