DI MARE v. CRESCL

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

Joseph DI MARE and June DiMare, Plaintiffs and Respondents, v. Rosina CRESCL, Defendant and Appellant.*

Civ. 19358.

Decided: November 28, 1961

Healy & Robinson, Robert K. Barber, San Francisco, for appellant. Lewis & Stein, Matvin E. Lewis, San Francisco, for respondents.

Plaintiffs June DiMare and Joseph DiMare, her husband, brought this action to recover damages sustained by them as the result of a fall by plaintiff wife on the steps of an apartment building owned and maintained by defendant Rosina Cresci. Plaintiffs complain that defendant had negligently maintained a stairway on the premises reserved for the use of all the tenants and that this negligence was the proximate cause of plaintiffs' damages.

On May 21, 1956, plaintiffs occupied an apartment on the third floor of defendant's apartment house. An outside wooden stairway led from the ground to the various floors of the building, and a garbage chute was located on the landing between the second and third floors. On said day plaintiff June DiMare descended the stairway from the third to the second floor for the purpose of disposing of some garbage. When she reached the turn of the steps where the chute was located, the step on which she was walking gave way beneath her so that she fell through the opening up to her waist, injuring her hip and left leg. She extricated herself from the hole, crawled up the stairs to her apartment, and telephoned her husband, who returned home immediately. On his arrival, he found his wife lying on the floor in a highly emotional state, moaning, crying and yelling. He further testified that his wife awakened him during the night, stating that the roof was falling in. Following the accident, plaintiff wife developed numerous symptoms of mental disorder and was subsequently hospitalized for schizophrenia. There was testimony by numerous people that she had always appeared to be a normal and well-adjusted person prior to the accident. Between the time of the accident and the trial, the deposition of the plaintiff wife was taken but she was unable to testify at the trial because she was then confined in the hospital.

Judgment being rendered in the sum of $100,000 for plaintiff June DiMare, and in the sum of $1,000 for her husband, defendant appeals.

Appellant first contends that the evidence clearly shows that the defect in the stairs was of such a nature that she could not have discovered it in the exercise of ordinary care. Hence, the implied finding that appellant negligently maintained the stairway upon which respondent wife fell lacks support in the evidence. This contention is not well founded. Appellant concedes that respondent's injury occurred on a portion of the premises which had been reserved for the use of all the tenants. The law is well established that where the landlord retains control of a common areaway, the landlord is liable to his tenant for bodily injury caused by a dangerous condition on that portion of the premises if the landlord, by the exercise of reasonable care, could have discovered the defective condition and could have made the property safe. (Burks v. Blackman (1959) 52 Cal.2d 715, 718, 344 P.2d 301; Yazzolino v. Jones (1957) 153 Cal.App.2d 626, 632, 315 P.2d 107; Harris v. Joffe (1946) 28 Cal.2d 418, 423, 170 P.2d 454.) Furthermore, california has extended the rule in this, that the duty of ordinary care in relation to such common areaways requires “reasonably careful inspection at reasonable intervals to learn of dangers, not apparent to the eye.” (Yazzolino v. Jones, supra, 153 Cal.App.2d at p. 634, 315 P.2d at p. 113; Devens v. Goldberg (1948), 33 Cal.2d 173, 178, 199 P.2d 943.)

The stairway in question was an outdoor stairway and was constantly exposed to the elements. There is ample evidence that the stairs had not been recently painted and that most of the paint was worn from their surface. Appellant testified that she cleaned these steps about once a week and was familiar with their condition. Further, she was chargeable with knowledge that wooden structures exposed to the weather will of necessity undergo certain changes unless properly attended to. As was pointed out in Spore v. Washington (1929) 96 Cal.App. 345, 354, 274 P. 407, 410: (1929) 96 Cal.App. 345, 354, 274 P. 407, 410: all boards exposed to the weather react to climatic conditions and changes. Any person of ordinary intelligence realizes that wood expands and shrinks, and that, likewise, nails or other metals also react to the laws of heat and cold. The expansion and contraction of wood and metal are not compensatory, resulting in loose nails in boards. * * * These are matters of such ordinary knowledge that it cannot be held that one upon whom devolves the duty of maintaining and keeping safe an exposed board walk has performed that duty by neglecting the walk entirely.' Appellant had ample opportunity to observe that the stairway was creaking and that it must be protected from the elements.

