Becker v. IRM Corp.

Apr. No. 24618. [S.F. 1985.] BECKER,

GEORGE Aрpellant, Plaintiff CORPORATION, IRM Defendant Respondent.

Counsel and Appellant. & for Plaintiff Mitchell and Jack P. Meyer Dougherty McNamara, Houston, Caldwell, Sacks, Dodge, Leonard Edwin Train on behalf of Amici Curiae McClure & and Edward Shinnick as Ney Kelly Plaintiff and Appellant. Gianunzio, Caudle, Kincaid, Caudle &

John P. Robert W. Brower and Hubert for Defendant and Respondent. Jr., Nance F. Quinn, & W. Rogers, O’Donnell

Rogers, Joseph, Joseph of Defendant and Becker and Jon D. Smock as Amici Curiae on behalf Respondent.

Opinion BROUSSARD, as- injury complaint In this action personal plaintiff’s J. defendant serted causes of action of strict negligence against landlord. that a landlord is Defendant moved for summary judgment urging not liable to a tenant for a defect of the rented absent con- latent cealment of a known contractual or statutory duty or an danger expressed The trial and denied a motion for recon- repair. court the motion granted sideration. Plaintiff appeals.1

We have concluded erred to both causes of action. that the trial court The when he and fell slipped was complaint alleged plaintiff injured from de- the frosted shower door in the he leased against glass apartment and severely fendant. The door was made of It broke glass. untempered lacerated his arm. It serious would have that the risk of undisputed made of been reduced if the shower door had been substantially tempered rather than glass untempered glass. for summary judgment

Defendant’s affidavits in of the motion support 36-unit summarized as follows: Plaintiff’s apartment part defendant by built in 1962 and 1963 and apartment complex acquired plaintiff 1We have been in this court settled pending advised that while the case was $50,000 $150,000 in the event рlus the builder and a door and installer assembler remaining Apparently, the case remains plaintiff against is unsuccessful defendants. landlord will be pending against component part supplier. in the trial court Defendant referred to as defendant herein. walked through Prior to the two officers of defendant

1974. acquisition, the shower doors were most of the and observed that all of apartments officials, one of whom frosted to be the same. The glass appeared stated that prior from the time of its managed acquisition, the shower involving accident in 1978 there were no accidents plaintiff’s shower doors were doors and that were not advised that they any of the shower doors made of first learned that some untempered glass. They Their of shower were of after the accident. untempered glass inspection between the tem- doors after the accident “no visible difference provided of visible terms pered untempered glass appearance.” the accident he examined Defendant’s maintenance man stated that after doors, were re- glass and that 31 of the doors with glass untempered glass He for the looking untempered him. also stated that placed difference any doors no could tell way shower “there was that a layperson I able to that was only way at the shower doors. simply looking mark in the corner differentiate . . . was for a small by looking very each piece glass.”

Plaintiff did not file affidavits in to defendant’s. opposition

The is and should be used drastic summary judgment procedure A summary caution so that it will a for a full trial. not become substitute would be suf if the affidavits оf the judgment only moving party proper as to the merits ficient to in his favor and doubts support judgment (Row the motion. motion should be resolved in favor of the party opposing 97, land 108, 443 P.2d v. Christian [70 561, 496].) 32 A.L.R.3d Liability

Strict Products, 57, 62 In Greenman Yuba Power Inc. Cal.2d 1049], we established 13 A.L.R.3d P.2d an article he places rule: “A manufacturer liable in tort when strictly defects, market, that it is to be used without inspection knowing human being. Recognized to have a defect that causes to a proves been has now liability food such first the case of unwholesome products, hazards or great greater extended to a of other that create as variety products the cases imposing The court that if defective. recognized [Citations.]” im of an theory express strict had been based on liability “usually (59 Cal.2d the plaintiff.” from the manufacturer to warranty running plied and for es 63.) theory from warranty at justification departing p. that recognition in tort was a doctrine of strict tablishing liability to the manufacturer and the refusal permit was law liability imposed by (Ibid.) for defective liability products. of its own define scope define to adequately law failed warranty Our concern was not that ” “ of sales’ appli- of the law ‘intricacies manufacturer’s but that duty representation defeat the obvious cable to commercial transactions might 63-64.) (Id., at pp. for intended use made the manufacturer. safety by out Greenman pointed liability, to discuss the basis of the strict declining concur- articulated, to the classical of it fully citing that the basis had been (1944) 24 Cal.2d Cola Co. Bottling Escola v. Coca ring opinion Escola, (Id., concurring opinion at In the p. 436]. retailer, not to test though equipped Justiсe out: “The even Traynor pointed customer, for the implied to his is under an absolute liability product, include a use and merchantable quality warranties of fitness for proposed 464.) It p. warranty safety product. [Citations.]” burden of his not bear the was also out that the retailer should pointed means of the warranty alone but losses any by that he could warranty recoup (Ibid.) to him. or manufacturer’s sale the wholesaler’s safety attending “to insure tort is Greenman also noted that the strict purpose are borne that the from defective products costs injuries resulting than the in- manufacturers on the market rather such put products ” (59 Cal.2d at who are themselves. jured protect persons powerless 732-733, 63; (1978) 20 Cal.3d Daly see v. General Motors Corp. 575 P.2d in tort We of commerce to strict follow stream approach “overall and extend those who are part producing all from defective injuries that should bear the cost of marketing enterprise 256, (1964) 262 et (Vandermark Motor Co. 61 Cal.2d v. Ford products.” in 896, liability of strict 168].) P.2d The doctrine seq. Cal.Rptr. 391 [37 links in tort but to the various has been not to manufacturers applied only (id.), a wholesale-retail the commercial chain a retailer including marketing 228, (Barth (1968) Tire 265 Cal.App.2d distributor v. B.F. Goodrich Co. (Price and bailors 306]), 251 lessors et seq. Cal.Rptr. personal property [71 178, 245, 466 P.2d (1970) Cal.Rptr. v. Shell Oil Co. 2 Cal.3d 251-253 [85 (1970) 3 722]), (Garcia and a licensor of v. Halsett personalty was 319, in tort 420]). 324-326 In strict holding.that Cal.Rptr. [82 Co., 2 Cal.3d Oil to lessors and bailors in Price v. Shell applicable 254, not to isolated it out that strict does apply at was page pointed transactions such as the sale of a lot. single in to those engaged has not been limitеd doctrine

Application warranty to those where appropriate in but has been applied commerce personalty 460 courts applied Traditionally, in the real business. estate

engaged unless the risk assuming quality of caveat with the buyer doctrine emptor (E.g., fraud or misrepresentation. there was express warranty, Gustafson Dunman, 10, 13 (1962) Cal.Rptr. Inc. 204 v. [22 build is in effect However, that a contract recognized the courts have sales not limited to labor, are that warranties implied one material merchant transactions, warranty rise to a and that contracts building give Plumbing (Aced Hobbs-Sesack use. suitability ordinary ability 897]; 257, 360 P.2d Cal.Rptr. Co. 580-583 [12 374, 378 (1974) 12 Cal.3d [115 Pollard Saxe & Yolles Dev. Co. (1974) 10 Cal.3d Court Green v. Superior & in Pollard v. Saxe 1168].) And 517 P.2d Co., 377-380, implied it was held that YollesDev. The court point new construction. attaches to the sale of warranty quality based on in sales contract is warranty ed out that the doctrine of implied seller, seller’s on the reliance the actual and presumed knowledge The court of the parties. and the ordinary expectations skill and judgment, unlike construction—not “the builder or seller of new reasoned that implied representa manufacturer or merchandiser of personalty—makes used reason sale, the builder has tions, ordinarily indispensable hand, the the other On constructing building. able skill and judgment and is of the builder the knowledge does not purchaser usually possess dis without and its components unable to examine a house fully completed 379.) The court concluded the finished Cal.3d at p. turbing product.” be held to what should that “builders and sellers of new construction con was designed structure completed impliedly represented—that (Id. manner.” structed in a wоrkmanlike reasonably limited to those not been tort has strict Similarly, application where appropriate but has been applied in commerce personalty engaged the qual- represent who impliedly to those in real estate businesses engaged Homes, Inc. v. Eichler Kriegler of their ity product. homes 749], mass-produced a builder who home failed. in a system placed held liable when the strictly heating

