Wayfer v. Geerdes

Filed 12/1/05 Wayfer v. Geerdes CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

RHONDA WAYFER, Plaintiff and Appellant, v. MAURICE GEERDES, Defendant and Respondent.

A108247 (Solano County Super. Ct. No. FCS 020492)

Introduction

Plaintiff Rhonda Wayfer appeals from a judgment of the Solano County Superior Court following the trial court’s order granting defendant Maurice Geerdes’s motion for nonsuit. Plaintiff contends the trial court erred in granting a nonsuit as there was evidence of defendant’s negligence sufficient to support a jury verdict in plaintiff’s favor. We agree with plaintiff and therefore reverse.

Procedural History

On August 28, 2002, plaintiff filed a complaint against defendant for personal injuries, alleging causes of action for general negligence, premises liability, and products liability.[1] Plaintiff amended her complaint on April 7, 2004, to change the date of injury to October 7, 2001, and to correct the spelling of defendant’s name.

A jury trial began on April 27, 2004. Plaintiff called as witnesses Tonia James, Dr. Santi Rao, Torrance Leedo, Tray Von Wayfer, defendant, and plaintiff. Defendant moved for a nonsuit after plaintiff rested her case on April 28, 2004. Defendant argued that plaintiff failed to produce any evidence of defendant’s negligence. The trial court granted defendant’s motion for nonsuit and dismissed the case on April 28, 2004.

On May 17, 2004, plaintiff filed a notice of appeal that we dismissed as premature on July 20, 2004. On September 20, 2004, the court entered a judgment dismissing the action with prejudice. Plaintiff timely appealed on October 19, 2004.

Statement of Facts

Plaintiff rented a house from defendant. Upon moving in, plaintiff and defendant went on a walk through of the house and discussed a few minor repairs to be completed. Aside from the repairs, no evidence was introduced showing any defects were discovered or discussed during the walk through.

Plaintiff testified that she lived in the house for approximately two years before she fell into a hole in the closet. During these two years, plaintiff never complained to defendant that the closet area was unsafe, and had never stepped in the closet before the accident.[2] Plaintiff testified that the accident occurred while she stepped into the closet with her left foot. As she leaned over to pick up some shoes, her left foot went through an access door and hit the dirt underneath the house. Plaintiff stated she suffered injuries to her foot and back as a result of the accident.

Defendant, who had 20 years of experience in the construction industry, testified that the closet where the accident occurred contains a trapdoor with access to a crawlspace underneath the house. The trapdoor is rectangular and made from plywood, with approximate dimensions of 24 inches by 16 inches. Light cedar floor boards sit on top of the door to seal off dust and air. The cedar boards are five-sixteenths or three-eighths of an inch thick and overlap onto the rest of the closet’s cedar flooring to make the entire surface of the closet floor smooth. When the door is properly seated, each long edge of the door rests on a lip of wood for support. Specifically, the back edge rests on the lip of the floor framing, while the front edge of the door rests on a seven-eighths of an inch lip of a wooden beam called a floor joist.

Attached to the floor joist is a spacer made from a piece of split cedar that functions to stabilize the trapdoor and prevent it from moving off of the lip of the floor joist. The spacer was installed when the house was built. Defendant testified that the trapdoor is solid if properly seated with the spacer in place. Without the spacer, however, the door might move away from the floor joist. In such a situation, the front edge would no longer be sitting on the lip of the floor joist for support. Without the lip of the floor joist supporting the front edge, the only thing preventing the door from falling through the floor would be the cedar boards. Defendant stated this would represent a dangerous situation because the cedar boards by themselves only provide minimal structural support. Without the spacer in place, the door could “flop down.” A dangerous situation would also exist if the door was put in place backwards, which is possible because the door is not fastened with wood blocking. If improperly seated as such, the door would be unsafe since the light cedar boards would be the only means of support holding up the door.

Defendant stated he opened the trapdoor five years before plaintiff moved in. Defendant testified he saw the spacer in place at that time, but did not know exactly how it was attached. No evidence was introduced suggesting that defendant pointed out the trapdoor to plaintiff at the walk through or that plaintiff was even aware of the trapdoor before the accident. Further, no evidence was presented showing defendant inspected the trapdoor at the walk through or any other time before the accident to look for a spacer or make sure the door was properly seated. After the accident, defendant made repairs to the door and did not find a spacer, but saw some long slivers of cedar boards in the crawlspace below the door. He also recalled seeing some children’s toys on the ground of the crawlspace at that time, and agreed that children may have used the crawlspace as a place to play.

