Virginia CHANCE, Plaintiff and Respondent, v. LAWRY'S, INC., a corporation, John Krenz, and Donald F. Shaw, Individually, and doing business as Donald F. Shaw, General Contractor, Defendants and Appellants.*
Personal injury action. Defendants Lawry's, Inc., John Krenz, and Donald F. Shaw doing business as Donald F. Shaw, General Contractor, appeal from a judgment in favor of plaintiff Virginia Chance for $15,000, and from an order denying their respective motions for judgment notwithstanding the verdict. After renewed meticulous examination of the evidence we have concluded that both motions should have been granted and that we should direct judgment for all defendants pursuant to § 629, Code of Civil Procedure.
We recognize and apply the rule that such a motion is to be governed by the same rule as nonsuit,—that it can be granted at the instance of defendant only when there is no substantial evidence to support the plaintiff's alleged cause of action. (Perumean v. Wills, 8 Cal.2d 578, 581, 67 P.2d 96; Neel v. Mannings, Inc., 19 Cal.2d 647, 649, 122 P.2d 576; Owen v. Beauchamp, 66 Cal.App.2d 750, 753, 152 P.2d 756.)
On July 15, 1958, defendant Lawry's Inc. made a contract with defendant Shaw, as general contractor, to do certain remodeling of its restaurant building located at 55 North La Cienega Boulevard, in Beverly Hills. A part of the work was construction in the foyer or vestibule of a planter box, which was completed except for some details at the time of the accident in question, namely the evening of September 29, 1958; but the entire job was not finished until about November 1, 1958. Shaw was not required to fill the planter box with dirt or to plant the same. His work with respect to it had been finished except for minor details but, as stated above, his entire job had not been completed or accepted.
Plaintiffs Mr. and Mrs. Chance were members of a dinner party given at Lawry's, and the other persons in the group were Mr. and Mrs. Roland Martini, Mr. and Mrs. Jules Miller, Mr. Robert Piggott and Mr. Champ Humphrey. Humphrey was vice president of Gardner Advertising Company in charge of the Pet Milk account; Martini was its vice president in charge of television, and plaintiff Alfred Chance was West Coast manager for that firm; Mr. Miller was executive vice president of Pet Milk Company which was sponsor of a Red Skelton television show. Mr. Piggott was also an officer of Pet Milk Company. The wives of Messrs. Miller, Martini and Chance were the other members of a party of eight. They arrived at Lawry's about 8:30 p. m. and left between 10:00 and 10:30 p. m. While waiting for a table they had one round of drinks but had no more there or in the restaurant or bar.
Entrance to the restaurant building is on the south side. Guests go north through a foyer or vestibule which is about ten feet long and six or seven feet wide. Mr. Donald F. Shaw estimated its area at 77 square feet; probably it was only 60 square feet. In it on the west side, is the planter box built in a recess against the west wall and its height is 18 inches. (Counsel for plaintiff called the east side of the box a ‘wall’ throughout most of the trial but it was nothing of the sort.) The box was about 30 inches in width and six feet in length. It was joined to the floor by a coved base of smooth terrazzo which had maximum width of six inches and at the bottom a maximum diameter of one inch; it was built in accordance with architects plans and specifications. In all respects the planter box had been installed in conformity with ‘standards of good architectural and construction practice.’ The foyer area was well lighted and the planter box in plain sight of one who looked in that direction. It was in no sense an open pit (as plaintiffs' counsel called it), nor was it a trap. ‘The theory of liability for a ‘trap’ is not in point * * * for all the ‘trap’ cases involved defective or concealed hazards while in the present case as indicated earlier the danger was obvious.' (Obrien v. Fong Wan, 185 Cal.App.2d 112, 119, 8 Cal.Rptr. 124, 129.)
