Opinion
Hearing Granted March 16, 1966.
Appeal Dismissed by Stipulation April 21, 1966.
Monaco, Ice & Reeve, San Mateo, for appellant.
Ropers, Majeski & Phelps, Redwood City, for respondents.
SIMS, Justice.
Plaintiff has appealed from an adverse judgment entered upon the granting of defendants' motion for judgment notwithstanding the verdict following a jury trial in which a verdict was returned awarding her $13,000 in damages.
The propriety of the trial court's action in granting the motion for judgment notwithstanding the verdict is to be gauged by the same standards as are applicable to the granting of a motion for nonsuit or motion for a directed verdict. If disregarding conflicting evidence and giving to plaintiff's evidence all of the value to which it is entitled and indulging in every legitimate inference which may be drawn therefrom, there is evidence of sufficient substantiality to support a verdict for plaintiff, the granting of the motion was error. (Sockett v. Gottlieb (1960) 187 Cal.App.2d 760, 763 and 769, 9 Cal.Rptr. 831; Cain v. Friend (1959) 171 Cal.App.2d 806, 808 and 809-810, 341 P.2d 753; Jones v. Hotchkiss (1956) 147 Cal.App.2d 197, 201-202, 204 and 205, 305 P.2d 129, Shinn, P. J., concurring; Laidlaw v. Perozzi (1955) 130 Cal.App.2d 169, 175, 278 P.2d 523; Ralph v. Clifton's Brookdale, Inc. (1948), 85 Cal.App.2d 574, 577, 193 P.2d 511; King v. New Masonic Temple Assn. (1942), 51 Cal.App.2d 512, 516, 125 P.2d 559; Oles v. Kahn Bros. (1927) 81 Cal.App. 76, 81 and 86, 253 P. 158.) Conversely if after applying the foregoing test there is no evidence upon which liability can be predicated, the motion and the judgment predicated thereon were properly granted. (Huselton v. Underhill (1963), 213 Cal.App.2d 370, 376, 28 Cal.Rptr. 822; Bylling v. Edwards (1961) 193 Cal.App.2d 736, 739, 14 Cal.Rptr. 760; Obrien v. Fong Wan (1960) 185 Cal.App.2d 112, 114-115 and 121, 8 Cal.Rptr. 124; Nelsen v. Jensen (1960) 177 Cal.App.2d 270, 272-273, 8 Cal.Rptr. 124; Free v. Furr (1956) 140 Cal.App.2d 378, 381-382 and 384, 295 P.2d 134; Ashley v. Jones (1954) 126 Cal.App.2d 328, 335, 271 P.2d 918; and see Simpson v. Richmond (1957) 154 Cal.App.2d 27, 31-32, 315 P.2d 435; Saba v. Jacobs (1955) 130 Cal.App.2d 717, 718-719, 279 P.2d 826; and Ward v. Oakley Co. (1954) 125 Cal.App.2d 840, 844-845, 271 P.2d 536.) Plaintiff asserts that the evidence was sufficient to sustain the verdict of the jury because it supports any of the following findings: (1) that she was an 'invitee' upon defendants' premises, and was not protected from a dangerous condition known to the defendants (see Rest., Torts 2d § 343); or (2) that if she was a mere 'licensee' (a) the defendants failed to either protect her or warn her of a dangerous condition (see id. § 342), or (b) the defendants failed to disclose a trap, or (c) the defendants were guilty of 'active negligence' (see id. § 341). She also contends that the distinctions predicated upon her status on the property should be disregarded, and that the verdict should be upheld 'on the basis of common sense applied to the actual facts.' Finally she asserts error because of the alleged error of the trial court in refusing to permit her to present evidence of alleged violation of local and state building regulations.
For the reasons hereinafter set forth it is concluded that there was no error in the rulings of the lower court and that the judgment should be affirmed because the case was correctly determined by the trial court on the basis of principles of law presently established in this state.
The Facts
The improvements on the premises in question were constructed in 1946 or 1947 by defendant wife and her husband by a previous marriage. Two concrete steps led to a main concrete porch in front of the main entrance. Over a period of time, and within the first or second year after the improvements were constructed, the sidewalk leading to the steps and the two concrete steps themselves settled, and left the rise between the top of the second step and the porch level, which when built was substantially the same height as the risers of the steps, at a greater vertical distance than it was when originally constructed. A witness testified, after examining a photograph which portrayed the front of the house as it existed at the time of the accident, that on the assumption that the middle riser was six inches high and by using a four-inch lip on the porch as a comparison, the top riser was approximately eleven inches high, or five inches higher than the first and middle risers.