Defendant also agreed that, for less than $100, it would be possible to alter the door to prevent a dangerous situation from arising. The alterations would require installing blocking on the sides of the door to ensure the door would not fall through, even if seated improperly. The opening would also need to be expanded by two inches[3] to keep the size of the opening within code.

At the close of plaintiff’s evidence, defendant moved for a nonsuit. Defendant argued there was not substantial evidence of defendant’s negligence that resulted in a dangerous condition because the trapdoor was not broken and defendant was not on notice that the area was unsafe. Defendant also claimed there was not substantial evidence that plaintiff actually fell, or that defendant’s negligence caused her to fall. Plaintiff argued there was evidence of negligence because defendant knew the door needed a spacer in place to be safe, yet did not make sure the door was properly seated. The court granted the nonsuit, stating the area had not been modified from its original condition, defendant was not on notice as to the condition of the area, and defendant did not negligently maintain the area.

Discussion

I. Standard of Review

Courts generally disfavor motions for nonsuit. (See Claxton v. Atlantic Richfield Co. (2003) 108 Cal.App.4th 327, 334-335 (Claxton).) “Because a successful nonsuit motion precludes submission of plaintiff’s case to the jury, courts grant motions for nonsuit only under very limited circumstances. [Citation.]” (Id. at p. 334.)

“ ‘A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit [the trier of fact] to find in his favor. [Citation.]’ ” (Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 444-445.)

“ ‘ “In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give ‘to the plaintiff[’s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor . . . .’ ” [Citations.]’ [Citations.]

“On appeal from a judgment of nonsuit, ‘the reviewing court is guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. “The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.” [Citations.]’ [Citations.]

“Although ‘a judgment of nonsuit must not be reversed if plaintiff’s proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is “some substance to plaintiff's evidence upon which reasonable minds could differ . . . .” [Citations.]’ ” (Claxton, supra, 108 Cal.App.4th at pp. 334-335.)

We review the record of the case at bar bearing in mind the heavy burden that must be overcome to sustain a judgment for nonsuit.

II. Principles of Negligence

Defendant contends not enough evidence of his negligence exists to reverse the judgment for nonsuit. We disagree.

“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff. [Citation.]” (Claxton, supra, 108 Cal.App.4th at p. 335.)

“[A] landlord owes a tenant a duty of reasonable care in providing and maintaining the rented premises in a safe condition. [Citations.]” (Becker v. IRM Corp. (1985) 38 Cal.3d 454, 467, disapproved on other grounds in Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1210; Miller & Starr, Cal. Real Estate Digest 3d (Oct. 2005 update), Landlord and Tenant, § 64.) “The landlord . . . has a duty upon execution of a lease to [reasonably] ‘inspect the premises to make the premises reasonably safe from dangerous conditions.’ [Citation.]” (Resolution Trust Corp. v. Rossmoor Corp. (1995) 34 Cal.App.4th 93, 102-103.)

A landlord is only liable for injuries caused by a dangerous condition that exists when the tenant’s lease begins, assuming a reasonable inspection would have disclosed the condition. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1605-1606 (Brantley).) When a dangerous condition arises after the tenant takes possession, the landlord is absolved of liability. (Id. at p. 1605.)

“A condition is dangerous if it creates a substantial risk of injury when foreseeable users use the property with due care. [Citation.] A condition is not dangerous if the risk of injury created by the condition is so minor, trivial or insignificant that it arises only when foreseeable users do not use due care. [Citations.] [¶] . . . Whether a given set of facts and circumstances creates a dangerous condition is usually a question of fact. [Citation.] The issue of a dangerous condition becomes a question of law only where reasonable minds can come to only one conclusion. [Citation.] [¶] . . . [¶] Whether the condition of property posed a substantial risk of injury to foreseeable users exercising due care is an objective standard and is measured by the risk posed to an ordinary foreseeable user. [Citation.]” (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 991-992 (Huffman).)

In Huffman, a stage actor injured himself during a rehearsal when he fell through an open trapdoor on a stage apron. (Huffman, supra, 84 Cal.App.4th at p. 979.) Even though the plaintiff knew the trapdoor was located somewhere on the stage apron, the production company had failed to take certain safety precautions that may have alerted the performer to the trapdoor’s exact location. (Id. at pp. 992-993.) The Court of Appeal held reasonable minds could differ as to whether the trapdoor constituted a dangerous condition under such circumstances. (Ibid.) Consequently, the appellate court overturned the trial court’s grant of judgment notwithstanding the verdict. (Id. at pp. 979, 996.)

