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District Court of Appeal, First District, Division 1, California.

GOODMAN et al. v. HARRIS et al.*

Civ. 15084.

Decided: June 16, 1952

Belli, Ashe & Pinney, Melvin M. Belli, Betsy Fitzgerald Rahn, San Francisco, for appellants. Robert H. Gerdes, Frederick W. Mielke, Jr., San Francisco, for respondent.

The defendants Harris operated a restaurant, garage and tourist court near Emigrant Gap on property owned by and leased from the defendant Pacific Gas & Electric Company. Arthur Ralph Goodman, Jr., and plaintiff Janet McCrum occupied adjoining rooms in a cabin located on that property, and heated by a defective butane gas heater. As a result of excessive carbon monoxide fumes given given out by the heater, both were asphyxiated, Goodman dying and Janet McCrum being permanently injured. The heirs at law of Goodman and Janet McCrum brought this action against the Harrises, and the P. G. & E. to recover damages for the death of Goodman, and for the injuries to Janet. At the close of plaintiffs' case, a motion for a nonsuit was granted as to the P. G. & E., and a judgment of nonsuit entered. A settlement was effected between the plaintiffs and the Harrises. Plaintiffs appeal from the judgment of nonsuit entered in favor of the P. G. & E.

A motion for a nonsuit operates, of course, as a demurrer to the evidence. Such a motion can be properly granted only when, disregarding conflicting evidence and giving to plaintiffs' evidence all the value to which it is legally entitled, and indulging in every legitimate inference which may be drawn from that evidence, it can be said that there is no substantial evidence to support a verdict for plaintiffs, had such been rendered. Tested by these standards, we believe that it was error to have granted the motion in the instant case.

The facts, and the reasonable inferances therefrom, most favorable to plaintiffs are as follows:

The premises in question, owned by the P. G. & E., are located near Emigrant Gap in the Sierra Nevada Mountains. In 1939 these premises, then vacant, were leased to one Hinman for a term of ten years at a progressive rental, the lease providing that Hinman could construct improvements, and that any improvements not removed at the expiration of the term should belong to the P. G. & E. In due course, various improvements were constructed on the premises, consisting of a restaurant, a commercial garage, two log siding cabins, three so-called ‘streetcar’ cabins, a house with a prominent sign reading ‘Cabins $2.50 and Up,’ a pump house and a water tower. The Hinman lease was assigned to Dahl and Allen who, in turn, assigned to Green. Green sublet the property to the Harrises in December, 1946. The company had not consented to the assignment of the lease to Green. Green attempted to secure a direct lease from the P. G. & E. That company then discovered that the Harrises were in fact operating the property, and had already purchased some of the equipment located on the premises. The company decided to deal directly with the Harrises. On February 10, 1947, it secured a quitclaim of their interest in the lease from Dahl and Allen, such quitclaim being effective as of December 31, 1946. On April 3, 1947, the company executed a written lease to the Harrises to run from March 1, 1947, for a period of one year. Between December, 1946, and March 1, 1947, the Harrises paid rent to Green; thereafter they paid it to the P. G. & E. under this lease. This lease, among other things, prohibited the tenant from conducting a nuisance on the property, gave the lessor a right of entry at all times to inspect, imposed the duty on the tenant to keep in repair all buildings on the premises, and upon termination to surrender them to the lessor in good repair. This lease expired on March 1, 1948, and thereafter the Harrises continued to hold over upon a month-to-month tenancy, pursuant to a hold over clause in the lease. They were so holding on February 2nd and 3rd, 1949, the critical dates here involved. The evidence shows that the P. G. & E. had actual notice that the Harrises were using the premises for motel purposes.

The accident here involved occurred in a two-room streetcar cabin. Just when these cabins were constructed on the property is not very clear. Apparently they were built by Hinman or one of his subsequent assignees. It is perfectly clear that they were constructed before December, 1946, when the Harrises first came on the property as subtenants of Green, and so, of course, were there when the lease to the Harrises was executed on April 3, 1947. Under the terms of the Hinman lease, since these buildings were not removed at the termination of that lease, they became the property of the P. G. & E.

