MERRILL v. BUCK

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

Bette Davis MERRILL, Plaintiff and Respondent, v. Ronald L. BUCK, Ann M. Buck, Lelah T. Pierson, Jeanette M. Clark, and Lelah T. Pierson, Inc., a corporation, Defendants and Appellants.*

Civ. 25306.

Decided: February 27, 1962

Schell & Delamer, Richard B. Goethals, and Earle K. Stanton, Los Angeles, for appellants Ronald L. Buck and Ann M. Buck. Crider, Tilson & Ruppe ́and Henry E. Kappler, Los Angeles, for appellants Jeanette M. Clark and Lelah T. Pierson. Steinmetz & Murrish, Hollywood, Magana & Olney, Los Angeles, William B. Murrish, Fred H. Steinmetz, Hollywood, and Raoul D. Magana, Los Angeles, for respondent.

This is an action by a lessee of a dwelling house for damages for personal injuries sustained when she fell down a flight of stairs which extends from the first floor to the basement of the house.

Defendants Mr. and Mrs. Buck were the owners of the house. Defendant Mrs. Clark was a real estate saleswoman who exhibited the house to plaintiff and negotiated the lease. Defendant Lelah T. Pierson, a real estate broker, was the employer of the saleswoman.

Judgment on a verdict was in favor of plaintiff and all defendants for $65,700.

Defendants appeal from the judgment and from the order denying their motions for judgment notwithstanding the verdict or, in the alternative, for a new trial.

Appellants contend that the evidence does not support the verdict or the judgment and that the court erred in giving and refusing to give certain instructions.

Prior to June 1957, defendant Buck authorized defendant Pierson to exhibit their furnished dwelling house in the Brentwood area of Los Angeles to prospective tenants. About June 15, 1957, plaintiff called defendant Pierson by telephone and requested her to ‘find a house’ that she might rent. About June 22, Mrs. Clark, the manager of Pierson's rental department, took plaintiff to the Bucks' house, and they inspected the house during a period of approximately one and a half hours. On the evening of the same day, plaintiff telephoned Mrs. Clark and said that she would lease the house. Mrs. Clark prepared a lease and, on June 24, plaintiff and the Bucks signed the lease which provided that the furnished one-story house was leased for one year commencing on June 29, 1957, for $675 a month. The lease provided further that the lessor ‘shall not be called upon to make any improvements or repairs whatsoever upon the said premises, or any part thereof, but the said Lessee agrees to keep the same in good order and condition at her own expense.’

On June 29, 1957, about 9 a. m., plaintiff took possession of the house and moved her personal effects therein. About 2:45 p. m. of that day, she opened a door in the central hall of the house, took a step forward, and fell down a flight of stairs into the basement. She sustained a fracture of a vertebra and a fracture of her right index finger.

All living quarters of the house are on the ground floor. Across the front of the house, from left to right facing the front (from inside the house), there are a living room, a circular entry hall, and a den. There is a door between the entry hall and living room, and opposite that door, there is another door between the entry hall and den. Opposite the front door, there is a door between the entry hall and a central hall. The entry hall is approximately 9 feet in diameter, and the central hall is approximately 27 feet in length and 40 inches in width. Adjacent to the central hall, on the side of the house to the rear of the living room (hereinafter referred to as the left side) there are a dining room, a kitchen, and a maid's room. Adjacent to the central hall, on the side of the house to the rear of the den (hereinafter referred to as the right side) there are a bathroom, and a bedroom. Another bedroom is at the rear of the central hall. There are doors between the central hall and the rooms adjacent thereto. A linen closet is in the left wall to the central hall near the door between the entry hall and the central hall. Opposite the linen closet (and in the right wall of the central hall) there is a door to the basement. The top half of the door between the entry hall and the central hall is louvered. The hinges of the louvered door are near the hinges of the basement door. The louvered door opens into the central hall, and the basement door opens away from the central hall and into the basement area. Both doors are approximately 28 inches wide. As a result of the locations and widths of the two doors, when the louvered door is open it is in front of the basement door. The basement stairway consists of 10 wooden steps, each approximately 4 feet long and 11 inches wide, except the top step which is 9 inches wide. The riser distance between the steps is approximately 7 inches. The distance from the hallway side of the right central hall wall to the outer edge of the top step is 10 inches, and the distance from the doorsill and the outer edge of the top step is 4 1/2 inches. Carpeting extends from the central hallway through the doorway and to a place 3 1/2 inches from the outer edge of the top step. Cement walls are on the sides of the stairway. There is no handrail on the stairway. There are no windows in the basement, and the only means of access to the basement is the stairway. A light switch is on the right wall at the top of the stairway inside the basement area.