Plaintiff argues that reasonable jurors could have found the trapdoor’s need for a spacer constituted a dangerous condition. For support, she cites defendant’s testimony that the trapdoor was secure when a spacer was in place, but dangerous if the spacer was removed or if the trapdoor was put in backwards. In either situation, the door would not rest on the lip of the floor joist, and would therefore only be supported by the thin cedar boards. Without the support of the floor joist, the trapdoor is unsafe. A reasonable juror might conclude a dangerous condition existed where the trapdoor required a removable spacer to be made safe, and where it could be made unsafe if seated improperly. Since reasonable minds could come to different conclusions, the issue is one of fact reserved for the jury. (See Huffman, supra, 84 Cal.App.4th at p. 991.)

According to defendant, plaintiff’s evidence “raises mere speculation, suspicion, surmise, guess or conjecture,” quoting Ulwelling v. Crown Coach Corp. (1962) 206 Cal.App.2d 96, 104-105. Defendant does not describe the facts of Ulwelling, nor does he attempt to relate the case to the evidence presented here. In Ulwelling, the drive shaft of a bus separated and damaged the brake system, causing the bus to crash. (Id. at p. 104.) The plaintiffs sued the manufacturer and assembler of the bus, claiming the company’s earlier modification of the chassis caused the crash. (Id. at p. 108.) However, the plaintiffs’ evidence failed to adequately explain how the modification affected the bus or caused the crash. (Id. at pp. 108-109.) Rather, the testimony relied upon by the plaintiffs stated, “the fact ‘the thing’ came loose ‘indicates that something has been changed in the vehicle to cause stress to be concentrated in that particular area.’ ” (Id. at p. 108.) The Court of Appeal found the evidence “constitute[d] guess and conjecture unsupported by reasonable basis” and upheld the trial court’s judgment for nonsuit in favor of the defendants. (Ibid.)

Defendant fails to analogize the case at bar to a single case applying the general rule against speculative evidence. However, he claims plaintiff’s evidence is speculative because it fails to prove the exact cause of her fall with certainty, making it impossible to determine whether defendant was negligent in relation to that cause. While it is uncertain exactly what caused the trapdoor to fall through the floor when plaintiff stepped on it, two possible explanations of the accident are supported by the evidence. First, the spacer may have been dislodged prior to the accident, causing the door to be unsafe. Defendant’s testimony that no spacer was found after the accident supports this explanation, and the jury could have used the testimony to conclude no spacer was in place before the accident. Second, the accident could have been caused by someone replacing the trapdoor incorrectly. Defendant stated he found toys in the crawlspace underneath the trapdoor after the accident, suggesting the door had been opened previously. Under either scenario, defendant’s failure to remedy the trapdoor’s need for a spacer is causally connected to the accident and could be found to constitute a dangerous condition of the premises, making him liable. (See Brantley, supra, 42 Cal.App.4th at pp. 1605-1606.) The case at bar is therefore more than just conjecture because plaintiff’s evidence adequately demonstrates how her accident occurred. (See Ulwelling v. Crown Coach Corp., supra, 206 Cal.App.2d at pp. 104-105.)

Defendant also asserts there is no evidence he knew or should have known of a dangerous condition because he was never notified the door was unsafe and never saw the door in an unsafe condition. Defendant’s argument assumes a dangerous condition existed only if the spacer was missing or the door was seated improperly. However, this is an inaccurate description of what plaintiff asserts was the dangerous condition: the trapdoor’s need for a spacer. As previously stated, the jury could have concluded the door’s need for a spacer was a dangerous condition that could have been eliminated at little cost. Defendant knew about the dangerous condition in question before leasing the house to plaintiff because he was aware the trapdoor needed a spacer to be safe at that time.

Defendant further argues that plaintiff failed to produce any evidence that he created a dangerous situation. His argument is without merit since a landlord need not create a dangerous condition to be liable for a tenant’s injuries. (See Brantley, supra, 42 Cal.App.4th at p. 1606.) Liability accrues when a landlord knows or should know of a dangerous condition existing at the time of letting. (See id. at pp. 1605-1606.)

The evidence presented at trial was sufficient to support a jury verdict that defendant breached his duty to plaintiff by failing to remedy a known dangerous condition that proximately caused plaintiff’s injuries. Defendant’s negligence is therefore an issue reserved for the trier of fact. Under the circumstances, the trial court erred in granting a nonsuit.

Disposition

The judgment is reversed and the matter is remanded for further proceedings. Plaintiff is to recover her costs on this appeal.

_________________________

Kline, P.J.

We concur:

_________________________

Haerle, J.

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Ruvolo, J.

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[1] At trial, plaintiff stated she was no longer pursuing a products liability claim.

[2] Plaintiff stated that, prior to the accident, she had only used the closet to hang up clothes.

[3] This could be done by cutting the plywood with a skill saw.