PETERSON v. PARIBAS (1993)

OPINION

In this matter we review, albeit with extreme reluctance, the trial court's order refusing 1) to allow petitioners Nadine Peterson and Eric Peterson ¹ to amend their declaration of expert witnesses (Code Civ.Proc., § 2034) or 2) to allow Peter Cunliffe and Keith Miller to testify, and 3) its order granting real parties' motion in limine relating to petitioners' theory of strict liability.   In the unpublished portion of this opinion, we find that the court did not abuse its discretion in refusing to permit the addition of new experts but did err in precluding the testimony of Cunliffe and Miller.   In the published portion, we hold that petitioners may proceed on a theory of strict liability.

Why the Petition was Originally Denied **

I.

The Exclusion of Petitioners' Experts **II.Applicability of Strict Liability Doctrine

As described above, the action centers on injuries suffered by Nadine Peterson when she allegedly slipped and fell in a bathtub in a guest room at defendant Hotel.   The trial court, in ruling on a motion in limine, accepted Hotel's argument that the doctrine of strict liability does not apply because a hotel room is not a “product.”

 On this point as well, we conclude that the trial court erred.   The doctrine of strict liability is available to petitioner as a theory of recovery.

In Becker v. IRM Corp. (1985) 38 Cal.3d 454, 464, 213 Cal.Rptr. 213, 698 P.2d 116, the Supreme Court held that “a landlord engaged in the business of leasing dwellings is strictly liable in tort for injuries resulting from a latent defect in the premises when the defect existed at the time the premises were let to the tenant.”   In so holding, the court interpreted the role of a landlord as analogous to that of a seller of manufactured goods—an “integral part of the enterprise of producing and marketing rental housing.”  (Id., at p. 466, 213 Cal.Rptr. 213, 698 P.2d 116.)   We find this holding controlling.

Subsequent cases have distinguished Becker in two primary ways.   Hotel relies on Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 264 Cal.Rptr. 673, in which the court declined to extend the reasoning of Becker in favor of a hospital visitor injured by slipping on a carpet.   The court viewed the crux of the matter as whether the hospital provided a product or a service;  once it held that a hospital provides a service, the conclusion that strict liability did not apply followed ineluctably.   The holding in Becker has also been held inapplicable to leases of commercial property (Muro v. Superior Court (1986) 184 Cal.App.3d 1089, 1098, 229 Cal.Rptr. 383) and to business owners with respect to business invitees injured on the premises.  (Ernest W. Hahn, Inc. v. Superior Court (1991) 1 Cal.App.4th 1448, 1450–52, 3 Cal.Rptr.2d 502, refusing to apply Becker in favor of plaintiffs injured while sitting at tables at Farmers' Market, when a giant bird of paradise tree fell on them.)   In our view, neither approach—the product/services distinction, or the residential/commercial distinction—justifies us in departing from the precedent established by the Supreme Court.

Pierson relies on the distinction between products and services;  Ernest W. Hahn, Inc. stresses the policy underpinnings of Becker—its analogies to the warranty of habitability and the need to ensure safe urban housing.   We find Pierson not on point, and we believe that the hotel guest is similarly situated to the apartment tenant for the purposes of applying Becker.

First, a hotel is in the business of providing a “product” in the same sense as a landlord of an apartment.   Hotel quotes language in Pierson defining “product” as “a physical article which results from a manufacturing process and is ultimately delivered to a consumer” (216 Cal.App.3d at p. 345, 264 Cal.Rptr. 673);  although this may comport with the general understanding, it fails to recognize the broader view taken in Becker.   While a hospital provides room accommodations for the convenience of patients who are receiving medical services—thus arguably justifying the distinction drawn in Pierson—a hotel's basic business is the renting of rooms.   Some hotels, of course, provide numerous services as inducements, but so do some apartment managers;  on the other hand, some hotels and motels provide the bare minimum, with fewer amenities and services than offered in many apartment complexes.   Although the court in Becker did refer to the development of landlord-tenant law in the particular context of protecting low-income renters, noting the development of the doctrine of the warranty of habitability (see 38 Cal.3d at p. 462, 213 Cal.Rptr. 213, 698 P.2d 116, citing Green v. Superior Court (1974) 10 Cal.3d 616, 622, 111 Cal.Rptr. 704, 517 P.2d 1168), nothing in that opinion purports to draw, or justifies drawing, a distinction between the tenant of a barebones housing project and the tenant of a luxury Park Avenue flat.   Similarly, it would be difficult, if not impossible, to draw distinctions between the guests in full-service hotels and those residing in more spartan, do-it-yourself motels.   In all cases, the common factor is that the tenant or guest is purchasing shelter.¹⁸

