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

Lynn HANSON, by her Guardian ad Litem, Jack Hanson, Plaintiff and Appellant, v. Herman W. LUFT, Louise M. Luft, et al., Defendants and Respondents.*

Civ. 19734.

Decided: May 24, 1962

William E. Barden, Robert J. Smith, San Francisco, for appellant. Bronson, Bronson & McKinnon, San Francisco, for respondents.

We cannot hold here as a matter of law that plaintiff could not state a cause of action against a landlord for injuries inflicted upon the tenant's five year old daughter by an open flame heater in the living room of the rented premises. Plaintiff could show that the peculiar danger of the heater to a child devolved from the fact that the child might not accurately gauge the area of danger which surrounded the heater. Since the landlord knew that the child of a previous tenant had been burned by the heater, the landlord was aware of its dangerous propensity to the child. Plaintiff could allege that the landlord concealed this risk; that the lessee did not know of, or realize the risk. Whatever the merits of plaintiff's contentions, they raise questions of fact which we cannot summarily dismiss here; we cannot decree by law that plaintiff could not state a cause of action.

Jack Hanson brought the action as guardian ad litem for his daughter, Lynn Hanson, to recover damages from respondents (hereinafter sometimes called landlord) for personal injuries which she suffered when her flannel pajamas were set afire by the flames from the gas heater. The trial court sustained demurrers to the complaint and to an amended complaint. Pursuant to stipulation of counsel, appellant filed a second amended complaint. Respondents again demurred; the court sustained the demurrer without leave to amend and entered judgment for respondents.

The second amended complaint contains the following allegations:

(1) Appellant is a child of five years of age and her father, Jack Hanson, was duly appointed her guardian ad litem.

(2) Respondents are the owners in fee of the premises located at 298 Richland Avenue, San Francisco, together with the gas heater.

(3) The owners installed the gas heater in the living room of the premises. The heater is an ‘extreme peril to any person close to said appliance, and particularly to a child who could not appreciate the peril of such an appliance; * * *.’ A photograph of the heater is annexed to the complaint. It is an open flame gas-burning heater, ‘having seven burners for the use of gas, immediately in front of a backing of a clay radiant; * * * the distance from the burners to the front of the heater is from 3 to 4 1/2 inches; * ** at the top of the radiant, the distance from the flame to the front of the canopy is 2 inches; * * * the height of the radiant and of the exposed flame is 7 inches; * * * the width of the flame and of the radiant is 10 inches; * * *.’ Behind the gas jets is a clay backing which quickly becomes incandescent and attains temperatures in excess of 700 degrees Fahrenheit.

(4) ‘[t]here was no grill work, or screens, or bars, or any other device to prevent the clothing of persons coming into contact with the said open flame; * * * the said condition constituted a hazard and a peril to plaintiff; * * * the said hazardous condition’ was known to respondents prior to December 13, 1959, and was not and could not have been known to appellant.

(5) The hazardous condition existed prior to the time that respondents rented the premises to appellant's parents, and the condition was known to respondents at that time and they knew that appellant would ‘come into proximate closeness' to the heater and be exposed to the hazard of being burned. Respondents had a similar previous experience with the same heater in the same location, ‘wherein another minor child was burned; * * *.’ Despite such knowledge, respondents rented the premises and did not warn either appellant or her parents of the dangerous condition.

(6) Respondents represented that the premises were habitable for human beings, but they were not habitable because of the aforementioned perilous condition, and respondents knew of the unfitness of the premises for human occupancy.

(7) On December 13, 1959, appellant was dressed in outing-flannel pajamas. She stood in front of the heater with her back to it when the flames from the heater ignited her pajamas inflicting serious burns to her body.

(8) As the ‘proximate result of the negligence’ of respondents, appellant has suffered great ‘pain and shock’ and severe injury. She has required, and will in the future require, extensive plastic and orthopedic surgery and medical treatment. Appellant requests general damages of $100,000.

Our question, then, crystallizes into the issue of whether appellant could state a cause of action against the landlord because of a dangerous and unsafe condition on the premises that was concealed and latent or whether such condition as a matter of law was so patent and obvious that appellant could not do so. We shall set out that under the exception to the general rule the courts hold the landlord liable for latent defects in the leased premises. We shall then give our reasons for concluding that under the exception we cannot say, as a matter of law, that a cause of action could not be established against the landlord. The landlord knew of the special risk to the child from the exposed flame of the heater, and was aware of the inherent, although not obvious, propensity of injury to the child from the heater, but did not disclose to the tenant that special danger.