Plaintiff testified as follows: When she and Mrs. Clark inspected the house, the door between the entry hall and the central hall was open, and she did not see the door to the stairway. Mrs. Clark did not tell her that a basement was under the house, and no one told her, prior to the accident, there was a basement. She did not go to the house after she and Mrs. Clark inspected it and prior to the day she moved there. About 2:45 p. m. of the day she moved in, she closed the louvered door (between the entry hall and the central hall) and she then noticed another door (the basement door). She ‘could tell from the door jamb’ that the door ‘obviously went in,’ and she assumed that it was a door to a closet. She took two steps forward and, ‘out of natural curiosity,’ opened the door, ‘went with the knob,’ took a ‘tiny step’ forward, and was ‘propelled through black, into black space.’ Some time later, she discovered that she was on the floor of the basement.

On cross-examination, plaintiff testified that ‘once’ she started to fall she was in blackness and she would say that it was impenetrably dark; when she was on the basement floor it ‘being impenetrably dark’ she could see, however, to the hallway; she did not talk with Mr. or Mrs. Buck, the owners of the house, prior to the accident, and she had no recollection of any conversation in which Mrs. Clark asked her if it would be all right if the Bucks left some things in the basement.

Mrs. Clark testified as follows: The house was listed with the Pierson company ‘for sale’ approximately 18 months prior to the accident. At the time the house was listed, she and about 20 other members of the Pierson organization made a group ‘tour’ of the house. On that occasion, she went into the basement. At the time she and plaintiff inspected the house, she had her car keys in her hand and, as they passed the door to the stairway, she tapped the door with her keys and said, ‘Basement door.’ At that time, plaintiff was 3 or 4 feet behind her, and she did not know whether plaintiff heard the statement. About June 23 after plaintiff had said that she would lease the house, and before the lease was signed, she asked plaintiff if she objected to the ‘Bucks leaving some things stored in the basement.’ Plaintiff replied, ‘I couldn't care less.’

In her complaint plaintiff sought to recover damages on the grounds that the stairway and the door to the basement constituted a latent danger and trap and the defendants were negligent in (1) failing to warn her of such danger and trap, and (2) in informing her at the time they exhibited the house to her that the door was a door to a closet.

In a ‘JOINT PRE-TRIAL STATEMENT,’ under the heading, ‘CONTENTIONS OF PARTIES,’ it was stated: ‘Plaintiff contends that the defendants carelessly and negligently built and maintained the premises in question, particularly the stairway leading to the basement, which negligence was the proximate cause of plaintiff's injury; that a trap was in fact created upon the premises which the defendants knew of, or should have known, and carelessly and negligently failed to warn the plaintiff of the condition.

‘Defendants contend that there was no negligence on the part of defendants or any of them; that there had been no misstatement of facts to plaintiff; that the condition was an obvious one; that if any act or omission existed plaintiff assumed the risk incident thereto and that any accident which may have occurred was due to the negligence of plaintiff. ISSUES: 1. Negligence. 2. Contributory negligence. 3. Proximate cause. 4. Assumption of risk. 5. Nature and extent of injuries and damages, if any.’ Below the signature of the attorneys thereon, the following appears (in handwriting): ‘Plaintiffs 3rd Contention. The defendants negligently advised the plaintiff prior to her fall that the door through which she fell was a closet, when in fact a dangerous condition existed behind the door, which was the proximate cause of her injury.’