Plaintiff and defendant wife met in March 1960, at a dance studio where they were both taking lessons, and became friends. In the intervening period she visited defendants' home six or eight times, of which visits half were in the daytime and half were in the evening. On some occasions entrance had been effected through the garage, but she had gone up the steps both in the daytime and in the nighttime, the latter usually with an escort who took her arm, and had never realized anything was wrong or noticed anything, and had never been involved in an accident there.
On October 7, 1960, plaintiff had a regularly scheduled dancing lesson from 6:30 to 7:30 p. m. and was scheduled to take a test for grading at 10 p. m. during a special session which commenced at 9:30 p. m. She went to the studio for her lesson, and between 7:30 and 8 p. m., at the suggestion of the manager of the studio, she went out with her escort for the evening to have a scotch and soda and relax. On her return to the studio she joined in a group lesson and danced from 8 to 9 p. m. Defendant wife arrived at the studio between 8 and 9 o'clock, and she, plaintiff and plaintiff's escort decided to go out afterwards and celebrate plaintiff's grades. Following the test the three left the studio. According to plaintiff she and her escort followed in the latter's car and joined defendant wife at the hospital where defendant's husband was working as a laboratory technician to determine whether he could get off work. According to the wife the three first went to a cocktail lounge and she left alone and returned with her husband. In any event, all four were ultimately at the cocktail lounge, and defendant husband made known he was on call and had to return home to be by the telephone. They went out on the sidewalk and defendant wife asked plaintiff and her escort to come and have a cup of coffee because she had to fix her husband something to eat. It was then decided that defendants would go home and make the coffee and plaintiff The cars were parked and plaintiff alighted and proceeded up the walk in advance of her escort, who was carrying the pizza, so that she could, as she in fact told him, open the door for him. As she approached she was looking at the door knob because she was going to reach for it, and she noticed that the porch light was on, and and was shining on the door. According to her, she subsequently ascertained that the light in question, which was yellow and was situated to the left of the front door, was partially screened by a foot-wide lattice and a shrub, and that it only illuminated the front part of the platform where the door was and did not come out over the steps or sidewalk. On the evening in question she did not look down to see if the light was shining on the sidewalk, the step surface, or on the porch surface, and she was not sure where the light went.
Plaintiff testified that she hit the top step with her toe and as her foot went over she hit the top of her foot with the corner of the platform. She then fell forward, face down on the platform, and suffered the injuries and damages for which the verdict was rendered.
Plaintiff cannot recover as an invitee
The general distinction between the duty of a possessor of land to an invitee and to a licensee has been stated as follows: 'A possessor of land owes to an invitee the duty of exercising ordinary care to keep his premises in a reasonably safe condition; and he will be liable for bodily harm, in the absence of an adequate warning, caused an invitee by a dangerous condition in the premises if he knows or should know of the danger which he has no basis for believing that the invitee will discover. Popejoy v. Hannon, supra, 37 Cal.2d at page 170, 231 P.2d at page 491; Powell v. Jones, 133 Cal.App.2d 601, 607, 284 P.2d 856.
'The duty owed to a licensee is to exercise ordinary care in the case of active conduct on the part of the licensor with no liability for the defective condition of the premises. Oettinger v. Stewart, 24 Cal.2d 133, 138, 148 P.2d 19, 156 A.L.R. 1221. In the absence of active conduct of the licensor constituting negligence, a licensee must take the premises as he finds them insofar as any alleged defective condition thereof is concerned. Palmquist v. Mercer, 43 Cal.2d 92, 102, 272 P.2d 26; Free v. Furr, supra, 140 Cal.App.2d at page 383, 295 P.2d at page 138.' (Sockett v. Gottlieb, supra, 187 Cal.App.2d 760, 765-766, 9 Cal.Rptr. 831, 834; and in addition to the cases cited see Chance v. Lawry's, Inc. (1962) 58 Cal.2d 368, 373-374, 24 Cal.Rptr. 209, 374 P.2d 185; Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 208, 331 P.2d 645; Cain v. Friend, supra, 171 Cal.App.2d 806, 808, 341 P.2d 753; Laidlaw v. Perozzi, supra, 130 Cal.App.2d 169, 171-172, 278 P.2d 523; and Ashley v. Jones, supra, 126 Cal.App.2d 328, 332, 271 P.2d 918; Rest. Torts 2d § 343; Prosser, Law of Torts, 3rd ed. (1964) pp. 385 and 402, 405.)