As the party of eight passed through the foyer on arrival, none of them who testified noticed the planter box (Mr. Miller, Mrs. Miller, Mrs. Martini and Mr. Piggott did not testify); but they were invitees of this public restaurant and as such entitled to assume that it was reasonably safe for their use and they were not required to make any inspection of the premises as they walked through,—entitled to make that assumption so long as they used the same for the purposes and in the manner implied in their invitation to enter. (Chardon v. Ala meda Park Co., 1 Cal.App.2d 18, 23, 36 P.2d 136; Johnson v. Bimini Hot Springs, 56 Cal.App.2d 892, 901, 133 P.2d 650.) The premises were not then in such shape as to charge these patrons of the restaurant with knowledge that they were entering or within a building which was under construction. As they entered the dining room from the lounge they negotiated without mishap some two or three steps and did so on their way out, did so because they looked where they were going. From the dining room they went straight to the foyer. It has at each end double glass doors which open outward only, i. e., toward the parking lot. Mr. Chance had preceded the rest of the group and was outside getting their automobiles when the accident happened. Of course he saw no part of it except when he saw Humphrey and Martini help his wife outside and into the car.
As they entered the foyer upon their departure, Mr. Martini stepped ahead of the ladies, opened the right hand door, stood partly in front of it to permit them to pass. Mrs. Chance came through and took a position at X2 on defendants' exhibit B; Martini stood at X1; then came Mr. Humphrey stopping at H1. The three of them were thus standing in line with their backs to the planter box and the west wall. None of them had looked and hence none of them had seen the planter box; each assumed that he or she was standing in front of a wall, the west wall which was some 30 inches away. Each conceded that the lighting was such that the box could have been seen readily had he or she looked in that direction.
Though these invitees when entering the restaurant through the foyer were entitled to assume that it was reasonably safe for their then use and were not obligated to make any sort of inspection to discover danger, that was because they were using that portion of the premises for its intended use. But when they were leaving the situation was changed. Mrs. Chance, Mr. Humphrey and Mr. Martini undertook to use the planter box as a supporting wall when they backed up to it. They merely assumed that it was a wall and did not look. Used for that purpose the planter box did present a hazard but it was on open and obvious one, defendant was not obligated to foresee such a departure from normal behavior of an invitee, and the latter was bound to see the hazard involved in using the box for her intended purpose,—as a supporting wall.
Counsel for respondent in their petition for rehearing say, with respect to our former opinion: ‘The Opinion states, on p. 4, that the evidence on which the verdict was based is ‘close and conflicting’. Contrary to this conclusion, all the material facts on which liability of both defendants was established were proved by evidence which was never really even disputed. The Court does not point out, nor could it, one instance of conflicting evidence as to a material fact.' We agree that the evidence which is determinative of liability herein is not contradicted and find that proof of absence of liability proceeds primarily from Mrs. Chance's own testimony. The following quotations from same are her exact language and the many repetitions of damaging facts are hers.
Direct Examination: ‘Mr. Martini went ahead and opened the door for me.’ ‘He opened this door, and then he stood beside it, beside the door holding it. I had to pass in front of him, and this wall was adjacent. There is a wall there that is adjacent with the door, a glass door, so it was impossible to see anything going through except a wall to my right. * * * I just know he opened this door and I passed through. Then, it was crowded. Someone was standing almost directly in front of me, and I stopped and someone was either coming or going through. I have no way of knowing which way they were going because as I passed Mr. Martini, walking in such a fashion, I just stepped back to let someone pass.’ ‘Q This wall, on the other side of the door here, there is a wall, is that right? A I don't know what is there. Q Well, this is the door and—A This is the opening, right here, I came through. There is a door here that is open. Mr. Martini was holding the door. There is a wall directly behind the door.’ ‘And I walk through. As I said, the lobby was crowded. There was someone directly in front of me going out of the door, and as I got into this area someone was either going one way or the other. I have no way of knowing, but this was a crowded area anyway. I stepped back with just one foot and just as I did,1 I was standing next to Mr. Martini, at least I had thought I was, would be standing next to Mr. Martini, but this wall hit me just about back of my knee.’ ‘I am sorry, but the edge of this box, planter, or whatever it is, was in the process of being built. I did not know there was anything there. I hadn't seen it. I believe the measurements later stated it was 18 inches high.’ ‘It hit me just back of my knee and just threw me with my feet up in the air and I just landed in the bottom of the box, hitting my head on the back wall, and as Mr. Woodhead said, there was a piece of plywood. I don't—I didn't know what material it was. I knew that there was something covered to the back of the planter. The pictures later showed there were windows, but there was no evidence of windows when I hit it. It was just a concrete unfinished piece of construction. * * * I was wedged down in it. I believe he said it was a foot and a half wide, yesterday. I don't know. * * * It was long, because I had my bag and gloves in my hand. I dropped them when I was throwing my arms back trying to find something to hold onto, grab onto, and I just landed with my feet straight up and my—well, I was wedged in, just sort of jackknifed in the planter box, or whatever it is called.’ ‘I was just sitting there. I couldn't move for a moment. They had to lift me by my elbows to get me out of it. I couldn't possibly have pulled myself out of the box. So they lifted me out. To my recollection, my knees felt very weak so that I said, ‘Just a moment,’ and I sat down on the edge of the box. I don't know how long I sat there because after that the entire evening was extremely vague.' ‘The stockings were torn. The one on which I tried to brace myself as I fell was badly torn, and the other one evidently * * * The other one was torn as I was being lifted out of the planter, you know, it got caught on the concrete. Q The concrete was rough? A That is correct.’ ‘It was rough. The outside was rough with concrete. There were no foreign articles I was aware of.’ ‘There were people passing through.’ ‘Q To the occasion that someone did pass which caused you to step aside? A That is correct.’ Cross-Examination: ‘Q How was the foyer lighted at that time? A I don't know how it was lighted. There was light. Q You had no difficulty seeing, did you? A No. * * * Q Did you look either to your right or to your left as you walked through the foyer? A No, sir. Q You have no recollection whatever of seeing the planter box that you ultimately fell into? A No, sir.’ ‘Q But as you stepped aside, you demonstrated to us you stepped aside, did you see one of the two ladies then to your left? A I didn't see anything at that time. I was busy falling into the planter.’ ‘Q Were you jostled by somebody? A I honestly don't know. I don't have the feeling that somebody pushed me, but I don't know. Q You do not have the feeling that somebody pushed you? A No, sir. * * * Q In what direction was that person going who was trying to pass you? A I don't know. As I said, this man was in front of me. He was quite a tall man. I couldn't see over him, and you have a feeling when someone is near you or who might just touch you, and I stepped back. I don't know who it was, whether it was one of our party or whether it was a stranger. Q Just before you stopped and made the step back did you look to your right at all? A No. Q Did you look to your left at all? A I don't believe so. I was looking straight ahead. Q Then without looking either to your right or to your left you stepped backward to your right and fell in the planter box, is that correct? A That's correct.’ ‘Q At the very moment you stopped to turn aside, as you explained to us, there was nobody on your right hand side at all, was there? A No, sir. Q And you had just passed by Mr. Martini? A That's correct. Q So you did not cast your eyes down, or you did not see at all the planter box, did you? A No, sir. Q Were you aware of there being any wall on your right hand side? A In going through the door there was a wall but it is just an awareness that there was a wall there.’ The Court, referring to Exhibit B: ‘The question is does that represent the foyer as she saw it that night? THE WITNESS: It was crowded. I didn't actually see it like this. Q BY MR. WYNN: As you saw it there were people in it? A That's correct.’ Counsel referring to Exhibit B: ‘All right, I will mark this first ‘X’ one and this second ‘X’ two. Now, X–1 indicates the place where Mr. Martini was standing, and X–2 indicates the place where you were standing, is that correct, or the place where you fell in? A Yes. Q Now, also on the photograph there appears to be a wall of some kind behind the right hand door that you can see through the glass? A That's true. Q Pointing to this section (Indicating)? A Yes. Q Did you see that wall through the glass as you walked throught there that evening? A I could see it had I looked at it. Q Well, do you have any recollection now of seeing that there was a wall behind the glass door as it was held open by Mr. Martini? A I think I saw the wall.' ‘Q Now, as you approached and entered the foyer, on the evening of the accident, did you see some steps? A. Yes. I walked up some steps. Q You saw those steps? A Yes. * * * Q Now, what was the condition of the lighting as you went up the steps on that occasion? A I wasn't aware of the lighting. Q Well, was the lighting adequate to illuminate the steps as you went up? A I would say so. Q What was the condition of the lighting in the foyer? A I wasn't aware of that either. Q Would you say it vas adequate to illuminate the foyer? A I would say so.’ Counsel referring to diagram Exhibit A: ‘Q By Mr. Woodhead: That is the position of Mr. Martini, do we understand each other? A Yes. Q You stepped right next to him, did you, on his right? A I passed him. Q And you started to stand on his right? A Well, I just passed him. Q Yes, and you backed into—next to him to stand on his right, is that right? A I would have been on his right, yes. * * * Q Now, before you got in that position, as you walked by you stopped and then you made a quarter of a turn back as you fell? * * * A Well, I don't know how much of a turn I did make.’ ‘Well, standing on one foot I wouldn't know whether it was pointed straight or pointed at an angle, or if you are asking me for a full quarter, and I honestly can't say I made a full quarter turn. I made one step back. Q Approximately a quarter of a turn, would you say? A I would say approximately.’ ‘I only stepped back. I only took one step. Q That step was half of a foot or a foot, was it not? A Well, I wouldn't know. Q Somewhere in that areaz? A In that area. Q So that you would be somewhere about a half foot or a foot out from C–2 when you stepped back, is that right? A About as I indicated with this other ‘X’. C–2 is where I fell in the box. Q Backward in the box? A Then I took the one step back, so that would be correct.' ‘Q As you went out through the foyer just before the time of the accident, is it not true that you were stepping back to allow Mrs. Miller who was slightly behind you to pass by, is that not right? A I couldn't say. Q Mrs. Miller is quite a large woman, is she not? A I would say she is a fairly large woman.’ ‘Q Do you know one way or the other whether there was tile covering the upper 18 inches? A On the outside? Q The wall covering, the outside of the wall. A There was no tile. Q Are you sure? A Yes. Q When did you make that observation? A I made it the night I fell into it. Q Before you fell? A After I fell into it. I didn't see the planter until after I fell into it.’ ‘Q Did you see what could or could not be plywood behind the open door as Mr. Martini held it open, which appears in Defendant's Exhibit D; this, apparently, wooden construction behind that door as it opened; did you see that? A It is possible, but I don't recall looking at it. Q There was no obstruction to the view as you went either way through the foyer except the people; is that right? A That is correct.’
It is Hornbook law that no one may rely blindly upon the unaided care of another. ‘When a person takes no precautions at all for his own safety and is injured, and this conclusion is uncontroverted, contributory negligence is a question to be decided by the court.’ (Lavin v. Fereira, 10 Cal.App.2d 710, 712, 52 P.2d 518, 519.) “No one can be allowed to shut his eyes to danger in blind reliance upon the unaided care of another without assuming the consequences of the omission of such care.” (Harrell v. Virginia Electric & Power Co., 177 Va. 59, 12 S.E.2d 833, 836.) ‘[T]he failure to see what is plainly visible constitutes negligence as a matter of law.’ (James v. Berry (Mo.App.), 301 S.W.2d 530, 533.)
This obvious principle applies to an invitee upon a private or public place. The invitor is liable to him when injured by a hidden defect of which he has not been warned; the invitor must use ordinary care to place and keep the premises in reasonably safe condition for the invitee's use, but the invitor may assume that the invitee will take notice of conditions dangerous or otherwise which are in plain sight; there is no duty to warn of such obvious danger or to protect the invitee from the same. If injury to him ensues from such obvious danger of which he takes no note, the invitor is not liable. Absence of duty to give notice spells also absence of liability for injuries received from such apparent danger. 2 Witkin, Summary of California Law, 7th Edition, § 262, page 1457, summarizes the rule as follows: ‘No Breach of Duty. It has been pointed out that the landowner does not necessarily have to eliminate the defective condition; he may choose to discharge his duty by giving adequate warning of the danger. However, if the danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty. Under this analysis, the defendant is not negligent, i. e., he has not violated any duty of care.’ (Emphasis by Author.)
