KEENAN v. SMITH

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

John R. KEENAN, et al., Plaintiffs and Appellants, v. Russell K. SMITH, Defendant and Respondent.

Civ. 27975.

Decided: December 07, 1983

Morris, Polich & Purdy, Robert S. Wolfe and Steven D. Manning, Los Angeles, for plaintiffs and appellants. Pierce J. Powers, Tustin, for defendant and respondent.

OPINION

Plaintiffs appeal from a judgment entered in defendant's favor after a jury trial and an order denying plaintiffs' motion for judgment notwithstanding the verdict.

FACTS

Plaintiffs and defendant are adjoining landholders in a cabin resort area in the San Bernardino mountains.   Prevalent to this region are numerous indigenous Ponderosa pine trees, many of which exceed 100 feet in height.   During a winter storm, one of these trees, concededly on defendant's property, fell and demolished plaintiffs' house.

Sometime in October or November 1977, the outward appearance and angle of this tree caused plaintiffs' family members to construct a device to measure its movement.   A sign was affixed to the tree requesting the device not be removed “because we are trying to determine if the tree is leaning.”   Defendant admitted to seeing this device and sign and in fact thought they had been placed there by forest rangers.   Defendant did not contact the forest rangers or anyone to determine the reason the sign was on the tree.

In November 1977, a short time after this measuring device was attached, plaintiffs' cousin concluded the tree was leaning closer to his family's cabin.   As a result, the cousin contacted a local tree surgeon to examine the tree and give an estimate on its removal.   Later in November the tree surgeon examined the tree and concluded it was a dead and hazardous tree which in the near future would fall and “probably cut the house in half.”   The tree was brown and had been dead between three to six months before this examination.   That same day, another member of plaintiffs' family, Sister Antoinette, the person with whom the tree surgeon spoke, had a conversation with the defendant.

Sister Antoinette testified she told the defendant the tree was in danger of falling on their cabin and “that he had to take care of the tree and the removal of the tree.”   She admits to taking defendant's business card.   Defendant's recollection of his conversation with Sister Antoinette was somewhat different.   He testified they were looking at the tree and “[s]he said she thought it was dead.   And I didn't say anything.   And then she says that maybe she would like to go with us halves and have it taken down.   So I said fine, that I would like to talk with whoever is a spokesman for that group, because there was always quite a number of people, different people, in that house.   I did not know who it belonged to.  [¶] So I gave her my business card․”  Defendant did not contact anyone or take any steps to determine whom to contact.   Defendant indicated Sister Antoinette did not inform him of the tree surgeon's conclusion, but that if she had, he would have taken immediate action.   Defendant did not take any action to determine if the tree was dead or any steps to remove it.

Defendant admits to receiving plaintiffs' letter, dated January 11, 1978, which makes reference to the dead tree and indicates concern over the potential damage it would cause.   The letter states:  “․ the tree [is] on [defendant's] property and that it would be up to [defendant] to arrange to have it cut.”   Defendant did not take any action regarding the removal of the tree.

Defendant did ponder the problem and stated he intended to remove the tree “as soon as the weather moderated.”  Defendant did not contact anyone to ascertain if the tree could be removed before the weather moderated.

On February 8, 1978, the tree fell during a rain storm and cut plaintiffs' cabin in half.

A jury trial ensued under a negligence theory.   The jury returned a verdict in favor of defendant and after the court denied plaintiffs' motion for judgment notwithstanding the verdict, judgment was entered accordingly.   Plaintiffs appeal.