It may be conceded that if plaintiff was an invitee the questions of whether the steps were a hazard, and whether defendants in the exercise of ordinary care should have either obviated the danger, or warned plaintiff of its existence, were proper matters for the consideration of the jury. (See Chance v. Lawry's, Inc., supra, 58 Cal.2d 368, 374, 24 Cal.Rptr. 209, 374 P.2d 185; Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 216-217, 331 P.2d 617; Woodard v. Bank of America (1955) 130 Cal.App.2d 849, 853, 279 P.2d 1018; Rau v.Redwood City Woman's Club (1952) 111 Cal.App.2d 546, 549, 245 P.2d 12; Ralph v. Clifton's King v. New Masonic Temple Assn.,
Whether a person is a licensee or invitee upon the premises of another is generally a question of fact. (Speece v. Browne (1964) 229 Cal.App.2d 487, 490, 40 Cal.Rptr. 384; Bylling v. Edwards, supra, 193 Cal.App.2d 736, 739, 14 Cal.Rptr. 760; Cain v. Friend, supra, 171 Cal.App.2d 806, 808, 341 P.2d 753; Laidlaw v. Perozzi, supra, 130 Cal.App.2d 169, 175, 278 P.2d 523.) In the case first cited this court recently reviewed the cases dealing with the subject and concluded as follows: 'The rule to be distilled from the foregoing cases turns essentially upon the purpose for which a person is upon the premises of another. Accordingly, the criterion in each instance is the reason for the visit. If the objective of the visit is to perform services beneficial to the host or mutually beneficial the guest is an invitee. If the purpose of the visit is purely social or for the pleasure or benefit of the guest he is a licensee, notwithstanding that while he is on the premises he performs minor services as an accommodation to the host and incidental to the social purpose of the visit. * * * Accordingly, in ascertaining the purpose for which a person is upon the premises of another we must look to whether the character or circumstances of the assistance or services rendered make it the dominant aspect of the relationship between the guest and host. It is apparent, therefore, that in most instances the determination is one of fact. Accordingly, unless the court is justified in determining that the only inference that can be drawn from the evidence or the uncontradicted facts is that the purpose of the visit was purely social or for the benefit or pleasure of the visitor, and that the services rendered, if any, were incidental to such purpose, the question whether the person is a licensee or an invitee should be left to the trier of the facts under the well-established principle that whenever there is room for an honest difference of opinion between men of average intelligence the question to be determined is one of fact rather than one of law. [Citation.]' (229 Cal.App.2d at pp. 493-494, 40 Cal.Rptr. at p. 388.) Each party hereto relies upon the foregoing to establish the position asserted. In Speece, the court held that although it was a family custom for the plaintiff, as mother of the defendant wife, to visit and have dinner with her daughter and son-in-law on Sunday, and although it was not unusual for her to cook the dinner, her testimony that on the Sunday of the accident she cooked dinner for them so they could go to the baseball game made the determination of the dominant purpose of her visit a question for the jury. Plaintiff contends that since herein defendant husband had to go home to be available for phone calls, and defendants extended an invitation to plaintiff and her escort to come there, the latter's action in getting a pizza and coming in response to that invitation justifies a finding that the objective of the visit was to perform services beneficial to the host, or mutually beneficial to all.
The evidence does show a business purpose on the part of defendant husband, but it is specious and stretching the concept to say that plaintiff and her escort in bringing the food to defendant's home shared in this business purpose. This argument confuses the circumstances which fixed the site of the visit (the home, by reason of the husband's business commitments) with the purpose of plaintiff and her escort in making the visit. The latter was to share the company of defendants in celebrating plaintiff's passing the test. It was purely social and not rendered the less so because food was purchased and taken to defendant's home rather than consumed in a restaurant. Even if it could be said that the bringing of the pizza was a purposeful benefit which transmuted the social guest to an invitee (but cf. Free v. Furr, supra, 140 Cal.App.2d 378, 295 P.2d 134 , where the guest brought cake at the request of the host), there is nothing to show that plaintiff, Although the trial court instructed the jury on the distinction between a licensee and invitee, and the duties of the landowner toward the latter, it properly ruled on defendant's motion that the evidence would not sustain a finding consistent with plaintiff's status as an invitee. (Bylling v. Edwards, supra, 193 Cal.App.2d 736, 739, 14 Cal.Rptr. 760; Free v. Furr, supra, 140 Cal.App.2d 378, 383, 295 P.2d 134; Ashley v. Jones, supra, 126 Cal.App.2d 328, 333, 271 P.2d 918; and see Howard v. Howard (1960) 186 Cal.App.2d 622, 624, 9 Cal.Rptr. 311; Simpson v. Richmond, supra, 154 Cal.App.2d 27, 29, 315 P.2d 435; and Saba v. Jacobs, supra, 130 Cal.App.2d 717, 718, 279 P.2d 826; Rest., Torts 2d § 330, particularly Comment h (3); Prosser, op. cit., pp. 387-338.)