‘When a danger is so apparent that an invitee on the premises can reasonably be expected to notice it and protect against it, or where as here, the appellant invitee was admittedly aware of the existing condition, the latter constitutes adequate warning.’ (Markwell v. Swift & Co., 126 Cal.App.2d 245, 251, 272 P.2d 47, 50.) See also, Dingman v. A. F. Mattock Company, 15 Cal.2d 622, 626, 104 P.2d 26; Shanley v. American Olive Co., 185 Cal. 552, 556, 197 P. 793; Mautino v. Sutter Hospital Ass'n, 211 Cal. 556, 561, 296 P. 76; Blodgett v. B. H. Dyas Co., 4 Cal.2d 511, 513, 50 P.2d 801; Pauly v. King, 44 Cal.2d 649, 653, 284 P.2d 487; Royal Ins. Co. v. Mazzei, 50 Cal.App.2d 549, 552, 123 P.2d 586; Huetter v. Andrews, 91 Cal.App.2d 142, 146, 204 P.2d 655; Decker v. S. H. Kress Co., 168 Cal.App.2d 365, 367, 335 P.2d 952, 337 P.2d 163; Holcombe v. Burns, 183 Cal.App.2d 811, 815, 7 Cal.Rptr. 366; Obrien v. Fong Wan, supra, 185 Cal.App.2d 112, 119, 8 Cal.Rptr. 124.
The invitor's duty of foreseeing probable accident and injury does not extent to such obvious conditions. Tucker v. Lombardo, 47 Cal.2d 457, 464, 303 P.2d 1041, 1046: ‘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 in a particular case, and reasonable foreseeability of harm is the fundamental basis of the law of negligence. * * * 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.’ 65 C.J.S. Negligence § 5c(2)(a), pp. 354–359.' In addition to cases just cited see, Jones v. Bridges, 38 Cal.App.2d 341, 345, 101 P.2d 91; Wolfe v. Green Mears Construction Co., 134 Cal.App.2d 654, 659, 286 P.2d 433.
Finally let it be said, as in Mautino v. Sutter Hospital Ass'n, supra, 211 Cal. 556, 561, 296 P. 76, 78: “Even if the plaintiff were free from contributory negligence, ‘not every accident that occurs gives rise to a cause of action upon which the party injured may recover damages from someone. Thousands of accidents occur every day for which no one is liable in damages, and often no one is to blame, not even the ones who are injured.”’
Mrs. Chance and the other members of the dinner party successfully negotiated the few outside steps as they entered the building, as well as those between the lounge and the dining room, this because they looked to see what was immediately ahead of them. Lawry's had no obligation to foresee that plaintiff would back blindly into an area (planter box) not provided for her use, had no obligation to foresee injury from failure of this invitee to exercise any degree of care for her own safety. Any injury caused by her failure to watch where she was going must be borne by her because she is the only person at fault. It is not necessary at bar to classify plaintiff's conduct as contributively negligent, for her fall according to her own testimony was due to her failure to observe where she was stepping and was not caused by any violation of duty owed her by her invitor.
The fact that plaintiff did not take any care for her own safety appears not only from her own testimony, quoted supra, but also from that of Mr. Martini and Mr. Humphrey.
The former said that as he held the door Mrs. Chance passed in front of him, he then stepped back to his right and she stepped a little back to allow Mrs. Miller to come through, whereupon he heard a shriek and crash, looked around and saw Mrs. Chance in the planter box. Prior to her outcry he had not seen the planter box, which was white. Though he paid no attention to the lighting in the ‘lobby,’ he could see.
