BECKER v. IRM CORPORATION

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

George BECKER, Plaintiff and Appellant, v. IRM CORPORATION, Defendant and Respondent.

A014367.

Decided: June 24, 1983

Meyer & Mitchell, Jack P. Dougherty, Oakland, for plaintiff and appellant. Kincaid, Gianunzio, Caudle & Hubert, John P. Caudle, Robert W. Brower, Oakland, for defendant and respondent.

This is an appeal from a summary judgment dismissing appellant's causes of action for negligence and strict products liability.   Declarations submitted by respondent in support of its motion for summary judgment reveal the following pertinent facts, which we summarize as necessary to a resolution of the issues raised on appeal.

Appellant was seriously injured on November 21, 1978, when he slipped and fell against the untempered glass shower door of his rented apartment, which is in a 36-unit apartment complex owned, operated and maintained by respondent.   The apartment complex was built in 1963 and acquired by IRM Corporation in 1974.   According to undisputed evidence, had the shower door been made of tempered glass, the risk of serious injury to appellant would have been reduced.

The declarations submitted in support of the summary judgment motion state that between the time respondent acquired the building and appellant's injury none of the tenants either complained that the shower doors were made of unsafe untempered glass or reported injuries similar to those suffered by appellant.   Appellant's shower door was in place when IRM purchased the apartment complex.   Of the 36 showers in the apartment building prior to appellant's accident, 31 had untempered and 5 had tempered glass.

It is difficult to visually distinguish tempered from untempered glass.   The apartment manager for IRM declared that he walked through most of the bathrooms prior to appellant's accident, and found the two types of shower doors to be highly similar:  he said both had a “frosted glass” appearance.   After the accident, at respondent's request, a maintenance man for IRM and an expert from Diablo Glass & Paint Company inspected the shower doors.   According to the maintenance man, “from my own examination following the ․ accident, there was no visible difference between the tempered or the nontempered glass in terms of visible appearance.”   But he also explained:  “The only way that I was able to differentiate ․ was by looking for a very small mark in the corner of each piece of glass.”   After the inspection, the 31 shower doors without tempered glass were replaced with doors made of tempered glass.

 The summary judgment procedure authorized by section 437c of the Code of Civil Procedure is a “ ‘ “drastic procedure to be used sparingly and with circumspection.” ․’ ”  (Harris v. De La Chapelle (1976) 55 Cal.App.3d 644, 647, 127 Cal.Rptr. 695.)   A defendant moving for summary judgment has the burden of establishing that the action is without merit;  a factual showing negating all causes of action on all theories is required.  (Tresemer v. Barke (1978) 86 Cal.App.3d 656, 666, 150 Cal.Rptr. 384;  Harris, supra, at p. 647, 127 Cal.Rptr. 695.)  “If he fails in that burden, summary judgment must be denied despite the lack of opposing declarations.”  (Tresemer, supra, at p. 666, 150 Cal.Rptr. 384.)   But if all material issues of fact are eliminated and the declarations filed in support of the motion establish that the defendant is entitled to judgment as a matter of law, summary judgment should be granted.  (Tauber-Arons Auctioneers Co. v. Superior Court (1980) 101 Cal.App.3d 268, 273, 161 Cal.Rptr. 789.)  “ ‘Applicable substantive law determines the facts necessary to support a particular theory of relief and hence the sufficiency of properly framed factual statements in declarations to support a summary judgment.’ ”   (Tresemer, supra, at pp. 666–667, 150 Cal.Rptr. 384.)

Appellant claims that his negligence cause of action presents issues of fact which must be litigated at trial.   He insists that respondent's declarations do not sufficiently negate the elements of his action for negligence.

Respondent submits that it had no duty of care to appellant, absent actual notice of the dangerous condition of the shower doors, and that its declarations disprove such notice.