The general rule that the tenant takes the premises as he finds them, that the landlord owes him no duty to inspect for latent defects or to repair patent ones, that the doctrine of caveat emptor applies to the leasing of the premises, probably derives from the strict concept that the lease is equivalent to a sale of the premises for the term. As Prosser states, however, ‘Modern ideas of social policy have given rise to a number of exceptions to these general rules of non-liability of the lessor * * *.’ (Prosser, Law of Torts (2d ed.), § 80, pp. 465, 466.) In Shotwell v. Bloom (1943) 60 Cal.App.2d 303, 140 P.2d 728, Justice Peters notes the exception pertinent to this case; he quotes Tiffany to the following effect: “[I]f here is some hidden defect in the premises, or danger thereon, which is known to the lessor at the time of making the lease, but which is not apparent to the intending lessee, the lessor is bound to inform the latter thereof, and failing so to do, he is liable for injuries to the tenant arising therefrom.” (P. 310, 140 P.2d p. 732.) (1 Tiffany, Landlord and Tenant, § 86, p. 562.) Justice Peters further points out: ‘The exception above mentioned applies not only in favor of the tenant but also in favor of those who enter in the right of the tenant, that is, in favor of members of the tenant's family [citations], his employees [citations], sub-tenants [citation], or other invitee [citations].’ (P. 310, 140 P.2d p. 733.)

The Supreme Court gives recent expression to this proposition in Burks v. Blackman (1959) 52 Cal.2d 715, 344 P.2d 301: ‘The general rule is that a lessor is not under a duty to maintain leased premises free from defective conditions that cause injuries to his tenants; the lessee takes the premises as he finds them and must protect himself against any dangerous conditions found thereon. (Hassell v. Denning, 84 Cal.App. 479, 481[1], 258 P. 426.) To this general rule there are these exceptions: 1. A lessor is liable for personal injuries to a lessee caused by defects in the premises known to the lessor and unknown to the lessee if the lessor through fraud or concealment allows the lessee to occupy the premises in ignorance of such risks.’ (52 Cal.2d p. 718, 344 P.2d p. 303.) (To the same effect: Stanley v. Lander (1934) 3 Cal.App.2d 284, 288, 39 P.2d 225; Forrester v. Hoover Hotel Inv. Co. (1948) 87 Cal.App.2d 226, 228, 196 P.2d 825.)

Section 358 of the Restatement of the Law of Torts makes it clear that the landlord is liable to the person injured from a concealed risk which the landlord knows, and as to which he had reason to believe the lessee did not realize that risk. The section reads: ‘A lessor of land, who conceals or fails to disclose to his lessee any natural or artificial condition involving unreasonable risk of bodily harm to persons upon the land, is subject to liability for such harm caused thereby to the lessee and others on the land with the consent of the lessee or a sublessee after the lessee has taken possession, if

‘(a) the lessee does not know of the condition or the risk involved therein, and

‘(b) the lessor knows of the condition and realizes the risk involved therein and has reason to believe that the lessee will not discover the condition or realize the risk.’ As Powell states: ‘Thus where a lessor has concealed a defect in the premises known to him at the time of leasing and damages are thereafter caused by this defect to a member of the lessee's family, or to a sublessee, an employee or a customer of the lessee, the injured party has a potential cause of action against the lessor.’ (2 Powell on Real Property, § 238, pp. 251, 265; footnotes omitted.)

As we shall point out, we believe that appellant could successfully state a cause of action since the landlord concealed from the tenant the risk of bodily harm to the child from the heater. We cannot conclude as a matter of law that the lessee necessarily knew of the risk involved or that the landlord did not have reason to believe that the lessee did not realize that risk.

While an adult person would be able to ascertain with fair accuracy the zone around the heater in which clothing might be ignited by the exposed flame, a child might very well not know. That lack of knowledge, plus the running, playing or dancing of the child, could lead to the flowing garments of a child taking fire. These are the factors which endow the heater, as to the child, with the propensity of peril; they create the risk to the child. While the tenant might, or might not have been cognizant of such danger to the child, the landlord in this case was surely aware of it. The landlord knew that this inability of a child to judge the danger zone and that the activity of a child had led to the injury of a previous child tenant. That which might have been unknown, undefined or unappreciated by the tenant, was known, defined, and appreciated by the landlord. We cannot say that a reasonable person, taking into account all of the factors, could not conclude that to the tenant the risk and danger to the child was latent and obscure and that the landlord concealed from the tenant a danger of which the landlord had special knowledge. This is a question of fact.

