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


Civ. 17805.

Decided: March 21, 1951

Moss, Lyon & Dunn, Los Angeles, for appellant. Henry F. Walker, Los Angeles, of counsel. Shacknove & Goldman, Los Angeles, for respondents. Ben F. Goldman, Jr., Los Angeles, of counsel.

The Richfield Oil Corporation appeals from a judgment awarded plaintiffs on account of injuries received by Mrs. Hayes when she fell into an open grease pit on premises leased by Richfield to defendant Scavone. By the terms of such lease the premises were to be operated as a gasoline service station under the name of ‘Scavone's Richfield Service.’

The station is located at the northwest corner of the intersection of Alameda street and Olympic boulevard in Los Angeles. The accident occurred at approximately 3 a.m. when the station was not open for service. Mr. Hayes, a truck driver whose place of business was across the street from the service station, being a regular patron was given permission to park his automobile there while out on his daily trips. On the day of the accident pursuant to their plan to drive to San Diego respondents parked their car at the rear of the station about 2:30 a.m. and proceeded across its premises on the side next to Alameda which was illuminated by a street light. They had no difficulty in seeing objects clearly. They crossed Olympic to their truck. On discovering that it required a new part they recrossed Olympic and the Richfield premises on the west side which did not have the benefit of a street light. Mr. Hayes preceded his wife and had arrived at their automobile when he heard her scream. He rushed back to find that she had fallen into the grease pit at the north end of the station building. The pit was unlighted and unguarded except for a steel plate approximately four inches high extending along the side and a concrete abutment of the same height at each end. The pit was 28 feet long. It extended across the lot and out beyond the extended line of the building on each side for about five feet. Although the property was floodlighted adequately during business hours, at the time of the injury only two small lamps were burning inside the building. They did not illuminate the pit area. The grease pit was provided with sockets for chain guards but such apparatus had never been in use by Scavone. He never saw any equipment on the premises for guarding the grease pit. Mr. Hayes testified that he was familiar with the station's layout in general and knew of the pit's location. Mrs. Hayes testified that she had no knowledge of its existence.

The written lease from appellant to Scavone provided that the premises were to be used primarily for the operation of a gasoline service station; the lessee must maintain the entire premises in good order and repair and in a clean and safe condition; make no material alterations or changes without the consent of Richfield; must sell only Richfield oil and gasoline while other merchandise might be purchased elsewhere. Either party could terminate the lease on 24 hours' notice. A ‘Richfield representative’ called at the station every 30 to 45 days. Another Richfield representative known as a merchandiser visited the premises once a week in order to make an inspection and to indicate conditions that should be changed. The station was plainted in the distinctive Richfield colors and bore large ‘Richfield’ signs. When the equipment required repairs Scavone notified appellant's maintenance department and the necessary improvements were made.


The complaint sets forth three causes in three separate counts. In count I after alleging that plaintiffs were patrons of the service station the pleading proceeds: ‘On or about the 24th day of June, 1948, defendants and each of them were operating and had possession, management and control of the aforesaid gasoline and service station and garage * * * and were using the aforesaid premises as a service station and garage catering to the motoring needs of the public * * * and did on said date negligently and carelessly and without due regard for the safety and welfare of the Plaintiffs and other patrons and customers of the Defendants leave the aforesaid pit open and unprotected and without cover or guard rails, and did maintain the aforesaid pit during the night time without illumination or lighting of any kind and in a negligent and careless manner’; that plaintiff Ruth Hayes, while a patron and customer of the aforesaid business of the defendants and while lawfully and necessarily upon the aforesaid premises, fell into the unguarded pit and was grievously injured, and necessarily expended for her treatments large sums of money.