Plaintiff cannot recover as a licensee
The general rule is that a licensee must take the premises as he finds them insofar as any alleged defective condition is concerned. (See Sockett v. Gottlieb, supra, 187 Cal.App.2d 760, 766, 9 Cal.Rptr. 831, and other cases cited above.) Plaintiff seeks to escape the effect of this general rule by reference to other principles which expand the obligations of the possessor or owner of land to a licensee.
Section 342 of the Restatement of the Law of Torts is found under the heading 'Special Liability of Possessors of Land to Licensees' and provides: ' § 342. Dangerous Conditions Known to Possessor. 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 that 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.' (See also Prosser, op. cit., pp. 389-392.) In Newman v. Fox West Coast Theatres (1948) 86 Cal.App.2d 428, 194 P.2d 706, recognition was given to the foregoing section in connection with a hazardous condition created by the deposit of water and other foreign substances on the floor of a restroom after the licensee had entered the premises. The court stated: 'Under such conditions it becomes the duty of such occupant to warn the visitor of his peril and risk or reasonably attempt to remove the dangerous condition or to exclude him from the premises. Rest., Torts, sec. 342.' (86 Cal.App.2d at p. 432, 194 P.2d at p. 708; see also Nelsen v. Jensen, supra, 177 Cal.App.2d 270, 273, 8 Cal.Rptr. 124.) The opinion, however, then refers to the duty of the licensor to exercise ordinary care in carrying on activities on the premises (hereinafter discussed), and the application of the case has generally been limited to situations where the peril arose after the licensee was on the premises. (See Bylling v. Edwards, supra, 193 Cal.App.2d 736, 743-746, 14 Cal.Rptr. 760; Obrien v. Fong Wan, supra, 185 Cal.App.2d 112, 119, 8 Cal.Rptr. 124.)
An instruction offered by the plaintiff which set forth the provisions of section 342 of the Restatement of Torts was rejected by the trial court.
It has been unequivocally stated that section 342 is not the law of this state. (Saba v. Jacobs, supra, 130 Cal.App.2d 717, 719, 279 P.2d 826; Ward v. Oakley Co., supra, 125 Cal.App.2d 840, 844, 271 P.2d 536 and Fisher v. General Petroleum Corp. (1954) 123 Cal.App.2d 770, 780, 267 P.2d 841.) The general arbitrariness of imposing standards of conduct on the basis of categories which evolve out of the relationship between the injured party and the alleged tortfeasor, and the particular harshness of the law of this state have both been recognized and been the subject of comment. (Chance v. Lawry's, Inc., supra, 58 Cal.2d at pp. 376-377, 24 Cal.Rptr. 209, 374 P.2d Palmquist v. Mercer
Free v. Furr, Fisher v. General Petroleum Corp., Fernandez v. Consolidated Fisheries, Inc. Boucher v. American Bridge Co. Palmquist v. Mercer, Huselton v. Underhill, Bylling v. Edwards, Sockett v. Gottlieb, Howard v. Howard, Nelsen v. Jensen, Simpson v. Richmond, Free v. Furr,Plaintiff, while recognizing that Fisher and other cases have repudiated the general application of the principles of section 342 of the Restatement, urges that the verdict should be sustained on the theory that the combination of the uneven risers on the steps, and dim, if any, light constituted a 'trap.' The use of this term is found in reference to the determination of whether additional circumstances may create responsibility in connection with a natural or artificial body of water which at one time under California law would otherwise not be an attractive nuisance. In Ward v. Oakley Co., supra, it is recited: 'The essential elements of a cause of action under the 'hidden or concealed trap' exception are (a) that the dangerous hazard causing death be artificially created by the owner, (b) it be so concealed as to constitute a trap, and (c) that it can be readily guarded without destroying its usefulness or placing upon the owner an undue burden.' (125 Cal.App.2d at p. 845, 271 P.2d at p. 540; see Reynolds v. Willson (1958) 51 Cal.2d 94, 105, 331 P.2d 48 recognizing Ward, and King v. Lennen (1959) 53 Cal.2d 340, 344, 1 Cal.Rptr. 665, 348 P.2d 98 overruling Ward, and the California limitation in the attractive nuisance doctrine.) The contention that a condition on the property constitutes a trap has frequently been raised in licensee cases, and has as frequently been rejected. The matter is reviewed in Bylling v. Edwards, supra, wherein it is concluded that there must be a concealed object or deceptive condition, and that it cannot apply to an obvious danger, such as a grease pan in a garage. (193 Cal.App.2d 736, 746-747, 14 Cal.Rptr. 760; and see Huselton v. Underhill, supra, 213 Cal.App.2d 370, 374, 28 Cal.Rptr. 822 (felled telephone pole in parking lot); Obrien v. Fong Wan, supra, 185 Cal.App.2d 112, 118 and 119, 8 Cal.Rptr. 124 (recessed stairway off sidewalk); Nelsen v. Jensen, supra, 177 Cal.App.2d 270, 272-273, 8 Cal.Rptr. 124 (rug which slipped); Simpson v. Richmond, supra, 154 Cal.App.2d 27, 30, 315 P.2d 435 (alleged defective flight of stairs) ; Free v. Furr, supra, 140 Cal.App.2d 378, 385, 295 P.2d 134 (stairway, absence of handrail and no light, and pebble on stairs).) In the absence of countervailing authority the flight of stairs involved herein cannot be deemed such a concealed danger.
