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JOHNSTON v. DE LA GUERRA PROPERTIES, Inc., et al.*
From a judgment in favor of defendants predicated upon the granting of defendants' motion for a nonsuit in an action to recover damages for personal injuries, plaintiff appeals.
The evidence being viewed in the light most favorable to plaintiff (appellant), as it must be considered on appeal from a judgment predicated upon the granting of a motion for a nonsuit (In re Estate of Flood, 217 Cal. 763, 768, 21 P.2d 579), the essential facts are:
Defendant De La Guerra Properties, Inc., was the owner of a parcel of property situated on the southwesterly corner of Anacapa and De La Guerra streets in the city of Santa Barbara. Defendant Smith operated a restaurant in one of the buildings located on this property, known as the El Paseo, under a tenancy with his co-defendant.
The northerly property line of the De La Guerra property joined the southerly property line of a service station and a parking lot owned by the Union Oil Company. The De La Guerra building on its northerly side was approximately ten feet south of the property line. Between the northerly face of the building and the property line was a cement walk approximately ten feet wide. This walk was constructed in 1928, or 1929, and abutted the entire length of the north face of the building and at the easterly end joined the public sidewalk on Anacapa Street. The westerly end of the sidewalk terminated at the back of El Paseo. The walkway was used as a service entrance to the various establishment in the building. There were three doors to the building opening onto the walkway.
On Anacapa Street westerly to the end of the walkway there was a one foot rise in grade. The oil station property adjoining the defendants' property was at approximately the same elevation as defendants' property at Anacapa Street, but increased in elevation in a westerly direction to where the level at the westerly end was approximately two feet higher than the walkway extending along the northerly edge of defendants' property.
From the time the walkway was built until about 1936, defendant De La Guerra's patrons had used the property, later acquired by the Union Oil Company, as a parking lot at which time they had graded the property, landscaped it, and sloped it to the walkway on the northerly side of the building. The Union Oil Company purchased the parkway about 1936 and thereafter neither defendant had anything to do with the service station, the parkway, nor the maintenance thereof. At the time the Union Oil Company took over the service station they constructed a concrete wall close to the southerly edge of their property running the entire length of defendants' walkway. This wall rose from approximately six inches above the walkway at the easterly end to two feet at the westerly end. The wall was entirely on the Union Oil Company's property and was planned and erected entirely by said company. Immediately north of the wall was an area ten feet wide which was dirt and landscaped with shrubbery. Bordering this, to the north, was a concrete curb approximately seven inches high separating the landscaped dirt portion from the asphalt pavement of the oil station property. Upon the asphalt pavement there were white lines painted on the surface of the black pavement extending from the seven-inch curb outward diagonally to indicate parking spaces for automobiles parking against the curb.
The concrete wall on the oil station property and the curb to the north thereof were broken by a ramp running from the asphalt parking lot down to the walkway of defendants. This ramp was about in the middle of the south property line of the Union Oil Company's property and was protected on both sides by a concrete wall. The ramp was about three feet wide and sloped downward to the walkway at a grade of about two feet. Directly across the walkway from the ramp was a door leading into the defendants' property, and over which was a sign indicating the El Paseo restaurant. The ramp was entirely on the Union Oil Company's property and was designed and constructed by said company.
At about 8 p.m., November 7, 1943, plaintiff was driven by her husband to the oil station property where they parked their car. Plaintiff alighted from the car. The night was dark though she could see the glass of the doorway leading to the El Paseo restaurant. She could see where she was walking, but thought there was a low step from the station property to the walkway.1 She took about six steps in the darkness, picking her way as she walked along. She put her left foot on the top of the concrete wall, stepped down with her right foot and fell onto the walkway adjacent to defendants' property. As a result of the fall she received personal injuries.
Defendants' motion for a nonsuit was granted on the ground, among others, that the evidence showed without conflict that the accident happened on property owned and controlled by the Union Oil Company and not by defendants or either of them.
This is the sole question necessary for us to determine:
Did the foregoing evidence disclose that plaintiff did not have a cause of action against defendants or either of them?
This question must be answered in the affirmative and is governed by these pertinent rules of law:
1) The law is established in California that an invitee is not entitled to recover damages from an invitor for alleged negligence of the latter in not using reasonable care for the protection and safety of its invitee, where the injuries do not occur upon the portion of the premises owned by the invitor but occur on property adjacent thereto owned by another, over which property the invitor does not have any right or control. (Gabriel v. Bank of Italy, 204 Cal. 244, 245, 246, 267 P. 544, 58 A.L.R. 1039; Davis v. West Shore Company, 55 Cal.App.2d 220, 224, 130 P.2d 459.)
2) It is the law that a structure already existing and not otherwise unlawful does not become unlawful when the abutting landowner creates a dangerous condition by altering the character of his property. Galiano v. Pacific Gas & Elec. Co., 20 Cal.App.2d 534, 542 et seq. 67 P.2d 388; Kleinberg v. Schween, 134 App.Div. 493, 119 N.Y.S. 239; Gordon v. Schween, Sup., 117 N.Y.S. 191.
From the foregoing evidence it is clear that in the instant case both of the above stated rules are applicable and relieve defendants from responsibility to plaintiff for these reasons:
First: The accident did not occur upon the property of defendants or either of them; and
Second: The cause of the accident was a wall erected by the Union Oil Company seven or eight years after the sidewalk belonging to defendants had been erected and any dangerous condition that existed was created by the abutting landowner and not by defendants.
Van Wye v. Robbins, 48 Cal.App.2d 660, 120 P.2d 507, relied on by plaintiff is not applicable in the instant case for the reason that in the Van Wye case there was an agreement by the defendant and the owner of the adjacent service station whereby the customers of the defendant were permitted to park their cars free upon the sevice station premises. In the present case there was not any agreement between defendants or either of them and the Union Oil Company whereby customers of defendant could park their cars upon the property of the Union Oil Company.
In view of our conclusions, it is unnecessary to discuss other questions argued by counsel.
For the foregoing reasons the motion for a nonsuit was properly granted and the judgment entered thereon is affirmed.
1. The plaintiff had been to the restaurant on one previous occasion at which time she parked near Anacapa Street in the parkway, then walked toward Anacapa Street and stepped down to the walkway by stepping over a curb about six or seven inches high.
MOORE, P. J., and W. J. WOOD, J., concur.
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Docket No: Civ. 14901.
Decided: July 12, 1945
Court: District Court of Appeal, Second District, Division 2, California.
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