There was also testimony by two civil engineers as to the condition of the stairway, and the various factors which contributed to the collapse of the step. Plaintiffs' engineer testified that the stairs had been built in such a manner that there was not a tight contact between the treads and the risers, and water could thus gain access to the unpainted surface of the risers. He found the paint worn from the stairs and that the wood was discolored, which he indicated was probably due to deterioration of the wood, dry rot, and corrosion of the nails. He found inadequate edge clearance as to the relationship between the tread and the riser, which did not comply with good custom and practice in the construction of stairs. It was his opinion that the wood deterioration could be detected by an expert, but might not be apparent to the average person. Defendant's engineer testified that in his opinion the stairs had failed because of the rusting of the nails, the splitting of the bottom edge of the riser due to inadequate edge clearance, or both these factors, and that the protection from painting was very poor. It was also his opinion that the manner in which the stairs had been constructed would not be a danger signal to a layman.

The respondent wife, in her deposition, stated that the stairs were creaky, and respondent husband testified that the stairs were squeaky and unpainted.

In view of this testimony, it cannot be said that there was no evidence in support of the jury's finding that appellant was negligent in maintaining the stairway.

Appellant next contends that the trial court erred in instructing the jury on the doctrine of res ipsa loquitur. Appellant points out that the jury was instructed that, ‘From the happening of the accident involved in this case, an inference arises that a proximate cause of the occurrence was some negligent conduct on the part of the defendant.’ Appellant argues that the doctrine of res ipsa loquitur may be applied only where it can be said that in the light of common experience it is more likely than not that defendant's negligence caused the injury and asserts that no such balance of probabilities exists in the instant case and that the giving of the instruction was therefore erroneous.

The rule is well established that the doctrine of res ipsa loquitur is applicable if the thing which causes injury is shown to be under the exclusive control or management of the defendant and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care. (Honea v. City Dairy, Inc. (1943) 22 Cal.2d 614, 616–617, 140 P.2d 369.) In the present case, appellant clearly had control and management of the stairway, since it was a portion of the premises reserved for the use of the various tenants. It would seem equally clear that the collapse of the step was the type of accident which would not normally occur had proper care in inspecting and maintaining the stairway been exercised by appellant. Indeed, the courts have repeatedly applied the doctrine of res ipsa loquitur in situations where an ordinarily stable object has collapsed for no apparent reason. (See Rose v. Meldoy Lane (1952) 39 Cal.2d 481, 486, 247 P.2d 335 [where stool upon which plaintiff was sitting collapsed]; Calame v. Stevens (1952) 110 Cal.App.2d 45, 48–49, 242 P.2d 109 [where metal framework collapsed beneath plaintiff]; Biondini v. Amship Corp. (1947) 81 Cal.App.2d 751, 767, 185 P.2d 94 [where scaffold collapsed beneath workman].) Although appellant is correct in asserting that the dangerous condition of the stairs could have been caused by some factor other than the negligence of appellant, the burden was not upon respondents to exclude all other causes of the accident. In Mintzer v. Wilson (1937) 21 Cal.App.2d 85, 68 P.2d 370, plaintiff was injured by plaster which fell from the ceiling of defendants' hotel. On appeal from the granting of defendants' motion for directed verdict, the judgment was reversed, with the appellate court holding that the doctrine. of res ipsa loquitur was clearly applicable. Although defendants urged that the accident could easily have been due to an earthquake, the activities of guests in the room above, vibrations of the house, or plaintiff's own activities, the court stated, at page 90, 68 P.2d at page 373: ‘* * * the doctrine of res ipsa loquitur is not limited to cases where the nature of the accident not only supports the inference of defendants' negligence but excludes all others; and even though two or more inferences may reasonably be drawn from the facts, which leaves doubtful the question of whether the ultimate cause of the injury is the defendants' negligence, the issue is still one of fact to be determined by the jury from all the evidence in the case.’

