In this action for personal injuries plaintiff appeals from a judgment of nonsuit entered at the close of the presentation of his evidence.
The general factual background of the case will be given first, and further facts will be developed where relevant. Defendant South End Rowing Club leases from the City and County of San Francisco certain waterfront property adjoining its premises near Aquatic Park on San Francisco Bay, and maintains thereon a boat-launching pier for the use of its members. The pier extends across a sandy, sloping beach and out over the water. It appears to be constructed generally perpendicularly to the shoreline, which at this point runs east and west.
About noon on March 14, 1959, plaintiff and two friends arrived at defendant's pier. Their purpose, as plaintiff testified, was to "have fun" with the other youths who congregated at that spot and, in particular, to go swimming and diving from the pier. Plaintiff was 15 years and 8 months old at the time, and his companions were of similar age. They changed into bathing trunks at the Aquatic Park facilities, then made their way to defendant's property by walking some 50 yards along the beach and passing under an adjacent pier. They had been swimming and diving at this location on
Upon arriving at the premises plaintiff "swam around" and dived several times from both sides of the pier, at a point about midway in its length. At the trial he could not recall which side he dived off first, but testified that in diving several times off the east side he swam "a little ways in" before touching bottom and walking up on the beach. Plaintiff's last dive was made off the west side of the pier, directly across from the place where he had made his dives on the east side. At that point the pier was some 15 feet wide. He testified that the dive was a "regular" one, i.e., outward from the pier rather than straight downwards into the water. Nevertheless, he apparently struck his head either on the bottom or on some submerged object, and sustained severe injury to the spinal cord resulting in quadriplegic paralysis. He has regained partial use of his arms, but will always require some assistance in taking care of his personal physical needs.
The question whether there were warning signs on defendant's pier was raised at the trial. Plaintiff testified he saw no such signs. Photographs purporting to depict signs mounted on the pier were marked for identification only and were shown to plaintiff's witness Joe Cardinale. None of these photographs was admitted into evidence, however, for in each instance the witness failed to provide satisfactory identification. The remaining testimony on this point was to the same effect: Janice Babcock testified she did not recall seeing any signs on defendant's pier, and Tom Zaloco testified by deposition that "we didn't see no signs at all." Accordingly, if the case had gone to the jury on the plaintiff's evidence alone, the jurors could not properly have considered that there were any signs on the pier warning against swimming or diving. Since our function on this appeal is limited to determining whether a judgment for plaintiff based on plaintiff's evidence and legitimate inferences drawn therefrom would require reversal for insufficient evidentiary support, we are likewise prohibited
Plaintiff contends that the evidence would support a verdict in his favor on either of two theories of liability: first, that he was an invitee to whom defendant owed a duty of ordinary care to keep the premises reasonably safe for him and to discover hidden dangers thereon; and second, that if in the alternative plaintiff was only a trespasser or implied licensee, defendant was nevertheless liable under the special rule governing trespassing children. We shall consider these theories in the order presented.
In Oettinger v. Stewart (1944) 24 Cal.2d 133, 136 [148 P.2d 19, 156 A.L.R. 1221], this court quoted the definition of "business visitor" set forth in section 332 of the first Restatement of Torts: "A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them." Under the rules of the first Restatement, only a "business visitor" thus defined enjoyed the privileged status of "invitee"; any other person entering property at the express or implied invitation of the possessor was relegated to the category of "gratuitous licensee," with correspondingly diminished rights against the possessor (first Rest., Torts, § 331). This "economic benefit" theory has been the one most frequently invoked in California when courts have been called upon to determine who is an invitee. For example, in Popejoy v. Hannon (1951) 37 Cal.2d 159, 169-170 [231 P.2d 484], we approved of an instruction that is typical in this respect: "Whether a person entering the premises of another bears the legal status of an invitee or of a mere licensee depends upon the purpose of the visit. So long as its object is the pleasure of only the visitor or of some third party, or of a purely social nature, then he is, at most, only a licensee. When, however, the visitor has a purpose that is related to the occupant's business or that involves some matter of mutual business interest or advantage, then an invitation to use the premises may be inferred, and whether so inferred or expressed, the invitation and the purpose make the guest an invitee." (Accord, Smith v. Kern County Land Co. (1959) 51 Cal.2d 205, 208 [331 P.2d 645]; Speece v. Browne (1964) 229 Cal.App.2d 487, 490-491 [40 Cal.Rptr. 384]; Clawson v. Stockton Golf etc. Club (1963) 220 Cal.App.2d 886, 896 [34 Cal.Rptr. 184]; Bylling v. Edwards (1961) 193 Cal.App.2d 736, 739-740 [14 Cal.Rptr. 760].)