was Sons, N.J. & Inc. v. Levitt The court relied upon Schipper when our out that 314, 325-326], the court pointed where A.2d model, from an advertised tract house a a society modern person purchases that representation the implied of the and developer he relies the skill upon and reason- manner workmanlike in a reasonably the house will be erected means not have the habitation, does ordinarily fit for that the purchaser ably by and inspect to supervise himself either by hiring experts to protect the cost that deed, interest dictates that the public in the and provision the danger who created the developer be borne by from defects should in and who is a better the loss rather than the economic to bear position who relied injured implied representation. on the skill and party developer’s 607, In Avner Longridge Estates 633], it residential lot be may was held that manufacturer of a held strictly liable in tort for the owner as the result damages by suffered in of defect subsidence. process causing manufacturing A similar with the landlord-tenant rela- development to appears respect The earlier as an tionship. the lease to a legal concepts regarded equivalеnt sale of the and common premises the term under traditional law rules the landlord owed no to leased in habitable condition duty premises place and no to obligation (Green absent an Court repair agreement. Superior 616, 517 P.2d McNally v. Ward “The com- mon law placed the risk on the tenant as the condition of to whether leased made it for the property contemplated by unsuitable use parties. years, recent the definite trend in the direction in- judicial has been landlord, creasing responsibility the absence a valid contrary to agreement, the tenant with condition provide suitable for the use contemplated This has been by judicial trend parties. supported by the statutes that deal with this This trend problem. judicial statutory reflects a view that no one should allowed or forced live in unsafe and (Rest. Tenant, unhealthy housing.” 2d Property, Landlord and ch. intro- note, ductory p.

The Restatement draws a distinction as to conditions in defective leased at the dwellings existing time lease and those thereafter. In arising the former situation the recover tenant absence of lessor damages fault while the latter are if only recoverable the landlord is damages id., 5.1, (2)(a), 5.2, fault. (Compare subd. with 168-169 subd. pp. § §§ (2)(a), 5.4, (2)(a), 194-195.) subd. pp. from

Departures common traditional law rule landlords applicable evolved in California both statute and Civil Code judicial decision. sec tion requires of a the lessor intended use as a building dwelling fit it in condition put for such use and subsequent all repair dilapidations. However, the tenant’s remedies for statute are violation of the limited to rent, making one necessary costs from month’s repairs deducting or to abandon the (Civ. from discharge obligations. rental Code, (a).) subd. And the does not arise if landlord’s duty § tenant has breached certain of his to maintenance of obligations relating (Id., premises. 1941.2.) An his agreement the lessee waiving rights § under section 1941 is void as that the contrary public except lessee policy or maintain

may stipulated of the rental to agree part improve, repair, (Id., 1942.1.) of the see portions dwelling. § that the landlord had out that the traditional law rule Pointing common agrarianism no to make in the duty dwelling habitable arose is social conditions and Middle and Ages incompatible contemporary values, lease for modern California have that a a courts legal recognized (Hinson v. Delis contains of warranty habitability. an dwelling implied v. Superior 68-71 Green Court, Hallsthammar 622 et seq.; Knight Green, 707, 623 29 Cal.3d 51-53 cannot court reasoned that dweller leasing apartment the typical city but rather be viewed as an interest land realistically merely acquiring live, buildings complex, contracts for a that are place apartment to modern tenants a difficult and expensive repair adequate inspection by and of abilities virtual often be outside the reach that will impossibility, repairs tenants, housing or finances of that the low-cost has scarcity adequate law rem- left tenants with and rendered the common little bargaining power edies inadequate, comprehensive and that enactment widespread to bear “the pri- codes show that landlords housing policy compels public safe, in our for clean habitable mary housing responsibility maintaining (10 623-628.) state.” Cal.3d at pp. commer-

Green in the law of analogized to the dramatic parallel changes cial have that the consumer transactions where modern decisions recognized in an be the skill of the supplier industrial should entitled society rely and, discarding that assure and services are goods adequate quality merchantability caveat have emptor approach, warranty implied out urban is in same Pointing position fitness. that the modern tenant as. a tenant reason- may normal consumer of it was concluded that any goods, unit that since fit as a ably living expect product purchased that the premises the lease the tenant specifies may reasonably expect term (10 will be fit for for the term. Cal.3d at p. habitation habitability Green held that warranty breach implied in such cases defense and that urged as a in an unlawful detainer proceeding reduc- total partial court could determine that breach warranted subsequent nor our tion in Neither Green rent. Cal.3d at et seq.) Hallsthammar, wheth- discussed decision in Knight might habitability warranty er or to what breach of the implied extent by the caused damages injuries a basis tort provide recovery breach.2 this issue.

2As cases have considered appear, subsequent Appeal will Court

463 of due to defective the landlord for Developments injuries law of have behind. The tradi lagged condition the demised not far premises to tional common law rule landlord is not liable the tenant was that a of due to construction the demised injuries a defective condition faulty concealment fraud, or covenant in the lease. premises the absence of 912, (1968) Del v. Pino Gualtieri 265 919-920 (E.g., Cal.App.2d [71 (1948) 87 Forrester v. Hoover Hotel & Inv. Co. Cal.App.2d 226, 232 P.2d traditional 825].) The rule was not based on only prop [196 and caveat lack of erty concepts but also the landlord’s emptor possession Investments, (1973) control. Inc. 35 (E.g., Brennan v. Cockrell 796, 122].) 799-801 A number of exceptions [111 have of to the rule landlord the landlord vol developed nonliability—where defects, untarily undertakes to the had where landlord repair, knowledge violated, a where law was of the safety where the ‍‌‌‌‌‌‌‌​​​​‌​​‌‌​‌​​‌​‌‌​‌‌​​​​​‌‌​​​​​​​‌‌‌‌‌‌​‍landlord retained a part use, for common premises and where the was for a pur lease semipublic (3 Witkin, pose. (8th 1973) 2135-2136.) Law Cal. ed. Summary pp. Strict for the demised conditions of the has been premises applied Greenman, to landlords. Prior to was that a it held where landlord repre- safe, sented that a wall-bed and in fit was secure condition at the time of letting, could maintain an action based on the plaintiff war- express (Shattuck ranty. 358, v. St. & (1936) Francis Hotel 7 Cal.2d 360-361 Apts. Greenman, 855].) Also, P.2d to [60 it was held that a lessee could prior recover breach of an of fitness for use when door to implied warranty a which a bed folding (Fisher was attached fell and him. injured Penning- (1931) ton 116 249-251 Fisher Cal.App. P.2d was followed [2 in Charleville Co. Metropolitan Trust 355 Cal.App. [29 P.2d which also involved a bed Hunter v. folding 241] Freeman 65], et P.2d an seq. involving explosion cases, a detachable heater. In all four the accident occurred after shortly the tenant went into and it was held lia- possession, warranty also that bility was limited to “the condition of the at the beginning premises which, lessor, term and not to conditions to unknown subsequently (Forrester Co., arise.” v. Hoover Hotel & Inv. 825].)3 P.2d Each the above involved furnished apart- cases

ment and the accident as was attributable well arguably furnishings as the condition the demised premises. Hotels, 890], 3Stowe v. that Inc. stated Fritzie

