Rowland v. Christian
| Decision Date | 27 October 1967 |
| Citation | 63 Cal.Rptr. 98 |
| Court | California Court of Appeals Court of Appeals |
| Parties | James Davis ROWLAND, Jr., Plaintiff and Appellant, v. Nancy CHRISTIAN, Defendant and Respondent. Civ. 22914 |
Jack K. Berman, San Francisco, for appellant.
Healy & Robinson, San Francisco, for respondent.
Plaintiff brought this action against several named defendants, seeking damages for personal injuries caused by a defective bathroom fixture in an apartment occupied by defendant Nancy Christian. After defendant Christian had answered the complaint, she requested and obtained plaintiff's admission of certain facts pursuant to section 2033 of the Code of Civil Procedure. She then noticed and made a motion for summary judgment under section 437c (id.), based upon her request and plaintiff's admissions, and upon her supporting affidavit. Plaintiff filed a counteraffidavit in opposition to the motion. The trial court having granted the motion, plaintiff appeals from the summary judgment entered in favor of defendant Christian. 1
We first refer to the well settled rules applicable to summary judgments. The Supreme Court has summarized the rules in this language: j
In support of her motion, defendant was entitled to rely upon plaintiff's admissions of fact as well as upon her own affidavit. Buffalo Arms, Inc. v. Remer Co. (1960) 179 Cal.App.2d 700, 703, 4 Cal.Rptr. 103.) The affidavit itself meets the formal standards required of an affidavit filed in support of a motion for summary judgment. (Code Civ.Proc., § 437c; Estate of Nelson (1964) 227 Cal.App.2d 42, 46-47, 38 Cal.Rptr. 459; Saporta v.Barbagelata (1963) 220 Cal.App.2d 463, 467-469, 33 Cal.Rptr. 661 and cases cited.) The question is whether her full showing on the motion states facts sufficient, in terms of substantive law, to sustain a judgment in her favor. (Joslin v. Marin Municipal Water District, supra, 67 A.C. 127 at p. 142, 60 Cal.Rptr. 377, at p. 387, 429 P.2d 889 at p. 899.) We hold that it does.
According to the facts admitted by plaintiff, he and defendant were acquainted through a mutual friend. Defendant offered to drive plaintiff to an airport, where he was to board a plane. She invited him to her apartment before they were to leave for the airport. While there, he used the bathroom and was injured when a porcelain handle on a water faucet broke in his hand. Defendant's request for admissions asked plaintiff to admit that he was a social guest in the apartment at the time. He denied this one fact, upon the ground that the question of his status was ultimately to be determined by the trial court.
Defendant's affidavit in support of her motion for summary judgment substantially reiterated the facts previously admitted by plaintiff. It alleged in addition that plaintiff was "purely and simply a social guest" of defendant; that he was not in her apartment for any business purpose, nor for any interest common to the parties, or for the advantage of defendant; and that defendant had offered to drive plaintiff to the airport "as a courtesy and gratuity, and without any consideration or compensation." The affidavit also alleged that plaintiff used the bathroom while he was waiting for defendant to get ready to drive him to the airport.
In his counteraffidavit in opposition to defendant's motion, plaintiff alleged as follows: On the day he was injured, he visited defendant's apartment to request her to drive him to the airport, which she agreed to do. While he was in the apartment, he used the bathroom and was injured when a water faucet broke in his hand as he was turning it. In defendant's deposition (as taken before this affidavit was executed and so referred to by plaintiff as affiant), defendant testified that, two weeks before the accident, she became aware that the faucet was cracked and "warned" the manager of the apartment building of this fact. Despite her awareness and the warning, nothing was done to repair the faucet prior to the accident. Before using the bathroom, plaintiff advised defendant that he intended to do so, but she did not mention the condition of the faucet.