It is an admitted fact that the death of Goodman and the injuries to Janet McCrum occurred by reason of the operation of a butane heater in one of the streetcar cabins. This heater was installed by the Harrises before they leased the property from the P. G. & E. It was in the cabin in question when that lease was executed, and was apparently installed in January, 1947, during the period the Harrises were paying rent to Green. This heater was unvented, and was connected to the premises by a feeder pipe leading from a large butane storage gas tank. The gas tank was installed prior to the time the Harrises took possession of the property. From this storage tank a feeder pipe led to the cabin in question, the feeder pipe leading into the cabin on the wall opposite from that in which a vent was located. The heater in question was not only not vented, but was so constructed that it could not be vented. The heater was defective in that it lacked the fire clay grillwork or radiants designed to heat up and cause complete combustion of the gasses generated during operation.

The accident happened under the following circumstances: Goodman, the decedent, and Janet McCrum, had been skiing in the Sierras. While returning to Oakland, their automobile broke down and they were towed to the Harrises' place at Emigrant Gap. They arrived there during the evening of February 2, 1949. Both were very tired. They had something to eat and fell asleep at the table. They were then told that the automobile could not be repaired until the next morning. Mrs. Harris then asked them if they wanted a cabin. Janet told her that they were not married, and Mrs. Harris replied that the only available space was these adjoining rooms in the streetcar cabin. It was not after midnight. They agreed to take these rooms. Mrs. Harris preceded them to the cabin, lit the butane heater, and turned it on almost full force. The windows and door of the cabin were closed. A snowstorm approaching blizzard proportions was raging. The couple then went to the cabin. The heater was burning in the room assigned to Janet McCrum. She went into her room, took off her ski boots, and lay down on the bed. The decedent came into her room, tried to open the windows, operated like streetcar windows, was unsuccessful, and commented to her upon his inability to open them. Decedent also tried to open the outside door, but the blizzard blew the door open and so he shut it. He then went to bed. The heater was then on, the temperature being about zero. The next morning, February 3, 1949, decedent was found dead in his bed and Janet was found upon the floor, unconscious. She has suffered permanent and serious injuries from this experience.

Some reference should be made to the inspection, or lack thereof, by the P. G. & E. The evidence shows little or no effort exercised by the P. G. & E. to ascertain if the premises were being safely operated. The P. G. & E. knew that they were being used as a motel, although there is no evidence that the P. G. & E. knew that this particular cabin was so used. There is some evidence, or inferences therefrom, that the P. G. & E. inspected the premises when the lease to the Harrises was executed, in order to ascertain if the premises were being properly and safely operated. There was some kind of inspection by company officials in 1948, when the P. G. & E. was engaged in a controversy over boundaries. There is ample evidence that P. G. & E. employees, probably surveyors, were in and out of the premises frequently.

The premises were also inspected by an inspector of the state division of housing in May or June, 1948. The tenants were then told by this inspector that the particular cabin here involved did not comply with the state law applicable to motels, could not be rented for overnight occupancy, but could be rented by the week or the month. Apparently this was predicated on the fact that this streetcar cabin was deficient in cubic foot area as required by law, was not constructed so as to comply with law, the widow space was deficient, and there were no drains as required by law. See Health and Safety Code, §§ 18402, 18409, 18410. Apparently the cabins were not thereafter generally used for overnight occupancy, but were used by friends of the Harrises and others.

On this evidence the trial court came to the conclusion that the accident happened because of the heater, that the heater was part of the furnishings, that there was no duty upon the landlord to patrons to inspect the personal furnishings of the tenants, and for that reason granted the nonsuit.

There is but little dispute as to the applicable law. The general rule is that the landlord has no duty to make the premises safe for tenants or their invitees or licensees. The rule of caveat emptor applies, and except for hidden defects known (or which should have been known) to the landlord he is under no obligation to see to it that the premises are safe. But to this rule there is a well-settled exception. When premises are leased for public or semi-public purposes, the landlord owes a duty directly to the patrons of the leased premises to see to it that they are reasonably fit for the purposes for which the property is leased. This exception to the rule was stated as follows in Burroughs v. Ben's Auto Park, Inc., 27 Cal.2d 449, 453, 164 P.2d 897, 899: ‘A lessor who leases property for a purpose involving the admission of the public is under a duty to see that it is safe for the purposes intended, and to exercise reasonable care to inspect and repair the premises before possession is transferred so as to prevent any unreasonable risk of harm to the public who may enter.’ This rule has been applied to various factual situations. In the Burroughs' case the landlord was held liable to a parking lot patron who fell into an unguarded areaway adjoining the premises. The parking lot, although equipped by the landlord with adequate floodlights, was inadequately lighted at the time of the accident because of a dim out ordinance. This ordinance was passed after the original lease was executed, and was in effect when that lease was renewed. It was held that the landlord owed a direct duty to patrons for the condition of the premises when the lease was renewed, because at that time he had a right of re-entry and a duty to inspect.