Since the decision in Oettinger v. Stewart (1944) 24 Cal.2d 133, 148 P.2d 19, 156 A.L.R. 1221 it has been recognized 'that in cases involving injury resulting from active conduct, as distinguished from condition of the premises, the landowner or possessor may be liable for failure to exercise Yamauchi v. O'Neill
Howard v. Howard, Laidlaw v. Perozzi,Howard and other cases in which active negligence was found (Newman v. Fox West Coast Theatres, supra, 86 Cal.App.2d 428, 431-433, 194 P.2d 706; and Herold v. P. H. Mathews Paint House (1919) 39 Cal.App. 489, 493-494, 179 P. 414) are reviewed in Bylling v. Edwards, supra, 193 Cal.App.2d 736, 743-746, 14 Cal.Rptr. 760. That court rejected the contention that a request that the licensee go to the particular portion of the premises where the injury occurred was a representation that it was safe to do so which of itself constituted active negligence. It concluded: 'A review of the record before us discloses no substantial evidence from which it may be inferred defendants 'affirmatively' committed any act of negligence while plaintiff was on the premises (Simpson v. Richmond, 154 Cal.App.2d 27, 30, 315 P.2d 435); neither does it show as in Newman v. Fox West Coast Theatres, 86 Cal.App.2d 428, 194 P.2d 706, that the condition of the premises changed after plaintiff entered; nor does it reveal, as in Herold v. P. H. Mathews Paint House, 39 Cal.App. 489, 179 P. 414 and Howard v. Howard, 186 Cal.App.2d 622 [9 Cal.Rptr. 311], the defendants' premises had become more dangerous as the result of any act or failure to act on their part making them 'actively negligent' in failing to warn plaintiff of the grease pan which was in plain sight and was seen by plaintiff prior to her fall. We do find the facts to be similar to those in Ashley v. Jones, 126 Cal.App.2d 328, 271 P.2d 918, and the situation to be analogous to that found in Fisher v. General Petroleum Corp., 123 Cal.App.2d 770, 267 P.2d 841; Free v. Furr, 140 Cal.App.2d 378, 295 P.2d 134; Ward v. Oakley Co., 125 Cal.App.2d 840, 271 P.2d 536 and Saba v. Jacobs, 130 Cal.App.2d 717, 279 P.2d 826, where the passive condition was not sufficient to show active negligence on the part of the defendants.' (193 Cal.App.2d at p. 746, 14 Cal.Rptr. at p. 766; see also Huselton v. Underhill, supra, 213 Cal.App.2d 370, 374-375, 28 Cal.Rptr. 822; Obrien v. Fong Wan, supra, 185 Cal.App.2d 112, 119, 8 Cal.Rptr. 124; Nelsen v. Jensen, supra, 177 Cal.App.2d 270, 271-272, 8 Cal.Rptr. 124; Simpson v. Richmond, supra, 154 Cal.App.2d 27, 29-30, 315 P.2d 435; Free v. Laidlaw does not appear to control the facts of this case. Plaintiff's eyes were not focused on the door because of the light, but because of her eagerness to open it and assist the passage of her escort. There is nothing to show that turning on the porch light increased the hazard. Laidlaw will not be applied to permit an act which does not increase the hazard to be deemed 'active negligence' which is a proximate cause of the injury. (Obrien v. Fong Wan, supra, 185 Cal.App.2d 112, 119, 8 Cal.Rptr. 124; Free v. Furr, supra, 140 Cal.App.2d 378, 385, 295 P.2d 134; and see Cain v. Friend, supra, 171 Cal.App.2d 806, 808, 341 P.2d 753.) The existence or nonexistence of adequate lighting would appear to be a condition of the premises and, as such, the licensee takes the premises as he finds them. (See Free v. Furr, supra, 140 Cal.App.2d 378, 384, 295 P.2d 134.)