 The essential elements of a cause of action for negligence are:  (1) defendant's legal duty of care to plaintiff, (2) defendant's breach of duty—by negligent act or omission, (3) injury to plaintiff as the result of the breach, and (4) compensable damages.  (Rosales v. Stewart (1980) 113 Cal.App.3d 130, 133, 169 Cal.Rptr. 660;  3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 450, p. 2103.)   Liability for negligent conduct may only be imposed where it is found that defendant owed a duty of care to the plaintiff or to a class of persons of which the plaintiff is a member.  (J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803, 157 Cal.Rptr. 407, 598 P.2d 60;  Rogers v. Jones (1976) 56 Cal.App.3d 346, 350, 128 Cal.Rptr. 404.)   The duty may arise by statute, contract, the general character of the activity in which the defendant engaged, the relationship of the parties, or even the interdependent nature of human society.  (J'Aire, supra, at p. 803, 157 Cal.Rptr. 407, 598 P.2d 60.)  “Whether a duty is owed is simply a shorthand way of phrasing what is ‘ “the essential question—whether the plaintiff's interests are entitled to legal protection against the defendant's conduct.” ’ ”  (Ibid.)

The crucial issue before us is, therefore, whether plaintiff has established that his corporate landlord owed a duty of care to protect him against the particular risk of harm which caused his injury.  (Evans v. Thomason (1977) 72 Cal.App.3d 978, 984, 140 Cal.Rptr. 525.)  “ ‘While the question whether one owes a duty to another must be decided on a case-by-case basis, every case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as a result of their conduct․’ ”  (J'Aire, supra, at p. 806, 157 Cal.Rptr. 407, 598 P.2d 60;  Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.)   In Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561, our high court enumerated the following factors as relevant to a determination of whether a possessor or owner of land owes a duty of care to injured victims:  the foreseeability of the harm to the plaintiff;  the degree of certainty that the plaintiff suffered injury;  the closeness of the connection between defendant's conduct and the injury suffered;  the moral blame attached to the defendant's conduct;  the policy of preventing future harm;  the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach;  and the availability, cost and prevalence of insurance for the risk involved.  (See also Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750, 167 Cal.Rptr. 70, 614 P.2d 728;  Sun N' Sand, Inc. v. United California Bank (1978) 21 Cal.3d 671, 695, 148 Cal.Rptr. 329, 582 P.2d 920;  Rosales v. Stewart, supra, 113 Cal.App.3d 130, 134, 169 Cal.Rptr. 660;  DeSuza v. Andersack (1976) 63 Cal.App.3d 694, 702, 133 Cal.Rptr. 920.)

 But in all cases, the primary consideration in establishing the element of duty is the foreseeability of the risk.  (Sun N' Sand, supra, at p. 695, 148 Cal.Rptr. 329, 582 P.2d 920;  Weirum, supra, at p. 46, 123 Cal.Rptr. 468, 539 P.2d 36;  DeSuza, supra, at p. 702, 133 Cal.Rptr. 920.)   “ ‘ “As a general principle, “a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.” ’ ”  (Tresemer v. Barke, supra, 86 Cal.App.3d 656, 670, 150 Cal.Rptr. 384.)   The question of whether a legal duty exists is one of law (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750, 167 Cal.Rptr. 70, 614 P.2d 728), but if the issue depends upon the foreseeability of the risk it becomes a question of fact for resolution by the jury (Weirum v. RKO General, Inc., supra, 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36;  Harris v. De La Chapelle, supra, 55 Cal.App.3d 644, 647, 127 Cal.Rptr. 695).1

 It is now settled that a landlord generally owes a tenant a duty of reasonable care in maintaining the rented premises in a safe condition.   (Evans v. Thomason, supra, 72 Cal.App.3d 978, 985, 140 Cal.Rptr. 525;  Golden v. Conway (1976) 55 Cal.App.3d 948, 955, 128 Cal.Rptr. 69;  Brennan v. Cockrell Investments, Inc. (1973) 35 Cal.App.3d 796, 800–801, 111 Cal.Rptr. 122.)   In Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 924, 162 Cal.Rptr. 194, the court explained:  “In the typical rental situation involving a dwelling house, the foreseeability of harm to a tenant from the landlord's failure to maintain the premises in a habitable condition is obvious;  the degree of certainty that the tenant suffered injury and the closeness of the connection between the landlord's conduct and the injury is readily ascertainable by proof in each case;  the moral blame attached to the landlord's conduct in not complying with the habitability requirements articulated in the Civil Code and the policy of preventing future harm are present.   Nor can we say that the imposition of a duty to exercise care with resulting liability for breach would unduly extend a landlord's burden insofar as the availability, cost and prevalence of insurance for the risk involved.   In short, we believe that under the policy standards articulated in Rowland, a due regard for human safety and health compels the imposition on a landlord of a duty of due care in the maintenance of the premises.”

