Opinion
Hearing Granted Dec. 19, 1967.
Jack K. Berman, San Francisco, for appellant.
Healy & Robinson, San Francisco, for respondent.
RATTIGAN, Associate Justice.
Plaintiff brought this action against several named defendants, seeking damages for
We first refer to the well settled rules applicable to summary judgments. The Supreme Court has summarized the rules in this language: "The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts." j(Joslin v. Marin Municipal Water District (1967) 67 A.C. 127, 142, 60 Cal.Rptr. 377, 386, 429 P.2d 889, 898 [quoting Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785 and cases cited]. See also McGranahan v. Rio Vista etc. Sch. Dist. (1964) 224 Cal.App.2d 624, 627, 36 Cal.Rptr. 798; Burke v. Hibernia Bank (1960) 186 Cal.App.2d 739, 743-744, 9 Cal.Rptr. 890.)
In support of her motion, defendant was entitled to rely upon plaintiff's admissions of fact as well as upon her own affidavit. Buffalo Arms, Inc. v. Remer Co. (1960) 179 Cal.App.2d 700, 703, 4 Cal.Rptr. 103.) The affidavit itself meets the formal standards required of an affidavit filed in support of a motion for summary judgment. (Code Civ.Proc., § 437c; Estate of Nelson (1964) 227 Cal.App.2d 42, 46-47, 38 Cal.Rptr. 459; Saporta v.Barbagelata (1963) 220 Cal.App.2d 463, 467-469, 33 Cal.Rptr. 661 and cases cited.) The question is whether her full showing on the motion states facts sufficient, in terms of substantive law, to sustain a judgment in her favor. (Joslin v. Marin Municipal Water District, supra, 67 A.C. 127 at p. 142, 60 Cal.Rptr. 377, at p. 387, 429 P.2d 889 at p. 899.) We hold that it does.
According to the facts admitted by plaintiff, he and defendant were acquainted through a mutual friend. Defendant offered to drive plaintiff to an airport, where he was to board a plane. She invited him to her apartment before they were to leave Defendant's affidavit in support of her motion for summary judgment substantially reiterated the facts previously admitted by plaintiff. It alleged in addition that plaintiff was "purely and simply a social guest" of defendant; that he was not in her apartment for any business purpose, nor for any interest common to the parties, or for the advantage of defendant; and that defendant had offered to drive plaintiff to the airport "as a courtesy and gratuity, and without any consideration or compensation." The affidavit also alleged that plaintiff used the bathroom while he was waiting for defendant to get ready to drive him to the airport.
In his counteraffidavit in opposition to defendant's motion, plaintiff alleged as follows: On the day he was injured, he visited defendant's apartment to request her to drive him to the airport, which she agreed to do. While he was in the apartment, he used the bathroom and was injured when a water faucet broke in his hand as he was turning it. In defendant's deposition (as taken before this affidavit was executed and so referred to by plaintiff as affiant), defendant testified that, two weeks before the accident, she became aware that the faucet was cracked and "warned" the manager of the apartment building of this fact. Despite her awareness and the warning, nothing was done to repair the faucet prior to the accident. Before using the bathroom, plaintiff advised defendant that he intended to do so, but she did not mention the condition of the faucet.
In combination, plaintiff's admissions of fact and defendant's affidavit present the factual conclusion that plaintiff was injured in defendant's apartment while he was visiting the premises as a licensee. The allegation in the affidavit that he was "purely and simply a social guest," read by itself, states a conclusion of law. However, the affidavit further alleges that he was not on the premises for a business purpose, nor for an interest common to the parties, nor for the defendant's advantage. These allegations appearing in the context of the admitted facts and allegations concerning the impending ride to the airport as a courtesy to plaintiff in pursuit of his own purpose, are sufficiently factual and evidentiary to establish that he was visiting the apartment as a social guest and that, as such, he was a licensee. (Hansen v. Richey (1965) 237 Cal.App.2d 475, 477-478, 46 Cal.Rptr. 909; Hardin v. Elvitsky (1965) 232 Cal.App.2d 357, 368-369, 42 Cal.Rptr. 748; Bylling v. Edwards (1961) 193 Cal.App.2d 736, 739-740, 14 Cal.Rptr. 760; Sockett v.Gottlieb (1960) 187 Cal.App.2d 760, 765, 9 Cal.Rptr. 831; Lindholm v. Northwestern Pac. R.R. Co. (1926) 74 Cal.App. 34, 37-38, 248 P. 1033; Rest.2d Torts, § 330, particularly Comment h, subd. 3; Prosser on Torts (3d ed.1964) § 60, pp. 385-388.)