Plaintiff cannot recover on any general theory of negligence
Lastly, plaintiff suggests that recovery may be upheld on the general principle of negligence found in section 1714 of the Civil Code. In Fernandez v. Consolidated Fisheries, Inc., supra, 98 Cal.App.2d 91, 219 P.2d 73, Peters, P. J. (now S.Ct. J.) first pointed out the discrepancy between the provisions of the Civil Code, and the 'unrealistic, arbitrary, and inelastic' approach predicated upon defining the duty in terms of the status of the visitor to the premises (98 Cal.App.2d at pp. 95-96, 219 P.2d 73). Despite this criticism, and those which have been hereinabove, set out, there has been no general revision by decision or statute of the California law relating to the duties of landowners or possessors to invitees, licensees and trespassers. It is still in 'a Procrustean bed bounded by the concepts of 'invitee' at the head and 'licensee' at the foot.' (See Chance v. Lawry's, Inc., supra, 58 Cal.2d at p. 377, 24 Cal.Rptr. at p. 214, 374 P.2d at p. 190; Peters, J. in reference to cases involving status in regard to independent contractors and others on the premises.) The argument advanced by plaintiff has been heretofore advanced and rejected. (Obrien v. Fong Wan, supra, 185 Cal.App.2d 112, 116-117, 8 Cal.Rptr. 124; Simpson v. Richmond, supra, 154 Cal.App.2d 27, 31, 315 P.2d 435.)
Civil Code section 1714 provides: '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 or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief. (Enacted 1872.)'
This case is in many respects similar to Free v. Furr, supra, and the conclusions therein are particularly apposite: 'That there exist differences of opinion as to the wisdom of the stringent and rigid rules above referred to with reference to the rights of a social guest or licensee may be conceded, Rest., Torts, 342; Fernandez v. Consolidated Fisheries, Inc., supra, 98 Cal.App.2d 91, 96, 219 P.2d 73; concurring opinion of Carter, J. in Palmquist v. Mercer, supra, 43 Cal.2d 92, 93, 105, 272 P.2d 26, but under the doctrine of stare decisis, this court must adhere to these prevailing rules of law. Accordingly, we hold that there is no substantial evidence upon which the verdict in favor of the plaintiff can be justified and that the trial judge correctly granted defendants' motion for judgment notwithstanding the verdict.' (140 Cal.App.2d at p. 385, 295 P.2d at p. 139.) To the foregoing may be added the comment that Berger v. Shapiro
The record fails to reflect error in the court's rulings on evidence and instructions
In the course of presenting plaintiff's case, a discussion took place in chambers to determine whether she could introduce evidence of the ordinances adopted by the City of Belmont adopting in turn various editions of the Uniform Building Code during a period commencing prior to the time the residence was constructed and up to and including the time of the accident. Plaintiff acquiesced in the trial court's statement that she was endeavoring to introduce a building code ordinance concerning the erection of the steps (emphasis added). The court apparently rejected plaintiff's contention that the proven violation of any ordinance or safety regulation is an exception to the social guest liability rule.
Following closing arguments by counsel, plaintiff in chambers supplemented her offer of proof by reference to specific sections of the Uniform Building Code and of the California Administrative Code. The record reflects that she offered and the court rejected instructions embodying the provisions of the ordinances and regulations relating to the requirements for stairways, and the provisions of the building code relating to its purpose; and instructions that a violation of the provisions of the code would be negligence per se, and that plaintiff did not assume the risk of a dangerous condition resulting from such a violation. Plaintiff asserts that this court should take judicial notice of these ordinances. An appellate court may take judicial notice of matters properly the subject thereof even though it appears that the trial court did not do so (Ward Mfg. Co. v. Miley (1955) 131 Cal.App.2d 603, 609, 281 P.2d 343); and in proceedings to review the action of a hearing board it may take judicial notice of the contents of ordinances which were properly before that board, even though they were not made exhibits. (Iscoff v. Police Commission (1963) 222 Cal.App.2d 395, 401, fn. 6, 35 Cal.Rptr. 189.) It has been uniformly held, however, that the superior court, as distinguished from a municipal court, and the reviewing court on appeal cannot take judicial notice of a municipal ordinance. (Schumann v. C. R. Reichel Engineering Co. (1960) 187 Cal.App.2d 309, 315, 9 Cal.Rptr. 486; Johnson v. A. Schilling & Co. (1959) 170 Cal.App.2d 318, 325, 339 P.2d 139; Markwalder v. Leonhard (1957) 152 Cal.App.2d 254, 259, 313 P.2d 200; Higbee v. La Salle (1956) 145 Cal.App.2d 737, 739, 303 P.2d 65; Rau v. Redwood City Woman's Club, supra, 111 Cal.App.2d 546, 552, 245 P.2d 12; cf. Evidence Code § 452, subd. (b) and Legislative Committee Comment thereon (Assembly J., Apr. 6, 1965).)