DISCUSSION

 Plaintiffs contend the trial court committed numerous errors which resulted in a jury verdict favorable to the defendant.   All of the errors asserted by the plaintiffs merge into a request that this court enter a judgment notwithstanding the verdict in their favor.   We are empowered to grant the relief requested under Code of Civil Procedure section 629 which provides in part:  “If the motion for judgment notwithstanding the verdict be denied and if a new trial be denied, the appellate court shall, when it appears that the motion for judgment notwithstanding the verdict be denied and if a new trial be denied, the appellate court shall, when it appears that the motion for judgment notwithstanding the verdict should have been granted, order judgment to be so entered on appeal from the judgment or from the order denying the motion for judgment notwithstanding the verdict.”   The authority granted by this section is extremely restrictive and should be exercised sparingly.  “ ‘A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict.   If there is any substantial evidence, or reasonable inferences to be drawn therefrom in support of the verdict, the motion should be denied.’ ”  (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110, 120 Cal.Rptr. 681, 534 P.2d 377.)   Although an appellate court is bound to view the evidence in the light most favorable to the party securing the verdict, we are entitled to review the record to determine if there is any substantial evidence from which any reasonable inferences may be drawn to support the jury verdict.  (See Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 546, 138 Cal.Rptr. 705, 564 P.2d 857.)

Defined, substantial evidence is “evidence ‘which, if true, has probative force on the issues.’   It is more than ‘a mere scintilla,’ and the term means ‘such relevant evidence as a reasonable man might accept as adequate to support a conclusion,’ citing Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197 [59 S.Ct. 206, 83 L.Ed. 26].  To preclude a reviewing court from disturbing a verdict, it is essential that the supporting evidence be ‘such as will convince reasonable men who will not reasonably differ as to whether evidence establishes plaintiff's case,’ quoting from Morton v. Mooney, 97 Mont. 1 [33 P.2d 262].  And as said in Missouri Pac. R. Co. v. Hancock, 195 Ark. 414 [113 S.W.2d 489], ‘improbable conclusions drawn in favor of a party litigant through the sanction of a jury's verdict will not be sustained where testimony is at variance with physical facts and repugnance is material and self-evident.’

“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.”  (Estate of Teed (1952) 112 Cal.App.2d 638, 644, 247 P.2d 54.   See also, United Professional Planning, Inc. v. Superior Court (1970) 9 Cal.App.3d 377, 392–393, 88 Cal.Rptr. 551.)

In order to apply the definition of substantial evidence to this case we must first determine what facts would be “of ponderable legal significance.”   To accomplish this, we turn to the basic theory of recovery asserted in the complaint.   Once we identify the applicable law, only then can we analyze whether substantial evidence supports the judgment.

Plaintiffs' theory of recovery is negligence—i.e., the damage to their cabin proximately resulted from defendant's breach of a duty owed to them.  “Duty is primarily a question of law in which the foreseeability of risk to another is the principal consideration.  [Citation.]  Although foreseeability is most often a question of fact for the jury, when there is no room for a reasonable difference of opinion it may be decided as a question of law.  [Citation.] ”  (Hedlund v. Superior Court (1983) 34 Cal.3d 695, 705, 194 Cal.Rptr. 805, 669 P.2d 41.)

Viewed in this light, the issue breaks down as follows.   Was the risk of harm and damage from defendant's tree so foreseeable that reasonable minds could not differ as to whether defendant owed plaintiffs a duty to eliminate the risk?   The simple answer is, “Yes.”

 The key to negligence is to understand what duty is owed to whom.   Duty is nothing more than a set of policy considerations which lead the law to say that the particular plaintiff is entitled to protection.  (Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912.)   In this particular case we are concerned with the duty of care owed by possessors of land to those outside the premises to prevent harm caused by natural conditions on the possessor's land.

 In general, in managing one's property the landowner must act “ ‘․ as a reasonable [person] in view of the probability of injury to others.’ ”   (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 371, 178 Cal.Rptr. 783, 636 P.2d 1121, quoting Rowland v. Christian (1968) 69 Cal.2d 108, 118–119, 70 Cal.Rptr. 97, 443 P.2d 561, Civ.Code, § 1714, subd. (a).)  Specifically, the Supreme Court has enunciated a set of factors to guide the trier of fact in determining whether the possessor of land has acted as a reasonable person.   These factors are:  “[t]he likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessor's degree of control over the risk-creating condition ․” (Sprecher v. Adamson Companies, supra, 30 Cal.3d 358, 372, 178 Cal.Rptr. 783, 636 P.2d 1121.)