Forrester and disapproved Hunter furnished statement Fisher the landlord apartment safety premises furnishings warrants the same extent as innkeeper. The approval implied citation to Forrester and Hunter reflects limited recognized warranty applied warranty in the former case and in the latter of a of the con Thus, dition of the beginning at the not be read term. Stowe should implied rejecting only generally equation warranties landlords but of such warranties innkeeper’s to an warranties. Greenman, in tort to landlords Subsequent strict was applied 58, 62- for to in injuries Fakhoury Magner Cal.App.3d tenants v. (1976) Conway and Golden v. 473] 960-963 In a couch in a furnished Fakhoury, apartment 69]. in tort and is liable strictly the court held that the landlord collapsed, furniture, prem defective out was not for defective that the pointing Golden, (25 63.) the a con ises. at landlord p. employed heater, tractor to install a of defective manufacture instal because made lation there distinction in was a fire. the Although acknowledging furniture, defective the court re Fakhoury between defective fixtures and it and in the jected leasing held that the landlord business engaged prop is liable in tort when the erty strictly premises appliance he equips at 960 which to have defects proves injury. pp. causing 963.) instant case be Defendant out that differs from the Fakhoury points the condition of cause resulted from defective rather than personalty installed the heater and that Golden becаuse the landlord premises differs whereas the door was installed the builder. by shower apparently cases,

We are that the establish satisfied rationale foregoing tort, in the duties of strict ing requires of a landlord and the doctrine us to conclude leasing that a landlord in the business of dwellings engaged is from latent defect strictly liable tort for injuries resulting let to were premises when the defect existed at the time premises tenant.4 It is of the “overall producing clear that landlords are part available to rent that makes accommodations marketing housing enterprise” 262; Co., (Cf. ers. 61 Cal.2dat Green supra, p. Vandermark v. Ford Motor landlord, Court, 623, 627.) A like at Superior supra, Cal.3d pp. acts within the units, defendant numerous not isolated engaged is owning is but The one enterprise a substantial role. fact that the enterprise plays have real landlord. Our courts involving long estate not immunize the to warran may give implied that contracts to rise recognized relating realty Co., 573, 580-583.) (Aced v. 55 Cal.2d supra, ties. Hobbs-Sesack Plumbing defects, Absent renting premises disclosure of the landlord for use as dwell makes an are fit implied representation premises (Pollard the lease. and the to is ing representation ordinarily indispensable Co., 374, 377-380.) The tenant v. Saxe & 12 Cal.3d supra, Yolles Dev. for latent no to inspect for a limited is in purchasing housing period position toor bear buildings defects in the apartment modern increasingly complex in a much better position whereas landlord is expense repair Court, (Green Superior latent defects. inspect repair (See Luque defect. apply to a 4We do not determine whether strict would disclosed v. McLean 501 P.2d 141-146 [104 substantially ordinarily 626.) ability The tenant’s inspect Cal.3d at p. & Yolles v. Saxe (Cf. Pollard less than that of a purchaser property. Co., Dev. rely implied upon dwelling compelled tenant renting that the landlord also apparent made the landlord. It is safety

assurance rentals or he the property, at the time by adjustment price acquires due to defects the costs of injuries is in a better to bear by insurance position in the than the tenants. defects ex circumstances, in tort for latent

In strict liability these who that the landlord must be to insure at the time isting renting applied from the defects resulting markets the bears the costs of injuries product themselves.” to protect “rather than the who are injured powerless persons Products, Inc., (Greenman at supra, v. Yuba Power 59 Cal.2d p. an existing building a landlord who purchases

Defendant argues for latent tort which is not new should be from strict exempt because, is not assertedly part defects like in used he dealers personalty, statement Defendant relies on a manufacturing marketing enterprise. Co., 256, 262-263: “Strict in Vandemark v. Ford Motor supra, 61 Cal.2d maximum protection on the manufacturer and retailer alike affords defendants, can they and works no injured plaintiff injustice of their them in the course adjust costs of such between protection has never been states that it business Defendant continuing relationship.” of used rental in a business the builder and that purchasers relationship with builders per do relationship not have a business properties continuing of the costs of tenants. mitting adjustments protecting cases, who machinery of used several it has been held that seller liable in tort. strictly is not machinery does not rebuild or rehabilitate the (Wilkinson 515, v. Hicks 520 et (1981) seq. Cal.Rptr. 126 [179 Cal.App.3d 741, 748 et LaRosa v. Court 5]; (1981) seq. 122 Superior Cal.App.3d [176 Co., Court Superior Inc. Tauber-Arons Auctioneers 224]; Cal.Rptr. 789].) Each of these (1980) 268, Cal.Rptr. 101 273 et Cal.App.3d seq. [161 dealer machinery relied on the that the used theory cases at least part make any representation for sale does not machinery simply offering of safety the expectation or and thus does not durability generate to quality (Wilkinson, 126 at supra, Cal.App.3d involved in the sale of new goods. 760-761; LaRosa, Tauber- 520-521; at pp. supra, 122 Cal.App.3d pp. Arons, the used When the seller of 101 278 et seq.) supra, Cal.App.3d reconditions, as a man he is treated makes extensive modifications goods has been safety product that the ufacturer—there is an expectation 466 819, (Green (1974)

addressed. Los 40 838 City Angeles Cal.App.3d 685].) Cal.Rptr. Court, 741, LaRosa v. 122 756-757 and Superior Co., Court, Tauber-Arons Auctioneers Superior Inc. v. 268, 282, ordi- also that the used dealer machinery suggested

narily is not part manufacturing marketing enterprise.

However, a business is not essential continuing relationship imposition of strict The of the manufacturer is not a factor liability. unavailability militating against of others in the engaged enterprise. para- mount of the strict rule remains the policy products liability spreading of the cost of otherwise defenseless vic- throughout society compensating tims of (Ray defects. v. Alad manufacturing Corp.

33-34 3]; Oil Co. P.2d Price v. Shell v. D.M. Oliv- Rawlings er, Inc. If et seq. [159 of anything, unavailability the manufacturer is a factor militating favor of in the who can liability persons spread engaged enterprise (See cost of Alad 19 Cal.3d 33- compensation. Ray Corp., supra, 34.) Just as the of the not militate against manufacturer doеs unavailability liability, absence of a business between builder continuing relationship and landlord is not a land- factor denial of strict warranting liability lord.

Landlords are an of the and market- integral part enterprise producing rental ing While used is often or discarded so housing. machinery scrapped rule, that resale for use be the rather than the landlords are may exception essential to the rental random or accidental business. have more than a They addition, role in the landlords have a marketing enterprise. continuing to the in contrast to the used relationship renting property following seen, machinery dealer who sells. As we have the land- renting property lord, dealer, unlike the used machinery habitability makes representations and safety.

