NOLEN v. BLODGET (1991)

OPINION

STATEMENT OF THE CASE

Plaintiff Lucinda Summers Nolen, her husband Donnie Lee Nolen, Sr.,¹ and their minor children filed a complaint alleging negligent infliction of personal injuries and wrongful death arising out of a fire at their rental apartment.   Defendant Vivian Blodget filed a cross-complaint for equitable indemnity, naming Mr. and Mrs. Nolen as defendants, based on allegations of comparative fault contributing to the injuries to the children.   An amended complaint added theories of breach of warranty of habitability, negligence per se (violation of statute), products liability, and allegations to support a claim of punitive damages.

Defendant Blodget and her insurer settled with the minor plaintiffs for $1.1 million, which was approved by the court.   Donnie Lee Nolen, Sr., was dismissed as a plaintiff prior to trial.   Plaintiff Lucinda Nolen and her children entered into settlements with defendant John Pixler, defendant Dale Ripley, and defendant Richard Pritzkau.

Plaintiff Lucinda Nolen proceeded to trial against defendant Blodget, and the jury returned a verdict for plaintiff Nolen of $1,702,682.   A special verdict was entered finding defendant Blodget 40 percent responsible and plaintiff Lucinda Nolen 15 percent responsible for plaintiff's injuries and also for the children's injuries (the balance was attributed to others).   The jury found there were no latent defects in the premises.   The trial court entered judgment for plaintiff in the amount of $1,447,279.70 ($1,702,682 less the 15 percent comparative fault attributable to plaintiff).

Defendant Blodget filed motions for judgment notwithstanding the verdict and for vacation of judgment and entry of another and different judgment.   Defendant Blodget also filed a motion to tax costs, objecting to plaintiff's memorandum of costs which included expert witness fees and prejudgment interest pursuant to Civil Code section 3291.   The trial court denied the motion for judgment notwithstanding the verdict.   The motion to vacate (Code Civ.Proc., § 663) was granted in part allowing defendant Blodget an offset of $277,000 against the judgment based on the plaintiff's pretrial settlement proceeds from other defendants.

The motion to tax costs was granted as to expert witness fees and prejudgment interest.   The court's ruling on the motion to tax costs was based on a determination that plaintiff's pretrial Code of Civil Procedure section 998 offer was a nullity since it was an unapportioned joint offer.

In its statement of decision, the superior court further reduced the monetary award by $165,000, i.e., 15 percent of the $1.1 million settlement between defendant Blodget and the minor plaintiffs, based on Blodget's cross-complaint for indemnity against Nolen and the jury's finding that plaintiff Nolen was 15 percent responsible for the injuries suffered by the children.

Defendant Blodget appeals the judgment and the order denying her motion for judgment notwithstanding the verdict.   Plaintiff Nolen appeals from the order granting defendant's motion vacating the judgment and entering a new and different judgment, and from the order on defendant's motion to tax costs.   We affirm.

STATEMENT OF FACTS

Defendant Blodget inherited numerous rental properties from her husband's estate subsequent to his death in December 1979.   One of the rental properties was an apartment building (the Haley Street apartments) in Bakersfield, California.   In September 1983, Lucinda Summers Nolen, her four children, and Donnie Nolen, Sr., lived in unit 4 of the Haley Street apartments.   Nolen complained to the Kern County Health Department about the conditions of unit 4.   The Kern County Health Department determined there were numerous code violations in existence in unit 4, including lack of heating, insect and rat infestation, holes in flooring and walls, unrepaired fire damage, leaking metal shower, and a broken and leaking sewer line beneath the building.   The Kern County Health Department sent defendant Blodget a “Notice and Order to Repair and Rehabilitate a Substandard Building” relating to unit 4.   In February 1984, Nolen, her children and Donnie Nolen, Sr., moved into unit 3.   The apartment building was not equipped with smoke detectors.   There was evidence presented regarding other fires in properties under the ownership of Blodget.