In the ‘PRE-TRIAL CONFERENCE ORDER,’ it was stated, in part: ‘The parties have entered into a Joint Pre-Trial Statement, which accurately outlines * * * the legal issues to be tried by the trial court. Such statement is incorporated into and made a part of this order. * * *’

Appellants Buck contend that the court erred in giving the following instructions requested by plaintiff:

‘I instruct you that the dwelling at 641 North Bundy Drive, rented by plaintiff from defendants Ronald L. Buck and Ann M. Buck, is located within the legal boundaries of the City of Los Angeles, and is subject to the ordinances of said city.

‘I instruct you that all sections of the Los Angeles Building Code, hereafter referred to as the ‘Building Code,’ constitute duly enacted ordinances of the City of Los Angeles (and if applicable, apply only as to the defendants Buck, and not as to the defendants Pierson and Clark, the realtors.)'

‘I instruct you that Section 91.4913(c) of the said Building Code, enacted June 29, 1956, require that every door in a dwelling shall open upon a landing at least equal in width and length to the width of the door, and said landing shall not be greater than two inches below the threshold.

‘I further instruct you that Section 91.4916 of said Building Code, also enacted June 29, 1956, requires that every stairway in a residential building, including any dwelling, shall be provided with handrails as provided in a specified Table, and said Table requires any stairway less than four feet in width to be provided with at least one handrail. The evidence at bar has established that the stairway to the basement in the premises at 641 North Bundy Drive was less than four feet in width.’

‘I further instruct you that the dwelling at 641 North Bundry Drive, involved at bar, was erected prior to June 29, 1956, the date of enactment of the Building Code sections concerning landings and handrails in dwellings just set forth to you. Whether said ordinance sections apply to any such preexisting dwellings as involved at bar depends upon further principles and Building Code sections I will now relate.

‘The Building Code sections concerning landings and handrails in dwelling-house stairways as related to you above, form a part of Division 49 of the Los Angeles City Building Code, and the first section of that Division states that the purpose thereof ‘is to provide minimum requirements for the protection of life, limb, health, property, safety and welfare of the public and of the occupants of residential buildings,’ and ‘the requirements' of the said Division are expressly made ‘applicable to any and all existing substandard residential buildings as defined’ within said Division.

‘A subsequent section of Division 49 provides that if a condition exists whereunder any stairway in any dwelling or residential building fails to comply with any of the requirements of Division 49, including the landing and handrail portions heretofore considered, ‘to an extent that endangers the life, limb, health, property, safety or welfare of the public or the occupants' of such building, the dwelling or residential building so affected is defined to be a ‘substandard residential building,’ and the requirements of Division 49 thus concerned apply to such building even though it be a preexisting structure.'

‘The effect of the foregoing instructions is this: If any stairway in any preexisting dwelling or residential building violates any part of Division 49, including either the landing provision or handrail provision heretofore related to you, or either of them, in such a manner and to an extent ‘that endangers the life, limb, health, property, safety or welfare of the public or the occupants thereof,’ then the sections of the Building Code thus concerned apply even to the preexisting building, and a violation of the Code occurs and exists if such building is continued in existence in such condition.'

‘A further portion of the Building Code creates a presumption concerning danger to life, limb and property which must govern your judgment so far as you may find it applicable and not overcome by evidence, if any, negativing such danger.

‘Section 91.0103 of the Building Code provides, a building or portion thereof shall be presumed to be a menace to life or limb, health, property, or public welfare, if any stairway (or any other portion of said building communicating from any part therewithin to the exterior ground surface) does not provide the degree of security to life or limb, health, property or public welfare required by any portion of the Building Code, including the landing and handrail sections respecting dwelling-house stairways heretofore related to you. If you find this presumption applicable, then unless you find this presumption controverted by direct or indirect evidence, if any, of absence of danger, I instruct you that you are bound to find in accordance with the presumption, and accordingly are bound to find that the dwelling-house landing and handrail requirements of Division 49 heretofore related, do apply even to preexisting dwellings or residential buildings.’