The cost of an of the tenants is cost protecting appropriate enterprise. Within our the cost of rental marketplace economy, housing purchasing based obviously on the risks and rewards of the and anticipated purchase, thus it factors the with numerous other expected along price used rental will housing building depend part quality tenants, reflect the costs of anticipated including repairs, replace- protecting Further, ment of defects bemay and insurance. the landlord after purchase able to rents to reflect such costs. The landlord will also often be able adjust to seek equitable for losses. indemnity be- relationship business of a continuing

We conclude that the absence of strict landlord does not preclude application tween builder and lease, landlords because at the time in tort for lаtent defects existing cost of injuries bear the should they are an integral part enterprise who are pow- from defects rather than the injured persons such resulting Inc., Products, Power (Greenman v. Yuba erless to themselves. protect 57, 63.)5 supra,

Negligence the fundamental (a) prin- establishes Civil Code section subdivision not only one is “Every responsible, ciple negligence liability, providing: to another acts, but occasioned for the result of his willful also of his person, his want of skill in the ordinary management invitees, law as distinctions made the common Rejecting prior Christian, licensees, su of Rowland v. the landmark case trespassers, rule was appli 111 et held that the fundamental pra, seq. The fundamen cable to the of land. owners and occupiers tenant, tal and the to the landlord’s principle applicable and maintain landlord owes a tenant a of reasonable care duty providing (Stoiber the rented v. Honeychuck in a safe condition. ing 194]; Evans v. Thomason Golden v. Conway, Investments, Inc., 948, 955; supra, Brennan v. Cockrell Cal.App.3d 796, 800-801.) Cal.App.3d of from involves the

Any departure “balancing the fundamental principle considerations; of harm a number of are the foreseeability the ones major to the suffered the injury, the of that the plaintiff, degree certainty plaintiff connection injury closeness of the the conduct and the between defendant’s suffered, conduct, the of the moral blame attached to the defendant’s policy harm, defendant and con- future the extent of the burden to the preventing care with re- of a to exercise sequences community imposing duty cost, breach, of and the sulting liability availability, prevalence (Rowland Christian, supra, v. insurance for the risk involved. [Citations.]” 112-113.) 69 Cal.2d pp. house, the foresee-

“In the rental situation typical involving dwelling the failure to maintain prem- of harm to a tenant from the landlord’s ability strictly the landlord is unnecessary 5In view our it to determine whether of conclusion is leased. property develop property liable for defects in the which after the obvious; that the certainty in a habitable condition is the degree ises between the land- of the connection tenant suffered and the closeness injury case; in each by proof lord’s conduct and the ascertainable readily conduct in not complying the moral blame attached to the landlord’s and the policy in the Civil Code articulated habitability requirements Nor can we that the say imposition future harm are preventing present. unduly for breach would to exercise care with duty resulting liability burden insofar as the cost availability, prevalence extend landlord’s short, that under the policy for the risk involved. In we believe insurance Rowland, and health safety a due for human regard standards articulated due care in the mainte- on a landlord of a duty compels imposition (Stoiber Honeychuck, supra, nance of the v. premises.”

903, 924.) act toward his for his must a landlord

Accordingly, caring circumstances, including tenant as a reasonable under all of person re- the burden of likelihood of seriousness of injury, injury, probable risk, over the risk-creating and his of control ducing avoiding degree 948, 955; Brennan v. (Golden defect. Conway, supra, Investments, Inc., 796, 800-801.) Cockrell defective knowledge Defendant the absence urges for defec duty condition оr of it was not under a to inspect accidents prior conflict would inspect tive shower doors and that of a imposition duty to enter a rented with Civil Code the landlord’s right section 1954 limiting case, shower far in the instant the dangerous unit. So dwelling appears and were doors were installed builder at the time of the construction building. at the time defendant position purchased in the exercise A of rental property, person contemplating purchase in a care, of rental property due will examine its condition. Maintenance of the landlord. safe and responsibility habitable condition is primary Court, (Green 627.) In the exercise Superior care, to inspect of rental ordinary may expected purchaser property determine aesthetically pleasing the not to whether are only they premises standards, including but also to determine whether meet bare they living to make bemay expected whether are safe. The they prospective purchaser or of defects any existing such in the absence of knowledge inspection be time of letting may expected a landlord at any Similarly, accidents. prior it is safe. to to determine whether inspect apartment accident has not happened The mere that a kind of an fact particular not reasonably one which might before does not show that such accident is General, (1975) 15 Cal.3d Inc. (Weirum v. RKO have been anticipated. Defective doors 36].) provide 539 P.2d glass risk reasonably may substantial which anticipated.

Civil Code to enter the section 1954 the of the landlord limiting right unit tenant’s that he enter to exhibit the dwelling provides “to to prospective necessary or actual ‍‌‌‌‌‌‌‌​​​​‌​​‌‌​‌​​‌​‌‌​‌‌​​​​​‌‌​​​​​​​‌‌‌‌‌‌​‍and make purchasers” repairs, the section in the does not a bar to of a to recognition duty inspect provide instant case. Defendant’s officials the apartments. inspected

We conclude in the exer- duty that a conditions inspect dangerous cise due care that lack of be found in instant case and may properly awareness not liability. condition does dangerous necessarily preclude In urging that there was no defendant cases duty inspect, upon relies where the defect after defendant developed building by purchase and while the was in Uccello v. apartment (E.g., tenant. possession Laudenslayer (1975) 510 et seq. because,

81 A.L.R.3d Those cases are the instant distinguishable case, the condition and at the dangerous existed at the time time purchase was leased.

The duty should the defendant those matters inspect charge only which would have In been disclosed a reasonable the instant inspection. case, the “no undisputed affidavits are to the effect that there was visible difference between the in terms visible tempered untempered glass but appearance,” that there was a small corner of mark” each “very of glass which piece showed that the was apparently glass untempered. was not before trial

glass court when it the motion for granted summary judgment, If record does not disclose the nature of the “mark.” “mark” was a trier of could conclude that a “untempered” fact properly have, least, reasonable would inspection included a visual inspection which disclosed the doubts in favor of the danger. party resolving op- Christian, (Rowland motion for posing summary judgment 108, 111), defendant’s the “mark” fully identify failure to requires tous assume that it would have to a reasonable in- danger disclosed spection.

As to each cause of action the court erred in trial granting summary judgment favor of defendant.

The judgment is reversed. Kaus, J., J., Grodin, J., and concurred. Reynoso, in the J., a fine

BIRD, opinion C. Justice Newsomwrote Concurring. own.* It my Court of with which I herewith Appeal agree. adopted caus- is an from a summary dismissing appellant’s “This appeal judgment sub- Declarations es of action for strict products liability. and negligence reveal judgment for summary mitted of its motion by respondent support to a reso- facts, the we as necessary which summarize following pertinent of the on lution issues raised appeal. 21, 1978, when he slipped seriously was November

Appellant injured rented and door of his untempered apartment, fell the shower against glass owned, and maintained is in a which 36-unit apartment complex operated by built in and acquired The was complex respondent. apartment evidence, had IRM in 1974 to According undisputed Corporation [IRM]. to injury the risk of serious shower door been made of tempered glass, would been have reduced. appellant motion summary judgment

The declarations submitted in of the support time the building appellant’s state that between the respondent acquired were none of that the shower doors complained the tenants either suf- similar to those injuries made of unsafe or untempered glass reported was in when IRM pur- fered shower door by appellant. place Appеllant’s building in the apartment chased Of 36 showers apartment complex. had accident, glass. to 31 had and 5 prior tempered appellant’s untempered The It glass. is difficult to from visually untempered distinguish tempered most through for IRM declared that he walked apartment manager accident, shower found the two types bathrooms prior appellant’s glass’’ doors to be similar: he said both had a “frosted highly appearance. accident, man IRM and After a maintenance request, at respondent’s doors. the shower inspected from Diablo & Paint Company Glass expert man, following own “from examination According my maintenance or accident, between tempered . . . there was no visible difference ex- But he also of visible terms nontempered glass appearance.” looking . . . was by “The that I was able to differentiate plained: only way After each of glass.” small mark the corner of very piece with were glass the 31 shower doors without inspection, tempered replaced doors made tempered glass. 437c Code authorized section summary procedure judgment “ ‘ to be used sparingly Civil Procedure is a “drastic procedure material, [], indicate enclosing are together, in this used *Brackets manner without (other than enclosing Appeal; brackets material opinion

deletions from Court of indicated, citations) are, my inser- parallel used denote editor’s added unless otherwise tions additions.

