Ross v. DeMond

• Decision Date: 20 January 1966
• Citation: 48 Cal.Rptr. 743
• Court: California Court of Appeals Court of Appeals
• Parties: Leola ROSS, Plaintiff and Appellant, v. John F. DeMOND and Lottie DeMond, Defendants and Respondents. Civ. 22301.

Page 743

48 Cal.Rptr. 743

Leola ROSS, Plaintiff and Appellant, v. John F. DeMOND and Lottie DeMond, Defendants and Respondents.

Civ. 22301.

District Court of Appeal, First District, Division 1, California.

Jan. 20, 1966.

Hearing Granted March 16, 1966. ^*

Monaco, Ice & Reeve, San Mateo, for appellant.

Ropers, Majeski & Phelps, Redwood City, for respondents.

SIMS, Justice.

Plaintiff has appealed from an adverse judgment entered upon the granting of defendants' motion for judgment notwithstanding the verdict following a jury trial in which a verdict was returned awarding her $13,000 in damages.

The propriety of the trial court's action in granting the motion for judgment notwithstanding the verdict is to be gauged by the same standards as are applicable to the granting of a motion for nonsuit or motion for a directed verdict. If disregarding conflicting evidence and giving to plaintiff's evidence all of the value to which it is entitled and indulging in every legitimate inference which may be drawn therefrom, there is evidence of sufficient substantiality to support a verdict for plaintiff, the granting of the motion was error. (Sockett v. Gottlieb (1960) 187 Cal.App.2d 760, 763 and 769, 9 Cal.Rptr. 831; Cain v. Friend (1959) 171 Cal.App.2d 806, 808 and 809-810, 341 P.2d 753; Jones v. Hotchkiss (1956) 147 Cal.App.2d 197, 201-202, 204 and 205, 305 P.2d 129, Shinn, P. J., concurring; Laidlaw v. Perozzi (1955) 130 Cal.App.2d 169, 175, 278 P.2d 523; Ralph v. Clifton's Brookdale, Inc. (1948), 85 Cal.App.2d 574, 577, 193 P.2d 511; King v. New Masonic Temple Assn. (1942), 51 Cal.App.2d 512, 516, 125 P.2d 559; Oles v. Kahn Bros. (1927) 81 Cal.App. 76, 81 and 86, 253 P. 158.) Conversely if after applying the foregoing test there is no evidence upon which liability can be predicated, the motion and the judgment predicated thereon were properly granted. (Huselton v. Underhill (1963), 213 Cal.App.2d 370, 376, 28 Cal.Rptr. 822; Bylling v. Edwards (1961) 193 Cal.App.2d 736, 739, 14 Cal.Rptr. 760; Obrien v. Fong Wan (1960) 185 Cal.App.2d 112, 114-115 and 121, 8 Cal.Rptr. 124; Nelsen v. Jensen (1960) 177 Cal.App.2d 270, 272-273, 8 Cal.Rptr. 124; Free v. Furr (1956) 140 Cal.App.2d 378, 381-382 and 384, 295 P.2d 134; Ashley v. Jones (1954) 126 Cal.App.2d 328, 335, 271 P.2d 918; and see Simpson v. Richmond (1957) 154 Cal.App.2d 27, 31-32, 315 P.2d 435; Saba v. Jacobs (1955) 130 Cal.App.2d 717, 718-719, 279 P.2d 826; and Ward v. Oakley Co. (1954) 125 Cal.App.2d 840, 844-845, 271 P.2d 536.)

Plaintiff asserts that the evidence was sufficient to sustain the verdict of the jury because it supports any of the following findings: (1) that she was an 'invitee' upon defendants' premises, and was not protected from a dangerous condition known to the defendants (see Rest., Torts 2d § 343); or (2) that if she was a mere 'licensee' (a) the defendants failed to either protect her or warn her of a dangerous condition (see id. § 342), or (b) the defendants failed to disclose a trap, or (c) the defendants were guilty of 'active negligence' (see id. § 341). She also contends that the distinctions predicated upon her status on the property should be disregarded, and that the verdict should be upheld 'on the basis of common sense applied to the actual facts.' Finally she asserts error because of the alleged error of the trial court in refusing to permit her to present evidence of alleged violation of local and state building regulations.

For the reasons hereinafter set forth it is concluded that there was no error in the rulings of the lower court and that the judgment should be affirmed because the case was correctly determined by the trial court on the basis of principles of law presently established in this state.

The Facts

The improvements on the premises in question were constructed in 1946 or 1947 by defendant wife and her husband by a previous marriage. Two concrete steps led to a main concrete porch in front of the main entrance. Over a period of time, and within the first or second year after the improvements were constructed, the sidewalk leading to the steps and the two concrete steps themselves settled, and left the rise between the top of the second step and the porch level, which when built was substantially the same height as the risers of the steps, at a greater vertical distance than it was when originally constructed. A witness testified, after examining a photograph which portrayed the front of the house as it existed at the time of the accident, that on the assumption that the middle riser was six inches high and by using a four-inch lip on the porch as a comparison, the top riser was approximately eleven inches high, or five inches higher than the first and middle risers.