Blodget listed the property for sale and it was purchased “as is” by Richard Pritzkau.   Pritzkau had never purchased or owned real property before.   Pritzkau borrowed money from his father for the down payment, and Blodget retained a first trust deed on the property.   Escrow on the sale closed, and the deed from Blodget to Pritzkau was recorded on Friday, July 6, 1984.   The sales closing statement provided that the rents would be prorated through the close of escrow.

Pritzkau testified that he inspected the property before escrow closed, but he did not think about nor was he looking for smoke detectors.

In the early morning hours of July 8, 1984, a fire broke out in unit 3.   Nolen and her two daughters were horribly burned.   Nolen's youngest child died in the fire.

There was conflicting evidence regarding the probable source of the fire.   Plaintiff's expert testified the point of origin was a swamp cooler on the roof, and the cause was defective wiring.   Captain Goatcher of the Bakersfield Fire Department testified the point of origin was in the living room, probably from a carelessly discarded match or cigarette.   A defense expert concluded the wiring in the swamp cooler was not the cause of the fire.

Captain Goatcher testified the fire was a “smoldering” one and that a smoke detector would have made a significant difference in the ability of the Nolen family to escape the fire.   Captain Goatcher indicated that in his 21 years of experience with the Bakersfield Fire Department, he had never responded to a fire with smoke detectors in use where an occupant had sustained severe burns or death.

DISCUSSION

I.DEFENDANT'S APPEALIS DEFENDANT BLODGET RELIEVED OF LIABILITY AS A MATTER OF LAW BASED UPON THE CHANGE OF TITLE TO AND POSSESSION OF THE PREMISES?

 Defendant Blodget contends that she could not be liable for injuries caused by patent defects in the apartment because she transferred title prior to the fire.   She concludes that in light of the jury's finding there were no latent defects in the premises, she is entitled to judgment as a matter of law.   We disagree.

Civil Code section 1714, subdivision (a), provides in relevant part:  “Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property․”  The case of Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, looked to the broad language of Civil Code section 1714 and adopted the basic approach of foreseeability of injury to others for the owner or possessor of land, repudiating the former trespasser-licensee-invitee classifications of duties.   (Id. at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561).

The court in Rowland recognized that some exceptions have been made to the general principle that a person is liable for injuries due to his failure to exercise reasonable care.   However, in the absence of statutory provision declaring an exception to the principle enunciated in Civil Code section 1714, no such exception should be made unless supported by public policy.   The court held that to depart from the principle enunciated in Civil Code section 1714 the court must consider several factors.   Specifically the court stated,

“A departure from this fundamental principle involves the balancing of a number of considerations;  the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the 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 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.  [Citations.]”  (69 Cal.2d at pp. 112–113, 70 Cal.Rptr. 97, 443 P.2d 561.)

In the present case, the jury found the negligence of Blodget (the failure to install smoke detectors) was the proximate cause of the injuries to the plaintiff.   Blodget concedes the evidence before the jury was sufficient to support a finding of negligence.   However, Blodget contends as a matter of law she is not liable to the plaintiff based on her status as vendor of the premises in light of the jury finding no latent defects in the premises.   Blodget relies on sections 352 and 353 of the Restatement Second of Torts.   Section 352 provides:

“Except as stated in § 353, a vendor of land is not subject to liability for physical harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession.”

Section 353 of the Restatement Second of Torts provides:

“(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if

“(a) the vendee does not know or have reason to know of the condition or the risk involved, and

“(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk.

“(2) If the vendor actively conceals the condition, the liability stated in Subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it.   Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions.”