471 ” 55 (Harris (1976) circumspection. Chapelle . . v. De La Cal.App.3d 644, 695][, 647 on another Sprecher Cal.Rptr. point disapproved [127 358, 372, (1981) v. Adamson 30 Companies Cal.3d fn. 9 Cal.Rptr. 783, 1121)].) 636 P.2d A defendant for has the moving summary judgment merit; burden of that the action without a factual establishing showing all (Tresemer causes of on all v. Barke negating action theories required. (1978) 656, 384, 27]; 86 666 12 A.L.R.4th Cal.App.3d Cal.Rptr. [150 Harris, 647.) burden, supra, at “If he that summary fails in p. judgment ” (Tresemer, be denied must the lack of su- declarations. despite opposing 666.) at eliminated pra, But all of fact and the p. if material issues are declarations filed in of the motion establish that the defendant is support law, entitled to a judgment as matter of should be summary grant- judgment (Tauber-Arons (1980) ed. 101 Auctioneers Co. v. Court Superior 268, 789].) 273-274 substantive Cal.Rptr. “‘Applicable [161 law determines the theory facts relief necessary particular support and hence the factual sufficiency framed statements declara- properly ” (Tresemer, 666-667.) tions support summary judgment.’ pp. claims that his of action issues of fact

Appellant negligence cause presents which must be at trial. He litigated insists declarations do respondent’s not sufficiently the elements of action for negate his negligence.

Respondent submits that it had no care to absent duty of actual appellant, doors, notice the dangerous condition of the shower and that its decla- rations disprove such notice.

The essential (1) elements a cause of are: de- action negligence fendant’s legal (2) of care to duty defendant’s breach plaintiff, duty—by omission, (3) breach, act or negligent of the as the result plaintiff (4) (Rosales compensable Stewart 113 damages. Witkin, 660]; (2d 1971) Cal. Procedure ed. 2103.) Pleading, conduct im- Liability negligent only § where it posed is found that defendant owed a of care to the duty plaintiff or to a class of (J’Airе of which the is a persons Corp. member. plaintiff Gregory 598 P.2d v. Jones Rogers statute, contract, arise

duty may activity character general which the defendant even the engaged, relationship parties, (J’Aire, nature human “Wheth- interdependent society. atp. ‘ duty er a is owed is what is “the simply way shorthand phrasing essential are entitled to question—whether legal pro- interests plaintiff’s ”’ (Ibid.) tection against defendant’s conduct.” is,

The crucial therefore, issue before us whether has established plaintiff that his landlord owed a care to him corporate against duty protect ([See] Evans v. Thomason of his injury. risk harm which caused

particular “ 978, 525].) ‘While the (1977) 72 984 Cal.Rptr. question Cal.App.3d [140 basis, case-by-case on a whether one owes a to another must decided duty all case is the rule of every governed by general application persons as a being injured care others from ordinary are to use required prevent 806; Weirum (J’Aire, 24 Cal.3d at supra, p. result of their . conduct. . General, 468, 539 40, 15 46 (1975) Cal.Rptr. RKO Inc. Cal.3d v. [123 108, 113 36].) (1968) 69 Cal.2d Cal.Rptr. P.2d In Rowland v. Christian [70 fol- 97, 561, 496], the 443 P.2d 32 our court enumerated A.L.R.3d high a to a of whether possessor factors relevant determination lowing of foreseeability a of victims: the injured owner land owes care to duty harm that the suffered certainty plaintiff the to the the plaintiff; degree and the the defendant’s conduct closeness of the connection between injury; conduct; suffered; the blame attached to the defendant’s moral harm; burden to the defendant the extent of the preventing future policy care a to exercise duty and the consequences community imposing breach; availability, prevalencе with and the cost liability for resulting Ala- (See County v. Thompson of insurance for risk involved. also 70, 728, 741, P.2d 12 (1980) meda 27 614 Cal.3d 750 Cal.Rptr. [167 Sand, (1978) 21 701]; Sun Bank A.L.R.4th N’ Inc. v. United California Stewart, 329, 920]; v. 671, 382 Rosales Cal.3d 695 Cal.Rptr. [148 130, 134; 63 (1976) Andersack 113 v. supra, Cal.App.3d DeSuza 694, 920].) 702 Cal.App.3d Cal.Rptr. [133 cases, the element But all in establishing consideration primary Sand, 21 at (Sun is Cal.3d duty supra, risk. N’ foreseeability DeSuza, 695; Weirum, 46; at 15 supra, supra, p. Cal.3d p. “ to all ‘As a a of care general duty persons “defendant owes principle, conduct, risks who are all foreseeably respect his endangered by ”’ Barke, (Tresemer which dangerous.” make the conduct unreasonably exists 656, 670.) 86 whether a legal duty supra, Cal.App.3d question 741, Alameda[, 27 one of (Thompson supra,] law v. County of if 70, 728, 701]), but the issue 750 614 P.2d 12 A.L.R.4th Cal.Rptr. [167 of fact for risk becomes a foreseeability question it depends upon 40, 46; De Harris v. (Weirum [], resolution jury 644, 647).1 La 55 Chapelle, supra, Cal.App.3d of reason- duty is now a tenant a It settled that a landlord owes generally (Evans v. care in in a safe condition. able rented maintaining Thomason, (1976) 55 978, 985; Conway 72 Golden v. Cal.App.3d fact. question for the trier of 1The reasonableness of the defendant’s conduct also Markets, (Slater Cal.Rptr. Cal.App.3d Alpha [118 Beta Acme Inc. 1264].) 72 A.L.R.3d Investments, v. Cockrell Brennan Inc. 800-801 Stoiber v. Honeychuck 194], house, court explained: “In rental situation involving dwelling typical the foreseeability of harm to a from the failure to maintain tenant landlord’s obvious; in a habitable condition is premises degree certainty the tenant suffered and the closeness of the connection between the injury landlord’s conduct and the in readily is ascertainable each proof case; the moral blame in attached to the landlord’s conduct not complying with the in habitability articulated the Civil Code and the requirements pol- icy fixture say harm are Nor we that the preventing can present. imposi- tion aof duty exercise care with for breach resulting would extend a unduly landlord’s burden insofar as the availability, cost prev- short, alence of insurance for the risk In involved. we believe that under Rowland, the policy standards articulated in a due human regard safety and health compels on a landlord of a due care in the imposition duty maintenance of the premises.” in 955,

And Golden v. 55 Conway, supra, at this court Cal.App.3d page Investments, Inc., adopted standard expressed Brennan v. Cockrell 35 supra, 796, Cal.App.3d that “. . . a landlord must act toward his tenant as a circumstances, reasonable person under all of the the likeli- including hood of injury, probable seriousness of such the burden of re- injury, or risk, ducing avoiding his control over the degree risk-creating defect . . . .”

But like any other business or owner of the landlord proprietor property, not insurer of a 125 (Riley tenant’s v. Marcus safety. 103, Jones, 109 56 Cal.Rptr. Rogers supra, v. 346, 351.) And, cases, we foreseeability all repeat, key factor to be (Coulter considered. v. Court 21 Superior Cal.3d 144, 152 669][, statute as superseded by stated in Strang v. Cabrol (1984) Cal.3d 1013)];

691 P.2d Riley, we must decide Consequently, whether unsafe nature of the shower doors foreseeable reasonably was by respondent.