Count II adopted all of count I and declared: ‘Defendants and each of them knew, or should have known, that members of the public customarily were in the habit of and did cross the aforesaid premises of defendants, and of using the aforesaid premises of the defendants as a passageway from one public street to another. Despite such knowledge on the part of Defendants, and each of them, Defendants maintained such premises in a negligent and careless manner and did maintain such open pit unprotected and without cover or guard rails and did maintain said pit during the night time without illumination or lighting of any kind, knowing full well that the Plaintiff Ruth Hayes, as a member of the public, might fall into the aforesaid unprotected open pit and become injured thereby.’

During the course of the trial respondents amended their complaint to conform to the proof, in doing which, after adopting their first count, ‘for a third cause of action’ in substance alleged that prior to the date of the injury Richfield inspected the premises of the aforesaid service station operated by the defendants to determine whether or not such premises were safe, clean and suitable for use by the public and the patrons and business guests of the aforesaid service station and did so negligently and carelessly perform said inspection that the premises became and remained unsafe and unsuitable for the use by the public and the patrons of said service station and were so unsafe and unsuitable on or about the 24th day of June, 1949.

Upon the issues raised by such complaint and the answer thereto the action was tried to a jury which returned a verdict in favor of respondents. The grounds urged for reversal are (1) the insufficiency of the pleadings and the evidence to support the judgment; (2) contributory negligence as a matter of law; (3) error in giving and refusing instructions.

The General Rule of a Lessor's Liability and Exceptions

It is the general rule that a lessor is not liable for injuries caused to his lessee or to a third person upon the leased premises even though such injury is caused by a condition existing thereon. Johnston v. De La Guerra Properties, Inc., 28 Cal.2d 394, 398–399, 170 P.2d 5; Carty v. Blauth, 169 Cal. 713, 716, 147 P. 949; Neuber v. Royal Realty Company, 86 Cal.App.2d 596, 610, 195 P.2d 501. However, there are numerous exceptions to this rule, one of which is that urged by respondents as controlling in this action, to wit, when property is leased for a public or a semipublic purpose liability may be imposed upon the landlord for a dangerous condition existing thereon at the time of the transfer. In support thereof they cite Burroughs v. Ben's Auto Park, Inc., 27 Cal.2d 449, 453, 164 P.2d 897; King v. New Masonic Temple Ass'n, 51 Cal.App.2d 512, 515, 125 P.2d 559; Boothby v. Town of Yreka City, 117 Cal.App. 643, 649, 4 P.2d 589; Prosser on Torts, section 81, page 653; 123 A.L.R. 870. Although many reasons have been advanced for the landlord's liability under this theory the best explanation is that the lessor's responsibility to the public is so great that he will not be permitted to shift it to the tenant, and he may not allow his land to be used in a manner which involves a public, rather than a private, danger. See Prosser on Torts, p. 655; Dennis v. City of Orange, 110 Cal.App. 16, 22, 293 P. 865, 868. As was observed in the Dennis case, ‘To relieve a landlord from liability under such circumstances would be * * * contrary to public policy and substantial justice, for it would not infrequently operate to deprive the injured party of all remedy except against an irresponsible tenant through whom a negligent landlord would reap the profits, without bearing the responsibilities of his proprietorship.’

Leased for Public Use

Appellant herein leased the premises to Scavone for the express purpose of conducting a service station—a public purpose. The lease itself specifically required that the property be used ‘primarily for such purpose.’ The building and equipment were in place. The grease pit had been constructed parallel with the north or back end of the station building. The parking area was at the rear of the property. That appellant was obviously aware of the danger of maintaining the pit at that location is demonstrated by the fact that the inventory of equipment delivered to the lessee included ‘chain guards.’ Yet the premises were delivered to Scavone without such safety apparatus and without any precautions having been taken to see that the dangerous condition of the pit was corrected. Not only did appellant transfer the premises in this condition but its agents made numerous inspections of the property without taking any action to remove the peril. Moreover, appellant had the reserved right under the lease to enter premises and make necessary repairs whenever the lessee failed to do so. Appellant could also force the lessee to make such repairs under penalty of forfeiture of the lease, as also provided in their agreement. Under these circumstances appellant was liable under either of two theories. (1) It was joint operator of the station with Scavone, or (2) with full knowledge of the existence of the peril it transferred the station to be used for a public service.