A second theory, however, has long coexisted with that based on "economic benefit," and has been termed the "public invitation" theory. It declares that "the basis of liability is not any economic benefit to the occupier, but a representation to be implied when he encourages others to enter to further a purpose of his own, that reasonable care has been exercised to make the place safe for those who come for that purpose." (Prosser on Torts (3d ed. 1964) p. 398.) As that author has elsewhere explained, "When land is thus thrown open to the public, the condition of the premises begins to affect the public interest. The occupier does not, of course, become a public utility or a public servant, like a common carrier; nor is his land dedicated irrevocably to public use, since he may always withdraw his invitation and exclude anyone he likes. But when the public, as such, is led to believe that premises have been provided, offered, held out for public entry, both the earlier and the later cases make it clear that the occupier assumes a duty of reasonable care to see that the place is safe for the purpose, which extends to those who are injured when they enter in response to the invitation." (Prosser, Business Visitors and Invitees (1942) 26 Minn.L.
The courts have not always articulated their reasoning in the precise language of "invitation," but it seems clear that the theory has received increasing application in decisions of our sister states
The principles embodied in new section 332 have been foreshadowed in California decisions. Thus in Popejoy v. Hannon (1951) supra, 37 Cal.2d 159, 167, we said: "`An invitation or permission to enter upon land need not be express but may be implied from such circumstances as the conduct of the possessor, the arrangement of the premises or local custom.' (Oettinger v. Stewart, 24 Cal.2d 133, 136 [148 P.2d 19, 156 A.L.R. 1221].) `"The gist of liability consists in the fact that the person injured did not act merely for his own convenience or pleasure, but that an owner or occupant held out an invitation or allurement which led him to believe that the use made by him of the premises was in accordance with intention and design."' (Barker v. Southern Pac. Co., 118 Cal.App. 748, 751 [5 P.2d 970, 6 P.2d 982].)" (Italics added.) Two recent opinions of the District Court of Appeal quote at length from Dean Prosser's formulation of the "invitation" theory, yet do not decide whether it is the law of this state. (Weyburn v. California Kamloops, Inc. (1962) 200 Cal.App.2d 239, 242-243 [19 Cal.Rptr. 357]; Miller v. Desilu Productions, Inc. (1962) 204 Cal.App.2d 160, 164 [22 Cal.Rptr. 36].) But in Smith v. United States (N.D. Cal. 1953) 117 F.Supp. 525, 527, District Judge (now Circuit Judge) Hamlin ruled that under California law a camper using a free public campground in a national forest is an invitee, holding that "California follows the rule that a person on the land of another is an invitee if the owner or occupant held out an invitation or allurement which led the visitor to believe that the use made by him of the premises was in accordance with intention and design." The court quotes with approval Borgnis v. California-Oregon Power Co. (1927) 84 Cal.App. 465, 468 [258 P. 394], to the
In this connection plaintiff relies on Askew v. Parker (1957) 151 Cal.App.2d 759 [312 P.2d 342], but the case is actually authority to the contrary. In Askew the defendant owners of a large, church-connected swimming pool mailed general invitations to all teenage children in the community to use the pool free of charge; the county public health director was refused permission to inspect the pool "to determine the sanitary condition" thereof (Health & Saf. Code, § 24104), and obtained an injunction against further interference by defendants in his performance of this duty. The appellate court affirmed, stating that Health and Safety Code section 24100 is "a public health statute enacted for the purpose of protecting the citizens of California from the dangers which may easily lurk in contaminated waters or improperly equipped and maintained swimming pools" (id. at p. 762). The court held (at p. 763) that to give effect to this purpose the term "public" should be construed to include "any artificially constructed pool which is commonly and regularly used by many persons in a community pursuant to a general invitation issued to a large or indeterminate group, such as an entire community, as opposed to an invitation to a specific occasion or occasions." (Italics added.)
In a group of decisions rendered in 1958-1959 the rule set forth in section 339 of the first Restatement of Torts was adopted as the law of this state with respect to the liability of a possessor of land for the death or injury of trespassing children. (King v. Lennen (1959) 53 Cal.2d 340, 343 [1 Cal.Rptr. 665, 348 P.2d 98]; Garcia v. Soogian (1959) 52 Cal.2d 107, 110 [338 P.2d 433]; Courtell v. McEachen (1959) 51 Cal.2d 448, 457-458 [334 P.2d 870]; Reynolds v. Willson
New section 339 declares: "A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children."