In Hayes v. Richfield Oil Corp., 38 Cal.2d 375, 240 P.2d 580, a parking lot patron fell into an open grease pit located near the parking area. There were adequate lights, but the tenant had turned them off. The landlord was held liable. The unguarded grease pit was a hazard, and the landlord was under a duty to patrons to anticipate that the tenant might not keep the area lighted.

See, also, King v. New Masonic Temple Ass'n, 51 Cal.App.2d 512, 125 P.2d 559; Boothby v. Town of Yreka City, 117 Cal.App. 643, 4 P.2d 589; Fletter v. City & County of San Francisco, 110 Cal.App.2d 820, 244 P.2d 59; Rau v. Redwood City Woman's Club, 111 Cal.App.2d 546, 245 P.2d 12; Annotation, 123 A.L.R. 870; Restatement of Torts, § 359, and comment ‘e’; 32 Am.Jur., § 666, p. 532 et seq.; 52 C.J.S., Landlord and Tenant, § 422(2), p. 77; Prosser on Torts, p. 653; 50 Harv.L.Rev. p. 740; 62 Harv.L.Rev. 669; 84 Univ. of Pa.L.Rev. 467; 100 Univ. of Pa.L.Rev. 629.

There can be no doubt that, if an ordinary gas station with a small parking place is a public or semipublic place within the meaning of this rule, an establishment such as is here involved is also a public or semipublic place. The P. G. & E. makes no contention to the contrary. It is its position that the injury occurred by reason of the defective heater, that the heater was personalty belonging to the tenant, and that the landlord is not liable for the condition of defective personalty brought on the premises by the tenant. It was on this theory that the trial court granted the nonsuit.

Undoubtedly, where the condition does not amount to a nuisance, and the landlord does not know actually or constructively of the condition, he is not liable for damages caused by defective personalty brought on the premises by the tenant. Manning v. Leavitt Co., 99 N.H. 167, 5 A.2d 667, 122 A.L.R. 249. But this personalty rule cannot be used to exonerate the landlord in the instant case. Under the lease the landlord retained a right of entry for the purpose of inspection. Under the lease the tenants were prohibited from maintaining a nuisance, and the condition here existing certainly constituted a nuisance. The heater was installed without a vent before the lease was executed, and was otherwise defective. The landlord was under a duty to inspect at that time. Burroughs v. Ben's Auto Park, Inc., 27 Cal.2d 449, 164 P.2d 897. Even the most casual inspection would have disclosed that this heater was unvented, and not properly equipped with radiants. While this heater was not designed for a vent, it is unlawful to use such a heater in a motel. § 18470, Health and Safety Code. While the Harrises were not using this cabin, generally, for overnight occupancy, the evidence does show that it was used for sleeping purposes for other guests. It was designed for use in connection with the operation of the premises, and even if this was only an incidental use, the landlord is required to anticipate that the premises might be used ‘for activities connected with or in aid of the main business.’ Hayes v. Richfield Oil Corp., 38 Cal.2d 375, 240 P.2d 580, 583. The cabin did not comply with the law in various respects so far as motels are concerned.

There is another factor of great importance. The evidence shows that when the Harrises first came on the property in December of 1946, the butane tank was already installed, and so were the feeder pipes. This installation consisted of a large storage tank with feeder pipes leading to the various places of use. One such feeder pipe led from the storage tank to the streetcar cabin here involved. It entered that cabin on the wall opposite to where the vent for that room existed. It ended at the point of entrance. The landlord owned, or was responsible for, this equipment. It is a reasonable inference that a pipe obviously intended for gas heat, and so located, constituted an implied invitation by the landlord to the tenant to install a gas heater there, at a spot where it could not reasonably be vented. When this is coupled with the fact that the heater was installed when the lease was executed, that the landlord then knew, or should have known, that it was unvented and otherwise defective, and the landlord knew, or should have known, that the cabin could and probably would be used for sleeping purposes, it seems quite clear that the plaintiffs have established a prima facie case sufficient to avoid a nonsuit. The evidence, and the reasonable inferences therefrom, establish a prima facie case of a duty owed by the P. G. & E. to the plaintiffs, a violation of that duty, and proximate cause. Under such circumstances, it was error to grant the nonsuit.

The judgment appealed from is reversed.

PETERS, Presiding Justice.

BRAY and GOODELL, JJ., concur.

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