Appellant next contends that the doctrine was not applicable because the circumstances were such that respondents knew as much about the cause of the accident as appellant. It is appellant's position that a res ipsa loquitur instruction may not be given where the evidence of how and why the accident occurred is equally open and known to all parties. Appellant relies on the cases of Hendershott v. Macy's (1958) 158 Cal.App.2d 324, 322 P.2d 596, and Billeter v. Rhodes & Jamieson, Ltd. (1951) 104 Cal.App.2d 137, 231 P.2d 93. Both are distinguishable. In the Hendershott case, the plaintiff was riding an escalator in defendants' store when the package she was carrying became wedged against the side panel, forcing her to fall backward and sustain certain injuries. Plaintiff based her cause of action on two alternate theories as to how the accident occurred—first, that the escalator side panel had been improperly constructed since the strip projected 1/8 inch above the panel; and second, that the escalator had been improperly maintained so that the strip had buckled. The court held that plaintiff was not entitled to res ipsa loquitur instructions under her first theory, since the fact that the strip projected above the panel was a fact known to plaintiff as well as to defendants. As to her second theory, however, the court held that res ipsa loquitur instructions were applicable, since the condition of the strip would be something within defendants' sole knowledge. Since the evidence in the case at bar would certainly support the conclusion that the stairway failed due to improper maintenance and the failure to prevent wood and nail deterioration caused by water seepage, it would seem that the Hendershott case, far from supporting appellant's contention, would indicate that res ipsa loquitur instructions should have been given.

In the Billeter case, there is no similarity to the facts in the instant case. Plaintiff Billeter was injured when he placed his hand on the cross brace of a revolving concrete mixer. Since there was insufficient clearance between the cross brace and the rotating fin, three of plaintiff's fingers were amputated by the fin. The court held the res ipsa loquitur doctrine inapplicable to these facts because all the parties knew precisely how and why the injury had occurred and also because it was equally probable that the plaintiff's own negligence had caused his injury.

Here, the collapse of the step was not due to any one specific cause of which appellant and respondents were equally aware. The testimony of the expert witnesses would tend to indicate that the stairway had not been constructed in the best possible manner and that improper maintenance over a period of years had caused the stairs to deteriorate until they were unsafe. The evidence certainly does not point to any one specific cause of the collapse. Since appellant controlled and maintained these stairs, it follows that she would be in a far better position than respondents to explain the failure of the step. Furthermore, the courts have held that superior knowledge on the part of the defendant is not an essential prerequisite to the application of res ipsa loquitur. In Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 445, 247 P.2d 344, 349, the court stated: ‘It seems clear, however, that the doctrine may be applied even though the defendant is not in a better position than plaintiff to explain what occurred if it appears more probable than not that the injury resulted from negligence on the part of defendant.’ (See also Baker v. B. F. Goodrich Co. (1953) 115 Cal.App.2d 221, 252 P.2d 24.) Since the negligence of appellant was certainly more probable than not, the trial court did not err in instructing on the doctrine of res ipsa loquitur.

Appellant urges, however, that even if such an instruction were proper, the court failed to instruct the jury fully on all conditions that must exist before the doctrine would be applicable, and was therefore guilty of reversible error. Appellant cites Burr v. Sherwin Williams Co. (1954) 42 Cal.2d 682, 268 P.2d 1041, in support thereof. We find no evidence whatever that any person other than appellant had control over the stairway and the resultant duty to maintain it. Under these circumstances the trial court was under no duty to give the type of instruction required by the Burr case.

