Rowland v. Christian

Decision Date08 August 1968
Docket NumberS.F. 22583
CourtCalifornia Supreme Court
Parties, 443 P.2d 561, 32 A.L.R.3d 496 James Davis ROWLAND, Jr., Plaintiff and Appellant, v. Nancy CHRISTIAN, Defendant and Respondent

Jack K. Berman and Cyril Viadro, San Francisco, for plaintiff and appellant.

Healy & Robinson and John J. Healy, San Francisco, for defendant and Respondent.

PETERS, Justice.

Plaintiff appeals from a summary judgment for defendant Nancy Christian in this personal injury action.

In his complaint plaintiff alleged that about November 1, 1963, Miss Christian told the lessors of her apartment that the knob of the cold water faucet on the bathroom basin was cracked and should be replaced; that on November 30, 1963, plaintiff entered the apartment at the invitation of Miss Christian; that he was injured while using the bathroom fixtures, suffering severed tendons and nerves of his right hand; and that he has incurred medical and hospital expenses. He further alleged that the bathroom fixtures were dangerous, that Miss Christian was aware of the dangerous condition, and that his injuries were proximately caused by the negligence of Miss Christian. Plaintiff sought recovery of his medical and hospital expenses, loss of wages, damage to his clothing, and $100,000 general damages. It does not appear from the complaint whether the crack in the faucet handle was obvious to an ordinary inspection or was concealed.

Miss Christian filed an answer containing a general denial except that she alleged that plaintiff was a social guest and admitted the allegations that she had told the lessors that the faucet was defective and that it should be replaced. Miss Christian also alleged contributory negligence and assumption of the risk. In connection with the defenses, she alleged that plaintiff had failed to use his 'eyesight' and knew of the condition of the premises. Apart from these allegations, Miss Christian did not allege whether the crack in the faucet handle was obvious or concealed.

Miss Christian's affidavit in support of the motion for summary judgment alleged facts showing that plaintiff was a social guest in her apartment when, as he was using the bathroom, the porcelain handle of one of the water faucets broke in his hand causing injuries to his hand and that plaintiff had used the bathroom on a prior occasion. In opposition to the motion for summary judgment, plaintiff filed an affidavit stating that immediately prior to the accident he told Miss Christian that he was going to use the bathroom facilities, that she had known for two weeks prior to the accident that the faucet handle that caused injury was cracked, that she warned the manager of the building of the condition, that nothing was done to repair the condition of the handle, that she did not say anything to plaintiff as to the condition of the handle, and that when plaintiff turned off the faucet the handle broke in his hands severing the tendons and medial nerve in his right hand.

The summary judgment procedure is drastic and should be used with caution so that it does not become a substitute for an open trial. This court in two recent cases has stated: 'Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor * * * and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.' (Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 452, 398 P.2d 785, 788; Joslin v. Marin Mun. Water Dist., 67 A.C. 127, 142, 60 Cal.Rptr. 377, 429 P.2d 889.) A defendant who moves for a summary judgment must prevail on the basis of his own affidavits and admissions made by the plaintiff, and unless the defendant's showing is sufficient, there is no burden on the plaintiff to file affidavits showing he has a cause of action or to even file counteraffidavits at all. A summary judgment for defendant has been held improper where his affidavits were conclusionary and did not show that he was entitled to judgment and where the plaintiff did not file any counteraffidavits. (de Echeguren v. de Echeguren, 210 Cal.App.2d 141, 146--149, 26 Cal.Rptr. 562; Southern Pacific Co. v. Fish, 166 Cal.App.2d 353, 362 et seq., 333 P.2d 133.)

In the instant case, Miss Christian's affidavit and admissions made by plaintiff show that plaintiff was a social guest and that he suffered injury when the faucet handle broke; they do not show that the faucet handle crack was obvious or even nonconcealed. Without in any way contradicting her affidavit or his own admissions, plaintiff at trial could establish that she was aware of the condition and realized or should have realized that it involved an unreasonable risk of harm to him, that defendant should have expected that he would not discover the danger, that she did not exercise reasonable care to eliminate the danger or warn him of it, and that he did not know or have reason to know of the danger. Plaintiff also could establish, without contradicting Miss Christian's affidavit or his admissions, that the crack was not obvious and was concealed. Under the circumstances, a summary judgment is proper in this case only if, after proof of such facts, a judgment would be required as a matter of law for Miss Christian. The record supports no such conclusion.