And in Golden v. Conway, supra, 55 Cal.App.3d at page 55, 128 Cal.Rptr. 69, this court adopted the standard expressed in Brennan v. Cockrell Investments, Inc., supra, 35 Cal.App.3d 796, 111 Cal.Rptr. 122, that “․ a landlord must act toward his tenant as a reasonable person under all of the circumstances, including the likelihood of injury, the probable seriousness of such injury, the burden of reducing or avoiding the risk, and his degree of control over the risk-creating defect․”

 But like any other business proprietor or owner of property, the landlord is not an insurer of a tenant's safety.  (Riley v. Marcus (1981) 125 Cal.App.3d 103, 109, 177 Cal.Rptr. 827;  Rogers v. Jones, supra, 56 Cal.App.3d 346, 351, 128 Cal.Rptr. 404.)   And, we repeat, as in all cases, foreseeability is the key factor to be considered.  (Coulter v. Superior Court (1978) 21 Cal.3d 144, 152, 145 Cal.Rptr. 534, 577 P.2d 669;  Riley, supra, at p. 109, 177 Cal.Rptr. 827.)   Consequently, we must decide whether the unsafe nature of the shower doors was reasonably foreseeable by respondent.

The uncontradicted evidence offered by respondent establishes that IRM had no actual notice of the dangerous condition of the premises either from complaints or previous accidents.   According to undisputed declarations, it was also difficult to distinguish the untempered glass shower doors from those made of tempered glass;  only a “very small mark in the corner of each piece of glass,” observed upon a careful inspection following appellant's accident, set the two types of doors apart.

 But foreseeability does not require that prior identical or even similar events must have occurred.  (Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324, 329, 176 Cal.Rptr. 494.)   As noted in Weirum v. RKO General, Inc., supra, 15 Cal.3d 40, 47, 123 Cal.Rptr. 468, 539 P.2d 36:  “ ‘The mere fact that a particular kind of accident has not happened before does not ․ show that such accident is one which might not reasonably have been anticipated.’ ”   Appellant's accident cannot be characterized as unforeseeable simply because it was the first of its kind at the apartment complex.

 And although the dangerous condition of the shower door may not have been readily apparent, the evidence indicates that it was discoverable upon reasonably careful inspection.   In light of the landlord's control over the premises and ability to insure against the risk of injury, we think it reasonable to conclude that foreseeability of risk presented a triable issue of fact best left for resolution by the jury.   That IRM had no actual notice of the risk should not, we repeat, absolve it from a duty of care as a matter of law.   Maintenance of rental property, particularly fixtures and appliances, in a safe and habitable condition, has been recognized as an important obligation of the landlord.  (Green v. Superior Court (1974) 10 Cal.3d 616, 626–627, 111 Cal.Rptr. 704, 517 P.2d 1168;  Stoiber v. Honeychuck, supra, 101 Cal.App.3d 903, 914, 924, 162 Cal.Rptr. 194.) 2  Since it was possible if not likely that IRM would have learned of the dangerous condition of the property had it devoted closer attention to the safety of its tenants, particularly given the direct and serious threat of harm which the hazard posed to IRM's tenants, we think that the trial court erred in granting summary judgment and dismissing appellant's negligence action.

Appellant also argues that respondent's declarations do not negate his strict liability cause of action since the doctrine of strict products liability applies to respondent as a supplier of housing.   Respondent submits that, on the contrary, as a matter of law a landlord does not incur liability under a theory of strict liability for the defective condition of rented premises.

In the landmark case of Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897, our high court announced the rule that, “A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.”  (See also McGee v. Cessna Aircraft Co. (1978) 82 Cal.App.3d 1005, 1012, 147 Cal.Rptr. 694.)  “That rule is equally applicable to the manufacturer and the retailer.”  (Barrett v. Atlas Powder Co. (1978) 86 Cal.App.3d 560, 564, 150 Cal.Rptr. 339.) 3