Appellant next asserts that the trial court erred in refusing to instruct the jury on the doctrine of contributory negligence. Although there was no evidence whatever that respondent did anything other than descend the stairs in a perfectly normal fashion, appellant contends that if the stairway was subject to defects which should have been detected and remedied by appellant, that respondent was under an equal duty to observe these defects and to avoid using the stairway if it was in an unsafe condition. However, all of the evidence as to the condition of the stairs indicates that any such defect would not have been readily apparent to the casual observer. Although respondent was certainly under a duty to look out for her own safety and to use ordinary care to protect herself from injury, there is no indication whatever that she behaved in an unreasonable manner by descending the stairway which provided access to the garbage chute. Appellant, on the other hand, not only had the duty to use ordinary care but the additional duty to make reasonable inspections to discover defects not apparent to the eye. (See Yezzolino v. Jones, supra, 153 Cal.App.2d at p. 634, 315 P.2d 107.) In Devens v. Goldberg, supra, 33 Cal.2d at pages 179–180, 199 P.2d at page 948, the court stated: ‘The evidence clearly supports the implied finding of the jury that the railing was defective and that a reasonable inspection would have disclosed the defect. The fact that plaintiff was not aware of the dangerous condition does not require a conclusion that the defect would not have been revealed upon a reasonable examination by defendant. Plaintiff was under no duty to make an inspection to discover defects, and she had a right to rely upon her employer's means of knowledge and his duty of inquiry. [Citations].’ Since there is no evidence that respondent failed to exercise ordinary care in regard to her own safety, no instruction on contributory negligence was warranted and the trial court properly refused to so instruct.

Appellant next objects to the giving of an instruction that, ‘Ordinary care in relation to a common stairway includes not only keeping the premises safe but also requires reasonably careful inspections at reasonable intervals to learn of dangers not apparent to the eye.’ Appellant is again asserting that this instruction incorrectly stated the law by imposing the duty to inspect upon a landlord in control of common areaways. As above mentioned, this instruction merely sets forth the rule which was formulated in the Devens case and which was expressly applied to a landlord in the Yazzolino case. Appellant argues that Baddeley v. Shea (1896) 114 Cal. 1, 45 P. 990, 33 L.R.A. 747, contains the proper rule and that the question of whether an inspection is required depends on whether the landlord had notice of facts which would induce a man of ordinary prudence to suspect the existence of a latent defect. Appellant ignores the fact that the Baddeley case was expressly disapproved in the Devens case, 33 Cal.2d at page 179, 199 P.2d at page 947, where the court pointed out that the Baddeley decision ‘contains language which is clearly out of line with later decisions of this court and the Restatement rule with respect to business visitors.’

Appellant alleges, however, that even if the trial court was warranted in imposing an absolute duty of inspection upon a landlord in control of a portion of the premises, this instruction was erroneous because it stated that appellant's duty was to keep the premises ‘safe’ rather than ‘reasonably safe.’ It may be noted that this instruction was immediately preceded by a lengthy discussion of the duty of a landlord in regard to common areaways. The jurors were told that appellant was required only to use ordinary care and that she was not an insurer of plaintiff's safety. The jury was further informed that appellant was required only to use the degree of care that would be expected of an ordinarily prudent apartment house owner in the community, and that if the stairway collapsed from a latent defect which was not manifest to an ordinarily prudent person making an inspection, appellant was not liable. In view of the fact that the trial court thus instructed the jury at length as to the correct standard of duty to which appellant was to be held, it seems extremely unlikely that the jurors were in any way misled by the court's sole reference to appellant's duty to keep the premises ‘safe.’ When read as a whole, the instructions correctly set forth the applicable law and properly delineate the duties to which appellant was subject.

Appellant's next attack is upon the sufficiency of evidence to establish appellant's negligence as a proximate cause of respondent's psychosis. We are told that tespondent's psychosis was not a foreseeable consequence of appellant's negligence; that so many other factors must of necessity contribute to the development of schizophrenia that appellant's negligent conduct connot be considered a substantial factor in bringing about respondent's psychosis.

Although the concept of proximate causation does involve an element of foreseeability, it is not necessary that the precise or intended consequences should have been foreseen. ‘If the conduct of the person sought to be charged is a substantial factor in bringing about the harm, the fact that he neither foresaw nor should have foreseen the extent or nature of the harm, or the manner in which it occurred, does not prevent him from being held liable.’ (Parker v. City and County of San Francisco (1958) 158 Cal.App.2d 597, 607, 323 P.2d 108, 114.) In the instant case, it was surely foreseeable that negligent maintenance of an outdoor wooden stairway might result in injury to respondent or to other tenants or invitees who might have occasion to use these stairs. Although respondent's latent mental condition may have caused her to develop a disability which was far out of proportion to her physical injuries, the compensation due an injured plaintiff includes damages for aggravation of a pre-existing condition. (See Deevy v. Tassi (1942) 21 Cal.2d 109, 123, 130 P.2d 389 [where the jury was properly instructed to consider aggravation to plaintiff's pre-existing heart condition].)

