Weyburn v. California Kamloops, Inc.

• Decision Date: 13 February 1962
• Citation: 19 Cal.Rptr. 357,200 Cal.App.2d 239
• Parties: Jack WEYBURN, Plaintiff and Appellant, v. CALIFORNIA KAMLOOPS, INC., and Henry Clineschmidt (sued herein as Henry Klineschmidt), Defendants and Respondents. Civ. 10223.
• Court: California Court of Appeals Court of Appeals

Page 357

19 Cal.Rptr. 357

200 Cal.App.2d 239

Jack WEYBURN, Plaintiff and Appellant, v. CALIFORNIA KAMLOOPS, INC., and Henry Clineschmidt (sued herein as Henry Klineschmidt), Defendants and Respondents.

Civ. 10223.

District Court of Appeal, Third District, California.

Feb. 13, 1962.

Rehearing Denied March 9, 1962.

John E. Nolan and Robert A. Kaiser, Oakland, for appellant.

Newton & Braun, Redding, for respondents.

PIERCE, Justice.

The trial court, after plaintiff's opening statement, granted defendant's motion for a nonsuit both on the pleadings and on the opening statement. Our review of the pleadings and opening statement convinces us judgment of nonsuit was improper.

A digest of the allegations of the complaint shows defendant California Kamloops, Inc., a California corporation, which owned and operated lands on Shasta Lake as a sportsmen's camp, invited plaintiff onto said lands and so negligently maintained, operated, and controlled said premises as to cause them to be dangerous and defective in that a metal pipe was allowed to project above the surface of the ground by reason of which plaintiff was caused to fall, suffering disabling injuries.

A judgment of dismissal, which has the effect of a judgment on the merits (Code of Civ.Proc. sec. 581c) was unjustified on these pleadings. (Smith v. Kern County Land Co., 51 Cal.2d 205, 331 P.2d 645.)

Extension of the allegations by the opening statement of plaintiff's counsel brought out that one Arnold Nobriga, a member of defendant corporation, had invited plaintiff to join him and others on a fishing and hunting excursion, based at one of the corporation's campsites. The party on arrival had 'checked in' with the corporation's caretaker, had obtained his approval to the particular campsite selected and had pitched their tents. Nobriga's tent adjoined plaintiff's. There followed and afternoon of fishing, a morning of deer hunting, and a second afternoon in which members of the party assisted the caretaker in repairing a damaged wharf.

The accident happened at 9 P.M. that night. The party had retired for the night, plaintiff had partially undressed when he remembered he had not ascertained the planned time to arise the next morning. He walked from his tent into Nobriga's and obtained this information. Returning he tripped and fell over a projecting jagged pipe, and suffered a deep 'gouging' laceration of his leg.

The offending pipe had been driven into the ground as a stake to support a board revetment of a dirt fill constructed and maintained by defendant corporation to level off this particular campsite built on a natural slope.

The rest of the opening statement relates to first aid efforts, medical diagnosis, treatment, prognosis, care, the nature and extent of plaintiff's disability, etc. It closed with the following statement:

'The evidence will show the authority exercised over this campsite by Kamloops. That the pipe having been there for some time, that this was a negligent act on their part. They owned the duty of reasonable care towards Mr. Weyburn, and because of their not exercising that, and through their negligence, that this injury was suffered * * *.'

A motion for nonsuit may be granted and judgment of dismissal entered in a proper case. (Code of Civ.Proc. sec. 581c.) The motion must be denied, however, when it is made at the conclusion of plaintiff's case 'if there is any substantial evidence which, with the aid of all legitimate inferences favorable to plaintiff, tends to establish the averments of the complaint.' (Libby v. Conway, 192 A.C.A. 949, 953, 13 Cal.Rptr. 830, 832, citing a few of countless cases.)

The rule stated above applies, a fortiori, to a nonsuit upon an opening statement, which is a dangerous unfavored practice, akin to sustaining a demurrer without leave to amend. (Rodin v. American Can Company, 133 Cal.App.2d 524, at page 534, 284 P.2d 530; Kaukonen v. Aro, 142 Cal.App.2d 502, 298 P.2d 611.) The case last cited, at page 504, 298 P.2d at page 612, evidently in a search for a common denominator to guide a determination of propriety of use, makes a painstaking review of cases which have upheld the granting of opening statement nonsuits. The cases there cited illustrate that such judgment is proper "only where it is clear that counsel has undertaken to state all of the facts which he expects to prove, and it is plainly evidence that the facts thus to be proved will not constitute a cause of action." (Emphasis added.) (Greenwood v. Mooradian, 137 Cal.App.2d 532, 537, 290 P.2d 955, 958; see also Bias v. Reed, 169 Cal. 33, 37, 145 P. 516; Paul v. Layne & Bowler Corp., 9 Cal.2d 561, 71 P.2d 817.) Counsel's opening statement here did not purport to state all the facts he expected to prove.

The court here, therefore, did not heed the italicized portion of the rule above quoted, as the discussion hereinafter will illustrate.

The trial judge believed that plaintiff was a licensee at best. Defendants argued, and the trial court accepted the view, that an economic benefit of some kind to defendants from plaintiff's presence was necessary to constitute him an invitee. That is the view expressed in Restatement of Torts, section 332, although it uses 'business visitor' in preference to 'invitee,' and describes two kinds, (1) the usual type illustrated by the store customer, and, (2) the invitee coming onto the defendant's premises for a purpose of his own, but directly or indirectly connected with defendant's use of the land, e. g., the delivery man delivering his own product to a residence.

Dean Prosser suggests:

'The alternative theory * * * is that the basis of liability is not any economic benefit to the occupier, but a representation to be implied when he encourages others to enter to further a purpose of his own, that reasonable care has been exercised to make the place safe for those who come for that purpose.' ¹ (Emphasis ours.) (Prosser on Torts, 2d ed., sec. 78, p. 455.)

He uses an illustration on page 456 which has significance here:

'* * * The distinction is one between the landowner who tacitly permits the boys of the neighborhood to play baseball on his vacant lot, in which case they are only licensees, and the man who installs playground equipment and throws the lot open gratuitously to the children of the town as offered and provided for that purpose, in which case there is a public invitation.'

Professor Prosser reiterates this illustration on page 264 of his article, Selected Topics on the Law of Torts, pp. 243-301 (1953), ch. V, 'Business Visitors and Invitees'. This article includes a review of cases and states, at page 301:

'When premises are not open to the public, the individual may still be entitled to protection if he enters under circumstances which give him reasonable assurance that care has been taken to make the place safe for his reception.'

The article concludes with the following: 'The Restatement of the Law of Torts is wrong.'

We really need not concern ourselves here with the niceties of the debate. The granting of the nonsuit, under the circumstances disclosed, was...