Plaintiff appeals from a summary judgment for defendant Nancy Christian in this personal injury action.
In his complaint plaintiff alleged that about November 1, 1963, Miss Christian told the lessors of her apartment that the knob of the cold water faucet on the bathroom basin was cracked and should be replaced; that on November 30, 1963, plaintiff entered the apartment at the invitation of Miss Christian; that he was injured while using the bathroom fixtures, suffering severed tendons and nerves of his right hand; and that he has incurred medical and hospital expenses. He further alleged that the bathroom fixtures were dangerous, that Miss Christian was aware of the dangerous condition, and that his injuries were proximately caused by the negligence of Miss Christian. Plaintiff sought recovery of his medical and hospital expenses, loss of wages, damage to his clothing, and $100,000 general damages. It does not appear from the complaint whether the crack in the faucet handle was obvious to an ordinary inspection or was concealed.
Miss Christian filed an answer containing a general denial except that she alleged that plaintiff was a social guest and admitted the allegations that she had told the lessors that the faucet was defective and that it should be replaced. Miss Christian also alleged contributory negligence and assumption of the risk. In connection with the defenses, she alleged that plaintiff had failed to use his "eyesight" and knew of the condition of the premises. Apart from these allegations, Miss Christian did not allege whether the crack in the faucet handle was obvious or concealed.
Miss Christian's affidavit in support of the motion for summary judgment alleged facts showing that plaintiff was a social guest in her apartment when, as he was using the bathroom, the porcelain handle of one of the water faucets broke in his hand causing injuries to his hand and that plaintiff had used the bathroom on a prior occasion. In opposition to the motion for summary judgment, plaintiff filed an affidavit stating that immediately prior to the accident he told Miss Christian that he was going to use the bathroom facilities, that she had known for two weeks prior to the accident that the faucet handle that caused injury was cracked, that she warned the manager of the building of the condition, that nothing was done to repair the condition of the handle, that she did not say anything to plaintiff as to the condition of the handle, and that when plaintiff turned off the faucet the handle broke
California cases have occasionally stated a similar view: "All persons are required to use ordinary care to prevent others being injured as the result of their conduct." (Hilyar v. Union Ice Co., 45 Cal.2d 30, 36 [286 P.2d 21]; Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 317 [282 P.2d 12]; see also Green v. General Petroleum Corp., 205 Cal. 328, 333 [270 P. 952, 60 A.L.R. 475]; Perkins v. Blauth, 163 Cal. 782, 786 [127 P. 50]; McCall v. Pacific Mail S.S. Co., 123 Cal. 42, 44 [55 P. 706]; Edler v. Sepulveda Park Apts., 141 Cal.App.2d 675, 680 [297 P.2d 508]; Copfer v. Golden, 135 Cal.App.2d 623, 627-628 [288 P.2d 90]; cf. Dillon v. Legg, 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912].) Although it is true that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of statutory provision declaring an exception to the fundamental principle enunciated by section 1714 of the Civil Code, no such exception should be made unless clearly supported by public policy. (Lipman v. Brisbane Elementary School Dist., 55 Cal.2d 224, 229-230 [11 Cal.Rptr. 97, 359 P.2d 465]; Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 213 et seq. [11 Cal.Rptr. 89, 359 P.2d 457]; Malloy v. Fong, 37 Cal.2d 356, 366 [232 P.2d 241].)
A departure from this fundamental principle involves the
One of the areas where this court and other courts have departed from the fundamental concept that a man is liable for injuries caused by his carelessness is with regard to the liability of a possessor of land for injuries to persons who have entered upon that land. It has been suggested that the special rules regarding liability of the possessor of land are due to historical considerations stemming from the high place which land has traditionally held in English and American thought, the dominance and prestige of the landowning class in England during the formative period of the rules governing the possessor's liability, and the heritage of feudalism. (2 Harper and James, The Law of Torts, supra, p. 1432.)
