Uccello v. Laudenslayer

• Decision Date: 14 January 1975
• Docket Number: No. 1936,1936
• Citation: 118 Cal.Rptr. 741,44 Cal.App.3d 504
• Court: California Court of Appeals Court of Appeals
• Parties: , 81 A.L.R.3d 628 Juliana UCCELLO, a minor, by Sam Uccello, her guardian ad Litem, Plaintiff and Appellant, v. Rex A. LAUDENSLAYER, etc., Defendant and Respondent.

Page 741

118 Cal.Rptr. 741

44 Cal.App.3d 504, 81 A.L.R.3d 628

Juliana UCCELLO, a minor, by Sam Uccello, her guardian ad Litem, Plaintiff and Appellant, v. Rex A. LAUDENSLAYER, etc., Defendant and Respondent.

No. 1936.

Court of Appeal, Fifth District, California.

Jan. 14, 1975.

Hearing Denied March 12, 1975.

[44 Cal.App.3d 507] Damrell & Damrell, Duane L. Nelson, Modesto, for plaintiff and appellant.

Price, Martin & Crabtree, Modesto, for defendant and respondent.

OPINION

FRANSON, Associate Justice.

This appeal presents a question of first impression: Under what circumstances does a landlord owe a duty of care to his tenant's invitees to prevent injury from an attack by a vicious dog kept by the tenant on the leased premises? We hold that a duty of care arises when the landlord has actual knowledge of the presence of the dangerous animal and when he has the right to remove the animal by retaking possession of the premises.

A jury trial commenced on appellant's complaint for personal injuries against defendant Cappell and respondent Laudenslayer. At the conclusion of appellant's opening statement, the trial court granted respondent's motion for a nonsuit.

We glean the following facts from the record on appeal: ¹ In July of 1971, appellant, five years old, resided with her father and mother at 631 Josilane, Modesto, California. At 630 Josilane, across the street, Anthoney Cappell lived with his family in a home rented from respondent. Respondent, the sole proprietor of a real estate agency operated as Rex Realty, owned and rented several other residential premises within the immediate area of the Cappell rental. Until November 1970, respondent lived on the same block, across the street and about three houses down from the Cappell house.

The Cappell family owned a large German Shepherd dog which was kept as a watch dog. The dog was normally kept penned in the fenced backyard of the rental, but it was sometimes allowed inside the house.

On July 7, 1971, appellant entered the home at 630 Josilane to play with Erna Cappell, the daughter of the tenants. While the two girls were playing in the kitchen area, the dog entered the house and attacked appellant, causing her serious injuries.

The Cappell family had moved into the respondent's rental in July of 1970. They had entered into a month-to-month tenancy agreement with respondent. Specific permission was given for the dog to be kept on the premises, and a handwritten addition to the agreement provided that any damage to the premises by the dog would be paid for by the tenant. The agreement provided that the tenancy could be terminated by either party upon two weeks' notice in writing.

Respondent visited the 630 Josilane premises shortly after the Cappells arrived and on at least two other occasions prior to the incident of July 7, 1971; each time he observed the German Shepherd dog. After moving from Josilane Street in November 1970, respondent frequently drove by the Cappell residence for the purpose of visually inspecting the premises. On Several of these occasions he saw the dog in the front yeard in the company of Mr. Cappell.

Shortly after moving into the premises, Cappell placed 'Beware of Dog' signs on the front and back fences of the yard. The signs were replaced on numerous occasions and remained on the fences until the Cappell's departure in November 1971. Meter readers for the water district and power company were warned about a 'bad dog' and to take precautions before entering the Cappell premises.

During August or September of 1970 (and while respondent still lived in the neighborhood) the dog attacked and bit one Frank Shaffer, who lived across the street from the 630 Josilane premises. During the July Fourth weekend of 1971, the dog attacked and bit a child while the Cappells were on vacation.

Immediately following the July 7, 1971 attack on appellant, at least 30 neighbors signed a petition demanding that the dog be removed from the neighborhood; it was ignored by the Cappells. About November 11, 1971, the dog attacked Erna Cappell, the daughter of Anthoney J. Cappell, resulting in hospitalization of the girl. The dog was euthanized around November 29, 1971. ²

A grammar school is located approximately two blocks from the 630 Josilane premises. Prior to the dog attack of July 8, 1971, appellant and other neighborhood children frequently played in the yards of 630 Josilane and neighboring premises. Appellant was invited by the Cappells onto the premises on frequent occasions and visited the Cappell residence to play with the Cappell girls on an almost daily basis during the summer.