The courts have freely applied strict liability in tort law link by link in the marketing chain—“from manufacturer to distributor, to retailer, and so forth.”  (Kasel v. Remington Arms Co. (1972) 24 Cal.App.3d 711, 724, 101 Cal.Rptr. 314.)   California follows a “stream-of-commerce” approach to strict liability, under which “ ‘․ no precise legal relationship to the member of the enterprise causing the defect to be manufactured or to the member most closely connected with the customer is required before the courts will impose strict liability.   It is the defendant's participatory connection, for his personal profit or other benefit, with the injury-producing product and with the enterprise that created consumer demand for and reliability upon the product (and not the defendant's legal relationship (such as agency) with the manufacturer or other entities involved in the manufacturing-marketing system) which calls for imposition of strict liability.”  (Tauber-Arons Auctioneers Co. v. Superior Court, supra, 101 Cal.App.3d 268, 275–276, 161 Cal.Rptr. 789, quoting from Kasel v. Remington Arms Co., supra, 24 Cal.App.3d 711, 725, 101 Cal.Rptr. 314.)   The strict products liability doctrine extends to all those who “are engaged in the business of distributing goods to the public” as an “integral part of the overall producing and marketing enterprise” for the product in question.  (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262, 37 Cal.Rptr. 896, 391 P.2d 168;  Tauber-Arons, supra, at p. 275, 161 Cal.Rptr. 789.)   Thus, participation in the marketing enterprise by which distribution of the product to the consuming public is effected in more than a “random and accidental role” justifies imposition of strict liability.   (Tauber-Arons, supra, at p. 277, 161 Cal.Rptr. 789;  Garcia v. Halsett (1970) 3 Cal.App.3d 319, 326, 82 Cal.Rptr. 420.) 4

Landlords have been included within the scope of the strict products liability doctrine.   For example, in Fakhoury v. Magner (1972) 25 Cal.App.3d 58, 101 Cal.Rptr. 473, the lessee of a furnished apartment—injured when the couch supplied by her landlord collapsed under her—sued on a theory of strict liability.   The court concluded that the landlord was strictly liable as lessor of the defective furniture rather than as lessor of furnished real property.  (Id., at p. 63, 101 Cal.Rptr. 473.)

Subsequently, in Golden v. Conway, supra, 55 Cal.App.3d 948, 128 Cal.Rptr. 69, this court extended the doctrine of strict products liability to a landlord who supplied and installed, through an independent contractor, a defective wall heater in an unfurnished apartment.   Relying upon Fakhoury, we found no reason to distinguish between furniture and appliances attached to realty, and concluded that a “lessor of real property who, as the landlord in this case, is engaged in the business of leasing apartments and appurtenant commercial premises, equips the premises with an appliance without knowing whether or not it is defective because of the manner in which it is manufactured or installed, and it proves to have defects which cause injury to persons or property when used in a normal manner, is strictly liable in tort.”  (Id., at pp. 961–962, 128 Cal.Rptr. 69.)

 Here, respondent is in the business of leasing apartments, including appliances and fixtures, and is therefore an integral part of the marketing enterprise by which the shower door in question reached the user public.   In Green v. Superior Court, supra, 10 Cal.3d 616, 627, 111 Cal.Rptr. 704, 517 P.2d 1168, our high court observed:  “In most significant respects, the modern urban tenant is in the same position as any other normal consumer of goods.  [Citation.]  Through a residential lease, a tenant seeks to purchase ‘housing’ from his landlord for a specified period of time.   The landlord ‘sells' housing, enjoying a much greater opportunity, incentive and capacity than a tenant to inspect and maintain the condition of his apartment building.   A tenant may reasonably expect that the product he is purchasing is fit for the purpose for which it is obtained, that is, a living unit.   Moreover, since a lease contract specifies a designated period of time during which the tenant has a right to inhabit the premises, the tenant may legitimately expect that the premises will be fit for such habitation for the duration of the term of the lease.   It is just such reasonable expectations of consumers which the modern ‘implied warranty’ decisions endow with formal, legal protection.”   The landlord is a vital link in the commercial chain, and directly profits from the consumer's use of products provided as part of the rental unit.   We think it a reasonable rule that a landlord should be treated as a “retailer” of rental housing, subject to liability for defects in the premises rented.

