Reynolds v. Willson
| Citation | 331 P.2d 48,51 Cal.2d 94 |
| Parties | Keith REYNOLDS, a Minor, by his Guardlan ad litem, Wlliam J. Reynolds, Jr., Plaintiff and Respondent, v. Melville E. WILLSON and Rayona E. Willson, Defendants and Appellants. S. F. 19761 |
| Decision Date | 24 October 1958 |
| Court | United States State Supreme Court (California) |
Leonard, Hanna & Brophy, Donald R. Brophy, San Francisco, Stammer, McKnight & Barnum and Wild, Christensen, Barnard & Wild, Fresno, for appellants.
Nicholas H. Dubsick, Dubsick & Helon, Fresno, Bruce Walkup, San Francisco, and William B. Boone, Fresno, for respondents.
This is an appeal by the defendants from an order denying their motion for a judgment notwithstanding the verdict in an action for personal injuries.
The plaintiff is Keith Reynolds, a boy two years and three months of age at the time of the accident which occurred on January 31, 1953. He is the youngest son of Dr. and Mrs. William J. Reynolds, Jr., who were living at the time with their family of four children at the southeast corner of Wilson Avenue and Buckingham Way in the Fig Garden residential district in the City of Fresno. The defendants, Mr. and Mrs. Melville E. Willson, occupied their residence at the southwest corner of Van Ness Avenue and Buckingham Way. The homes of the two families occupy the full frontage of the block on Buckingham Way between Wilson and Van Ness Avenues with a vacant lot between the houses. The defendants' lot faces on Van Ness Avenue with a frontage of 135 feet, and extends 285 feet on Buckingham Way. Their residence was built in 1930 in what was then a sparsely settled subdivision. The area has since developed into a well occupied section with some thirty families residing in the immediate vicinity. At the time of the accident, approximately fifty or sixty children ranging in age from two years to teenage resided in the neighborhood. An elementary school is located a few blocks away. The defendants had occupied this property since April 1951.
At the rear of their property the defendants maintained a swimming pool. It is about twenty by forty feet in dimensions and in depth is graduated from about three feet on its north side to nine feet four inches on its south side. The shallow portion is toward Buckingham Way with steps leading down from ground level in the northwest corner. A stucco wall extends most of the way around the defendants' property. There is a ten and one-half foot opening in the wall on the Buckingham Way side in the garage area with gate bolts on each side of the opening but no gate was then maintained. A concrete pavement forms an apron in front of the garage and leads into a walk-way toward the residence and into a walk-way to dressing rooms back of the garage. Buckingham Way is not a through street, is relatively free from traffic and children were accustomed to resort to it for recreation. The swimming pool was visible therefrom by children and adults through the open gateway. At the time of the accident the cost of installing a gate in the opening in the stucco wall was not more than $25.
The Willsons and the Reynolds were neighborly and invitations to use the swimming pool were extended by the Willsons to the Reynolds and their children. The Reynolds took advantage of the invitation and used the pool on many occasions. Other children in the neighborhood enjoyed a like privilege during the swimming season which ended in September. A general condition, attached by the defendants to the use of the pool, was to the effect that when small children were to use the pool or play in the adjoining area, an adult should be present. The plaintiff was taken to the pool when adults were present during the swimming seasons of 1951 and 1952. On at least one occasion Mrs. Willson observed the plaintiff making his way toward the pool unattended and she returned him to his home.
At the close of the 1952 season the water in the pool was only partially drained. At the close of previous seasons it had been fully drained. Mr. Willson testified that the pool was left in a partially filled condition at the close of the 1952 season in order to prevent his and other children from playing therein and injuring themselves on the concrete surface. At the time of the accident water covered the concrete floor about to the base of the steps at the shallow end of the pool. Near the center of the floor was an abrupt decline to deeper water. In the winter months just prior to the accident the pool, as thus partially filled, had accumulated dirt, decayed leaves from nearby trees, and other decomposed material. Algae and other substances had accumulated and settled on the concrete surface beneath the water, causing it to become slippery when stepped upon.
On the day of the accident Mrs. Reynolds left in the early morning with her three older children for Yosemite Valley. Dr. Reynolds left for his office a little later. The plaintiff child stayed at home in the care of a maid-housekeeper. She put the child down in his room for his nap about 3:30 in the afternoon. When he was supposedly asleep she engaged in a telephone conversation in another room. In about fifteen minutes she returned to the boy's room and found him missing. Apparently he had climbed out of a window. She searched the home and neighborhood but failed to find him. Dr. Reynolds returned to his home about 4 p. m. He joined in the search. He entered the defendants' yard through the opening in the wall on Buckingham Way which led to the swimming pool and saw the boy lying face down in the water. He went into the pool to rescue the child. Because of the slippery condition of the bottom, he was unable to carry him to the steps. As soon as possible artificial respiration was administered. Adrenalin was injected directly into the boy's heart. An ambulance was called and upon its arrival oxygen was administered, and the boy was taken to a hospital. He was unconscious for five or six days and at the end of ten days was paralyzed. Since that time he has made a partial recovery but is afflicted with the symptoms of cerebral palsy and his brain and nervous system are permanently damaged.
The plaintiff, through his father as guardian ad litem, sued for damages on behalf of the child and obtained a verdict in the sum of $50,000. The defendants do not complain of the amount.
The action was brought apparently on three theories of liability; first, on the theory outlined in section 339 of the Restatement of the Law of Torts, which provides as follows: 'A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth, do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.'
The second was on the theory that if section 339 is not applicable to the facts of the case or should not be followed, another basis of liability was the physical condition of the pool, maintained as it was at the time of the accident as constituting a peril in the nature of a 'trap' as that term has come to be known to the law of this state.
The third theory was that under the facts the defendants owed to the plaintiff the duty of oridnary care as an invitee on the premises.
The action was commenced and the litigation was conducted throughout on behalf of the plaintiff, by allegation, proof, argument to the jury and on appeal, on all three theories, and from the standpoint that the liability of the defendants depended on questions of fact to be determined by the jury.
As noted, the jury returned a verdict in favor of the plaintiff and the only question to be determined on the appeal is whether there is sufficient competent evidence in the record to support the verdict on any of the theories relied upon.
The rules which govern the disposition of a motion for judgment notwithstanding the verdict, as in this case, are familiar. Such a motion may be granted only if a motion for a directed verdict should have been granted (Code Civ.Proc., § 629). The power of the court to direct a verdict is subject to the same limitations as its power to grant a nonsuit. Pellett v. Sonotone Corp., 1945, 26 Cal.2d 705, 708, 160 P.2d 783, 160 A.L.R. 863. A nonsuit may be granted only where, disregarding conflicting evidence on behalf of the defendants and giving to plaintiff's evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff. In re Estate of Lances, 1932, 216 Cal. 397, 400, 14 P.2d 768; see also 24 Cal.Jur., p. 913, and cases cited.
In conformity with the foregoing rules the main if not the only problem presented is whether (disregarding all conflicting evidence favorable to the defendants), there is sufficient substantial evidence to support the verdict on any tenable theory of liability.
It is contended by the plaintiff that the theory of liability prescribed by section 339 of the Restatement of the Law of Torts, above quoted, is applicable to the facts of the case; that the conditions therein required to impose such liability have been met, and that such a theory is not inconsistent with, but is in conformity with the law of this state.
To meet the requirements of section 339 of the Restatement...
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