The general rule as to a lessor's liability for injuries to an invitee on the premises of a lessee is predicated upon the theory that the landlord on transferring the property gives up all control thereof. It is not so much ownership as control of property that creates legal liability for its negligent use. Lippman v. Subway Terminal Corporation, 115 Cal.App. 363, 368, 1 P.2d 1056; Johnston v. De La Guerra Properties Inc., supra. Accordingly, when the lessor still retains and actually exercises control over leased property the reason for the general rule fails and he is liable. Appellant recognized and acted upon such doctrine at the trial. At its request the jury were instructed that ‘if you find from all the evidence that Richfield * * * retained control over the business of Scavone's Richfield Service, then, in that event, you must find that said defendant had a legal duty of using reasonable and ordinary care to keep the premises * * * in a safe and suitable condition.’ Although appellant argues that the property was not in a dangerous condition when transferred, but became so thereafter through the lessee's negligence, this question was one peculiarly for the trier of fact. The jury was instructed on this point and its implied finding, supported by the evidence, will not be disturbed on appeal.

Although respondents had not pleaded the lease and the exception to the general rule as to liability in event of accident on property leased for public purpose, while Scavone was on the stand he testified that he had leased the premises from appellant to be used as a service station. Notwithstanding timely objection to such testimony, after its recital there were two issues before the court, namely: (1) whether Richfield was liable as a joint operator with Scavone, as pleaded by respondents; (2) whether Richfield was liable as a lessor under the exception to the general rule that a lessor is not liable after transfer to his lessee.

Failure to Plead Public Use

Having demonstrated that the jury were warranted by the evidence in finding that appellant was a joint operator with Scavone and therefore liable to respondents, we come now to a consideration of appellant's thesis, to wit, that it cannot be held under the theory that it leased the station to Scavone for a public use for the reason that such fact was not pleaded as an exception to the general rule of a lessor's nonliability for accidents after transfer. At the conclusion of the taking of evidence respondents requested the following instruction:

‘When property is leased to be used for a public or semi-public purpose, or involving admission of the public, if at the time possession of the premises is delivered to the lessee to be held under the lease thus executed, a condition exists on the leased premises such as to make its intended use dangerous to other persons or their property, and if that condition then is known to the lessor, or if it then would be known to him in the exercise of ordinary care, the lessor becomes liable to an invitee of the lessee for any injury suffered by such invitee and proximately caused by the unsafe condition (provided, of course, that the injured person is not guilty of contributory negligence).

‘Whenever, by virtue of the terms of such a lease, the lessor has the right of re-entry, the lessor's duty is to exercise that right of re-entry for the purpose of inspecting the premises to the end of removing or preventing any such dangerous condition that reasonable inspection would disclose to him.’

Appellant did not choose to rest the matter with its objection to respondents' instruction but requested and the court gave the following instruction:

‘A lessor who leases property for a purpose involving the admission of the public is under a duty to see that the leased premises are safe for the use so intended, and that their condition will not expose to unreasonable risk or harm any of the public who may enter. In the performance of that duty a lessor is required to exercise only reasonable care to inspect and repair the premises before possession is transferred to the lessee to be held under the lease thus executed. Should the lessor violate his duty, as thus defined, and should an invitee of the lessee suffer injury as a proximate result of such violation, lessor is liable for the injury unless the injured person is guilty of contributory negligence.

‘You will note that a lessor is liable only to an ‘invitee’ of the lessee and would not be liable to a person who was merely a licensee or trespasser. You will note also, that a lessor is liable to an invitee only if the leased premises are being used for purposes stated in the lease; and if the premises are being used for purposes contrary to or in violation of the terms of the lease, then the lessor may not be held liable to a person coming upon the premises in pursuance of some business or purpose which the lessee operates or permits in violation of his lease agreement.'