Mr. Humphrey testified that he and Martini and Mrs. Chance were standing in line with their backs to what he ‘assumed’ was a wall. Another person moved in from outside and he sort of unconsciously tried to step back. His heels were against the coved terrazzo floor next to the planter; momentarily he lost his balance. At this point Mrs. Chance's feet slipped out from under her and she went into the planter. As he himself tried to step back he came in contact with this rounded cove and almost lost his balance. When passing through the glass door he saw nothing until plaintiff fell into the planter box; he did not recall looking to right or left as he passed through the foyer. Exhibit B shows the planter box as he saw it right after the accident except that it did not have a black lining and looked like rough plaster or concrete. He said: ‘Q. Now, after you noticed Mrs. Chance fall, you reached to pick her up. At that time you certainly had no difficulty seeing the planter box? A None at all. Q The lighting was perfectly adequate for you to see? A Yes. Q So as you had come in, and before the accident happened, if you had chosen merely to look through you could have seen it with no difficulty? A If I had looked, I could have seen it. Q But you did not look? A No. Q You turned with your back to whatever it was behind you not knowing what was there because you had not looked? * * * A No, I did not look. Q You did not know what was behind you? A I did not know.’
Obviously Messrs. Martini and Humphrey took no more care for their own safety than did Mrs. Chance. However, the fact that they were careless subtracts nothing from her reliance upon the unaided care of others.
These two witnesses undertook to furnish an explanation of the accident which plaintiffs' counsel seized upon and has persistently presented to the jury and to this court as a showing of defendants' failure to exercise the duty of reasonable foreseeability—a duty claimed by plaintiffs' counsel to be one of anticipating that some customer might be pushed into the planter box or otherwise injured through crowding and jostling of numerous othe customers in a small area. Mr. Martini said the foyer was quite full because other people were coming through, i. e., that there were seven of his party and two, three, four or five other people; that plaintiff had to step back to let Mrs. Miller, a large woman, come through. Mr. Humphrey said this other party coming from outside caused some pretty severe crowding and jamming, and to relieve this ‘we’ sort of unconsciously tried to step back. He had not seen the planter box in the foyer. There was some jostling. ‘I don't recall she specifically was jostled. I know that there was crowding and that I personally tried to step back. Whether there was actually physical contact, I don't know.’ It will be recalled that Mrs. Chance herself testified: ‘Q Were you jostled by somebody? A I honestly don't know. I don't have the feeling that somebody pushed me, but I don't know. Q You do not have the feeling that somebody pushed you? A No, sir.’
Thus the testimony of Martini and Humphrey raises nothing better than speculation that plaintiff was pushed or jostled into the planter box. That hypothesis is only a possibility. A mere possibility is not an inference and multiplication of possibilities does not create one. “Whether a particular inference can be drawn from certain evidence is a question of law, but whether the inference shall be drawn, in any given case, is a question of fact for the jury.' [Citation.] An inference cannot be based on mere possibilities; it has been held that it must be based on probabilities. [Citations.] This accords with the general principle, enunciated more than once by this court that in civil cases the rule of decision is a rule of probability only. [Citations.] (Sanders v. MacFarlane's Candies, 119 Cal.App.2d 497, 500, 259 P.2d 1010, 1012.) ‘Liability is never premised upon purely speculative assumptions. [Citations.] ‘An inference cannot be based on mere possibilities; it has been held that it must be based on probabilities.’ [Citations.] Plaintiff's burden of proof is not met merely by proof that he was an invitee and that his injury was suffered on the invitor's premises.' (Brocato v. Standard Oil Co., 164 Cal.App.2d 749, 758, 331 P.2d 111, 116.) Estate of Kuttler, 185 Cal.App.2d 189, 204, 205, 8 Cal.Rptr. 160, 169, says: ‘Reese v. Smith, 9 Cal.2d 324, 328, 70 P.2d 933, 935: “If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and not his adversary. Patterson v. San Francisco etc. Ry. Co., 147 Cal. 178, 81 P. 531. A judgment cannot be based on guesses or conjectures. Puckhaber v. Southern Pac. Co., 132 Cal. 363, 64 P. 480. And, also, ‘A finding of fact must be an inference drawn from evidence rather than on a mere speculation as to probabilities without evidence. A majority of chances never can suffice alone to establish a proposition of fact, since the slightest real evidence would outweigh all contrary probabilities.’ 23 Cor.Jur., § 1750, p. 18.” * * ** What constitutes substantial evidence, as distinguished from mere possibility or speculation, is clarified in the following passage from Estate of Teed, supra, 112 Cal.App.2d 638, 644, 247 P.2d 54, 58: ‘The sum total of the above definitions is that, if the word ‘substantial’ means anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with ‘any’ evidence. It must be reasonable in nature, credible, and of solid value; it must actually be ‘substantial’ proof of the essentials which the law requires in a particular case.' Fewel & Dawes, Inc., v. Pratt, 17 Cal.2d 85, 89, 109 P.2d 650, 653: ‘If, however, the evidence is so slight and tenuous that it does not create a real and substantial conflict the finding may be set aside. Ibid. ‘There must be more than a conflict of words to constitute a conflict of evidence. The contrary evidence must be of a substantial character, such as reasonably supports the judgment * * *.’'' To the same effect see, Robinson v. Board of Retirement, 140 Cal.App.2d 115, 118, 294 P.2d 724; Rodela v. Southern California Edison Co., 148 Cal.App.2d 708, 712, 307 P.2d 436; Pacific Employers Ins. Co. v. Industrial Acc. Com., 182 Cal.App.2d 162, 165–166, 5 Cal.Rptr. 738.
