HARRIS v. JOFFE (1945)

This is an appeal by defendant from a judgment for plaintiff in an action for damages.

The facts are summarized in respondent's brief as follows:

‘Appellant was the owner of an apartment house, located at 211 South Fuller Street, Los Angeles, California, containing several apartment. The respondent was one of the tenants in said apartment house, and had lived there since September, 1942.

‘The only entrance from the front of said apartment house was through a vestibule. The floor or said vestibule was finished with tile or a composition material. There were two steps in said vestibule. In order for respondent and other tenants to enter or leave said premises, it was necessary to pass through said vestibule, and the vestibule was at all times under the care, maintenance and control of the Appellant.

‘On the 3rd day of December, 1943, about 8:00 P.M., respondent, going from her apartment to the outside of the building, had to pass through said vestibule. At said time it was dark. There was no light burning in the vestibule. The floor and steps of the vestibule were slippery and without any covering. The condition of the weather was ‘drizzling’; and the condition of the floor was slick and wet.

‘The vestibule contained a lighting fixture with one electric lamp, which was not burning at the time. Respondent and others had notified the Appellant on several occasions prior to December 3, 1943, that the light in the vestibule had not been burning and that the floor was slippery, because of the lack of floor covering. The Appellant, on each occasion when so notified, stated that she would have the vestibule light turned on; but, notwithstanding such notices, she failed to do so and did not have the light burning on the night of December 3, 1943.

‘The Municipal Code of the City of Los Angeles, Section 57.47 entitled ‘Lighting Hallways,’ provides:

“Every person conducting or managing any hotel, lodging house, boarding house, rooming house or apartment house shall, from sunset to sunrise of each day, light every hallway, corridor and stairway thereof so as to enable all persons to readily find, distinguish and use such means and ways of exit therefrom.'

‘On the night of December 3, 1943, about 8:00 P.M., the respondent, in the company of her husband and nephew, had to pass into and through the vestibule. The vestibule was dark. By reason of the darkness, respondent was not able to see the condition of the floor and steps. Respondent slipped and fell and broke her ankle.’

Plaintiff, on direct examination, testified as follows:

‘Q. Now, as you came through the door just state what happened? A. As we came out of the door it was drizzling a little, it was wet.

‘Q. The condition of the weather had been drizzling? A. Yes.

‘Q. Do you know for how long that day it had been drizzling? A. No, I couldn't say because I was in my apartment from early in the evening, and when I came out I discovered it was drizzling.

‘The Court: By ‘drizzling’ you mean a light rain? A. A light rain, yes, Your Honor.

‘Q. By Mr. De Groot: Go ahead and explain what happened. A. The corridor as we stepped out was rather slick.

‘Q. You mean the vestibule? A. Yes, the vestible, and I slipped and fell clear down the steps.

‘Q. When you say ‘slick’ what do you mean? A. Rather slippery.

‘The Court: You mean it was wet? A. Yes.

‘Q. By Mr. De Groot: And do you know how you fell, what caused you to fall outside of being slippery? A. No, it happened so fast.’

It appears, also, that plaintiff had complained several times over a period of several months preceding the accident, of the alleged dangerous condition of the entrance.

It is contended by appellant that there was ‘no showing of negligence on the part of the defendant’; that, ‘if appellant was negligent, then respondent was contributorily negligent in two respects', first, because, with full knowledge of such alleged dangerous condition, ‘she remained upon the premises and thus assumed the risks attendant thereon’, and, second, because, ‘The danger of which she complained was an open and obvious one and was as well known to her as to appellant and with such knowledge she failed to exercise ordinary care for her own safety and protection.’

The trial court found for the plaintiff and, it is respondent's contention that as to contributory negligence, the burden of proof ‘was on the appellant’; that, ‘unless it appears from the transcript of the testimony that there was no basis for such finding, the judgment must be affirmed.’ It is also contended, in substance, that defendant's negligence was the proximate cause of the injury and that the evidence sustains the court's conclusions in this regard.

There appears to be no dispute as to the facts. It is well settled that the issues of negligence and contributory negligence present questions of fact to be determined by the trial court and, that any substantial evidence in support of the findings on such issues will support them on appeal. On the contrary, where there is an absence of substantial evidence, such findings cannot be upheld on appeal.