Plaintiff's evidence is generally meager, and on certain
This limitation dictated by the facts is crucial, for clause (b) of section 339 of the Restatement speaks of dangers to "such" children, referring back to clause (a) and the children who the possessor "knows or has reason to know" are likely to trespass. Under clause (b), therefore, the precise question presented here is whether defendant should be charged with the expectation that high school youths in their middle teens would fail to realize the risk involved in diving off its pier.
The evidence demonstrates, moreover, that plaintiff had actual knowledge and appreciation of the danger.
The most obvious fact is plaintiff's age.
Nor was plaintiff a novice in the arts of swimming and diving. He had been swimming for some three or four years prior to the accident, and had received swimming and diving lessons in high school. His diving experience at school was off the side of a pool, and it would be unreasonable to assume his instructor did not warn him of the dangers of hitting bottom. On this important question, moreover, we need not indulge in speculation: plaintiff agreed on the witness stand that he "knew" that "if you dove into shallow water that that was the wrong thing to do"; he admitted he had "always" known this fact, i.e., from "early life."
Finally, plaintiff's knowledge of the actual diving conditions at defendant's pier was extensive. He admitted having dived off that same pier some 10 or 15 times over a period of three or four months, doubtless under varying conditions of weather and tide. On the day of the accident he dived off the pier three or four times, but not always off the same side; he did not recall which side he dived off first. On the witness stand he answered in the affirmative the question, "you dove off both sides of the pier before you took the dive that ended up in your accident. Is that right?" Even more importantly, plaintiff also answered in the affirmative the question, "you
On these facts we find persuasive precedent in Garcia v. Soogian (1959) supra, 52 Cal.2d 107. There, a girl 12 years and 8 months old was injured about 8 o'clock one evening when she unsuccessfully attempted to jump over a stack of prefabricated building panels. In holding that she failed to make out a case for recovery under the rule of section 339 of the first Restatement of Torts, we reasoned, "the panels containing windows were heavy and were firmly stacked a considerable distance from the street in such a manner that the glass could be reached only at the top of the piles, 24 to 30 inches from the ground. The chance was slight that a child of plaintiff's age would fail to see the glass or appreciate what risk was presented, and there is no evidence that plaintiff was of less than average intelligence for her age. It may be, as plaintiff in effect testified, that, because it was getting dark, she did not see the glass before jumping, but defendants could not reasonably be required to foresee that there was any substantial likelihood that a normal child of more than 12 would not appreciate the danger of jumping over a large pile of building materials when darkness prevented sufficient perception of the nature of the obstacle." (Id. at pp. 112-113.)
Here, as in Garcia, "the chance was slight that a child of plaintiff's age" would fail to "appreciate what risk was presented." Indeed, plaintiff actually knew he was diving in generally shallow water and knew what risks he was incurring by so doing. Those risks were not eliminated merely because plaintiff was fortunate enough to have made several previous dives without striking bottom. Moreover, although the accident took place shortly after midday, the water appears to have been opaque and the bottom not discernible beyond the edge of the beach. Thus plaintiff was in effect aware that he did not know precisely where the bottom was. As in Garcia, the fact that visibility was inadequate should have rendered even more obvious to a youth of plaintiff's age the dangers of diving without "sufficient perception" of what lay ahead.
Here again as in Garcia, "In the light of the undisputed
Although cited by neither party, two decisions on superficially similar facts should be noticed here. In Hawk v. City of Newport Beach (1956) 46 Cal.2d 213 [293 P.2d 48], the defendant city owned and supervised a recreational beach to which it expressly invited the public. David, a youth of 17, went swimming at the main beach area, then proceeded to an adjacent cove connected with the beach by well-defined paths. On one side of the cove was located a line of large rocks, extending some 180 to 200 feet from shore. David had not used the cove before, but had seen people diving from the rocks. In wading out to the rocks the water came up to his waist, and he could not see bottom because of its murky condition. He followed an older boy along the line of rocks to the farthest one, and watched him dive into the water and swim away
For many years the city had had actual knowledge, through its lifeguards, that patrons of the beach were using this rock as a diving platform, and indeed knew of two specific occasions when someone had been injured in so doing. Nevertheless the city neither put up warning signs nor stationed a permanent lifeguard at that location, but relied only on occasional admonitions by roving lifeguards who visited the area a few times a day.
