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

Virginia CHANCE, Plaintiff and Respondent, v. LAWRY'S, INC., a California corporation, John Krenz, Donald F. Shaw, et al., Defendants and Appellants.*

Civ. 25143.

Decided: October 26, 1961

Carol Glenn Wynn, Los Angeles, for appellants Lawry's Inc. and John krenz. Frank W. Woodhead, Robert E. Morrow and Henry F. Walker, Los Angeles, for appellant Donald F. Shaw, individually and doing business as Donald F. Shaw, General Contractor. I. B. Kornblum and David H. Kornblum, Los Angeles, for respondent.

Defendants Lawry's Inc., a corporation, and John Krenz appeal from a judgment against them in favor of the plaintiff, Virginia Chance, and also from an order of the court denying defendants' motion for judgment notwithstanding the verdict. Defendant Donald F. Shaw, individually and doing business as Donald F. Shaw, General Contractor, also appeals from the judgment against him and from the order denying his motion for judgment notwithstanding the verdict.

A trial by jury resulted in a judgment in favor of plaintiff Virginia Chance against defendants Lawry's, Inc., John Krenz (Lawry's managing vice president) and Donald F. Shaw, a contractor engaged in remodeling Lawry's Restaurant. The jury also returned a verdict against Albert Chance, husband of Virginia, on his cause of action seeking to recover damages for medical and hospital care incurred by reason of his wife's injuries. He has not appealed from the judgment on this verdict.

The appellants Lawry's Inc., and John Krenz, its managing vice president, are called ‘Lawry's' and appellant Donald F. Shaw, doing business as Donald F. Shaw, General Contractor, is called ‘Shaw’.

At the time of the accident giving rise to this action Shaw was engaged under contract in executing work in accordance with architect's plans for certain remodeling work in a restaurant owned and operated by Lawry's. One feature of this remodeling was the installation of a planter box in the foyer of the restaurant. Shaw had completed his part of the work on this planter at the time of the accident. It was so designed that it occupied the entire west wall of the foyer. The front edge was about 18 inches high and it extended back to a rough plywood wall about two and a half feet, being contained on the ends with solid reveals. The plywood wall was ultimately to be replaced by glass to be installed by someone other than Shaw and the earth and plants were to be installed therein by someone other than Shaw. The foyer, exclusive of the planter box, measured approximately six feet wide by ten feet long; the 18 inch high front of the planter ran the length of one side of the foyer on a line which was the extension of the westerly jambs of the double glass doors at either end of the foyer. There was a slight coving at the juncture of this front wall of the planter with the floor.

Shaw, his workmen and subcontractors were all off the job by 4:00 or 4:30 p. m. at a time before the restaurant opened for business.

On the night of September 29, 1958, at 10:30 or 11:00 o'clock, respondent, in leaving the dining room after dinner with several other people, walked out of the restaurant into the foyer, which was well lighted; waited for another lady in the group of which she was a member to pass by her and in so doing stepped back in such a manner as to cause her to jackknife backwards and fall into the empty planter. There was evidence of injuries as a result of this fall.

The familiar rule relating to the liability a possessor of lands owes to a business visitor is well stated in 2 Restatement of Torts, Sec. 343, at p. 938: ‘A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to give a warning adequate to enable them to avoid the harm * * *.’ A reading of this rule discloses that necessary factual findings must be made which include all of the elements stated. In this case there was sufficient evidence before the jury to justify it in finding Lawry's liable under that rule. Admittedly such a finding was based upon close and conflicting evidence, but the jury in its fact finding role could well find Lawry's liable.

The implied finding of liability under the same rule as to Shaw, however, is on less solid ground. Nowhere does it appear that Shaw in any way benefited from respondent's visit to the premises or had any interest in whether or not the restaurant remained open during the course of the remodeling. It has been said in Biakanja v. Irving, 49 Cal.2d 647 at page 650, 320 P.2d 16, 19, 65 A.L.R.2d 1358: ‘The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm.’ With this in mind there is no compelling reason why Shaw should have been held to owe respondent that duty of care imposed upon a possessor of land as to his business invitee. Much argument and citation of numerous cases appears in the briefs relative to the difference between active and passive negligence, it being urged, and with support, that ‘* * * where a person goes upon the premises of another without invitation and simply as a bare licensee, and the owner of the property passively acquiesces in his coming, if an injury is sustained by reason of a mere defect in the premises, the owner is not liable for negligence for such person has taken the risk upon himself.’ Fisher v. General Petroleum Corp., 123 Cal.App.2d 770, 777, 267 P.2d 841, 845. Here Shaw was not the possessor of the premises at the time of the accident involving respondent and under the rule stated in Biakanja v. Irving, supra, there would appear to be no compelling reason why he should be held liable. It would appear that the order denying Shaw's motion for judgment notwithstanding the verdict should be reversed.

Furthermore, it appears that in instructing the jury the trial court gave an instruction based upon Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1, 5 A.L.R.2d 91. This instruction read: ‘If you should find that the defendants Lawry's, and Donald F. Shaw, General Contractor, both were negligent in the manner in which they caused and/or permitted the empty planter box to be built, located and remain in the condition in which it was at the time Mrs. Chance fell into it, and you find that the danger itself, if any, was not warning to her and that she was given no other warning of its existence, condition and location at that time, and if you should find that from such negligence, as a proximate result thereof she was injured, and if you should find that she was not guilty of contributory negligence, you shall hold both said defendants liable for such injury unless the evidence shows by a preponderance thereof that the conduct of one of said defendants whom you can identify was not a proximate cause of the injury, and in the event of such a showing, you shall find such defendant not liable and the other liable.’ The vice of this instruction is readily apparent when it is viewed with respect to the factual framework disclosed in this trial. Summers v. Tice, supra, was a case wherein three men, while quail hunting, became separated in such manner that the plaintiff was some 75 yards ahead of two defendants when both shot at a bird, shooting in plaintiff's direction. The plaintiff received two pellets of No. 7 1/2 shot in his face, one in the upper lip and the other in his eye. The court there, in holding that under those facts it was incumbent on each of the defendants to show his lack of negligence and thus absolve himself from liability if he could, said at p. 86 of 33 Cal.2d, and at page 4, of 199 P.2d: ‘The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm. If one can escape the other may also and plaintiff is remediless. Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury. This reasoning has recently found favor in this court. In a quite analogous situation this court held that a patient injured while unconscious on an operating table in a hospital could hold all or any of the persons who had any connection with the operation even though he could not select the particular acts by the particular person which led to his disability.’ Obviously the facts in Summers v. Tice have no relationship to the facts in the instant case. Here the defendants had no superior knowledge to that of the plaintiff, nor is there any inference or indication that there was any concealment of any fact, action or condition by any of the defendants. The instruction should not have been given and when it is viewed in the light of the evidence of the conditions here disclosed, it cannot be said that the giving of this instruction was not reversible error. Assuredly such a statement might well have confused the jury to the extent that it felt that the judge had instructed them that it was the duty of Lawry's and Shaw to affirmatively negate any possibility of negligence or liability.

The order denying motion for judgment notwithstanding the verdict as to Shaw is reversed, and the trial court is instructed to vacate the judgment for plaintiff against Shaw, order that Shaw's motion for judgment notwithstanding the verdict be granted and enter judgment thereon. The order denying Lawry's motion for judgment notwithstanding the verdict is affirmed. The judgment against Lawry's, Inc. and John Krenz is reversed. Respondents to recover costs.

McMURRAY, Justice pro tem.

FOX, P. J., and ASHBURN, J., concur.