The parties to the within action were landlord and tenant respectively, hence, the law applicable to such relations, in the circumstances, is controlling. ‘In the absence of fraud, concealment, or covenants in the lease, a landlord is not liable to a tenant for injuries due to defective condition or faulty construction of the demised premises. * * * A qualification of the foregoing rule is that, ‘where a portion of the premises is reserved by the landlord for use in commmon by himself and tenants, or by different tenants, a duty is imposed upon him to use ordinary care to keep those particular portions of the premises in a safe condition; and if he is negligent in this regard, and a pesonal injury results to a tenant by reason thereof, he is liable therefor.’' Ellis v. McNeese, 109 Cal.App. 667, 293 P. 854, 855; Hassell v. Denning, 84 Cal.App. 479, 258 P. 426. But in Nelson v. Myers, 94 Cal.App. 66, 270 P. 719, 722, in an action by a tenant for damages resulting from a defective gas heater, the court declared that, ‘The contributory negligence of a tenant will bar his recovery for injuries sustained from defects of which he has knowledge.’ And, in Priver v. Young, 62 Cal.App. 405, 216 P. 966, 967, an action for damages against the landlord resulting from a defective wallbed it was held that, ‘It must therefore be conclusively presumed that plaintiff was fully aware of the unsafe condition of the bed and, in the absence of any allegation in the complaint setting forth such attendant circumstances as would relieve plaintiff from the inference of contributory negligence, the rule of law that in such circumstances plaintiff assumed all risks which were obvious to ordinary observation would apply and preclude any recovery.’ And, as was quoted in Vosburgh v. Meda, 61 Cal.App.2d 396, 399, 143 P.2d 41, 42, from Mautino v. Sutter Hospital Association, 211 Cal. 556, 561, 296 P. 76, ‘There is no liability for injuries from dangers that are obvious, or as well known to the person injured as to the owner or occupant.’ Colburn v. Shuravlev, 24 Cal.App.2d 298, 74 P.2d 1060, 1061, concerned an action for damages by a tenant for injuries resulting from a fall; plaintiff had tripped on a defective rug. Plaintiff had notified defendant's manager of the defect in the rug and had received the promise that it would be repaired. Referring to the rule herein considered, the court declared that, ‘The purport of these decisions is that, when a tenant voluntarily remains on leased premises with full knowledge of their dangerous or defective condition, he assumes all risks which are obvious to ordinary observation.’ See also Zavalney v. Donovan, 70 Cal.App.2d 182, 160 P.2d 558. Although the facts in the various cases cited are different, nevertheless, the principle involved is the same.

The only evidence of the alleged ‘dangerous' condition of the surface of the entrance consisted of the testimony of the plaintiff. The floor was tile or ‘artificial composition’ and described by the witness according to the testimony quoted above, as, ‘rather slick,’ ‘rather slippery.’ The type of floor, as above described, was not disputed; nor was there any evidence of defective construction. It is common knowledge that tile and composition materials are extensively used both in exterior and interior construction with common and general approval. With regard to the surface of the floor in question, both as to the character thereof and its condition, the record reveals no evidence of a lack of ordinary care. It follows, therefore, that the court's finding of negligence on the part of defendant due to the condition of the floor or the entrance, is not supported by substantial evidence and cannot, as a matter of law, be upheld.

As to respondent's contention that the alleged violation of a city ordinance is negligence per se, it appears to be well settled that, unlss the incident or act constituting such violation also is the proximate cause of the injury, the rule is not applicable. And, the converse of the rule is also true, as the court declared in Flores v. Fitzgerald, 204 Cal. 374, at page 378, 268 P. 369, at page 371, ‘Although the violation of the ordinance may have been negligence per se, yet, as it was not shown that such negligence was the direct or proximate cause of his injury, it will not defeat his right of recovery for damages sustained by reason of said injury.’ ‘The principle the a violation of a statute or ordinance is negligence per se is subject to the limitation that the act or omission must proximately cause or contribute to the injury in order to bar a recovery.’ Burtt v. Bank of California National Association, 211 Cal. 548, at page 551, 296 P. 68, at page 69. And in Blodgett v. B. H. Dyas Co., 4 Cal.2d 511, at page 513, 50 P.2d 801, at page 803, appears the following: ‘The evidence shows that the lack of the hand rail was neither the proximate nor any cause of plaintiff's fall. Any violation of the ordinance by the defendant would therefore be immaterial.’

The evidence clearly and without dispute shows the proximate cause of plaintiff's fall to have been the slippery surface above described and not the fact that the entrance was not lighted as the ordinance required. Moreover, appellant was aware of the alleged ‘dangerous' condition of the entrance and of the fact that it was raining, as well. The law imposes no liability in such circumstances.

For the foregoing reasons the judgment is reversed.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.