In the complaint for personal injuries it was alleged that respondent 'knew or in the exercise of ordinary care should have known of the dangerous condition' on the Cappell premises that respondent knew, or should have known, 'that children of plaintiff's age would be' and were attracted to the premises by the dog, that respondent negligently owned, operated, maintained and controlled said premises in that he was aware of the dangerous condition, yet allowed the dog to remain on the premises, and that he was also negligent in that he failed to discover the existence of the dog and the dangerous condition.

REVIEW OF NONSUIT AFTER OPENING STATEMENT

A judgment of nonsuit should be entered only where there is no substantial conflict in the evidence and only when it can be said, as a matter of law, that no other reasonable conclusion is legally deducible from the evidence. The trial court must give plaintiff's evidence all value to which it is entitled, indulging in every legitimate inference which may be drawn from it and it must disregard all conflicting evidence. (4 Witkin, Cal.Procedure, 2d ed., Trial, § 353, pp. 3152--3153.)

Moreover, the granting of a nonsuit after an opening statement is a disfavored practice; it will be upheld only when it is clear that counsel has undertaken to state all of the facts which he expects to prove and it is plainly evident that those facts will not constitute a cause of action. (Bias v. Reed, 169 Cal. 33, 37, 145 P. 516; Paul v. Layne & Bowler Corp., 9 Cal.2d 561, 564, 71 P.2d 817; Mendez v. Pacific Gas & Elec. Co., 115 Cal.App.2d 192, 196, 251 P.2d 773; 4 Witkin, Supra, p. 3158.)

While appellant's counsel did not expressly state that respondent knew of the viciousness of the dog, a reasonable inference of such knowledge may be drawn from the opening statement. Accordingly, for the purpose of reviewing the propriety of the nonsuit, we will assume that a question of fact was presented as to whether respondent had such knowledge.

Civil Code section 1714 provides in pertinent

iCivil Code section 1714 provides in pertinent part:

'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, . . ..'

In Rowland v. Christian, Supra, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, the Supreme Court applied this statute in holding a tenant liable to her guest for injuries caused by a dangerous condition on the property. While Rowland did not deal with the liability of a landowner who is not in possession of his property, the court nonetheless observed:

'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. (Citations.)' (Emphasis added. 69 Cal.2d at p. 112, 70 Cal.Rptr. at p. 100, 443 P.2d at p. 564; see also Brennan v. Cockrell Investments, Inc., 35 Cal.App.3d 796, 800, 111 Cal.Rptr. 122.)

Historically, the public policy of this state generally has precluded a landlord's liability for injuries to his tenant or his tenant's invitees from a dangerous condition on the premises which comes into existence after the tenant has taken possession. This is true even though by the exercise of reasonable diligence the landlord might have discovered the condition. (Schwartz v. McGraw-Edison Co., 14 Cal.App.3d 767, 92 Cal.Rptr. 776; 30 Cal.Jur.2d Landlord and Tenant, § 159, pp. 307--309; Rest., Tort, § 355 et seq.; 4 Witkin, Summary of Cal.Law, 8th ed., Torts, § 615, pp. 2895--2896.)

The rationale for this rule has been that property law regards a lease as equivalent to a sale of the land for the term of the lease. (See comment (a) to Rest., Torts, § 355.) As stated by Prosser:

'In the absence of agreement to the contrary, the lessor surrenders both possession and control of the land to the lessee, retaining only a reversionary interest; and he has no right even to enter without the permission of the lessee. Consequently, it is the general rule that he is under no obligation to anyone to look after the premises or keep them in repair, and is not responsible, either to persons injured on the land or to those outside of it, for conditions which develop or are created by the tenant after possession has been transferred. Neither is he responsible, in general, for the activities which the tenant carries on upon the land after such transfer, even when they create a nuisance.' (Prosser, Law of Torts, p. 400 (4th ed.).)

To this general rule of nonliability, the law has developed a number of exceptions, such as where the landlord covenants or volunteers to repair a defective condition on the premises (Scholey v. Steele, 59 Cal.App.2d 402, 405, 138 P.2d 733; Minolletti v. Sabini, 27 Cal.App.3d 321, 324, 103 Cal.Rptr. 528), where the landlord has actual knowledge of defects which are unknown and not apparent to the tenant and he fails to disclose them to the tenant (Shotwell v. Bloom, 60 Cal.App.2d 303, 309--310, 140 P.2d 728), where there is a...