In reaching this conclusion, we have considered that the salutary policies underlying the strict products liability doctrine will be furthered by inclusion of landlords within its scope.   According to our high court, “the paramount policy to be promoted by the rule is the protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them.”  (Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 251, 85 Cal.Rptr. 178, 466 P.2d 722;  see also Tauber-Arons Auctioneers Co. v. Superior Court, supra, 101 Cal.App.3d 268, 283, 161 Cal.Rptr. 789.)  “Placing the economic burden of injuries on those best able to pay for those costs while permitting the transfer of that burden to those most culpable is consistent with the equitable considerations inherent in the resolution of the difficult problems which have been judicially posed.”   (Rawlings v. D.M. Oliver, Inc. (1979) 97 Cal.App.3d 890, 901, 159 Cal.Rptr. 119.)   The landlord receives the financial benefit from the tenants' use of appliances included in rental housing, and has the ability to spread the cost of compensation throughout the marketing system by obtaining insurance or otherwise accounting for the risk of loss.   In addition, the landlord has control over the rental premises, which provides the means by which the possible harm from defective appliances or fixtures can be eliminated.

We find the cases relied upon by respondent unpersuasive.   In both Tauber-Arons Auctioneers Co. v. Superior Court, supra, 101 Cal.App.3d 268, 161 Cal.Rptr. 789, and LaRosa v. Superior Court (1981) 122 Cal.App.3d 741, 176 Cal.Rptr. 224 it was held that a dealer in used products acting merely as an agent for the seller or manufacturer, and who has no other connection with the product, cannot be held strictly liable in tort for its defective condition.   In contrast, here respondent played no such random and accidental role in the marketing of the untempered glass shower doors;  rather, it directly provided the product to tenants for their use, thus actively entering the marketing enterprise for that product.

It is vigorously argued as a reason for exclusion of respondent from liability as a matter of law, that it was not the owner of the building when the allegedly defective product was installed.   Once IRM became the landlord, however, it acted in effect as distributor or supplier of housing, with authority and ability to monitor all products so furnished, including appliances and fixtures in the apartments.   And by failing to remove shower doors made of untempered glass, respondent maintained the distribution of these appliances to its tenants.

Respondent argues with equal force that it reasonably ought not to incur liability for the defective shower doors because it had no notice of the defect.   We disagree, since we regard notice as irrelevant to the strict liability analysis.

 The doctrine of strict products liability is based upon a defect in the product, and can arise from an unsafe design as well as from faults attributable to the manufacturing process.  (Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 475, 85 Cal.Rptr. 629, 467 P.2d 229.)

 While the operative term “defect” is not capable of precise definition, and is concededly an amorphous and elusive concept, it does not require proof that the defective design renders the product “unreasonably dangerous” to the unsuspecting customer.  (Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 133, 104 Cal.Rptr. 433, 501 P.2d 1153;  McGee v. Cessna Aircraft Co., supra, 82 Cal.App.3d 1005, 1015, 147 Cal.Rptr. 694;  Buccery v. General Motors Corp. (1976) 60 Cal.App.3d 533, 544, 132 Cal.Rptr. 605.)   On the other hand, of course, neither does the concept of strict liability make the manufacturer an absolute insurer of its product.  (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 733, 144 Cal.Rptr. 380.)

Our high court has suggested that issue of defectiveness can best be resolved by resort to the “cluster of precedents” forming the crucible in which the products liability doctrine has been forged and shaped.  (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 428, 143 Cal.Rptr. 225, 573 P.2d 443;  Cronin v. J.B.E. Olson Corp, supra, at p. 134, 104 Cal.Rptr. 433, 501 P.2d 1153.)   In Barker, supra, the court enumerated the following as standards to be employed in determining whether a product is defectively designed:  “First, a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.   Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product's design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.”  (Id., at p. 432, 143 Cal.Rptr. 225, 573 P.2d 443.)

 In evaluating the adequacy of a product's design pursuant to these standards, a jury may consider, among other relevant factors:  the gravity of the danger posed by the challenged design;  the likelihood that such danger would occur;  the mechanical feasibility of a safer alternative design, the financial cost of an improved design;  and the adverse consequences to the product and the consumer that would result from an alternative design.   (Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 431, 143 Cal.Rptr. 225, 573 P.2d 443;  Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 367, 131 Cal.Rptr. 78, 551 P.2d 398;  Southern Cal. Edison Co. v. Harnischfeger Corp. (1981) 120 Cal.App.3d 842, 854, 175 Cal.Rptr. 67.)   The cases have recognized the “need to ‘weigh’ competing considerations in an overall product design, in order to determine whether the design was ‘defective.’ ”  (Daly v. General Motors Corp., supra, 20 Cal.3d 725, 746, 175 Cal.Rptr. 67;  emphasis added.)