The leading case regarding the continuing liability of a vendor is Preston v. Goldman (1986) 42 Cal.3d 108, 227 Cal.Rptr. 817, 720 P.2d 476.   In Preston, the Kubichans purchased a home and built a pond with a fountain in their backyard.   The improvement was a weekend project costing approximately $130.   The land was sold to Goldman.   Goldman entered into a lease-option to buy agreement with the Reids who took possession.   The Reids, who had small children, were aware of the pond's depth and configuration and at one point emptied the pond.   The Reids also made certain improvements to the facing of the pond.   Plaintiff Clinton Preston, a 22–month–old infant, and his parents visited the Reids.   Clinton was found immersed in the pond which resulted in severe permanent brain damage and quadriplegia.   Plaintiff filed suit against the Goldmans, the Reids and the Kubichans.   The jury instructions regarding the Kubichans' potential liability were based on the Restatement Second of Torts provisions cited above.   The jury found the Kubichans were not negligent.   The Court of Appeal held the instruction was in error, holding that a vendor who actually creates an unreasonably dangerous condition on his land is liable in the same manner as a nonvendor because his liability arises from his status as creator of the condition rather than as owner of the land.

The Supreme Court noted that the instruction to the jury was based on the two Restatement Second of Torts provisions and on the case of Copfer v. Golden (1955) 135 Cal.App.2d 623, 288 P.2d 90.   In Copfer, four parties owned certain real property.   In 1952 three of the owners conveyed their interest to the fourth owner, who used the real property for storage of various material and equipment used in the course of his business.   In 1953 a child playing on the property was injured and suit was filed against the original four owners.   The court found only the fourth owner could be liable, reciting the general rule “a grantor of land is not subject to liability for injury sustained by a third person while upon the land after the grantee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time the grantee took possession.”  (Id. at p. 630, 288 P.2d 90.)

The plaintiffs in Preston attempted to distinguish the Copfer case on the basis that, unlike the situation in Preston, the three former owners had taken no affirmative action in creating the condition.   The Supreme Court held the active or passive role of the former owner in creating the condition was not significant to the question of liability.   The Supreme Court noted the Copfer court found the former owners were not liable primarily based on their lack of control as to (1) the condition of the premises, and (2) the entry of persons on the property.  (42 Cal.3d at p. 114, 227 Cal.Rptr. 817, 720 P.2d 476.)

The Supreme Court in Preston noted that the development of predecessor landowner's liability has been “somewhat murky.”  (42 Cal.3d at p. 114, 227 Cal.Rptr. 817, 720 P.2d 476.)   Three separate approaches have arisen.   The first, based on the doctrine of caveat emptor, holds the vendee is required to make his own inspection of the premises, and the vendor is not responsible for defective conditions existing at the time of the transfer.   The second view adopts caveat emptor with two exceptions:  (1) the vendor is under a duty to disclose any hidden defects which the vendee might not discover, and (2) the vendor may be liable where the land is in a condition that involves unreasonable risk to those outside the premises.   The third approach is that the vendor remains responsible if he negligently created a dangerous condition.  (Id. at pp. 115–116, 227 Cal.Rptr. 817, 720 P.2d 476.)

The court in Preston did not accept the plaintiffs' theory of liability based on the Kubichans' status as creators of the negligent condition.   The extension of liability of landowners for natural conditions of the land has been based on possession of the premises and the right to control and manage the land.  “Thus, generally, we have continued to treat ownership and control as a fundamental requirement for ascribing liability.”  (42 Cal.3d at p. 119, 227 Cal.Rptr. 817, 720 P.2d 476.)   The court also noted the defect was patent.   As the statute of limitations for patent defects demonstrates (by its shorter limitations period as well as by its exemptions for professionals engaged in home improvement), the Legislature intended to limit liability for those not having a continuing opportunity to discover and correct the defects.  (Id. at p. 125, 227 Cal.Rptr. 817, 720 P.2d 476.)   The court concluded:

“After consideration of the relevant variables reviewed above, we have concluded that we should not depart from the existing rules restricting liability of predecessor landowners.   Our recent emphasis on the importance of possession and control as a basis for liability comports with our conclusion, as does our analysis of the factors enunciated in Rowland v. Christian, supra, 69 Cal.2d at pages 112–113 [70 Cal.Rptr. 97, 443 P.2d 561]․

“․

“Weighing all the factors involved, primary importance in ascribing liability here must be placed upon ownership and control of property.   Therefore, we will reverse the Court of Appeal's determination that the judgment for the Kubichans should be reversed, on the ground that the trial court's instruction, utilizing the concepts embodied in Copfer v. Golden, supra, 135 Cal.App.2d 623 [288 P.2d 90], and sections 352 and 353 of the Restatement Second of Torts, was proper.”  (42 Cal.3d at pp. 125–126, 227 Cal.Rptr. 817, 720 P.2d 476.)

