Sockett v. Gottlieb

• Citation: 9 Cal.Rptr. 831,187 Cal.App.2d 760
• Parties: Belle R. SOCKETT, Plaintiff and Appellant, v. Milton GOTTLIEB and Pat Gottlieb, husband and wife, Ben Weissman and Lillie Weissman, husband and wife, Defendants and Respondents. Civ. 24657.
• Decision Date: 28 December 1960
• Court: California Court of Appeals

Page 831

9 Cal.Rptr. 831

187 Cal.App.2d 760

Belle R. SOCKETT, Plaintiff and Appellant, v. Milton GOTTLIEB and Pat Gottlieb, husband and wife, Ben Weissman and Lillie Weissman, husband and wife, Defendants and Respondents.

Civ. 24657.

District Court of Appeal, Second District, Division 2, California.

Dec. 28, 1960.

Wolver & Wolver, Los Angeles, for appellant.

Spray, Gould & Bowers, Los Angeles, for respondents.

KINCAID, Justice pro tem.

At the conclusion of plaintiff's case and before the introduction of any evidence on the part of defendants, the latter moved the trial court for a judgment of nonsuit. The court thereupon granted such motion and the clerk of the court entered his minute order accordingly. No formal judgment of nonsuit was ever filed. Appeal is taken herein from the 'judgment of nonsuit' as reflected by the said minute order of the court. Such order fully disposed of the action and therefore amounts to a judgment of nonsuit from which an appeal will lie. Murphy v. Fong Shuck, 151 Cal.App.2d 64, 65, 311 P.2d 80; Budrow v. Wheatcraft, 115 Cal.App.2d 517, 522, 252 P.2d 637; see Sheta v. Grahm, 156 Cal.App.2d 77, 79, 318 P.2d 756.

A nonsuit may be granted only when, disregarding conflicting evidence and giving plaintiff's evidence all the value to which it is legally entitled, 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 for plaintiff. Blumberg v. M. & T. Incorporated, 34 Cal.2d 226, 229, 206 P.2d 1; Mason v. Peaslee, 173 Cal.App.2d 587, 588, 343 P.2d 805.

In light of the foregoing rule the evidence most favorable to plaintiff to be considered on this appeal is as follows: On December 8, 1957, defendants were the owners and operators of an apartment house located in the city of Los Angeles housing numerous tenants and consisting of two buildings with a swimming pool and access walks and stairways for common use of the tenants and their guests. On the easterly boundary of said premises is located a concrete driveway which descends from a point level with the curb at the street to about 3 1/2 feet below ground level. This driveway leads to subterranean garages used by the tenants as well as to walkways leading to other parts of the premises. It is supported by a perpendicular retaining wall to ground level and a lawn runs along the front of the building to the edge of the driveway without any fence, barrier or other warning object to indicate any variance between lawn level and driveway.

On the night in question plaintiff, her husband and others were invited to be dinner guests of a tenant in the apartment building. They arrived in an automobile driven by a Mr. Kline who stopped in the street in front of the easterly entry. A cement walk runs from such entry to the curb. There is no public sidewalk in front of the building, the lawn commencing directly at the street curb. The three lady occupants, including plaintiff, debarked from the automobile and proceeded on the cement walk to the entry. Mr. Kline drove east on the street and sought to park his vehicle adjacent to the south curb, to the immediate east of respondents' property. Plaintiff observed that Mr. Kline had parked his car so that part of the same was in a red or 'no stopping' zone and in fact, a small part of the vehicle was in the driveway. She formed the opinion that Mr. Kline was unaware of the situation and desired to advise him thereof, so he might properly park his vehicle. She had observed the lack and unavailability of a public sidewalk. When her efforts to attract Mr. Kline's attention either by motion or verbally, appeared to her to be unfruitful, she decided to proceed to the vicinity of his motor vehicle where she might adequately advise him. Instead of retracing her steps to the street and thence to the automobile she chose to proceed over the southerly half of the said lawn which was somewhat illuminated by certain yellow lights reflecting thereon. She intended to walk over the lawn to the driveway which, at the time, she assumed to be level with the lawn and then north on said driveway to the proximity of Mr. Kline's car. The illuminating lights had the effect of blinding her as she walked upon the lawn although they formed sufficient illumination of the southerly portion thereof so that she could see where she was walking. When she came to the east edge of the lawn, she observed what she concluded was a cement divider between the lawn and the adjacent driveway. From her position above and slightly to the west thereof, she did not observe that it was the top of a retaining wall. The driveway is paved with asphalt which is dark in color and texture. Plaintiff observed the dark area to the immediate east of what she then believed was the cement divider between the lawn and driveway and the same appeared to her to be a dark driveway at said point, level with the lawn. She made one attempted step thereon and fell to the depth of the driveway, at which point the variance in the level of the lawn and driveway was between 38 and 42 inches. Plaintiff had never been upon the defendants' premises before and she was unacquainted with the true situation of the driveway as to any variance with the level of the lawn. Plaintiff was found lying on the driveway at the point where the apartment house commences and where the level of the driveway is about 38 inches lower than the level of the lawn.

Defendant Milton Gottlieb, owner, testified he never expressly invited anyone to walk upon said lawn but that there was never a fence or barrier between the lawn and the driveway nor was the lawn fenced or signed against walking thereon. The apartment manager, gardener, maintenance man, mailman, paperboys and distributors of advertising matter occasionally walked upon or used the lawn in question.

Assuming, as we must, the foregoing factual evidence to be true, the primary question presented is whether such evidence, standing alone and uncontradicted, is of sufficient substantiality to support a verdict for the plaintiff. We have concluded that the evidence herein is sufficient to support a judgment for the plaintiff; that such evidence presented substantial questions of fact which should have been submitted to the jury for determination and the court incorrectly granted the motion of defendants for a judgment of nonsuit.

The purpose for which a person is on the premises of another is the test of whether he is an invitee or a mere licensee. Popejoy v. Hannon, 37 Cal.2d 159, 169, 231 P.2d 484; Free v. Furr, 140 Cal.App.2d 378, 383, 295 P.2d 134. If the purpose is one of common interest or mutual advantage, the person is considered an invitee; if the purpose is one of mere pleasure or benefit like that of a social guest, the person is considered a licensee. Ashley v. Jones, 126 Cal.App.2d 328, 332, 271 P.2d 918; Yazzolino v. Jones, 153 Cal.App.2d 626, 636, 315 P.2d 107.

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.

It is the duty of a landlord, such as the defendants in this case, to exercise reasonable care in making safe, and in the maintenance...