Winn v. Holmes

• Decision Date: 27 July 1956
• Court: California Court of Appeals Court of Appeals
• Parties: Mary WINN, Plaintiff and Appellant, v. Jerry HOLMES, individually and doing business as The Ranch House, et al., Defendants and Respondents. Civ. 21187.

Page 994

299 P.2d 994

143 Cal.App.2d 501

Mary WINN, Plaintiff and Appellant, v. Jerry HOLMES, individually and doing business as The Ranch House, et al., Defendants and Respondents.

Civ. 21187.

District Court of Appeal, Second District, Division 3, California.

July 27, 1956.

M. Farzan, San Francisco, for appellant.

Lynch & Reilly, Los Angeles, for respondents.

SHINN, Presiding Justice.

Plaintiff appeals from a judgment based upon an order sustaining, without leave to amend, a demurrer of defendant Jerry Holmes to her second amended complaint, hereinafter referred to as the complaint. The facts alleged therein are as follows: Defendants Holmes and Third Doe are the owners and operators of The Ranch House, a restaurant and eating establishment open to the public. At about 10:30 p. m. on November 27, 1953, plaintiff 'was a guest and patron of said establishment,' and at that time and place and without any cause or provocation on her part, plaintiff was assaulted by defendants First Doe and Second Doe, 'who were also patron guests and patrons of said establishment at the special invitation of the defendants Jerry Holmes and Third Doe.' Plaintiff also alleges that 'prior to said vicious and unprovoked attack on plaintiff, said First Doe and Second Doe made several threats on plaintiff and that said defendant Jerry Holmes was present and had knowledge of the said threats on plaintiff; that said Jerry Holmes was informed and made aware of the same, and that he, knowing of said threats on plaintiff could have protected said plaintiff; that said defendant owed plaintiff a legal duty and obligation to protect her against such attacks by patrons and guests in that she was a patron and business invitee; that said Jerry Holmes in violation of his said legal duty did so negligently and carelessly refuse to interfere and stop said First Doe and Second Doe from attacking and assaulting plaintiff, and while said vicious attack and assault was being made and inflicted on plaintiff, said Jerry Holmes did nothing to prevent said First Doe and Second Doe from attacking plaintiff.' It is also alleged that 'as a direct and proximate result of said assault,' plaintiff suffered personal injuries, for which she seeks $10,000 general damages and special damages in an as yet unascertained amount. There is also a prayer for exemplary damages.

Defendant's demurrer to the complaint was sustained without leave to amend upon the ground that defendant owed no duty to plaintiff to protect her against an assault by a third person on the premises. We are of the view that this holding was erroneous, and that the complaint states a cause of action against defendant.

Although the owner of a place of business is not an insurer of the safety of his invitees, it is well settled that he is required to exercise reasonable care for their safety, and is liable for injuries resulting from a breach of this duty. Tuttle v. Crawford, 8 Cal.2d 126, 63 P.2d 1128; Hinds v. Wheadon, 19 Cal.2d 458, 121 P.2d 724; Vaughn v. Montgomery Ward & Co., 95 Cal.App.2d 553, 213 P.2d 417; Girvetz v. Boys' Market, Inc., 91 Cal.App.2d 827, 828, 206 P.2d 6; 65 C.J.S., Negligence, § 45, p. 521. He is liable for harm caused by any dangerous condition on the premises, whether natural or artificial, if he knew of it, or, by the exercise of reasonable care, could have discovered it. Travis v. Metropolitan Theatres Corp., 91 Cal.App.2d 664, 205 P.2d 475; Blumberg v. M. & T. Incorporated, 34 Cal.2d 226, 209 P.2d 1; 2 Rest.Torts § 343. His duty to his invitees is performed by either warning them of danger or by using ordinary care to keep the premises in a reasonably safe condition. Blumberg v. M. & T. Incorporated, supra; Delk v. Mobilhomes, Inc., 118 Cal.App.2d 529, 258 P.2d 75. But he is not required to warn invitees of obvious dangers, as he is entitled to assume that invitiees will perceive the obvious by the use of their own senses. Delk v. Mobilhomes, Inc., supra; Shanley v. American Olive Co., 185 Cal. 552, 197 P. 793; Dingman v. A. F. Mattock Co., 15 Cal.2d 622, 104 P.2d 26. Thus the owner's duty is usually rationalized on the ground that he has superior knowledge of an existing danger of which his invitees are unaware. If he is ignorant both actually and constructively of the danger, he is not liable. Perbost v. San Marino Hall-School, 88 Cal.App.2d 796, 199 P.2d 701; Mautino v. Sutter Hospital Ass'n, 211 Cal. 556, 296 P. 76.

Innumerable cases have applied these rules to situations where an invitee is injured due to some natural or artificial condition on the premises. But the owner's duty to his invitees extends beyond protection against injuries due to the conditions of the premises. He must use reasonable care to protect them against injury through the negligent or wrongful acts of other invitees on the premises where he has reasonable cause to anticipate such acts and the probability of injury resulting therefrom. 65 C.J.S., Negligence, § 45, p. 533; 2 Rest.Torts § 348. As Prosser says (Prosser on Torts, 1941 edition, 643-4): 'In particular, the possessor must exercise the power of control or expulsion which his occupation of the premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands. He must act as a reasonable man to avoid harm from the negligence * * * of other persons who may have entered it, or even from intentional attacks on the part of such third persons. He is required to take action only when he has reason to believe, from what he has observed or from past experience, that the conduct of the other will...