David brought suit against the city under the provisions of our former Public Liability Act.
The second case is Skaggs v. Junis (1960) 27 Ill.App.2d 251 [169 N.E.2d 684], in which the defendant, a farmer, built an earthen dam across a ravine to make a pond for watering his cattle. After the pond filled, the defendant built a cabin nearby and kept a boat, inner tubes, and a picnic table in the adjacent wooded area. The tract was at least partially visible from the public highway. Groups of adults and children began to use the pond for swimming and diving, most of them with the defendant's express permission. On a number of occasions Willard, a youth of 16, accompanied certain of his friends who had express permission to use the premises, and the defendant saw them swimming and diving in the pond. Once, the defendant gave Willard and one of his friends a boat ride on the pond. At no time did the defendant tell Willard or anyone else
On the day of the accident, a Sunday, the defendant granted permission to the local fire department to use the pond for firefighting demonstrations and contests to which the general public was invited. Willard and his friends arrived and began swimming and diving in the pond. Defendant observed this activity. In the course of one of his dives Willard struck a submerged and invisible tree stump some 13 feet from shore, covered by only 1 1/2 feet of water. He was seriously injured, and filed an action for damages.
During presentation of the defendant's evidence the court directed a verdict for the defendant on Count II, which charged general negligence on an attractive nuisance theory; the jury returned a verdict for the defendant on Count I, which charged wilful and wanton misconduct. The Illinois intermediate appellate court reversed, holding as to Count II that the questions "whether the pond and premises were sufficiently attractive to entice the plaintiff to entering [sic] them, whether the condition of the pond and premises were such as to create an unreasonable danger to children frequenting them, whether the defendant should reasonably have foreseen harm to children from the condition of his pond and premises, and whether the plaintiff was guilty of contributory negligence, were questions for the jury under the circumstances shown in the record." (Id. at p. 689 of 169 N.E.2d.)
As we stressed in Garcia v. Soogian (1959) supra, 52 Cal.2d 107, 110, each case of this nature "must be judged on its own facts." Upon analysis it will be seen that significant distinctions separate the case before us from both Hawk and Skaggs. In each of the latter, the plaintiff entered the premises on the clearly implied invitation of the landowner; each plaintiff used the premises for the purpose for which they were held open to the public; and each plaintiff was totally ignorant of the risk involved. On such evidence the jury in each case could have found the defendant landowner to be under an affirmative duty to exercise ordinary care to keep the premises reasonably safe for the plaintiff and to discover any hidden dangers thereon.
Nor is there any relevance in the holding of both Hawk and Skaggs that in the circumstances there shown the question of the plaintiff's contributory negligence was for the jury. No such issue is in this case.
As emphasized by Professors Harper and James, "The question of the child's contributory negligence is a separate problem which must be carefully distinguished from that of the land occupier's duty.... Unfortunately the issues are often confused." (2 Harper & James, The Law of Torts (1956) p. 1455, fn. 57; see also id. at p. 1454, fn. 54.)
The judgment is affirmed.
Traynor, C.J., McComb, J., and Burke, J., concurred.
The nature and extent of the trial court's power to effectively withhold the fact issues of a lawsuit from the jury was carefully stated by this court in Estate of Lances, 216 Cal. 397, at page 400 [14 P.2d 768], as follows: "A nonsuit or a directed verdict may be granted `only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given.' [Citations.] Unless it can be said as a matter of law, that, when so considered, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury." (Italics added.) The attitude which the law requires of us in a case of this kind is therefore clear, and our inquiry is simply this: If the instant case had been submitted to the jury solely upon the evidence presented by the plaintiff, and the jury, on the basis of that evidence and legitimate inferences drawn therefrom, had duly rendered a verdict in the plaintiff's favor, would we then be compelled to reverse the judgment entered pursuant to that verdict on the ground of insufficient evidentiary support? I am convinced that we would not.
As the majority opinion recognizes, the law of this state with respect to the liability of a possessor of land for the death or injury of trespassing children is stated in section 339 of the Restatement Second of Torts. That section provides as follows:
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
It is my view that the record herein, though properly termed "meager" by the majority, would nevertheless support a verdict for the plaintiff based on the substantive theory set forth in section 339, and therefore would support findings that the requirements of each of the five clauses of that section were satisfied. However, since the majority has chosen to discuss only clauses (b) and (c) of the section, and purports to justify its result upon plaintiff's failure to satisfy the requirements of those clauses, I shall limit the scope of this opinion accordingly.
