Preston v. Goldman

• Decision Date: 14 July 1986
• Citation: 720 P.2d 476,42 Cal.3d 108,227 Cal.Rptr. 817
• Court: California Supreme Court
• Parties: , 720 P.2d 476 Clinton PRESTON, a Minor, etc., Plaintiff and Appellant, v. Allan GOLDMAN et al., Defendants and Respondents. L.A. 32065

Page 817

227 Cal.Rptr. 817

42 Cal.3d 108, 720 P.2d 476

Clinton PRESTON, a Minor, etc., Plaintiff and Appellant, v. Allan GOLDMAN et al., Defendants and Respondents.

L.A. 32065.

Supreme Court of California

July 14, 1986.

Michael T. Pines, Michael Goldstein, C. Daniel Carroll and Panther, Pines, McCann & Goldstein, Oceanside, for plaintiff and appellant.

Demler & Armstrong, Robert W. Armstrong, Emmet Thornton, Long Beach, Simon, Buckner, Haile & Migdal, Scott Simon, Stuart L. Brody, Marina Del Rey, Lascher & Lascher, Edward L. Lascher, Wendy Cole Lascher, Ventura, Finn, Alsop, Silva & Clasen and Tracy L. Gildemeister, Los Angeles, for defendants and respondents.

LUCAS, Justice.

Should former owners, allegedly negligent in constructing an improvement on their property, be subject to liability for injuries sustained on that property long after they have relinquished all ownership and control? The Restatement Second of Torts proposes that liability is terminated upon termination of ownership and control except under specified exceptions, and we agree.

FACTS

Defendants Jon and Marion Kubichan bought the subject property in 1968. Around January 1972, over the course of a weekend, they designed and built a pond with a fountain in their backyard for a total cost of approximately $130. The pond was built by excavating the ground to a disputed depth and putting a wall approximately 12 inches above ground around the pond.

In October 1973, Alan Goldman bought the property from the Kubichans. Goldman made no alterations to the pond and maintained water in it. In November 1974, Goldman entered into a lease-option to buy agreement with the Reids who took possession. The Reids, who had two small children, put a new brick facing around the pool's exterior, bricked the patio surrounding it, replaced the flagstone coping with brick, and put a layer of brick around the top of the pool walls. The Reids had emptied the pond and were aware of its depth and configurations.

On May 7, 1976, plaintiff Clinton Preston and his siblings were brought to the property by their parents, Cynthia and Stephen Preston, to visit their aunt and uncle, the Reids. Plaintiff was then 22 months of age. The Prestons had been at the house before and were aware of the pond. At some point Mr. Reid and Mr. Preston went out to the garage, accompanied by the children. The men later returned to the house without them. After some time, the parents looked for the children and found Clinton immersed in the pond. As a result of the accident, plaintiff suffered severe permanent brain damage and quadriplegia.

On April 28, 1978, a complaint was filed on behalf of plaintiff by his father, Stephen Preston, as guardian ad litem, naming as defendants Goldman, the Reids, and various Does. On September 26, 1980, plaintiff filed a first amended complaint which named the Kubichans, who had sold the property seven years before, as additional defendants. The Reids cross-complained for indemnity against Goldman and Mr. and Mrs. Preston, alleging negligent supervision. Goldman cross-complained against the Reids and Prestons, and the Kubichans cross-complained against the remaining defendants and cross-defendants.

On Goldman's motion and over plaintiff's objection, the court ordered the issues of liability and damages tried separately. On the date set for trial, the Kubichans, Reids and Goldman successfully moved to dismiss their respective cross-complaints against Mr. and Mrs. Preston. Plaintiff's subsequent motion to file an amended complaint naming his parents as defendants was denied. Before trial, the Reids settled with plaintiff for $25,000, but the parties proceeded as if the Reids were still defendants with notice of the settlement being given to the jury.

The matter was tried before a jury. After all parties rested, the Kubichans moved for nonsuit (Code Civ.Proc., § 581c.) They argued that because of their lack of interest in the subject property at the time of the accident, they owed plaintiff no duty. After argument the court granted the motion but no judgment was entered. The parties then stipulated with court approval that the question of the Kubichans' liability should go to the jury which would not be informed of the court's ruling on the motion. The jury was instructed as to the Kubichans that once a seller of land has sold his property he is not subject to liability for injuries thereon caused by a dangerous condition, subject to specified exceptions. This instruction will be described in greater detail hereafter.