In combination, plaintiff's admissions of fact and defendant's affidavit present the factual conclusion that plaintiff was injured in defendant's apartment while he was visiting the premises as a licensee. The allegation in the affidavit that he was "purely and simply a social guest," read by itself, states a conclusion of law. However, the affidavit further alleges that he was not on the premises for a business purpose, nor for an interest common to the parties, nor for the defendant's advantage. These allegations appearing in the context of the admitted facts and allegations concerning the impending ride to the airport as a courtesy to plaintiff in pursuit of his own purpose, are sufficiently factual and evidentiary to establish that he was visiting the apartment as a social guest and that, as such, he was a licensee. (Hansen v. Richey (1965) 237 Cal.App.2d 475, 477-478, 46 Cal.Rptr. 909; Hardin v. Elvitsky (1965) 232 Cal.App.2d 357, 368-369, 42 Cal.Rptr. 748; Bylling v. Edwards (1961) 193 Cal.App.2d 736, 739-740, 14 Cal.Rptr. 760; Sockett v.Gottlieb (1960) 187 Cal.App.2d 760, 765, 9 Cal.Rptr. 831; Lindholm v. Northwestern Pac. R.R. Co. (1926) 74 Cal.App. 34, 37-38, 248 P. 1033; Rest.2d Torts, § 330, particularly Comment h, subd. 3; Prosser on Torts (3d ed.1964) § 60, pp. 385-388.)
Without reference at this point to such factors as a "trap" condition or "active negligence" (in either instance as raised--or not--by plaintiff's counteraffidavit on the motion, and hereinafter discussed), a licensee takes the premises as he finds them. The person in possession of the premises is not liable to him for injury caused by their defective condition. (Hansen v.Richey, supra, 237 Cal.App.2d 475 at p. 478, 46 Cal.Rptr. 909 at p. 911; Huselton v. Underhill (1963) 213 Cal.App.2d 370 at p. 374, 28 Cal.Rptr. 822 at p. 824; Bylling v. Edwards, supra, 193 Cal.App.2d 736 at pp. 742-743, 14 Cal.Rptr. 760 at p. 764.) Defendant's showing in support of her motion for summary judgment sufficiently invokes the foregoing rule to sustain a judgment in her favor.
Turning to plaintiff's counteraffidavit in opposition to the motion, we note in passing that he incorporated in it, by reference to defendant's deposition theretofore taken, certain admissions against interest. This was proper. (Smith v. City of San Jose (1965) 238 Cal.App.2d 599, 601, 48 Cal.Rptr. 108.) We hold, however, that the counteraffidavit fails to show facts which would be sufficient to present a triable issue of fact.
The counteraffidavit does not deny, expressly or by implication, the allegations of defendant's affidavit concerning his status as a social guest-licensee in defendant's apartment, nor does it allege any facts which indicate or suggest that he enjoyed any other status. Hence, no triable issue of fact exists relative to his status as a licensee.
As plaintiff points out, his counteraffidavit does allege that defendant knew of the defective condition of the bathroom faucet and that he intended to use the bathroom, but failed to warn him. He contends that the summary judgment should be reversed because a triable issue of fact exists as to whether or not the defective faucet handle was a "trap." This position presents three different theories of triable fact, of which none can avail plaintiff.
The first theory invokes the so-called "trap exception" to the general rule of nonliability to a licensee for an injury caused by a defective condition of the premises. The claimed exception has been mentioned in some of the California licensee decisions (e.g., Hansen v. Richey, supra, 237 Cal.App.2d 475 at p. 478, 46 Cal.Rptr. 909 at p. 911: "[A] licensee takes the premises as he finds them; toward him, the landlord is not liable for a defective condition of the premises except one which amounts to a trap, * * * " [emphasis added] ), but the cases which refer to it do not apply it to the facts involved. 2 At least one court has stated that no holding directly based upon the "trap exception" could be found (Bylling v. Edwards, supra, 193 Cal.App.2d 736 at p. 746, 14 Cal.Rptr. 760, at p. 766); none has been cited on this appeal, and we have found none. Under the circumstances, we are not persuaded that the general rule of nonliability to a licensee is...
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Musch v. H-D Elec. Co-op., Inc.
...Honolulu, 51 Haw. 134, 452 P.2d 445 (1969); Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968), vacating, 63 Cal.Rptr. 98 (Cal.App.1967).The scope of duty of care characterized in these states is the duty of ordinary or reasonable care under the circumstances.Another ......