The uncontradicted evidence offered that IRM by respondent establishes had no actual notice of the dangerous condition of the either from premises declarations, complaints previous accidents. it Accоrding undisputed was also difficult to shower doors from distinguish untempered glass those made of tempered glass; “very small mark the comer only each of glass,” observed piece following careful upon inspection appel- accident, lant’s set the two of doors types apart. even identical or similar not that prior

But does foreseeability require Co. (Kwaitkowski Trading Superior events must have occurred. As noted Weirum “ General, Inc., ‘The mere fact that par- 47: RKO not . . . show does accident has not before happened ticular kind [an] have been anticipat- not reasonably that such accident is one which might simply as unforeseeable accident cannot be characterized ‍‌‌‌‌‌‌‌​​​​‌​​‌‌​‌​​‌​‌‌​‌‌​​​​​‌‌​​​​​​​‌‌‌‌‌‌​‍ed.’” Appellant’s complex. first at the because it was the of its kind apartment not have shower door And condition of the although the dangerous upon that it was discoverable been the evidence indicates readily apparent, over the landlord’s control careful inspection. light reasonably think it reason- we to insure risk ability against injury, issue of fact risk a triable to that of foreseeability presented able conclude the notice of That IRM had no actual best left for the jury. resolution as a matter not, it a of care duty we absolve from repeat, risk should and appliances, fixtures particularly law. Maintenance of rental property, ob- condition, as an recognized important has in a safe and habitable been 616, (1974) 10 Cal.3d Court (Green Superior v. landlord. ligation su- 704, Honeychuck, v. P.2d Stoiber 626-627 517 Cal.Rptr. [111 if 914, likely it not 903, 924.)2 Since was possible 101 pra, Cal.App.3d condition that IRM would have lеarned of the dangerous tenants, its particularly given it to had devoted closer attention the safety to IRM’s which the hazard posed the direct and serious threat harm tenants, summary in granting judgment we think that the trial court erred action. dismissing negligence appellant’s his not negate declarations do also that argues

Appellant respondent’s liability of strict cause of action since the doctrine liability products strict that, on as submits housing. Respondent to a applies respondent supplier incur under a does not the as a matter of law a landlord contrary, rented theory premises. of strict for the defective condition Products, (1963) Inc. Power case Greenman v. Yuba the landmark 1049], 57, 697, 897, 13 A.L.R.3d 59 62 377 Cal.Rptr. that, liable is strictly our court the rule “A manufacturer announced high market, to used that it is knowing the tort when article he places to defects, that causes a defect without for have inspection proves Stoiber, 903, requires “public policy noted that Cal.App.3d 2In 101 court safe, hous maintaining habitable clean and primary responsibility to bear the landlords (id., 914), articulated policy under standards ing” p.at “. . .we believe that added: 32 443 P.2d A.L.R.3d Cal.2d 108 in Rowland Christian 69 [v. landlord of a 496)], imposition on a regard safety compels and health due for human 924.) (Id., duty premises.” of due care in the maintenance (See Co. being.” human also McGee v. Cessna Aircraft “That rule is equally appli- Cal.App.3d (Barrett cable to the v. Atlas Powder Co. manufacturer and retailer.” .)3 339] The have law link link in courts strict tort freely applied retailer, distributor, so chain—“from marketing manufacturer to (Kasel Co.[, 711, 724 Remington forth.” Arms supra,] [].) California liability, follows “stream-of-commerce” strict approach “ under which \ . no member of the en . precise legal relationship terprise causing defect to be manufactured or to member most im closely connected with the before the courts will customer required connection, strict It is for his pose liability. the defendant’s participatory benefit, personal profit other with the and with injury-producing product enterprise created consumer demand and reliance upon prod (and uct (such not the defendant’s with the legal agency) relationship manufacturer or other entities involved in the sys manufacturing-marketing ” tem) which calls for (Tauber-Arons strict Auction imposition liability.’ Court, 268, 275-276, eers Co. v. Superior quoting Co., from Kasel Arms Remington supra, 24 Cal.App.3d strict products liability doctrine extends to those who are “engaged all the business of to the as an distributing goods public” “integral part overall and for in producing marketing enterprise” product question. (Vandermark 256, v. Ford Motor 262-263 Co. 61 Cal.2d Tauber-Arons, Cal.Rptr. Thus, 391 274-275.) supra, at pp. in the participation marketing by which distribution of enterprise product “ is consuming effected in more a and accidental public than ‘random justifies role’” (Tauber-Arons, imposition strict liability. supra, 277; Garcia p. v. Halsett 3 326 Cal.App.3d 420].)4

placing Rental one, have been washing on order of the Goodrich Tire ... . . . 3In [retailer [a [gasoline fact, builder Co., alleged machine 314]: as noted in 274 of a defective truck]); engaged 319 ... Co., defective found to be manufacturer]).” Cal.App.2d “The to plaintiff]); 265 Cal.App.2d following Kasel v. a in mass [a products developer (Kriegler launderette owner integral components automobile]); 446 . a retailer tract Remington entities besides the on the . development . [stepladder] market: (Vandermark . . . and a Arms Co. v. Eichler who [who wholesale-retail distributor a and lessor was merely homes]); manufacturer, ^[1972] v. Price v. Shell particular said Homes, Inc., Ford Motor (McClaflin distributed tires to have licensed 24 a licensee Cal.App.3d enterprise responsible obviously v. Oil Co., 269 Bayshore (Garcia Co., Cal.App.2d from (Barth 2 the principal Cal.3d 245 v. Equipment his stock 724 [101 use Halsett, v. B.F. of a 224 for 4In coin-operated Garcia a launderette owner who ma washing maintained four rows of use, public chines manufactured Philco-Bendix in held operation continuous was liable as a marketer. “Although respondent engaged The court observed: is not in the dis lessor, manufacturer, product, tribution of the in the same manner as a retailer or he does provide product public consequently play to public, for use and does more lia have within the of the strict scope products

Landlords been included (1972) 25 Fakhoury Magner doctrine. For bility example, when 473], the lessee a furnished apartment—injured on a theory under her—sued the couch her landlord supplied by collapsed liable was strictly court that the landlord liability. of strict concluded real than lessor of furnished lessor of the defective furniture rather as as (Id., at property. 948, this in Golden Conway, supra,

Subsequently, who to a landlord court extended the doctrine of strict products contractor, wall installed, a defective an supplied through independent no we found Fakhoury, Relying upon heater an unfurnished apartment. realty, to attached to reason furniture and distinguish appliances between who, in this as the landlord and concluded that a “lessor of real property case, com appurtenant the business engaged leasing apartments knowing an without mercial appliance premises, equips it is it manner in which manufac whether or not is defective because of the installed, defects which cause per tured and it have proves manner, tort.” liable in strictly sons or when used in a normal (Id., 961-962.) at pp.