The building ordinance which was in effect when the accident occurred was enacted on June 29, 1956. It was stipulated that the house was constructed prior to that date. The evidence did not include the ordinance which was in effect when the house was constructed. It is to be presumed, however, that the house was constructed in compliance with the then existing requirements of law. The provisions of the 1956 ordinance would not be applicable to this house unless they were retroactive. ‘An ordinance is not to be given a retroacting it; and in ascertaining that intenappears. It is to be construed according to the intention of the legislative body enacting it; and in ascertaining that intention, the courts must presume a prospective and not a retroactive operation was intended, unless such presumption is negatived by express language.’ (Standford v. Bailey, Inc., 132 Cal.App.2d 725, 282 P.2d 992.) In the present case, as above shown, there was an instruction to the effect that the requirements of the 1956 ordinance, relative to stairways and landings, are expressly made applicable, by said ordinance, to ‘existing substandard residential buildings as defined’ in the ordinance. A further part of the instruction was to the effect that the ordinance provides that if a stairway in a residential building fails to comply with the stairway or landing provisions to the extent that endangers life, limb, and safety of the occupants of the building, then the building is defined as a ‘substandard residential building,’ and such requirements of the ordinance regarding stairways and landings apply to such building even though it was in existence before the ordinance was adopted; and further that a violation of the ordinance occurs if such building is continued in existence in such condition. It thus appears that the jury was instructed in substance that the 1956 ordinance was retroactive and applicable to this previously existing house if the house was substandard, i. e., if the stairway or landing failed to comply with the stairway or landing provisions of said ordinance to the extent of endangering life, limb, or safety. Stated in another way, the jury was instructed in substance that it should decide whether the 1956 ordinance was retroactive; that in order to decide that question it would be necessary for the jury to decide whether the house was substandard; that in order to decide whether it was substandard the jury would be required to decide whether the stairway or landing violated the ordinance to an extent that endangered life, limb, and safety.

Then, with respect to deciding those questions as to retroactiveness, substandardization, and danger, the jury was instructed that the 1956 ordinance creates a presumption concerning such danger which presumption ‘must govern your judgment so far as you may find it applicable’ and not overcome by evidence, if any, negativing such danger.

The jury was then instructed that section 91.0103 of the ordinance provides that a building ‘shall be presumed to be a menace to life or limb, health, property, or public welfare, if any stairway (or any other portion of said building communicating from any part therewithin to the exterior ground surface) does not provide the degree of security to life or limb, health, property or public welfare required by any portion of the Building Code, including the landing and handrail sections respecting dwellinghouse stairways heretofore related to you. If you find this presumption applicable, then unless you find this presumption controverted by direct or indirect evidence, if any, of absence of danger, I instruct you that you are bound to find in accordance with the presumption, and accordingly are bound to find that the dwelling-house landing and handrail requirements of Division 49 heretofore related, do apply even to preexisting dwellings or residential buildings.’

The section so referred to in that instruction states, in part (as shown by an excerpt in evidence): ‘A building or portion thereof shall be presumed to be a menace to life or limb, health, property or public welfare if either of the following conditions exists: 1. When the stresses in any member, computed on the basis of the loads * * * exceeds twice the working stresses * * *. 2. When any exit, fire-protective construction or safety device does not provide the required degree of security to life or limb, health, property or public welfare.’ (Italics added.) It thus appears that the words in said section are substantially different from the words in the instruction regarding the presumption. The word ‘exit’ is omitted from the instruction. The section is to the effect a building shall be presumed to be a menace to life or limb, etc., ‘if either of the following conditions exists: 1. * * * 2. When any exit * * * does not provide the required degree of security to life or limb * * *.’ (Italics added.) In other words, said section (as applied to the portion of the building here involved) is in substance that a building shall be presumed to be a menace if any exit does not provide the required degree of security to life or limb. As above noted, the given instruction states ‘if any stairway (or other portion of said building communicating * * * to the exterior ground surface) does not provide the degree of security * * *.’ It would seem that in order for such a presumption to be applicable it would be necessary to establish that the portion of the house particularly involved here (commonly referred to as the entrance to the basement) is an exit which does not provide the required degree of security.

Another excerpt (in evidence) from the ordinance states: ‘Exit’—A passageway from a portion of a building to the exterior ground surface including every intervening doorway, passageway, stairway or ramp.'

It is clear, of course, that the accident involved here was wholly unrelated to any concept of using the basement door or stairway as an exit to the exterior ground surface.