Concerning respondents' claim that Lawry's failed to fulfill a duty to foresee injury to a customer through crowding in the vestibule, the following language of Porter v. California Jockey Club, Inc., 134 Cal.App.2d 158, 160, 285 P.2d 60, 61 is pertinent: ‘The liability of the landowner to provide against injury to an invitee from the act of another is based upon the fact that the landowner has notice of prior conduct from which he could reasonably anticipate that such injury might occur. [Citations.] * * * It is axiomatic that in the absence of conduct to put him on notice to the contrary a person is entitled to assume that others will not act negligently or unlawfully.’ A portion of this language of the Porter case was also quoted in Hunter v. Mohawk Petroleum Corp., 51 Cal.2d 439, 441, 334 P.2d 193.
While it appears at bar that the foyer was at times crowded, no untoward event had been caused thereby and hence no basis for imputation of knowledge of such a danger on the owner's part. But assuming a duty of Lawry's to foresee and provide against injuries received from overcrowding, pushing and jostling in the foyer (concerning which see, also, Richter v. Adobe Creek Lodge, 143 Cal.App.2d 514, 518, 299 P.2d 941; Williams v. New York Rapid Transit Corp., 272 N.Y. 366, 6 N.E.2d 58, 59; Fenasci v. S. H. Kress Co., 17 La.App. 170, 134 So. 779, 781; Rincon v. Berg Co. (Tex.Civ.App.), 60 S.W.2d 811, 814), and further assuming a failure to perform that duty, it remains true that plaintiff has failed to make a case in that there is no proof that any such dereliction on the part of defendant operated as a proximate cause of any injury to plaintiff, for there is no showing that she was pushed or jostled or otherwise hurtled into the planter box by the crowd; there is nothing better than theorizing about possibilities to support that thesis.
Defendant Krenz was Assistant Vice President in charge of the restaurant division and as such manager of Lawry's restaurants. No facts were proved as to him individually which were not also applicable to the corporation and he was entitled to a directed verdict and judgment notwithstanding the verdict for the same reasons as defendant Lawry's, Inc.
Defendant Shaw's motions for a directed verdict and a judgment notwithstanding should also have been granted, but the basis for that ruling is not the alleged completion and acceptance of the work or the fact that plaintiff was not an invitee of Shaw, the general contractor. It seems that the owner's invitees are not strictly invitees of his general contractor. (See, Allen v. Jim Ruby Construction Co., 138 Cal.App.2d 428, 432, 291 P.2d 991; Hayden v. Paramount Productions, Inc., 33 Cal.App.2d 287, 295, 91 P.2d 231.) But that rule, like the one terminating a contractor's liability upon completion and acceptance of the work by the owner, has been abrogated (in some respects, at least) by decisions such as, Hall v. Barber Door Co., 218 Cal. 412, 419, 23 P.2d 279; Coggins v. Hanchette, 52 Cal.2d 67, 74, 338 P.2d 379; Donahoo v. Kress House Moving Corp., 25 Cal.2d 237, 242, 245, 153 P.2d 349; Handley v. Capital Co., 152 Cal.App.2d 758, 763, 313 P.2d 918.