Projecting the defendant's actions in this case on the screen of reasonable conduct set out in Sprecher not only demonstrates the injury to the plaintiffs was reasonably foreseeable but that it was a foregone conclusion.   This is so even when viewing the evidence in the light most favorable to the defendant.  (See Hauter v. Zogarts, supra, 14 Cal.3d 104, 110, 120 Cal.Rptr. 681, 534 P.2d 377.)   Defendant admitted to seeing the measuring device affixed to the tree.   He, in fact, thought it was placed there by forestry officials.   Defendant failed to act.   He was advised on different occasions of the tree's condition.   The evidence shows plaintiffs verbalized their concern as early as November.   Defendant took no action.   Defendant received a letter from plaintiffs regarding the tree's condition in January.   Defendant again did nothing.   Reviewing the surrounding circumstances, we find the tree was on land in a cabin resort area.   Visual inspection showed the tree leaning, headed directly for plaintiffs' cabin.   Defendant had complete control over the risk-creating condition.   Despite these circumstances, defendant still refused even to investigate the risk or inquire as to whether the tree could be removed immediately.   The defendant's conduct in the instant case resembled that of the ostrich who allegedly buries his head in the sand when the threat of harm is imminent.   It appears the closer the tree got to the cabin the more indifferent defendant became.

The evidence clearly demonstrates any reasonable and conscientious landowner in defendant's position would have discovered this tree as a potentially harmful condition giving rise to an affirmative duty to make additional inquiry to determine the precise nature of the threat.

 The foregoing boils down to the following general principle.   In the course of normal use of land, taking into consideration all surrounding circumstances, if a reasonable and conscientious landowner would have discovered a potentially harmful condition, that person is under an affirmative duty to make additional inquiry to determine the precise nature of this threat.   Should that inquiry show the harm is imminent, the landowner must take reasonable steps to protect others from this dangerous condition.

 Some jurisdictions have imposed as part of reasonable care a duty to make a visual inspection:  “If the possessor of land in or adjacent to a developed area knows, or should have known, through inspection or otherwise, that a defect in one of his trees poses an unreasonable danger to others outside of the land, he is under a duty to eliminate that danger.”  (See Barker v. Brown (1975) 236 Pa.Super. 75, 340 A.2d 566.)   Whether a particular duty to visually inspect exists depends on the surrounding circumstances and the nature of the property.   We do not intend to spell out a hard and fast rule of visual inspection because under some situations such a rule would impose an unreasonable burden.   However, in this case, not only would a duty to visually inspect be reasonable, such an inspection was in fact made.   In a strikingly similar case, Gibson v. Denton (1896) 4 App.Div. 198, 38 N.Y.S. 554, the court found the defendant liable when her 75-foot tree fell, damaging her neighbor's property.   On at least two occasions plaintiff requested that defendant remove this dangerous condition prior to the incident.   The court, in comparing this tree to a dilapidated and unsafe building concluded neither could remain on one's property if it posed potential injury or damage to adjoining landowners.   Our Supreme Court used this case to identify a general trend in many jurisdictions (including California) rejecting the common law distinction between natural and artificial conditions.   Now courts favor imposing the duty of reasonable care on all landowners.   (Sprecher v. Adamson Companies, supra, 30 Cal.3d at 364, 178 Cal.Rptr. 783, 636 P.2d 1121.)   With almost identical facts as in Gibson before us now, we agree with that court's imposition of a duty to remove the potentially dangerous natural condition.

In this case, defendant had actual knowledge of a potentially dangerous condition, yet he failed to investigate the imminency of harm.   Defendant's choice of ignoring the problem until spring can be deemed nothing less than complete proscratination.   Lip service suggesting an intent to deal with the problem at a more convenient time is simply too little too late.   The defendant had a duty to act to prevent the foreseeable harm to the plaintiffs and his failure to so act constituted negligence as a matter of law.

The jury verdict in favor of defendant is hereby set aside and a judgment notwithstanding the verdict is entered in favor of the plaintiffs.   The matter is ordered returned to the trial court for trial on the issue of damages only.

RICKLES, Associate Justice.

MORRIS, P.J., and McDANIEL, J., concur.

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