It is the law that a plaintiff who has sustained physical and mental injuries is entitled to be fully compensated for both. (See Clough v. Steen (1934) 3 Cal.App.2d 392, 393, 39 P.2d 889 [where plaintiff was injured in an automobile accident and the trial court's award of damages included compensation for plaintiff's resultant ‘shaking, mental and nervous suffering, and a palsy and hysterical condition.’ The judgment was reversed on the ground that the damages also included an award for plaintiff's mental suffering upon learning of lier son's death].) In Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668, 44 P. 320, 32 L.R.A. 193, the plaintiff, who had previously been subject to insomnia, nervous shocks and paroxysms and was prone to a recurrence if placed under mental excitement, was expelled from a train although she insisted that her ticket had already been taken by another conductor. The court stated, at page 683, 44 P. at page 323: ‘Whether the defendant or its agents knew of her susceptibility to nervous disturbance was immaterial. * * * It was not necessary that this injury should have been anticipated in order to entitle her to a recovery therefor. Civ.Code, § 3333. If the facts under which she was excluded from the car would be an act of negligence on the part of the defendant as to any and all persons, whoever might sustain injury by such act would be entitled to recover to the full extent of his injury, irrespective of his previous physical condition or susceptibility to harm.’

Appellant avers that there was no evidence to support a finding that her negligence was a substantial factor in causing respondent's psychosis. This contention cannot be upheld. Dr. Meyer Zeligs, a psychiatrist who had examinaed respondent, testified that in his opinion the fall through the step constituted a major emotional trauma in respondent's life, and that it was this accident which precipitated her mental disorder. There was also ample testimony by people who had known respondent that she always appeared to be a sane, normal and well-adjusted person prior to the accident, and that she began acting in an abnormal fashion immediately after the occurrence of the accident. These facts are sufficient to support a finding that appellant's negligence in maintaining the stairway was a direct cause of respondent's aggravated mental condition.

Appellant next assets that respondents' counsel was guilty of prejudicial misconduct because he spoke to some of the jurors when they were being escorted down the hall before returning their verdict. From the affidavits filed by appellant in support of his motion for a new trial, it appears that this incident occurred after the jury had notified the bailiff that they had arrived at a verdict. He was promptly admonished by the bailiff, and the jurors were then led into the courtroom, where they returned their verdict.

Appellant cites Wright v. Estlick (1899) 125 Cal. 517, 58 P. 87, in support of his contention that the action of respondents counsel amounted to prejudicial misconduct. In the Wright case, however, the situation was far different since conversations with the jurors were held during the actual course of the trial, and prejudice could clearly have resulted. In Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, 77, 106 P.2d 60, 62 the court stated that an unauthorized communication with the jury was clearly an improper irregularity but pointed out that it does not follow from this that the error will have a substantial relation to the disposition of the case, since ‘the error must be substantial and real, not merely fancied or technical. Where any error is relied on for a reversal it is not sufficient for appellant to point to the error and rest there. * * * The fact of prejudice is just as essential as the fact of error.’ In the case at bar, the conversation with the jurors was held after they had arrived at a verdict and were proceeding into the courtroom. Although the action of respondents' counsel in addressing the jurors was improper, we do not feel that appellant suffered any prejudice thereby, in view of the fact that the jury had already arrived at a verdict.

Appellant's final contention is that appellant was deprived of a fair trial because respondent wife was absent from the trial. This argument has no merit. The reason for respondent's absence from the courtroom is apparent. The superintendent of Napa State Hospital testified that a decision had been made that it would be detrimental for respondent to come into court and testify. Counsel for both parties were given the opportunity to question respondent out of court and her deposition, containing counsel for appellant's examination of respondent, was read into the record at the trial. Furthermore, the question of whether respondent's appearance in court would have been beneficial or detrimental to appellant would appear to be purely a matter of speculation.

Judgment affirmed.

SHOEMAKER, Justice.

KAUFMAN, P. J., and AGEE, J., concur.