Here, including ap- is in the business of leasing apartments, respondent fixtures, the marketing and is therefore pliances integral part public. reached the user which the shower door in enterprise by question Court, court ob- high Green v. our Superior modern urban tenant is the same served: “In most significant respects, Through any goods. other normal consumer position [Citation.] lease, his landlord from ‘housing’ residential tenant seeks purchase a much housing, enjoying time. ‘sells’ The landlord specified period and to than a tenant inspect incentive greater opportunity, capacity may reasonably of A tenant maintain the condition his apartment building. for which it he is fit for the that the is expect product purpose purchasing obtained, is, Moreover, lease since a contract living specifies a unit. has inhabit time which the tenant to designated right of period during be that the will the the tenant premises, may legitimately expect premises of lease. It is just duration of the the fit for such habitation the term war- ‘implied the modern such reasonable of consumers which expectations formal, The landlord is decisions endow with ranty’ legal protection.” chain, commercial the consumer’s directly link in the from vital profits We think it a reasonable of as of the rental unit. products use provided part rental housing, rule treated as a “retailer” of that a landlord should be rented. to for defects in subject enterprise product marketing than a random and accidental role in overall Cal.App.3d question.” conclusion, In salutary this we have that the reaching policies considered the strict furthered inclu- underlying by doctrine will be products liability court, sion of “the high landlords within its to our scope. para- According mount to of otherwise the rule is the policy promoted by protection defenseless victims and the manufacturing throughout defects spreading (Price the cost of Oil Co. society them.” v. Shell compensating 466 P.2d see also Tauber-Arons Court, 268, 283.) Auctioneers Co. v. supra, 101 Superior the economic burden of able to for those “Placing injuries those best pay while costs of that to those most permitting transfer burden culpable consistent with the considerations in the resolution of the equitable inherent difficult which been v. D. problems (Rawlings have M. judicially posed.” Oliver, Inc.

landlord receives the financial benefit from the tenants’ use appliances included rental and has housing, ability cost com- spread pensation throughout marketing insurance or oth- system by obtaining addition, erwise accounting the risk of loss. the landlord has control over the rental premises, which the means which the provides possible harm from defective or fixtures can be eliminated. appliances

We find the cases relied In both upon by Taub respondent unpersuasive. Court, er-Arons Auctioneers Co. v. Superior

and LaRosa v. Superior Court 122 Cal.App.3d it was held that a 224] dealer used merely agent products acting for the manufacturer, seller or and who has no other connection with the product, cannot be held strictly liable tort for its defective condition. In contrast, here no respondent played such random and accidental role in the marketing doors; rather, it untempered glass shower directly provided use, product tenants for their thus actively entering marketing for that enterprise product.

It is vigorously argued as a reason for exclusion from lia- respondent bility as a law, matter of it that was not the owner when the building allegedly defective product landlord, was installed. Once IRM became the however, it acted in effect as distributor or au- housing, with supplier thority ability furnished, to monitor all so products including appliances and fixtures in the And apartments. remove shower doors made failing of untempered glass, the distribution of these respondent maintained appli- ances to its tenants.

Respondent argues force that it not to incur equal reasonably ought the defective shower doors it no because had notice defect. We disagree, since we notice as irrelevant to the strict lia- regard bility analysis.

478 in the a defect is based upon

The doctrine of strict products faults attrib- well as from unsafe as design and can arise from an product, (1970) (Pike v. Frank G. Co. Hough utable to the manufacturing process. 629, 229].) 465, 467 P.2d 2 Cal.3d 475 Cal.Rptr. [85 definition, not of precise term “defect” is capable While the operative require it does not elusive concept, an and concededly amorphous and danger- “unreasonably the product that the defеctive renders design proof (1972) Olson (Cronin Corp. v. J.B.E. ous” to the customer. unsuspecting 433, 1153]; McGee v. Cessna 121, 501 133 P.2d Cal.Rptr. 8 Cal.3d [104 Co., Motors 1005, 1015; v. General Buccery 82 supra, Aircraft 605].) On the other 533, Cal.Rptr. 60 544 Corp. [132 make the man- hand, course, does the strict neither concept Corp. Motors (Daly General an absolute insurer its product. ufacturer 380, 725, 575 P.2d Cal.Rptr. [144 be re can best of defectiveness Our court has that issue high suggested in the crucible forming resort the “cluster of precedents” solved (Barker been forged shaped. doctrine has which the products liability Cal.3d 413, Engineering v. Lull Co. 1]; Corp., supra, Olson 96 A.L.R.3d Cronin v. J.B.E. Barker, as standards following 134.) In the court enumerated designed: defectively in whether determining product employed

“First, if establishes in design plaintiff be found defective product may would as consumer ordinary an safely that the failed product perform Second, manner. reasonably foreseeable when used in an intended expect if the design plaintiff be found defective alternatively a product may his injury caused that the product’s design proximately demonstrates that, factors, establish, in of the relevant light the defendant fails to the risk of balance, danger design outweigh the benefits of the challenged (Id., at p. inherent such design.” to these stan design of a adequacy product’s pursuant evaluating

dards, consider, gravity relevant factors: other among a jury such danger the likelihood design; danger challenged posed occur; design; alternative safer feasibility would the mechanical the adverse consequences an design; financial cost of improved design. from an alternative would result and the consumer that product Co., 413, 431; Gen Horn v. (Bаrker Cal.3d Engineering v. Lull 551 P.2d (1976) 17 Corp. eral Motors (1981) 120 Harnischfeger Corp. Co. v. Southern Cal. Edison recognized have 67].) The cases design, overall product considerations competing “need to ‘weigh’ 479 ”’ order to (Daly determine whether the v. General design was ‘defective. added.) Motors Corp., supra, italics “ The strict doctrine also manufacturer to foresee liability ‘requires some or misuse and abuse of his either the user degree product, third minimize parties, take reasonable that harm precautions ” result from General Motors may (Buccery misuse and abuse. . . 533, 546; 60 Corp., supra, v. General Motors Corp. Self 42 575].) should not liability Strict be imposed upon manufacturer when results from a use its prod uct that not (Cronin reasonably Corp., foreseeable. v. J.B.E. Olson su 121, 126; pra, 7.) at Self, supra, But the court p. acknowledged Cronin, in “The supra: should not be design manufacture products carried in out an industrial vacuum but with of the realities of recognition 126; 546; their everyday (Id., use.” Buccery, Self, supra, at at p. p. 7.) at p. prospect from foreseeable liability injuries resulting abuse misuse the manufacturer on his toes and “keeps thereby serves a Motors, socially useful purpose.” (Self v. General 8.) []”

LUCAS, J., Concurring and in I concur that Dissenting. portion majority which holds that be opinion a landlord held liable for danger- ous conditions of However, which he knew or should have known. I cannot in join imposing upon landlords strict liability any for latent defects com- ponent their no matter property who built or installed the defective item. Taking unprecedented “an unusual and leap, majority imposes burden unjust on owners . . . landlord faced with [T]he [will] every injury claim from any untoward condition in resulting every cranny whether it is foreseeable or building, reasonably not.” (Dwyer Skyline Apartments, Inc. A.2d N.J.Super. 463, 467], dictum, affd. obiter landlord, 63 N.J. Any A.2d even one renting home for a family year, will now be insurer for defects wire, screw, in any latch, door, cabinet or other article and in his pipe at the time are let they the fact that he neither installed the despite nor believe, item had I any knowledge reason to know of the defect. conformance with the almost unanimous of other jurisdictions judgment issue, this considering such As imposition inappropriate. one remarked, authority has “One problem analyzing product liability law is our tendency to rule and not to study analyze isolation changes their aggregate effect on costs or behavior.” (Epstein, primary Commentary N.Y.U. L.Rev. here have My colleagues taken such just an “isolated” viewpoint.