The court in Preston expressly limited its holding, stating, “[o]ur holding here relates only to the liability of ‘do-it-yourself’ home improvers and is not intended to affect, establish, or diminish any liability of commercial builders, contractors or renovators.”  (42 Cal.3d at p. 126, fn. 10, 227 Cal.Rptr. 817, 720 P.2d 476.)

Both parties to this appeal rely on Preston v. Goldman, supra, 42 Cal.3d 108, 227 Cal.Rptr. 817, 720 P.2d 476 as authority.   Blodget focuses on her status as vendor, arguing that the case, along with the Restatement Second provisions, absolutely absolves her of liability based on the change of title and the jury's finding of no latent defects in the premises.   Nolen points out that the Supreme Court expressly limited its holding to the “do-it-yourself” home improver.   Nolen also argues the Preston case analyzed the factors of Rowland v. Christian, supra, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 in reaching its determination, and that the application of those factors in the present case mandates affirmation of the jury's determination that Blodget is liable.

Defendant cites several out-of-state cases wherein a prior lessor was not held liable for a tenant's injuries.  (See Sosebee v. Hiott (1981) 157 Ga.App. 768, 278 S.E.2d 700 [prior owner not liable for burns suffered by tenant in fire occurring four days after sale];  Anderson v. Cosmopolitan National Bank of Chicago (1973) 54 Ill.2d 504, 301 N.E.2d 296 [vendor not liable for injuries to tenant's child who was injured by falling on defective stairs six days after sale];  Bailey for Bailey v. Gammell (1983) 34 Wash.App. 417, 661 P.2d 612 [former owner not liable for injuries to invitee of lessee injured on obvious dark and steep basement stairway].   Each of these cases was based on the Restatement Second of Torts or the doctrine of caveat emptor.

Defendant also relies on the case of Becker v. IRM Corp. (1985) 38 Cal.3d 454, 213 Cal.Rptr. 213, 698 P.2d 116, wherein a tenant slipped and fell against an untempered glass shower door.   Had the door been made of tempered glass the injury would have been much less severe.   The tenant lived in a 36–unit apartment which had been built in 1962 and purchased by the defendant in 1974.   The only way to ascertain that the shower doors were untempered glass was a very small mark in the corner of each piece of glass.   There were no prior accidents involving the shower doors and defendant's officers did not know until the accident that the glass was untempered.   The Supreme Court held that a purchaser of rental property will be liable for any injuries caused by a dangerous condition which would be disclosed by a reasonable inspection.   (Id. at pp. 468–469, 213 Cal.Rptr. 213, 698 P.2d 116.)

However, even assuming that Becker establishes that the jury could have found Pritzkau negligent, it does not establish that under these facts Blodget is absolved of liability as a matter of law.   The Preston case clearly holds that sections 352 and 353 of the Restatement Second of Torts is the law in California.   Reviewing sections 352 and 353, section 352 sets forth the rule of nonliability and section 353 establishes the exception.   In order to establish an exception to a vendor's post-possession nonliability, subdivision (1) of section 353 requires the existence of the following factors:

(1) A condition of land which involves unreasonable risk to persons;

(2) A vendor who:

(a) knows or has reason to know of the condition and

(b) realizes or should realize the risk involved and

(c) conceals or fails to disclose the condition and

(d) has reason to believe the vendee will not discover the condition or realize the risk;

(3) A vendee who does not know or have reason to know of the condition or risk involved.