 The strict liability doctrine also “ ‘requires a manufacturer to foresee some degree of misuse and abuse of his product, either by the user or by third parties, and to take reasonable precautions to minimize the harm that may result from misuse and abuse․’ ”  (Buccery v. General Motors Corp., supra, 60 Cal.App.3d 533, 546, 132 Cal.Rptr. 605;  Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, 7, 116 Cal.Rptr. 575.)   Strict liability should not be imposed upon a manufacturer when injury results from a use of its product that is not reasonably foreseeable.  (Cronin v. J.B.E. Olson Corp., supra, 8 Cal.3d 121, 126, 104 Cal.Rptr. 433, 501 P.2d 1153;  Self, supra, at p. 7, 116 Cal.Rptr. 575.)   But as the court acknowledged in Cronin, supra:  “The design and manufacture of products should not be carried out in an industrial vacuum but with recognition of the realities of their everyday use.”  (Id., at p. 126, 104 Cal.Rptr. 433, 501 P.2d 1153;  Buccery, supra, at p. 546, 132 Cal.Rptr. 605;  Self, supra, at p. 7, 116 Cal.Rptr. 575.)   The prospect of liability for injuries resulting from foreseeable abuse and misuse “keeps the manufacturer on his toes and thereby serves a socially useful purpose.”  (Self v. General Motors, supra, 42 Cal.App.3d at p. 8, 116 Cal.Rptr. 575.)

 Since, surely, slip-and-fall accidents in the bathroom are common enough to be reasonably foreseeable to those who supply bathroom appliances to tenants, appellant's strict liability claim ought not to be defeated simply because his use of the product was unintended.   And, as to respondent's lack of notice, we regard this as part of the defect issue, properly one of fact which remains to be litigated.   Accordingly, we find error in entry of summary judgment for respondent on the strict liability cause of action.

The judgment is reversed, and the case remanded to the trial court for proceedings consistent with the views expressed herein.

I concur in the conclusion of my colleagues that the judgment should be reversed, insofar as that decision is based upon the “foreseeability of risk [presenting] a triable issue of fact best left for resolution by the jury.”

I respectfully dissent, however, from their conclusion that the doctrine of strict products liability should be extended to every tenant who in the future is injured in rental premises allegedly because of a “defect,” particularly given the type of defect involved in the instant case.

This result is reached by building on the collapsed couch of Fakhoury v. Magner (1972) 25 Cal.App.3d 58, 101 Cal.Rptr. 473, and the defective wall heater of Golden v. Conway (1976) 55 Cal.App.3d 948, 128 Cal.Rptr. 69.   To these cases is added language from Green v. Superior Court (1974) 10 Cal.3d 616, 111 Cal.Rptr. 704, 517 P.2d 1168, in which the Supreme Court held that a tenant could raise his landlord's breach of an implied warranty of habitability as a defense in an unlawful detainer action.

Unlike Fakhoury, in which the tenant simply sat down on the couch and unlike Golden, in which the tenant played an entirely passive, inactive role, appellant slipped and fell.

Unlike Green, which was not an injury case at all and in which the city inspectors had found some 80 housing code violations in the building and had scheduled a condemnation hearing and the tenant had produced “a long list of serious defects ․ which had not been repaired by the landlord after notice,” (Green v. Superior Court, supra, 10 Cal.3d 616, 621, 111 Cal.Rptr. 704, 517 P.2d 1168), appellant does not allege any lack of habitability.

Notwithstanding this frail foundation, the majority notes that “[t]he courts have freely applied strict liability in tort law” elsewhere and chooses, therefore, to adopt the “rule that a landlord should be treated as a ‘retailer’ of rental housing, subject to liability for defects in the premises rented.”   To do so, however, ignores many basic differences between the “retailing” of rental housing and the retailing of manufactured products.

Concerns of the type expressed in Dwyer v. Skyline Apartments, Inc., (1973) 123 N.J.Super. 48, 52, 301 A.2d 463, 467, affd. 63 N.J. 577, 311 A.2d 1, remain valid:

“Such a landlord is not engaged in mass production whereby he places his product—the apartment—in a stream of commerce exposing it to a large number of consumers.   He has not created the product with a defect which is preventable by greater care at the time of manufacture or assembly.   He does not have the expertise to know and correct the condition, so as to be saddled with responsibility for a defect regardless of negligence.