As applied to the facts herein, the instruction to the effect that the ordinance created a presumption of danger to life and limb was inexplicit, confusing, and erroneous. It omitted the word ‘exit’ which was the key word of the section for determining the applicability of the presumption under the facts herein, and it substituted therefor the words ‘stairway’ and ‘any other portion of the building communicating * * * to the exterior ground surface.’ It told the jury that there was a presumption of menace to life and limb ‘if any stairway * * * does not provide the degree of security * * * required by any portion of the Building Code.’ Only excerpts of the code were in evidence—the code was not in evidence. The instruction delegated to the jury the matter of determining whether the presumption was applicable in that it included the words, ‘If you find the presumption applicable * * *.’ Such instruction included repetitive directives that, under the conditions stated, the presumption ‘must govern your judgment * * *,’ and ‘you are bound to find in accordance with the presumption,’ and ‘are bound to find that the dwellinghouse landing and handrail requirements * * * do apply to preexisting dwellings * * *.’

Appellants assert further that the court erred in giving the following instruction which was requested by plaintiff: ‘[I]f you find that the defendant landlords, Ronald L. Buck and Ann M. Buck rented the premises involved at bar to plaintiff while the same violated any portion or section of the Los Angeles Building Code which you find applicable to such building, if any, and that plaintiff proximately suffered injury therefrom, then you are instructed that such conduct by such defendants constitutes negligence in itself as a matter of law on the part of such defendants.’ The instruction delegated to the jury the matter of deciding whether any portion or section of the ordinance was applicable to the preexisting building herein. That would involve an interpretation of the ordinance. The court erred in giving that instruction.

Appellants Clark (real estate saleswoman) and Pierson (broker) contend that there is no evidence of negligence on their part and that their motions for a directed verdict and for judgment notwithstanding the verdict should have been granted. Respondent (plaintiff) contends that appellants Clark and Pierson undertook to supervise plaintiff's inspection of the house and that they thereby assumed a duty to warn her of ‘the hazards attending’ the basement door and stairs and that they were negligent in not warning her ‘of even the existence of the basement or basement door, or of any stairs, let alone any conditions of latent, concealed hazard * * * such as the absence of landing and handrails, the inward-swing of the basement door and the precipitous nature of the basement stairs.’ In Tucker v. Lombardo, 47 Cal.2d 457, at page 464, 303 P.2d 1041, at page 1046, it was said: ‘It is an elementary principle that negligence is gauged by the ability to anticipate danger. ‘[R]easonable foresight of harm is essential to the concept of negligence, and supplies the criterion for determining whether it exists * * *. On the other hand, one is not bound to foresee every possible injury which might occur, or every possible eventuality, but only those which were reasonably foreseeable; and one is not required to anticipate against dangers which it is not his duty to avoid.’' In the present case, neither appellant Clark nor appellant Pierson was the builder or owner of the house, and neither was under any duty with respect to the maintenance of the house. There was no evidence that appellant Clark or any other representative of appellant Pierson visited the house on any occasion prior to the time respondent leased the house, except on the occasion when appellant Clark and other employees of appellant Pierson visited the house within six months to a year before the lease was made, and except on the occasion when respondent and Mrs. Clark inspected the house. If the 1956 ordinance was retroactive and applicable to this house, Mrs. Clark could reasonably assume that the owners had complied with provisions thereof. The accident did not occur while Mrs. Clark was showing the house to plaintiff, but it occurred a week later, after plaintiff had taken possession of the house. The evidence was insufficient to justify a finding that Mrs. Clark could have reasonably anticipated or foreseen that plaintiff could be harmed by reason of the manner in which the basement door or stairway was constructed, or to justify a finding that she violated any duty of care with respect to plaintiff.

In view of the above conclusions, it is not necessary to discuss other contentions on appeal.

The judgment against defendants Ronald L. Buck and Ann M. Buck is reversed. The trial court is instructed to vacate the judgment against Jeanette M. Clark and Lelah T. Pierson, and to enter an order that the motion of defendants Clark and Pierson for judgment notwithstanding the verdict is granted and to enter judgment thereon in favor of said defendants Clark and Pierson.

WOOD, Presiding Justice.

FOURT, and LILLIE, JJ., concur.