 If each of the above factors is established, the exception applies and the vendor's liability continues.   Subdivision (2) of section 353 establishes the duration of the vendor's liability.   For active concealment, the vendor's liability continues until the vendee discovers the condition and has had a reasonable opportunity to take precautions.   If the concealment is not active, the vendor's liability continues until the vendee has had a reasonable opportunity to discover the condition and take precautions.

Defendant places substantial importance upon the jury finding no “latent” defect.   Apparently this results from defendant's underlying assumption that section 353 applies only to latent defect situations.   Defendant further reasons the section 353 exception being found inapplicable, the nonliability rule of section 352 controls as a matter of law.   We do not agree that section 353 applies only to latent defects.   In our view, if all the factors are present, it applies just as rationally to patent conditions as latent.   Nor do we find any indication in Preston that the Supreme Court limited the applicability of section 353 to only those cases where a latent condition was present.   The court's discussion of “latent” and “patent” appears not in its discussion of the Restatement sections but rather in its discussion of certain statutes of limitation using those specific terms.   Such discussion was part of its review of public policy considerations reflective of legislative intent to limit liability for those who did not have the continuing opportunity to discover and correct such defects.   After reviewing this as one of several relevant variables, the court concluded not to depart from the existing rules (Rest.2d Torts, §§ 352, 353) restricting predecessor landowner liability.  (Preston v. Goldman, supra, 42 Cal.3d at pp. 121–125, 227 Cal.Rptr. 817, 720 P.2d 476.)

The jury here was instructed based on sections 352 and 353.   Unfortunately, the special verdict was not framed in terms of the Restatement Second of Torts sections.   Section 353 of the Restatement Second of Torts does not refer to “patent” or “latent” defects, it speaks of failure to disclose any condition which involves “unreasonable risk” to persons on the land.   Under the present facts, the lack of smoke detectors was plain to be seen.   Based upon the evidence of prior fires in Blodget's rental properties and the appalling conditions of the apartments where this fire occurred, the jury could reasonably have found that Blodget knew of the fire danger (or reasonably should have known) and should have realized the risk to tenants who did not have smoke alarms in their apartments.   Further, the jury could reasonably find that Blodget had reason to believe that the buyer, Pritzkau, a young man, unsophisticated in matters of realty, would not realize the risk presented by the lack of smoke detectors.   The jury could have found that the unsophisticated Pritzkau, with no knowledge of the history of the apartments, would not have reason to know of the significance of the lack of smoke detectors.

Thus, the factors of section 353 reasonably apply here to what would be considered a “patent” defect—the lack of a smoke detector on the ceiling of a rental apartment.   The jury could have reasonably found that because all the factors of subdivision (1) of section 353 are satisfied, Blodget's liability continued and Pritzkau had not yet had a reasonable opportunity to discover the risk and take precautions.   The special verdict assigning zero liability to Pritzkau is consistent with this scenario.

The parties here do not raise any issue regarding the sufficiency of the form of the special verdict.   Nor is error claimed with regard to the jury instructions.   Under the general principle that the verdict should be construed in light of applicable law (see Curtis v. San Pedro Transp. Co. (1935) 10 Cal.App.2d 547, 549, 52 P.2d 528), the judgment against Blodget may be affirmed.   The evidence before the jury was sufficient for it to conclude that based on section 353 of the Restatement Second of Torts, Blodget, having reason to know thereof, failed to disclose to Pritzkau a condition creating an unreasonable risk (lack of smoke detectors) and that she should have realized that Pritzkau would not have recognized the risk.   Her liability continued in light of Pritzkau's lack of reasonable opportunity to discover the risk and install the smoke detectors.

II.

PLAINTIFF'S APPEAL***

DISPOSITION

The judgment is affirmed.   The parties shall bear their own costs on appeal.

FOOTNOTES

1.   Plaintiff and Donnie Nolen, Sr., were not married until after this lawsuit was filed.

FOOTNOTE.   See footnote *, ante.

HARRIS, Associate Justice.

BEST, P.J., and DIBIASO, J., concur.