The jury rendered special verdicts in favor of all defendants. It specifically determined that Goldman and the Kubichans were not negligent and that while the Reids were negligent, their negligence was not a legal cause of plaintiff's injury.

On appeal, the plaintiff raised several contentions. He argued that (1) the Kubichans were not insulated from liability by their sale of the property; (2) the court erred in refusing to limit the scope of its instruction regarding a former landowner's possession to the Kubichans; (3) the court erred in rejecting evidence regarding provisions of the Los Angeles County Building Code and testimony by plaintiff's expert, and in refusing to instruct on plaintiff's theory of "negligence per se"; (4) misconduct by Goldman's attorney during closing argument deprived plaintiff of a fair trial and required reversal; and (5) the court erred in refusing to grant plaintiff leave to amend, failing to give a proper jury instruction, and improperly excluding plaintiff from the courtroom. The Kubichans cross-appealed arguing the court should have granted their motion for nonsuit based on Code of Civil Procedure section 337.1.

This matter comes before us on a petition for review and, accordingly, we will briefly describe the Court of Appeal decision as to the points which we will address.

As to the Kubichans' negligence, the Court of Appeal held that a vendor who actually negligently creates an unreasonably dangerous condition on his land is liable in the same manner as a nonvendor of property because his liability arises from his status as creator of the condition rather than as owner of the land. The court concluded that the trial court erred in its instruction on the issue, and that while the jury may have found superseding negligence absolving the Kubichans of liability, because of the instruction it may never have reached the issue; thus reversal was required as to the judgment for the Kubichans. The court did not discuss the issue of the limitation of the scope of the instructions.

Next, the court addressed plaintiff's claims regarding his theory of negligence per se. It found that the trial court erred in finding that the relevant building codes were inapplicable and in refusing to instruct on negligence per se.

The petition for review specified as issues the question of a landowner's liability following his divestment of ownership and control of the property and the Court of Appeal determination that the trial judge improperly excluded plaintiff from the courtroom. In his answer to the petition for review, the plaintiff responded to the above points and also discussed the otherissues raised before the Court of Appeal. He also asked that the affirmance of the judgment for Goldman be considered as well. Our opinion will be confined to the issues surrounding the Kubichans' liability as former landowners. The remaining issues will be governed by the Court of Appeal decision.

I

Plaintiff argues that the trial court erroneously instructed the jury regarding the Kubichans' liability. ¹ The instruction given had its roots in the Court of Appeal decision in Copfer v. Golden (1955) 135 Cal.App.2d 623, 288 P.2d 90, and the Restatement Second of Torts, sections 352 and 353. ² Plaintiff argues that these authorities were inapplicable to his claim against the Kubichans which was based upon their affirmative negligence in constructing the pool rather than upon their status as landowners. The Court of Appeal here agreed.

The court found that Copfer did not apply because the Kubichans, unlike the defendants absolved of liability in Copfer, had allegedly been actively negligent in their design and construction of the decorative pond. Thus, the court analogized the Kubichans to the developer of property held liable in Sweeney v. Stone (1968) 265 Cal.App.2d 693, 71 Cal.Rptr. 497, and therefore decided that their status as vendors of property was not significant in considering the independent basis for their liability. Finding that the "Kubichans' potential liability as the creator of an allegedly unreasonablydangerous condition did not cease at any fixed point after they transferred the subject property but continued until after their alleged negligence was superseded by that of another or was barred by the applicable statute of limitations," the Court of Appeal held that the trial court had erred in giving its instruction and reversal on this basis was therefore required.

In Copfer, Vaughn, Gertrude, Earl and Goldie Golden owned certain real property. In 1952, the other three conveyed their interests in, inter alia, a common portion of the property to Vaughn, who, from 1949, had used the property for storage of various material and equipment used in the course of his business. In 1953, a child playing on the property was injured, and she sued all four Goldens. The Court of Appeal found only Vaughn could be held liable, reciting in support the general rule that "a grantor of land is not subject to liability for injury sustained by a third person while upon the land after the grantee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time the grantee took possession." (135 Cal.App.2d at p. 630, 288 P.2d 90.)

Plaintiff argues that Copfer is of no assistance here because the asserted negligence of the three former owners whom the Copfer court found were not liable...