Clause (b) of section 339 deals with the land possessor's knowledge, actual or imputed, relative to the danger to immature trespassers faced by the artificial condition on his land. In order to justify a finding that this clause has been satisfied, there must be sufficient evidence (1) that the possessor knows or has reason to know of the existence of the condition, and (2) that the possessor realizes or should realize that the condition "will involve an unreasonable risk of death or serious bodily harm to such children." The majority, referring back to clause (a) of the section, determines that "such children" must in the circumstances of this case mean "high school youths in their middle teens," and finds as a matter of law that the evidence here presented could not justify a finding that defendant realized or should have realized that its pier involved an unreasonable risk of harm to such trespassing youths.
This conclusion is reached through reference to the class of trespassers: "We cannot conceive of high school youths in
Further, I would suppose that evidence of plaintiff's actual realization of danger might be more meaningfully considered in connection with clause (c) of section 339, i.e., that clause specifically concerned with that factor. Defendant's actual or expected realization of risk is the issue here, and it is clear that evidence was presented which would justify a finding in plaintiff's favor on this point. That evidence concerns warning signs placed by defendant upon its own pier.
Ironically, but understandably, it was defendant who sought to introduce into evidence photographs showing warning signs upon its pier, and plaintiff who opposed that introduction. The relevant photographs marked for identification were lettered F through I. Exhibit F for identification showed a sign which read "Swimming & Diving From This Pier Strictly Prohibited, Keep Off, South End Rowing Club." Exhibit G for identification showed a sign which read "No Diving." Exhibit H for identification showed the far end of defendant's pier, and appearing there were the signs of which closeup views were shown in exhibits F and G for identification, together with a large "Keep Off" sign painted in white on the surface of the pier, and a sign which said the following: "So. End Swimmers, Danger, Submerged Sharp Obstacles Off Dock, Off Limits." Exhibit I for identification was essentially identical to Exhibit H for identification.
It is my view that the evidence presented relative to defendant's warning signs, together with legitimate inferences to be drawn from that evidence, was sufficient to withstand a motion for nonsuit insofar as the question of defendant's awareness of danger is concerned. The evidence on this point, though not fully developed at the time of the nonsuit motion, warranted full and mature consideration by the jury rather than the summary judicial rejection which it received.
Clause (c) of section 339, as above indicated, concerns itself with the actual knowledge or awareness of the class of trespassers as regards the particular risk. Thus, the land possessor is not liable unless "the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it." In order to justify a finding that this clause has been satisfied, there must be sufficient evidence either that the trespasser because of his youth does not discover the dangerous condition, or, if he does discover it, he, because of his youth, does not realize the risk involved. Again, as a matter of law, the majority finds that plaintiff not only knew of the condition but also "had actual knowledge and appreciation of the danger." Primary reliance is placed upon
But that is not the inquiry. Clause (c) of section 339 does not concern itself with plaintiff's probable or expected realization of danger. It deals with his actual realization. Unless it can be said as a matter of law that the plaintiff actually realized and appreciated the danger, a nonsuit will not lie. Whether plaintiff because of his age, background, and experience should have so realized or appreciated, though perhaps in point of fact he did not, is a defensive matter of contributory fault, and such evidence is precisely the variety which is to be ignored upon a nonsuit motion.
The record herein contains evidence which, if believed, would support a finding that plaintiff, because of his youth and immaturity, did not realize or appreciate
The requirement that the infant trespassers fail to appreciate the danger "because of their youth" does not diminish the force of this observation. A jury might reasonably have found that plaintiff's failure to realize the danger was a result of immature judgment due to his youth. Whereas a mature
The majority relies heavily upon the case of Garcia v. Soogian, 52 Cal.2d 107 [338 P.2d 433], wherein we reversed a judgment, entered pursuant to a jury verdict for the infant plaintiff, on the ground that that verdict, based upon the theory of section 339,
It is my view that the record herein, though sparse to an extent unjustified by the factual background of this unfortunate accident, is still not so sparse as to justify the findings of the majority herein. Factual issues become legal issues at a point far removed from that which this court has today chosen, and facile language cannot effect a credible transformation short of that point.
I would reverse the judgment of nonsuit and remand for a full trial on the merits.
Peters, J., and Tobriner, J., concurred.
Appellant's petition for a rehearing was denied July 6, 1966. Peters, J., Tobriner, J., and Peek, J., were of the opinion that the petition should be granted.