The departure from the fundamental rule of liability for negligence has been accomplished by classifying the plaintiff either as a trespasser, licensee, or invitee and then adopting special rules as to the duty owed by the possessor to each of the classifications. Generally speaking a trespasser is a person who enters or remains upon land of another without a privilege to do so; a licensee is a person like a social guest who is not an invitee and who is privileged to enter or remain upon land by virtue of the possessor's consent, and an invitee is a
Although the invitor owes the invitee a duty to exercise ordinary care to avoid injuring him (Oettinger v. Stewart, supra, 24 Cal.2d 133, 137; Hinds v. Wheadon, 19 Cal.2d 458, 460-461 [121 P.2d 724]), the general rule is that a trespasser and licensee or social guest are obliged to take the premises as they find them insofar as any alleged defective condition thereon may exist, and that the possessor of the land owes them only the duty of refraining from wanton or willful injury. (Palmquist v. Mercer, 43 Cal.2d 92, 102 [272 P.2d 26]; see Oettinger v. Stewart, supra, 24 Cal.2d 133, 137 et seq.) The ordinary justification for the general rule severely restricting the occupier's liability to social guests is based on the theory that the guest should not expect special precautions to be made on his account and that if the host does not inspect and maintain his property the guest should not expect this to be done on his account. (See 2 Harper and James, The Law of Torts, supra, p. 1477.)
An increasing regard for human safety has led to a retreat from this position, and an exception to the general rule limiting liability has been made as to active operations where an obligation to exercise reasonable care for the protection of the licensee has been imposed on the occupier of land. (Oettinger v. Stewart, supra, 24 Cal.2d 133, 138-139 [disapproving contrary cases]; see Rest.2d Torts, § 341; Prosser on Torts, supra, pp. 388-389.) In an apparent attempt to avoid the general rule limiting liability, courts have broadly defined active operations, sometimes giving the term a strained construction in cases involving dangers known to the occupier.
Thus in Hansen v. Richey, 237 Cal.App.2d 475, 481 [46 Cal.Rptr. 909], an action for wrongful death of a drowned youth, the court held that liability could be predicated not upon the maintenance of a dangerous swimming pool but upon negligence "in the active conduct of a party for a large number of youthful guests in the light of knowledge of the dangerous pool."
Another exception to the general rule limiting liability has been recognized for cases where the occupier is aware of the dangerous condition, the condition amounts to a concealed trap, and the guest is unaware of the trap. (See Loftus v. Dehail, 133 Cal. 214, 217-218 [65 P. 379]; Anderson v. Anderson, supra, 251 Cal.App.2d 409, 412; Hansen v. Richey, supra, 237 Cal.App.2d 475, 479-480; Huselton v. Underhill, 213 Cal.App.2d 370, 374-376 [28 Cal.Rptr. 822]; Bylling v. Edwards, 193 Cal.App.2d 736, 746-747 [14 Cal.Rptr. 760]; Yazzolino v. Jones, 153 Cal.App.2d 626, 636 [315 P.2d 107]; Ashley v. Jones, 126 Cal.App.2d 328, 332 [271 P.2d 918].) In none of these cases, however, did the court impose liability on the basis of a concealed trap; in some liability was found on another theory, and in others the court concluded that there was no trap. A trap has been defined as a "concealed" danger, a danger with a deceptive appearance of safety. (E.g., Hansen v. Richey, supra, 237 Cal.App.2d 475, 480.) It has also been defined as something akin to a spring gun or steel trap. (Anderson v. Anderson, supra, 251 Cal.App.2d 409, 412.) In the latter case it is pointed out that the lack of definiteness in the application of the term "trap" to any other situation makes its use argumentative and unsatisfactory.
The cases dealing with the active negligence and the trap exceptions are indicative of the subtleties and confusion which have resulted from application of the common law principles
In refusing to adopt the rules relating to the liability of a possessor of land for the law of admiralty, the United States Supreme Court stated: "The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism. In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards `imposing on owners and occupiers a single duty of reasonable care in all the circumstances.'" (Footnotes omitted.) (Kermarec v. Compagnie Generale, 358 U.S. 625, 630-631 [3 L.Ed.2d 550, 554-555, 79 S.Ct. 406]; see also Jones v. United States, 362 U.S. 257, 266 [4 L.Ed.2d 697, 705, 80 S.Ct. 725, 78 A.L.R.2d 233]; 2 Harper and James, The Law of Torts, supra, 1430 et seq.; Prosser, Business Visitors and Invitees, 26 Minn.L.Rev. 573; Marsh, The History and Comparative Law of Invitees, Licensees and Trespassers, 69 L.Q.Rev. 182, 359.)