Without reference at this point to such factors as a "trap" condition or "active negligence" (in either instance as raised--or not--by plaintiff's counteraffidavit on the motion, and hereinafter discussed), a licensee takes the premises as he finds them. The person in possession of the premises is not liable to him for injury caused by their defective condition. (Hansen v.Richey, supra, 237 Cal.App.2d 475 at p. 478, 46 Cal.Rptr. 909 at p. 911; Huselton v. Underhill (1963) 213 Cal.App.2d 370 at p. 374, 28 Cal.Rptr. 822 at p. 824; Bylling v. Edwards, supra, 193 Cal.App.2d 736 at pp. 742-743, 14 Cal.Rptr. 760 at p. 764.) Defendant's showing in support of her motion for summary judgment sufficiently invokes the foregoing rule to sustain a judgment in her favor. Turning to plaintiff's counteraffidavit in opposition to the motion, we note in passing that he incorporated in it, by reference to defendant's deposition theretofore taken, certain admissions against interest. This was proper. (Smith v. City of San Jose (1965) 238 Cal.App.2d 599, 601, 48 Cal.Rptr. 108.) We hold, however, that the counteraffidavit fails to show facts which would be sufficient to present a triable issue of fact.
The counteraffidavit does not deny, expressly or by implication, the allegations of defendant's affidavit concerning his status as a social guest-licensee in defendant's apartment, nor does it allege any facts which indicate or suggest that he enjoyed any other status. Hence, no triable issue of fact exists relative to his status as a licensee.
As plaintiff points out, his counteraffidavit does allege that defendant knew of the defective condition of the bathroom faucet and that he intended to use the bathroom, but failed to warn him. He contends that the summary judgment should be reversed because a triable issue of fact exists as to whether or not the defective faucet handle was a "trap." This position presents three different theories of triable fact, of which none can avail plaintiff.
The first theory invokes the so-called "trap exception" to the general rule of nonliability to a licensee for an injury caused by a defective condition of the premises. The claimed exception has been mentioned in some of the California licensee decisions (e.g., Hansen v. Richey, supra, 237 Cal.App.2d 475 at p. 478, 46 Cal.Rptr. 909 at p. 911: "[A] licensee takes the premises as he finds them; toward him, the landlord is not liable for a defective condition of the premises except one which amounts to a trap, * * * " [emphasis added] ), but the cases which refer to it do not apply it to the facts involved. At least one court has stated that no holding directly based upon the "trap exception" could be found (Bylling v. Edwards, supra, 193 Cal.App.2d 736 at p. 746, 14 Cal.Rptr. 760, at p. 766); none has been cited on this appeal, and we have found none. Under the circumstances, we are not persuaded that the general rule of nonliability to a licensee is inapplicable where the injurious condition amounts to a trap.
See, e.g., Hansen v. Richey, supra; Huselton v. Underhill, supra, 213 Cal.App.2d 370 at pp. 374, 375-376, 28 Cal.Rptr. 822 at pp. 824-825; Obrien v. Fond Wan (1960) 185 Cal.App.2d 112, 119, 8 Cal.Rptr. 124; Yazzolino v. Jones (1957) 153 Cal.App.2d 626, 636, 315 P.2d 107; Free v. Furr (1956) 140 Cal.App.2d 378, 385, 295 P.2d 134; Ashley v. Jones (1954) 126 Cal.App.2d 328, 332, 333-334, 271 P.2d 918.
But if the general rule of nonliability to a licensee can be qualified by a "trap exception"--a doubtful proposition at best--there must be evidence of a "trap." The court in Bylling v. Edwards, supra, 193 Cal.App.2d 736, 14 Cal.Rptr. 760, discussing the so-called exception, stated (p. 746, p. 767 of 14 Cal.Rptr.) that "It is apparent from Nelsen v. Jensen, 177 Cal.App.2d 270, 2 Cal.Rptr. 180, that a trap involves a 'concealed danger'; and Prosser on Torts, 2d edition, defines it as a 'concealed dangerous condition(s)' * * * " (Emphasis added.) (To the same effect, see Prosser, op. cit. (3d ed. 1964) pp. 389-390.)
The second theory presented by the "trap argument" involves the question whether a person in possession of premises has an express duty to warn a licensee of a known dangerous condition. Such duty exists under the rule of the Restatement (Rest.2d, Torts, § 342), but there is no such duty to warn under the California rule, and it has been expressly Hansen v. Richey,
"s 342. Dangerous Conditions Known to Possessor
Plaintiff, taking direct issue with the California rule, urges that this court should change it in favor of the Restatement rule (Rest.2d, Torts, § 342) imposing a duty to warn. But the factual premise of the Restatement rule (see fn. 3, supra) is that the possessor "should expect that [the licensees] will not discover or realize the danger, * * * " This imports that the rule applies, and a duty to warn exists, only where the danger is concealed or otherwise imperceptible. The text of the Restatement itself indicates that the duty to warn an adult licensee applies as to hidden dangers but not obvious ones (Rest.2d, Torts, § 342, Comment b; ibid., Comment d, Illustration 2); and this is the rule as applied in most jurisdictions outside of California. (Annotation, Duty of a possessor of land to warn adult licensees of danger (1957) 55 A.L.R.2d 525, 533 et seq., and 5 A.L.R.2D Later Case Service (1965) 367.)