The rule now prevailing with respect to the liability of a general contractor to an invitee of the owner is laid down in the Hall case, wherein the court said, 218 Cal. at page 419, 23 P.2d at page 281: ‘It cannot be doubted that an independent contractor is responsible to an occupant of a building rightfully on the premises at the request or consent of the owner for any wrongful acts that may be committed by himself or his employees while the stipulated work is in progress and resulting in injuries to such occupant. The ground upon which this liability is based is the implied duty which the law casts upon the independent contractor, as the person in charge and control of the work, to see that the right of other persons, rightfully on the premises, are not injuriously affected by the performance of the work. * * * Upon both principle and authority, it is clear that an independent contractor, who by his own negligence creates dangerous conditions during the progress of the work, should be held responsible for an injury occasioned by those conditions to one rightfully on the premises, and should be held liable for damage directly attributable to the failure to perform this duty.’ Coggins v. Hanchutte, supra, 52 Cal.2d 67, 74, 338 P.2d 379, 383, says: ‘The instructions were correct in telling the jury that one who (like defendant here) on behalf of the land occupier creates a condition thereon has the same liability as the occupier for bodily harm caused to others while the work is in his charge. II Rest., Torts, § 384; Donahoo v. Kress House Moving Corp. (1944), 25 Cal.2d 237, 245, 153 P.2d 349; Hall v. Barber Door Co., 1933, 218 Cal. 412, 419–420 [5, 6], 23 P.2d 279.’
This rule in its application to injuries occurring after completion anc acceptance of the work applies, as will be noted, only to dangers inherent in that work which may later manifest themselves. It does not extend to the care or management of the property, e. g., the planter box, by the owner after completion. The evidence discloses nothing inherently defective or dangerous in this box. Shaw had no control over it whatever after 4:00 o'clock in the afternoon of each day, for the area of work was cleared and turned over to Lawry's and all Shaw men were off the place by that hour so that Lawry's through proper management could use the completed portions of the work in its restaurant business. Manifestly, there was less evidence upon which to base negligence of Shaw than there was with respect to Lawry's and a fortiori a greater right to a judgment notwithstanding the verdict.
It is to be borne in mind, as stated by the Supreme Court in Stewart v. Cox, 55 Cal.2d 857, 863, 13 Cal.Rptr. 521, 524, 362 P.2d 345, 348, that ‘liability for negligence can exist without privity although the risk involved is only damage to property, and we held that the determination whether in a specific case the defendant will be held liable to a third person 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 he suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, and the policy of preventing future harm. See also United States [Los Angeles Testing Laboratory] v. Rogers & Rogers, D.C., 161 F.Supp. 132. The liability of a contractor or subcontractor must be determined by applying this general test rather than by arbitrarily placing them in a separate category subject to a special rule. Cf. Garcia v. Soogian, 52 Cal.2d 107, 110, 338 P.2d 433.’ Garcia v. Soogian, 52 Cal.2d 107, 110, 338 P.2d 433, 435: ‘The question of liability must be decided in the light of all the circumstances and not by arbitrarily placing cases in rigid categories on the basis of the type of condition involved without giving due consideration to the effect of all the factors in a particular situation. There is no inflexible rule which would exclude liability in every case involving building materials or buildings under construction, and each such case must be judged on its own facts.’ These considerations emphasize the soundness of the views above expressed in relation to the claimed liability of defendant Shaw.
Each defendant having moved for a directed verdict which as erroneously denied and having also moved in alternative form for judgment notwithstanding the verdict reserving the right to apply for a new trial, such motion for new trial having been made and denied, it now appears that the judgment and the order denying defendants' motions for judgment notwithstanding the verdict should be reversed. It is now ordered that said last mentioned order be and it is reversed. The trial court is instructed to vacate the judgment for plaintiff against Lawry's, Inc., John Krenz and Donald F. Shaw, and to enter an order that said motions for judgment notwithstanding standing the verdict be granted and to enter judgment thereon in favor of said defendants and against the plaintiff, Virginia Chance.
1. All emphasis herein has been added unless otherwise indicated.
FOX, P. J., and HERNDON, J., concur.