Several of the considerations which led to the decision in Becker are clearly applicable to hotel guests.   The tenant or guest is in no realistic position to inspect the offered accommodation for defects—the hotel guest less so than the tenant.   Similarly, the hotel guest has no opportunity whatsoever to make repairs.   The landlord or hotel owner, by setting prices, is in a better position to factor the risks of injury and cost of repairs into the equation.  (Becker, at pp. 464–465, 213 Cal.Rptr. 213, 698 P.2d 116.)   Finally, both guest and tenant seek a safe refuge in which they may relax the constant vigilance which life often demands;  both must expose their human vulnerabilities of weariness, sleep, and nakedness.   They are not similarly situated to the commercial lessee (Muro v. Superior Court, supra), or the visitor to commercial premises for the purposes of conducting business or recreation.  (Ernest W. Hahn v. Superior Court, supra.)   Both are entitled to hold the owner to the high standard of absolute liability.

We do realize that the law has historically drawn distinctions between tenants and mere lodgers or hotel guests (See generally Miller & Starr, California Real Estate 2d, Landlord and Tenant, § 18.6, pp. 125–126), and that we have discovered in the law no zeal to extend the protections of, for example, the warranty of habitability to mere lodgers.   We would not disagree with the proposition that a transient hotel guest dissatisfied with his accommodation need not disrupt his life, but can simply pack his suitcase and leave;  thus he may not require the protection of a rule which permits him to use his rent to cure intolerable conditions, or resist eviction.   However, this does not mean that lodgers and tenants do not need the same protections against dangerous condition in their “home,” however temporary.¹⁹

We are also aware that other jurisdictions have rejected strict liability for hotel owners.  (See e.g. Wagner v. Coronet Hotel (1969) 10 Ariz.App. 296, 458 P.2d 390, 393.)   These authorities, however, were not decided under the guidance of a higher court's determination with respect to landlord's strict liability.   Thus, we cannot consider them persuasive.²⁰

 Finally, Hotel argues that the slipperiness of the tub was a patent defect to which the doctrine of strict liability does not apply.   This question appears to be an open one.  (See diss. opn. of Poche', J., in Vaerst v. Tanzman, supra, 222 Cal.App.3d at p. 1545, 272 Cal.Rptr. 503.)   We need not reach the question, because we cannot find that the slipperiness was a patent defect as a matter of law.   It may be a matter of common knowledge that all tub surfaces tend to be slippery when wet, but we are not persuaded by Hotel's assertion that the allegedly peculiar and extreme slipperiness of the tub in question was obvious to the casual inspection.   Surely petitioner Nadine Peterson was not obliged to measure the coefficient of friction before deciding whether the tub was safe to use.

 In summary, we hold that the proprietor of a hotel in the business of renting rooms to the public may be strictly liable in tort for latent defects in the premises.   Accordingly, the trial court erred in ruling that this theory of liability could not be presented to the jury.

III

DISPOSITION

The alternative writ having served its purpose, it is hereby discharged.   Let a peremptory writ of mandate issue, directing the superior court to permit testimony by Peter Cunliffe and Keith Miller, as outlined in this opinion, in the retrial of this matter;  and to permit petitioners to proceed upon the theory of strict liability.

FOOTNOTES

1.   Eric Peterson, the husband of Nadine sues for loss of consortium.

FOOTNOTE.   See footnote *, ante.

18.   The lines become still more blurred if one attempts to draw a line between apartments and residential hotels.

19.   Indeed, a lodger may require more protection than a tenant.   Historically, one of the primary factors distinguishing a tenant from a guest or lodger was that the latter never obtained a possessory right;  the owner retained rights of access and caretaking over the premises.   Thus, arguably a lodger is even more dependent on his landlord than is a tenant, and the proprietor of a hotel or lodging house has a better opportunity than the landlord to maintain constant supervision over the premises.

20.   Hotel also points out that courts in other jurisdictions have declined to follow Becker.  (E.g. Armstrong v. Cione (1987) 69 Hawaii 176, 738 P.2d 79.)   This does not relieve us from our obligation to do so, insofar as we find the Supreme Court's authority applicable.  (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   Nor do we deem it particularly fruitful to speculate upon what the high court might do if it revisited the issue.  (Cf. Vaerst v. Tanzman (1990) 222 Cal.App.3d 1535, 1541, at fn. 2, 272 Cal.Rptr. 503, noting that Chief Justice Lucas and Justice Mosk “vigorously dissented” from the holding in Becker.)

DABNEY, Acting Presiding Justice.

HOLLENHORST and TIMLIN, JJ., concur.