The courts of this state have also recognized the failings of the common law rules relating to the liability of the owner and occupier of land. In refusing to apply the law of invitees, licensees, and trespassers to determine the liability of an independent contractor hired by the occupier, we pointed out that application of those rules was difficult and often abitrary. (Chance v. Lawry's, Inc., supra, 58 Cal.2d 368, 376-379; cf. Hall v. Barber Door Co., 218 Cal. 412, 419 [23 P.2d 279]; Donnelly v. Hufschmidt, 79 Cal. 74, 75-76 [21 P. 546]; Burke v. Zanes, 193 Cal.App.2d 773, 778 [14 Cal.Rptr. 619].) In refusing to apply the common law rules to a known trespasser on an automobile, the common law rules were characterized as "unrealistic, arbitrary, and inelastic," and it was
There is another fundamental objection to the approach to the question of the possessor's liability on the basis of the common law distinctions based upon the status of the injured party as a trespasser, licensee, or invitee. Complexity can be borne and confusion remedied where the underlying principles governing liability are based upon proper considerations. Whatever may have been the historical justifications for the common law distinctions, it is clear that those distinctions are not justified in the light of our modern society and that the complexity and confusion which has arisen is not due to difficulty in applying the original common law rules — they are all too easy to apply in their original formulation — but is due to the attempts to apply just rules in our modern society within the ancient terminology.
Without attempting to labor all of the rules relating to the possessor's liability, it is apparent that the classifications of trespasser, licensee, and invitee, the immunities from liability predicated upon those classifications, and the exceptions to those immunities, often do not reflect the major factors which should determine whether immunity should be conferred upon the possessor of land. Some of those factors, including the closeness of the connection between the injury and the defendant's conduct, the moral blame attached to the defendant's conduct, the policy of preventing future harm, and the prevalence and availability of insurance, bear little, if any, relationship to the classifications of trespasser, licensee and invitee and the existing rules conferring immunity.
Although in general there may be a relationship between the remaining factors and the classifications of trespasser, licensee, and invitee, there are many cases in which no such relationship may exist. Thus, although the foreseeability of harm to an invitee would ordinarily seem greater than the
Considerations such as these have led some courts in particular situations to reject the rigid common law classifications and to approach the issue of the duty of the occupier on the basis of ordinary principles of negligence. (E.g., Gould v. DeBeve (D.C. Cir.) 330 F.2d 826, 829-830 [117 App.D.C. 360]; Anderson v. Anderson, supra, 251 Cal.App.2d 409, 413; Taylor v. New Jersey Highway Authority, 22 N.J. 454 [126 A.2d 313, 317, 62 A.L.R.2d 1211]; Scheibel v. Lipton 156 Ohio St. 308 [102 N.E.2d 453, 462-463]; Potts v. Amis, 62 Wn.2d 777 [384 P.2d 825, 830-831]; see Comment (1957) 22 Mo.L. Rev. 186; Note (1958) 12 Rutgers L.Rev. 599.) And the common law distinctions after thorough study have been repudiated by the jurisdiction of their birth. (Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, ch. 31.)
A man's life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values. The common law rules obscure rather than illuminate the proper considerations which should govern determination of the question of duty.
Once the ancient concepts as to the liability of the occupier of land are stripped away, the status of the plaintiff relegated to its proper place in determining such liability, and ordinary principles of negligence applied, the result in the instant case presents no substantial difficulties. As we have seen, when we view the matters presented on the motion for summary judgment as we must, we must assume defendant Miss Christian was aware that the faucet handle was defective and dangerous, that the defect was not obvious, and that plaintiff was about to come in contact with the defective condition, and under the undisputed facts she neither remedied the condition nor warned plaintiff of it.
It may be noted that by carving further exceptions out of the traditional rules relating to the liability to licensees or
The judgment is reversed.
Traynor, C.J., Tobriner, J., Mosk, J., and Sullivan, J., concurred.
I dissent. In determining the liability of the occupier or owner of land for injuries, the distinctions between trespassers, licensees and invitees have been developed and applied by the courts over a period of many years. They supply a reasonable and workable approach to the problems involved, and one which provides the degree of stability and predictability so highly prized in the law. The unfortunate alternative, it appears to me, is the route taken by the majority in their opinion in this case; that such issues are to be decided on a case by case basis under the application of the basic law of negligence, bereft of the guiding principles and precedent which the law has heretofore attached by virtue of the relationship of the parties to one another.
Liability for negligence turns upon whether a duty of care is owed, and if so, the extent thereof. Who can doubt that the corner grocery, the large department store, or the financial institution owes a greater duty of care to one whom it has
In my view, it is not a proper function of this court to overturn the learning, wisdom and experience of the past in this field. Sweeping modifications of tort liability law fall more suitably within the domain of the Legislature, before which all affected interests can be heard and which can enact statutes providing uniform standards and guidelines for the future.
I would affirm the judgment for defendant.
McComb, J., concurred.