Couch v. Pacific Gas & Elec. Co. (1947) 80 Cal.App.2d 857, 183 P.2d 91, explains that the question as to whether a defect is latent or patent properly constitutes a question for the jury. There the plaintiffs rented a cottage in which the ends of three wires ‘protruded from the floor in a samall recess in the kitchen of the house, which wires had formerly been connected with a water heater which had been removed by the previous tenant.’ (P. 859, 183 P.2d p. 92.) Unknown to the tenants, the wires had been energized. The tenants' child ‘fell or stumbled onto the charged wires and was instantly electrocuted.’ (P. 859, 183 P.2d p. 92.) The landlord contended ‘that the wires were obvious and their existence known * * * and that it was * * * [the tenants'] duty to ascertain whether they were charged * * *.’ (P. 859, 183 P.2d p. 92.) The trial court instructed the jury that if it found the cause of death ‘was a hidden defect on the rented premises, known to the defendant, and unknown to and not subject to discovery by the plaintiffs by the exercise of reasonable care and caution’ (p. 861, 183 P.2d p. 93) it should return a verdict for plaintiffs. The appellate court upheld the instruction, stating, ‘we cannot say as matter of law that the defect was not latent or that defendant was without knowledge of its existence.’ (P. 861, 183 P.2d p. 94.) The court states that the existence of the wires ‘was obvious'; but ‘that they were energized was not apparent.’ (P. 863, 183 P.2d p. 94.) In our case the presence of the unguarded flames was ‘obvious'; the danger and, indeed, the zone of danger to the child ‘was not apparent.’ If the element of electricity was the deciding factor in Couch, so here the jury could find that the element of danger to the child, including the zone of danger from the heater, ‘was not apparent’ and composed the factor that made the danger latent.

Analogous cases show that the courts will view all of the circumstances to determine whether or not a jury could properly find that a landlord or his tenant concealed a dangerous condition and unlawfully failed to warn a third person of the danger. Thus in Lehman v. Mitchell (1952) 109 Cal.App.2d 719, 241 P.2d 573, the court held that a judgment granting a motion for nonsuit and directed verdict should be reversed. The case arose from the death of a worker employed by a contractor engaged by the tenant, with the permission of the landlord, to remodel the cooling system. The employee fell through a painted glass skylight on the roof of the premises. The court pointed out that ‘respondents do not contend that the skylight did not present a dangerous condition but contend only that it should have been obvious to the decedent in the exercise of ordinary care that it was a skylight fraught with the danger of an elevator shaft below * * *.’ (P. 725, 241 P.2d p. 576.) In supporting its position that the landlord and the tenant could be liable for the death, the court states: ‘Furthermore the physical facts as a whole furnish substantial grounds for the inference that both respondents were negligent in not protecting or warning the workmen whom they knew would be on the roof against the danger of falling into the elevator shaft through the skylight.’ (P. 725, 241 P.2d p. 577.)

We have concluded that the complaint states a cause of action in that the landlord concealed from the tenant the latent risk of the heater to the child, a risk known by the landlord but not necessarily realized by the tenant. We do not believe respondents' cases affect this conclusion; indeed, they do not specifically pass on this issue.1 Since our holding disposes of the matter, we need not decide a second aspect of the case. Appellant could contend that the question whether the risk of the injury to the child was patent or latent to the tenant is immaterial; that the pertinent test must be whether the risk is patent or latent to the child, who is expected to occupy the premises. To the child the danger must, without question, be latent. In principle the courts have held the landlord liable to the tenant for the concealed danger because ‘[t]here is * * * ‘something like fraud’ in a failure to give warning of a known hidden danger to one who enters upon the assumption that it does notexist. * * *' (Prosser, Law of Torts, § 80, pp. 465, 466.) If the danger is hidden from the expected child occupant, she would, according to this theory, be entitled in her own right, to warning by the landlord. If the principle requires disclosure of the concealed danger for the protection of the tenant, it must require disclosure of the concealed danger for the protection of the child occupant. In substance, following this approach, if the wrongful act of the lessor is the concealment from the tenant of the hidden danger, the concealment from the expected child occupant of the hidden danger can be no less wrongful.