Section 1714 of the Civil Code provides: 'Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. * * *' This code section, which has been unchanged in our law since 1872, states a civil law and not a common law principle. (Fernandez v. Consolidated Fisheries, Inc., 98 Cal.App.2d 91, 96, 219 P.2d 73.)

Nevertheless, some common law judges and commentators have urged that the principle embodied in this code section serves as the foundation of our negligence law. Thus in a concurring opinion, Brett, M.R. in Heaven v. Pender (1883) 11 Q.B.D. 503, 509, states: 'whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.'

California cases have occasionally stated a similar view: 'All persons are required to use ordinary care to prevent others being injured as the result of their conduct.' (Hilyar v. Union Ice Co., 45 Cal.2d 30, 36, 286 P.2d 21; Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 317, 282 P.2d 12; see also Green v. General Petroleum Corp., 205 Cal. 328, 333, 270 P. 952, 60 A.L.R. 475; Perkins v. Blauth, 163 Cal. 782, 786, 127 P. 50; McCall v. Pacific Mail S.S. Co., 123 Cal. 42, 44, 55 P. 706; Edler v. Sepulveda Park Apts., 141 Cal.App.2d 675, 680, 297 P.2d 508; Copfer v. Golden, 135 Cal.App.2d 623, 627--628, 288 P.2d 90; cf. Dillon v. Legg, Cal., 69 Cal.Rptr. 72, 76, 441 P.2d 912, 916.) Although it is true that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of statutory provision declaring an exception to the fundamental principle enunciated by section 1714 of the Civil Code, no such exception should be made unless clearly supported by public policy. (Lipman v. Brisbane Elementary Sch. Dist., 55 Cal.2d 224, 229--230, 11 Cal.Rptr. 97, 359 P.2d 465; Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 213 et seq., 11 Cal.Rptr. 89, 359 P.2d 457; Malloy v. Fong, 37 Cal.2d 356, 366, 232 P.2d 241.)

A departure from this fundamental principle involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (Cf. Schwartz v. Helms Bakery Limited, 67 A.C. 228, 233, fn. 3, 60 Cal.Rptr. 510, 430 P.2d 68; Hergenrether v. East, 61 Cal.2d 440, 443--445, 39 Cal.Rptr. 4, 393 P.2d 164; Merrill v. Buck, 58 Cal.2d 552, 561--562, 25 Cal.Rptr. 456, 375 P.2d 304; Chance v. Lawry's, Inc., 58 Cal.2d 368, 377, 24 Cal.Rptr. 209, 374 P.2d 185; Lipman v. Brisbane Elementary Sch. Dist., supra, 55 Cal.2d 224, 229--230, 11 Cal.Rptr. 97, 359 P.2d 465; Stewart v. Cox, 55 Cal.2d 857, 863, 13 Cal.Rptr. 521, 362 P.2d 345; Biakanja v. Irving, 49 Cal.2d 647, 650, 320 P.2d 16, 65 A.L.R.2d 1358; Wright v. Arcade School Dist., 230 Cal.App.2d 272, 278, 40 Cal.Rptr. 812; Raymond v. Paradise Unified School Dist., 218 Cal.App.2d 1, 8, 31 Cal.Rptr. 847; Prosser on Torts (3d ed. 1964) pp. 148--151; 2 Harper and James, The Law of Torts (1956) pp. 1052, 1435 et seq.)

One of the areas where this court and other courts have departed from the fundamental concept that a man is liable for injuries caused by his carelessness is with regard to the liability of a possessor of land for injuries to persons who have entered upon that land. It has been suggested that the special rules regarding liability of the possessor of land are due to historical considerations stemming from the high place which land has traditionally held in English and American thought, the dominance and prestige of the landowning class in England...

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