Plaintiff and defendant wife met in March 1960, at a dance studio where they were both taking lessons, and became friends. In the intervening period she visited defendants' home six or eight times, of which visits half were in the daytime and half were in the evening. On some occasions entrance had been effected through the garage, but she had gone up the steps both in the daytime and in the nighttime, the latter usually with an escort who took her arm, and had never realized anything was wrong or noticed anything, and had never been involved in an accident there.

On October 7, 1960, plaintiff had a regularly scheduled dancing lesson from 6:30 to 7:30 p. m. and was scheduled to take a test for grading at 10 p. m. during a special session which commenced at 9:30 p. m. She went to the studio for her lesson, and between 7:30 and 8 p. m., at the suggestion of the manager of the studio, she went out with her escort for the evening to have a scotch and soda and relax. On her return to the studio she joined in a group lesson and danced from 8 to 9 p. m. Defendant wife arrived at the studio between 8 and 9 o'clock, and she, plaintiff and plaintiff's escort decided to go out afterwards and celebrate plaintiff's grades. Following the test the three left the studio. According to plaintiff she and her escort followed in the latter's car and joined defendant wife at the hospital where defendant's husband was working as a laboratory technician to determine whether he could get off work. According to the wife the three first went to a cocktail lounge and she left alone and returned with her husband. In any event, all four were ultimately at the cocktail lounge, and defendant husband made known he was on call and had to return home to be by the telephone. They went out on the sidewalk and defendant wife asked plaintiff and her escort to come and have a cup of coffee because she had to fix her husband something to eat. It was then decided that defendants would go home and make the coffee and plaintiff and her escort would go and get pizza. Plaintiff departed with her escort in his car to get the pizza, and, after securing it, returned to the studio where plaintiff secured her car and drove to defendants' home, followed by her escort who retained the pizza.

The cars were parked and plaintiff alighted and proceeded up the walk in advance of her escort, who was carrying the pizza, so that she could, as she in fact told him, open the door for him. As she approached she was looking at the door knob because she was going to reach for it, and she noticed that the porch light was on, and and was shining on the door. According to her, she subsequently ascertained that the light in question, which was yellow and was situated to the left of the front door, was partially screened by a foot-wide lattice and a shrub, and that it only illuminated the front part of the platform where the door was and did not come out over the steps or sidewalk. On the evening in question she did not look down to see if the light was shining on the sidewalk, the step surface, or on the porch surface, and she was not sure where the light went.

Plaintiff testified that she hit the top step with her toe and as her foot went over she hit the top of her foot with the corner of the platform. She then fell forward, face down on the platform, and suffered the injuries and damages for which the verdict was rendered.

Plaintiff cannot recover as an invitee

The general distinction between the duty of a possessor of land to an invitee and to a licensee has been stated as follows: 'A possessor of land owes to an invitee the duty of exercising ordinary care to keep his premises in a reasonably safe condition; and he will be liable for bodily harm, in the absence of an adequate warning, caused an invitee by a dangerous condition in the premises if he knows or should know of the danger which he has no basis for believing that the invitee will discover. Popejoy v. Hannon, supra, 37 Cal.2d at page 170, 231 P.2d at page 491; Powell v. Jones, 133 Cal.App.2d 601, 607, 284 P.2d 856.

'The duty owed to a licensee is to exercise ordinary care in the case of active conduct on the part of the licensor with no liability for the defective condition of the premises. Oettinger v. Stewart, 24 Cal.2d 133, 138, 148 P.2d 19, 156 A.L.R. 1221. In the absence of active conduct of the licensor constituting negligence, a licensee must take the premises as he finds them insofar as any alleged defective condition thereof is concerned. Palmquist v. Mercer, 43 Cal.2d 92, 102, 272 P.2d 26; Free v. Furr, supra, 140 Cal.App.2d at page 383, 295 P.2d at page 138.' (Sockett v. Gottlieb, supra, 187 Cal.App.2d 760, 765-766, 9 Cal.Rptr. 831, 834; and in addition to the cases cited see Chance v. Lawry's, Inc. (1962) 58 Cal.2d 368, 373-374, 24 Cal.Rptr. 209, 374 P.2d 185; Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 208, 331 P.2d 645; Cain v. Friend, supra, 171 Cal.App.2d 806, 808, 341 P.2d 753; Laidlaw v. Perozzi, supra, 130 Cal.App.2d 169, 171-172, 278 P.2d 523; and Ashley v. Jones, supra, 126 Cal.App.2d 328, 332, 271 P.2d 918; Rest. Torts 2d § 343; Prosser, Law of Torts, 3rd ed. (1964) pp. 385 and 402, 405.)

It may be conceded that if...