“An apartment involves several rooms with many facilities constructed by many artisans with differing types of expertise, and subject to constant use and deterioration from many causes.   It is a commodity wholly unlike a product which is expected to leave the manufacturer's hands in a safe condition with an implied representation upon which the consumer justifiably relies.

“The tenant may expect that at the time of the letting there are no hidden dangerous defects known to the landlord and of which the tenant has not been warned.   But he does not expect that all will be perfect in his apartment for all the years of his occupancy with the result that his landlord will be strictly liable for all consequences of any deficiency regardless of fault.   He expects only that in the event anything goes wrong with the accommodations or the equipment therein, the landlord will repair it when he knows or should know of its existence;  and that if injury results liability will attach.”

Other concerns were set forth in 81 Michigan Law Review 99, 121, relating to “the problem of dealing with premises that may be new, but may also be old, with conditions of premises arising after the lease as well as those existing at the time of the lease, the probable lack of recourse by a landlord against suppliers of a building built long in the past, and the need of notice of defects from a tenant who is in control so that the landlord may take corrective action.”

The broad social policy enunciated in applying the doctrine of strict liability to landlords is commendable in theory and, perhaps, in many applications.   However, the record contains no evidence as to the economic or legal consequences of an unqualified extension of the principle to all “retailers” of rental housing.   Inasmuch as I do not know the consequences and inasmuch as such an extension is unnecessary to the decision in the case before us, I dissent from that portion of the majority opinion.

FOOTNOTES

1.   The reasonableness of the defendant's conduct is also a question for the trier of fact.  (Slater v. Alpha Beta Acme Markets, Inc. (1975) 44 Cal.App.3d 274, 278, 118 Cal.Rptr. 561.)

2.   In Stoiber, supra, the court noted that “public policy requires landlords to bear the primary responsibility for maintaining safe, clear and habitable housing” (id., at p. 914, 162 Cal.Rptr. 194), and added:  “․ we believe that under the policy standards articulated in Rowland, a due regard for human safety and health compels the imposition on a landlord of a duty of due care in the maintenance of the premises.”   (Id., at p. 924, 162 Cal.Rptr. 194.)

3.   In fact, as noted in Kasel v. Remington Arms Co., supra, 24 Cal.App.3d 711, 724, 101 Cal.Rptr. 314:  “The following entities besides the manufacturer, obviously the principal one, have been found to be integral components of the particular enterprise responsible for placing alleged defective products on the market:  a lessor (McClaflin v. Bayshore Equipment Rental Co., 274 Cal.App.2d 446 [79 Cal.Rptr. 337] ․ [stepladder] and Price v. Shell Oil Co., 2 Cal.3d 245 [85 Cal.Rptr. 178, 466 P.2d 722] ․ [gasoline truck] );  a developer (Kriegler v. Eichler Homes, Inc., 269 Cal.App.2d 224 [74 Cal.Rptr. 749] ․ [a builder engaged in mass tract development of homes] );  a licensee (Garcia v. Halsett, 3 Cal.App.3d 319 [82 Cal.Rptr. 420] ․ [a launderette owner who was said to have licensed the use of a washing machine to plaintiff] );  a retailer (Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256 [37 Cal.Rptr. 896, 391 P.2d 168] [retailer of a defective automobile] );  and a wholesale-retail distributor (Barth v. B.F. Goodrich Tire Co., 265 Cal.App.2d 228 [71 Cal.Rptr. 306] ․ [who merely distributed tires from his stock on order of the manufacturer] ).”

4.   In Garcia a launderette owner who maintained four rows of coin-operated washing machines manufactured by Philco-Bendix in continuous operation for public use, was held liable as a marketer.   The court observed:  “Although respondent is not engaged in the distribution of the product, in the same manner as a manufacturer, retailer or lessor, he does provide the product to the public for use by the public, and consequently does play more than a random and accidental role in the overall marketing enterprise of the product in question.”  (3 Cal.App.3d at p. 326, 82 Cal.Rptr. 420.)

NEWSOM, Acting Presiding Justice.

BREINER, J.*, concurs.