The third theory of the "trap" argument rests upon the rule that a person in possession of premises may be liable to a licensee for "wanton or wilful injury" or for "active negligence," as distinguished from the "passive" condition of the premises. (Palmquist v. Mercer (1954) 43 Cal.2d 91, 102, 272 P.2d 26; Oettinger v. Stewart (1944) 24 Cal.2d 133, 137-139, 148 P.2d 19; Hansen v. Richey, supra, 237 Cal.App.2d 475 at p. 478, 46 Cal.Rptr. 909 at p. 911, and authorities there cited; Prosser, op. cit., pp. 388-389.)
According to some of the earlier licensee decisions in California, the person in possession of premises can be liable to a licensee under the "active negligence" rule where he knows of a dangerous condition and fails to warn the licensee. (Newman v. Fox West Coast Theatres (1948) 86 Cal.App.2d 428, 432-433, 194 P.2d 706; Herold v. P.H. Mathews Paint House (1919) 39 Cal.App. 489, 494, 179 P. 414.) Later cases have apparently refined the rule to apply only where the possessor's conduct induced the licensee to enter the area where the danger was known to exist. (Anderson v. Anderson (1967) 251 A.C.A. 463, 466-467, 59 Cal.Rptr. 342; Howard v. Howard (1960) 186 Cal.App.2d 622, 624-626, 9 Cal.Rptr. 311. See Huselton v. Underhill, supra, 213 Cal.App.2d 370 at pp. 374-376, 28 Cal.Rptr. 822 at pp. 824-825; Bylling v. Edwards, supra, 193 Cal.App.2d 736 at p. 746, 14 Cal.Rptr. 760 at p. 767.)
Among the cases just mentioned, only Newman v. Fox West Coast Theatres, supra, 86 Cal.App.2d 428, 194 P.2d 706, upheld liability for "active negligence" for failure to warn of a dangerous condition which the licensee apparently could have seen; and Newman has been both distinguished as confined to its facts (Bylling v. Edwards, supra, 193 Cal.App.2d 736 at p. 746, 14 Cal.Rptr. 760 at p. 767) and questioned. (Hansen v. Richey, supra, 237 Cal.App.2d 475 at p. 479, 46 Cal.Rptr. 909, at p. 911.) Among the other cases on the point, the "active negligence" rule has been invoked in favor of an unwarned licensee only where the dangerous condition was concealed or imperceptible. (Herold v. P.H. Mathews Paint House, supra, 39 Cal.App. 489, at p. 491, 179 P. 414 at p. 415 [open elevator door not visible to a person entering darkness from a brighter area]; Anderson v. Anderson, supra, 251 A.C.A. 463 at p. 464, 59 Cal.Rptr. 342 at p. 343 [submerged ledge in swimming Howard v. Howard,
The application of any theory of defendant's argument thus depends upon whether or not the condition which injured him was concealed or otherwise imperceptible. In turn, the answer to the question before us--whether his counteraffidavit states facts sufficient to present a triable issue of fact--therefore depends upon whether or not he showed this essential fact in opposition to the motion for summary judgment. He did not. Neither the counteraffidavit nor any other source in the record contains any allegation, factual or conclusionary, which describes the faucet, its appearance, its location, the lighting, the bathroom, or which states any other fact which would support the conclusion that plaintiff was injured by a concealed danger. Consequently, we need not decide whether any of his theories of triable fact should apply because none can: and, since he neither alleged nor suggested the essential underlying fact, no triable issue of fact exists on any theory.
Speaking to the particular point of a duty to warn a licensee of a known danger, plaintiff has asserted that the Restatement rule (Rest.2d, Torts, § 342) should be the law of California if it is not, and that the Supreme Court is disposed to declare it so. We are mindful of the criticisms directed at the California rule. (See, e.g., the discussion in Hansen v. Richey, supra, 237 Cal.App.2d 475 at pp. 478-479, 46 Cal.Rptr. 909 at pp. 911-912.) In the present case, however, the scope of our review is defined by the rules applicable to summary judgments. Acting within a context thus limited, we have concluded that substantive law cannot be changed on the narrow evidentiary base presented by this record.
The judgment is affirmed.
DEVINE, P.J., and CHRISTIAN, J., concur.
"A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
"(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
"(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
"(c) the licensees do not know or have reason to know of the condition and the risk involved." (Italics added.)