While respondents cite a number of cases to demonstrate that the California courts reject this theory, we do not believe that they pass upon this special point.2 Some cases in other states apparently do not accept this contention.3 On the other hand, appellant could argue that if the landlord is to be held liable for the drowning of a child invitee because of an attractive nuisance in the form of a swimming pool, the landlord owes no less a duty to the child invitee of the tenant injured by the exposed flame of the heater.4 As we have stated, however, we do not believe that it is necessary to determine in this case whether or not the landlord bore an independant obligation to the child occupant as such to disclose a danger concealed from the child.

In the words of Prosser, ‘There is increasing recognition of the fact that the tenant who leases defective premises is likely to be impecunious and unable to make the necessary repairs, and that the financial burden is best placed upon the landlord, who receives a benefit from the transaction * * *.’ (Prosser, Law of Torts, § 80, pp. 465, 466.) It would be incongruous to hold that the landlord, who knows of the dangerous propensities of a heater to an expected child occupant of the leased premises, a risk not necessarily realized by the tenant himself, may escape into silence and may permit the exposure of the child to risk without so much as a warning. To condone such silence would be to disregard the evolving development in this field of law of the responsibility of the landlord for such dangers.

We reverse the judgment.

We concur in the conclusion that the complaint states a cause of action but solely upon the ground that the landlord concealed from the tenant the latent risk of the heater to the child, which risk was known to the landlord but not necessarily realized by the tenant. While the opinion of Mr. Justice TOBRINER declares that the matter is disposed of on such ground alone, we wish to make it clear that we express no views as to whether liability of the landlord can be determined on the basis of the risk being patent or latent to the child, irrespective of being patent or latent to the tenant-parent. We are of the opinion that it is unnecessary to consider or decide such question at this time.


1.  Respondents' cases state the general principle involved but do not aid in the determination of whether or not the particular risk is patent or latent. Thus Shotwell v. Bloom (1943) 60 Cal.App.2d 303, 140 P.2d 728, states the general rule. Hatch v. McCloud River Lumber Co. (1906) 150 Cal. 111, 88 P. 355, involved a claim of a husband and wife for injuries suffered by the wife when she tripped on a wire which extended from the leased premises to a pole outside the premises; the wife fell on sharp points at the end of the wire, where it was attached to the ground inside the property line. The court explains that the dangerous condition must have been obvious and ‘extremely familiar’ to the injured wife (p. 113, 88 P. 355); ‘the case merely becomes one where the contributory negligence of the plaintiff in part caused her injury.’ (P. 114, 88 P. p. 356.) Nelson v. Myers (1928) 94 Cal.App. 66, 270 P. 719, involved the death of defendant lessor's subtenant caused by asphyxiation from an improperly operated gas heater. The court points out that the deceased knew of the defect, told the lessee, and the lessee undertook repairs. As the court states: ‘By their verdict in the present case the jury is presumed to have found that the deceased was guilty of contributory negligence.’ (P. 74, 270 P. p. 722.) Powell v. Stivers (1951) 108 Cal.App.2d 72, 238 P.2d 34 involved ‘the presence of * * * coils of cord lying in the passageway’ (p. 74, 238 P. p. 35) over which appellant, a member of an association which leased the premises, tripped and injured herself. ‘[S]uch condition was patent, an open and obvious danger which a reasonable inspection could not fail to reveal.’ (P. 74, 238 P. p. 35.) Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416, 282 P.2d 890, involved ‘the relationship * * * of an owner of a hotel and a guest’ and accordingly the rule that ‘although the proprietor is not absolutely liable for injuries suffered, he owes a duty, at all times, to maintain the premises in a reasonably safe condition.’ (Pp. 420–421, 282 P.2d p. 892.) In contrasting the situation of the hotel guest and the proprietor of a furnished apartment the court states that the latter ‘is not liable to a tenant for injuries caused by the property leased in the absence of fraud, concealment or a covenant in the lease.’ (P. 421, 282 P.2d p. 892.) The court notes that in the involved complaint ‘there is no allegation of fraud or concealment * * *.’ (P. 421, 282 P.2d p. 893.)