Appellant's instruction is substantially the same as that given on behalf of respondents. It recognized the identity of the doctrines incorporated in the two instructions as shown by its counsel's statement at the time of submitting its requested instruction to the court. He said: ‘I would like the record to show also that the instructions that I have offered pertaining to duties of a landlord with respect to the lease of property intended for some public purpose are offered on the reservation that counsel offers them only because the court has indicated that that phase of the law is involved and it is the feeling of counsel for defendant Richfield * * * that such instructions are not called for under the pleadings.’ Not content with his declaration appellant's counsel went further and caused the court to define a ‘dangerous condition’ and to say that a lessor may not be held liable for minor defects, that he is not obliged to keep his service station in a perfect condition.1

Thus both theories of recovery were fully presented to the jury. While there was no allegation of the purpose of appellant that the premises were to be put to a public use, that deficiency in the pleading was cured either by instructions given at appellant's request or by the fact that the issue of leasing the station for a public use was fully and clearly presented to the jury. Under such circumstances to reverse the judgment would violate the very purpose of section 4 1/212 of Article VI of the constitution. There was no ‘misdirection’ of the jury because the instructions stated the law. Also, ‘an examination of the entire cause, including the evidence’ discloses that the errors complained of have not ‘resulted in a miscarriage of justice.'2

Appellant urges also that recovery by respondents should be denied for the reason that the evidence shows them to have been contributorily negligent as a matter of law. It is argued that the husband was negligent in that (1) he preceded his wife leaving her alone to find her way across the dangerous premises and (2) he failed to warn her of the presence of the pit although he knew of its existence. Also, it is contended that Mrs. Hayes was negligent in proceeding in the darkness over unfamiliar terrain when a lighted pathway was available on the other side of the building. However, those cases in which contributory negligence is said to have existed as a matter of law are extremely rare. Only when the evidence points unerringly to such a construction and when the only reasonable hypothesis is that such negligence is present, can it be deemed to exist as a matter of law. Anthony v. Hobbie, 25 Cal.2d 814, 818, 155 P.2d 826. Such is the situation herein. Mrs. Hayes was acting reasonably in assuming that she could proceed safely across the premises of a public service station with nothing of a dangerous character present to do her harm. With respect to Mr. Hayes, it may be said that forgetfulness of a known danger does not always show a want of ordinary care. Neel v. Mannings, Inc., 19 Cal.2d 647, 655, 122 P.2d 576; Meindersee v. Meyers, 188 Cal. 498, 504, 205 P. 1078. Whether it was contributory negligence on the part of either of the plaintiffs was a question solely for the jury's determination.

Neither was there error in refusing to instruct the jury on the matter of assumption of risk by Mrs. Hayes. That defense implies a recklessness on the part of the unfortunate lady, a mental state of willingness in making a deliberate choice of a course of conduct without reference to the fact that one may act with due care. Hedding v. Pearson, 76 Cal.App.2d 481, 485, 173 P.2d 382. The doctrine is not applicable where one lawfully crosses the premises of a public gasolne service station unaware of peril and where it cannot be said that the risk of danger and injury was present as a matter of common knowledge. (Ibidem.)

Judgment affirmed.


1.  ‘A dangerous or defective condition, as denoted by the use of that term in these instructions, means a condition in, on or of the premises, equipment, property, or building in question that would have caused them to be not reasonably safe for persons who, with ordinary care for their own safety, used said public gasoline service station or might have used it for the purpose intended, or as expressly or impliedly invited, or as permitted by the controlling authority.‘An owner, lessor, or the tenant lessee is not an insurer of the safety of persons using its gasoline service station premises, equipment or property. It may not be held liable for minor defects or imperfections not involving the danger just described. It is not required to keep its gasoline service station in an absolutely safe or perfect condition or free from every defect that possibly might lead to injury, unless any condition short of perfection is a dangerous condition, as I have defined the term.’

2.  Section 4 1/212, Article VI, Constitution of California:‘No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.

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