At oral argument it was conceded that the General Industrial Safety Orders, encompassing section 3234, dealing with treads and risers, as found in Article 3 of Group 1, Subchapter 7 of the Chapter 4 of Title 8 of the Administrative Code were not applicable. (See § 3202 and Lab.Code §§ 6302 and 6303; and Hardin v. Elvitsky (1965) 232 Cal.App.2d 357, 369-374, 42 Cal.Rptr. 748.) A similar concession was made in respect of the Regulations of the State Fire Marshal encompassing section 33.05, dealing with the same subject, as found in Article 33, Part VII of Subchapter 1 of Chapter 1 of Title 19, §§ 1.02 and 1.04. (See §§ 13108, 13114 and 13143 of the Health & Safety Code which limit the scope of such regulations to state institutions and to structures for specified types of occupancy, not including a single family dwelling.)
These instructions, with the exception of that predicated on the state regulations, read as follows: 'APPLICABLE ORDINANCES: Rise and run: The rise of every step in a stairway shall not exceed 7 1/2"", and the run shall be not less than 10"' '. The maximum variations in the height of rises and in the width of treads in any one flight shall be 3/16"' '. Exception: In stairways serving an occupant load of 50 or less, the rise may be 8"'' and the run may be 9"' '. Uniform Building Code 1943 edition, section 3307. Uniform Building Code 1946 edition, section 3305. Uniform Building Code 1958 edition, section 3305.
The foregoing, however, is not determinative of the issue raised by plaintiff. She did in effect make an offer of proof which was rejected by the trial judge. It appears that he may have erred in concluding, if he did, that a failure to comply with a relevant and applicable safety ordinance or regulation would not qualify the general duty toward a licensee. 'A municipality, under the power delegated to it by the state, may enact ordinances creating duties for the protection of persons and property, and it is very generally held that those who violate such ordinances are liable for resulting injury to others. The standard of conduct of a reasonable man may be established by a statute or ordinance. The violation of such a legislative enactment may be negligence in itself if the plaintiff is one of a class of persons whom the statute was intended to protect and the harm which has occurred is of the type which it was intended to prevent. [Citations.] Appellant's duty to these respondents to provide a proper exit from the premises is thus established by the provisions of the Building Code.' (Finnegan v. Royal Realty Co. (1950) 35 Cal.2d 409, 416, 218 P.2d 17, 21.) The general rule that a licensee takes the premises on which he enters as he finds them, and assumes the ordinary risks incident to the condition of those premises, is not applicable when the condition of the premises is the result of the violation of a statutory duty imposed upon the owner by safety regulations prescribed for the benefit of the general public. In such a case the licensee does not assume the risks incident to such condition (Longway v. McCall (1960) 181 Cal.App.2d 723, 733-734, 5 Cal.Rptr. 818; Langazo v. San Joaquin L. & P. Corp. (1939) 32 Cal.App.2d 678, 690-695, 90 P.2d 825; and see Hardin v. Elvitsky (1965) 232 Cal.App.2d 357, 376-378, 42 Cal.Rptr. 748; and Sockett v. Gottlieb, supra, 187 Cal.App.2d 760, 768, 9 Cal.Rptr. 831.)
On the other hand, the court correctly refused to admit the evidence of the ordinances adopting the building code if they merely went to the requirements for the erection of the building. There was no evidence to show that the structure failed to conform to the proffered ordinance at the time it was built and before the settlement to which defendant wife testified. The portions of the ordinances alluded to by plaintiff in argument before the court, and contained in the proposed instructions, do not in themselves indicate whether they contain requirements for construction on the one hand, or use and maintenance on the In Finnegan, supra, the court apparently had the whole ordinance before it and concluded that it applied to existing structures as well as to those erected after its passage. (35 Cal.2d at p. 415, 218 P.2d 17.) Hardin, supra, recognizes that where the application of the safety orders in question depended on the establishment of a fact which was controverted it is error to unconditionally instruct that they were applicable. (232 Cal.App.2d at pp. 369-374, 42 Cal.Rptr. 748.) In Sockett the safety orders were considered and found inapplicable. (187 Cal.App.2d at pp. 768-769, 9 Cal.Rptr. 831.) In Schumann v. C. R. Reichel Engineering Co., supra, the plaintiff sought to rely on provisions of the Health and Safety Code, a city ordinance and safety orders. The court found that the first provisions would not apply to structures erected before their passage, and that the ordinance could not be considered since it was not introduced into evidence. The safety orders were held applicable because the owner stated the structures in question were for employee use. (187 Cal.App.2d at pp. 314-317, 9 Cal.Rptr. 486.) In Markwalder v. Leonhard, supra, the court held it was error to apply provisions of the Health and Safety Code to structures erected and converted to a given use prior to the adoption of the statutes; and that the error could not be cured by reference to alleged similar provisions of a local ordinance of which no evidence had been produced. (152 Cal.App.2d 254, 258-259, 313 P.2d 200.) In Rau v. Redwood City Woman's Club, supra, the court found error in instructing the jury in regard to the provisions of a section of the Health and Safety Code which did not apply to the type of structure in question, or to a building erected at the time it had been. In this case, however, the error was cured by the provisions of a section of an ordinance of more stringent nature which had been received in evidence. Defendants' attempt to attack its nonapplicability because of the provisions of other sections of the ordinance was thwarted because of this failure to introduce them in evidence. (111 Cal.App.2d at pp. 552-553, 245 P.2d 12.) In Block v. Snyder (1951) 105 Cal.App.2d 783, 234 P.2d 52, the whole ordinance was admitted and subsequently stricken from evidence, and an instruction predicated thereon was refused. The court examined the ordinance and found the section was not applicable when the building was erected, and had not become so because of minor alterations in the building. (105 Cal.App.2d at pp. 786-789, 234 P.2d 52.)