2.  Respondents' citations, which we have noted in footnote 1, do not pass upon the question whether the landlord bears the obligation to the tenant's child to disclose a danger which is hidden to the child. We have found no California case which directly expresses an opinion upon this precise point. It is interesting that respondents' citation of Hatch v. McCloud River Lumber Co. (1906) 150 Cal. 111, 88 P. 355, speaks in the terms of a relationship between the landlord and the tenant's wife, who suffered the injury, although ‘defendant let to the plaintiff * * * [husband] a dwelling house and the lot on which it stood.’ (P. 112, 88 P. p. 355.) The court says ‘the defendant was under no duty whatever to advise the plaintiffs regarding the danger’ (p. 113, 88 P. p. 355); ‘they must have become extremely familiar with its location and appearance.’ (P. 113, 88 P. p. 355; emphasis added.) While Shotwell v. Bloom (1943) 60 Cal.App.2d 303, 140 P.2d 728, holds that the invitee stands in the shoes of the tenant and ‘may recover against the landlord only if the tenant could recover’ (p. 311, 140 P.2d p. 733), it also explains that the exception to the landlord's nonliability (that is, his liability for a hidden defect or danger on the premises) ‘applies not only in favor of the tenant but also in favor of those who enter in the right of the tenant, that is, in favor of members of the tenant's family * * *.’ (P. 310, 140 P.2d p. 733.) Literally interpreted, the language of the court would indicate that the exception ran directly in favor of the child tenant, although such a conclusion does not find support in the whole of the opinion. Respondents' citation of Allen v. Paradise Grange No. 490, Inc. (1958) 159 Cal.App.2d 247, 323 P.2d 468, involved a child's fall from an unrailed porch which was part of the premises rented by an association in which the child's parents were members. The court does state that the child ‘at most, was an invitee and as such she had only the rights which the club or its respective members had in event of any injury * * *.’ (P. 250, 323 P.2d p. 469.) The court, however, brings out that at the arrangements between the landlord and the association ‘nothing was said about children and the defendant had no knowledge that any children had ever attended the meetings.’ (P. 248, 323 P.2d p. 469.) Clearly the case presented no issue as to a knowingly concealed danger. The cases upon which Allen relied (Stanford v. Bailey, Incorporated (1955) 132 Cal.App.2d 725, 282 P.2d 992; Neuber v. Royal Realty Co. (1948) 86 Cal.App.2d 596, 195 P.2d 501) likewise did not involve such a knowingly concealed danger.

3.  See collection of cases in 52 C.J.S. Landlord and Tenant § 419, p. 66; 110 A.L.R., § 160, p. 756.

4.  In King v. Lennen (1959) 53 Cal.2d 340, 1 Cal.Rptr. 665, 348 P.2d 98. ‘* * * Boyd on the date of his death was on the premises at the express invitation of defendants' (p. 343, 1 Cal.Rptr. p. 666, 348 P.2d p. 94) by reason of the continued previous baby-sitting arrangements. The court points out, ‘It is specificially alleged that defendants knew or should have known that children of tender years habitually entered the premises and played in and about the pool and that defendants knew or should have known that Boyd had frequently been brought to the vicinity of the pool by their daughter with the result that he had become attracted to it. The allegations describing the condition of defendants' pool and the surrounding premises, including the absence of an adequate fence or other safeguards, state facts sufficient to permit a trier of fact to find that defendants should have realized that a serious danger of drowning was presented with respect to any unsupervised child of Boyd's age who might come to the pool. Obviously it could be found that a child of one and one-half years would not understand the risk involved in being near a swimming pool, and it is alleged that Boyd did not know the danger.’ (P. 345, 1 Cal.Rptr. 665, 348 P.2d 98.) The case is distinguishable, however, on the ground that the relationship between the child and the landlord, which was direct in King, is broken in the instant case by the tenancy, and the liability must therefore be the tenant's, not the landlord's. The rebuttal argument would be that the landlord's liability arises irrespective of the lease, and that the relationship between the child occupant and the landlord engenders the liability. While the adult tenant might be bound by the rule of caveat emptor in his dealings with the landlord, that concept, according to this approach, could not be applied to a child who is to become an occupant of the premises. Caveat emptor would reach only the landlord and the adult tenant, who have a theoretical freedom to bargain; it would be inapplicable to the child who has no freedom and no choice. The landlord's relationship to the child would then arise, not from contract, but from the status of the child as an occupant of the premises. This relationship would, pursuant to this contention, impose the obligation of disclosure of the concealed danger.

TOBRINER, Justice.