From the foregoing it is apparent that the propriety of an instruction on any provision of a statute, ordinance, rule or regulation must depend upon the scope of the particular enactment of which the provision is a part. Because of failure of plaintiff to accompany her offer with any documents which could be marked for identification and made part of the record, it is impossible to determine the scope Johnson v. A. Schilling & Co.,
Rau v. Redwood City Woman's Club (1952) 111 Cal.App.2d 546, 552, 245 P.2d 12 suggests that section 103 of the Uniform Building Code precludes retroactive application, and Higbee v. La Salle (1956) 145 Cal.App.2d 737, 303 P.2d 65 refers to provisions which recite: "Buildings in existence at the time of the passage of this code may have their existing use or occupancy continued if such use or occupancy was legal at the time of the passage of this code, provided such continued use is not dangerous to life." (P. 739, 303 P.2d p. 67.) Thompson v. Guyer-Hays (1962) 207 Cal.App.2d 366 at page 371, 24 Cal.Rptr. 461 suggests that abatement is the remedy provided for buildings which are dangerous to human life, safety or health. Reference to the publication of the Pacific Coast Building Officials Conference indicates that editions of a Uniform Building Code were published in 1943, 1946, 1949, 1952, 1955 and 1958. The extent to which the provisions purport to apply to the use and maintenance of existing buildings varies and demonstrates the futility of attempting to determine the applicability of a particular city ordinance without having its terms in the record.
The record fails to reflect evidence which would support a finding of liability against the defendants, and the motion for judgment notwithstanding the verdict was properly granted.
The judgment is affirmed.
SULLIVAN, P. J., and MOLINARI, J., concur.
The trial court did instruct the jury generally on negligence and contributory negligence. (See BAJI Nos. 101, 101-C, 101-D, 102, 103.1, 103-A, 104, 113, 138.-1.) It defined invitee and licensee (see BAJI Nos. 212, 213, 213-A, and 213-B), delineated the duty to an invitee insofar as the conditions on the premises are concerned (see BAJI No. 213-C (pre-1964) paras. 1, 3 and 4 with reference to 'active negligence' deleted; and No. 213-I, paras. 1 and 3); and described the respective rights and obligations of the licensor and licensee in respect of conditions in the premises in terms of BAJI No. 212-B.2 and the rule from the cases that the licensee must take the premises as he finds them insofar as any alleged defective condition thereof is concerned.
An instruction offered by the plaintiff which set forth the provisions of section 1714 of the Civil Code was rejected by the trial court.
'PURPOSE OF BUILDING CODE: The purpose of the building codes from which the above stairway regulations are quoted is to provide minimum standards to safeguard life or limb, property and public welfare. Uniform Building Code for the 1943, 1956 and 1958 editions, Sect. 102.
'NEGLIGENCE PER SE: Conduct by defendants which is in violation of the regulations and provisions of the Uniform Building Code just read to you constitutes, in itself, negligence on the part of said defendants. BAJI No. 149 (as modified).
'A person such as LEOLA ROSS, for whose protection safety regulations have been enacted does not assume the risks of a dangerous condition resulting from violation thereof.
'The standard of conduct of a reasonable man may be established by legislative enactment. In so far as there is such power, a Municipal ordinance on a rule of such a biard [sic] or commission has the same force as a statute enacted by the legislature of a State or by Congress. Restatement of Torts: Section 285(a), comment b.'