480 concurrence, reasoned 40 in his classic ago

Justice over Traynor, years absolute incurs an that a manufacturer that “it should now recognized market, that it knowing he on the when an article that has liability placed have that causes to a defect is to be used without inspection, proves (1944) Co. (Escola Bottling to v. Coca Cola beings.” human Prod- Thereafter, v. Yuba Power 453, 436].) in Greenman P.2d [150 897, 697, ucts, 57, 377 P.2d (1963) Cal.Rptr. Inc. 59 Cal.2d 63 [27 court, 1049], Traynor explained for a unanimous Justice A.L.R.3d speaking injuries insure that the costs “The of such is to liability that purpose manufacturers put from are borne resulting defective products who are injured rather than persons such the market products words, makes prod- In other one who themselves." powerless protect uct should be held for its defects. responsible (Vandermark v. retailers. was

The next strict extended year, 168].) 896, 391 P.2d Ford Motor Co. 61 Cal.2d 256 Cal.Rptr. was that “Retailers of this extension support The rationale articulated to the distributing goods like are in the business of manufacturers engaged and marketing are an of the overall public. They integral part producing from defective injuries resulting prod that should bear the cost enterprise alike affords max and retailer ucts. . . . Strict on the manufacturer de no injustice imum and works protection injured plaintiff between them such fendants, they adjust protection can costs for ” 262-263, at (Id. relationship. the course their business continuing pp. added.) and bailors personal property italics We later held that lessors liable, necessity “the stressing similarly strictly be held after might the rule application continuous course of as a condition to business (Price . 253-254 [85 . . .” v. Shell Oil Co. discuss, continuing of a 722].) As I shall this requirement no meaningful which avoids to defendants “injustice” given relationship in the majority approach. consideration in Krieg- was addressed

The of residences producers potential Homes, 749], ler v. Eichler Inc. Price, 6), (2 fn. Cal.3d at p. a case cited with approval market, including on the that manufacturers placing products proposition defects their homes, liable for should be held strictly mass producers dis- meaningful “there are no court concluded that products. Kriegler the mass of homes and mass and sale tinctions between Eichler’s production overriding policy of automobiles and that pertinent and sale production 227; Del Mar see considerations are the same.” (1981) 123 Co. v. Imperial Contracting Beach Club Owners Assn. Krieg- 25 A.L.R.4th 911-912 “man- essentially of Eichler ler's rested on the identification holding homes,” ufacturer of a situation different from the one undeniably very IRM here. an and used present purchased ‍‌‌‌‌‌‌‌​​​​‌​​‌‌​‌​​‌​‌‌​‌‌​​​​​‌‌​​​​​​​‌‌‌‌‌‌​‍already Corporation “produced” property.

This distinction actually installing, constructing between party selecting, and the defective no role buying and a who such product party plays distribution, has no connection anyone with the ladder was up therefore fundamentally adhered the Court of in two cases with dealing Appeal defects in in In Fak- allegedly items found on or leased present premises. 473], houry Magner (1972) 25 Cal.App.3d Cal.Rptr. plaintiff [101 was when a couch in a rented injured She sued her apartment collapsed. landlord in strict latent defects in the furniture. The court liability asserting concluded that the landlord could be held liable “not as lessor of strictly real but as property, (P. 63.) lessor of the furniture.” The requirement in property placed the stream of commerce was met because “a casual or isolated [However, transaction will not the doctrine into bring play. in] hand, the case at the landlord furnished two in San Francisco apartments and three in Sacramento at the same time with the same kind of couch from purchased (P. 64.) case, the same seller.” In the instant the shower door was a fixture and the defendant is sued as lessor of not being property Moreover, lessor of furniture. the shower doors had not been purchased by defendant.

The role of strict landlord-tenant was further ex- relationships plored Golden v. (1976) 55 Conway 69]. sued the plaintiff landlord in strict after in a suffering damages fire caused a wall heater installed by a contractor at the landlord’s behest one approximately year before. The court maintenance of the permitted cause of action on the ground “that a lessor of real who ... property in the engaged business of commercial leasing apartments appurtenant premises, equips premises without whether appliance knowing or not it is defective because of the manner in which it was manufactured installed, or and it to have which proves defects cause or persons when property manner, used in a normal strictly liable tort.” 961- (Pp. 962.) The installation of the heater created the condi- assertedly dangerous tion, and the court was careful to the facts from those in distinguish Ruiz v. Minnesota Mining & Co. Mfg. case, the latter stressed, the Golden court used on the product

270]. was defective “and the owner failed to take cor- merely rective action because he did not discover the defect” and therefore was not strictly liable. case, In our there is no allegation that the landlord was aware of the defect in the already present product.1

1The Golden court did not discuss whether the transaction at issue there was an isolated their sale better high used goods

The treatment of cases involving Auction In Tauber-Arons by majority. relevant concerns lights ignored 789], 101 Cal.App.3d eers Co. v. Court Superior who did not machinery of used Court of held that an auctioneer Appeal it, and did not inspect on the equipment, maintenance perform any repair items. defects is,” held liable for strictly any sold it “as could not be that a de potential The court stated that when considering requirement before system” “in manufacturing-marketing fendant be a participant factor is “the require one liability, significant he be held to strict subject the enterprise connection with ment that defendant have a participatory ‘in reliance the particular which ‘created consumer demand for and upon’ classifica of the same not just products jury-producing product’ [citation] 276; Machinery, v. Wilson (101 Brejcha at see also tion.” Cal.App.3d p. 688].) The court fur (1984) 160 Inc. of the particular in the “initial distribution ther emphasized participation dealer used (P. 277.) machinery Because a manufacturer’s . . . .” products manufacturer with the “has no business normally relationship continuing from strict liability the course of which he can the cost adjust protection to such simply inapplicable ... the rationale which underlies Vandermark on Moreover, in Vandermark the reduction which was sought a dealer. risk in a substantial part ‘the retailer himself may play the that assumption on be in a to exert pressure that the is safe or suring may position product unattain 262) ... simply that end’ Cal.2d at p. manufacturer to outside the original entirely able because the dealer is ‘used-goods normally ’ Vance Co. (Tillman Equipment . chain of distribution of the . . product. 283, fn. omit 1299, 1304].)” (101 [(Ore. 1979) p. 515, 521 ted; (1981) 126 Cal.App.3d see also Wilkinson v. Hicks 741, 753- (1981) LaRosa Court Superior of the in the case considerations Analogous apply “used lessor. property” for imposi- justifications crucial and long-recognized other

Discounting on the “risk-spread- focus tion of strict liability, my colleagues primarily that the fact Essentially they ignore function of this form of liability. ing” to original with regard no landlords of used have special position property in order to wield no influence to and sellers and thus have manufacturers Moreover, majority’s implication, to the contrary safety. improve product habitable, are landlord, that the while impliedly representing liability. relevant in strict normally subject of an action one and therefore not strictly held liable sought to be usually party one between the continuing relationship is the relationship of the Neither up the of distribution to the manufacturer. and those chain for this chain, was considered and tenant marketing nor between landlord landlord evaluating the un Golden to be of limited assistance I purpose, and therefore consider derlying policy problems. he guarantees per- is not to tenants that has representing expertise what role considering fection of item Instead of every forming premises. to that landlords used with realistically play regard property, on the advancement of “The majority narrowly paramount concentrates of the strict rule policy products liability [namely] spreading throughout victims of man- society cost otherwise defenseless compensating (Ante, defects.” Next observe that “land- ufacturing my colleagues lords are essential to the rental business. have more than a random or They accidental role in the marketing enterprise continuing relationship [and] addition, to the property . “it be ex- following renting may ...” with pected along numerous other factors the of used rental hous- price will ing depend and reflect the antici- part quality building tenants, costs of pated protecting defects including repairs, replacement insurance,” adjusted (Ante, and that rentals to cover such costs. 466.)2 at p.

One major difficulty this is the concentration on the approach wrong “stream of commerce.” a landlord has more than an “ac- Unquestionably cidental role” in the of rental for those who on marketing property. Except a one-time term, basis rent out a for a short piece property reasonably landlord of every both and has a role multiple single continuing properties in the rental market. But those same landlords in all likelihood will have no direct or absolutely continuing with the and relationships manufacturers marketers of the defective found on the We particular products premises. are not here those discussing who build the we are property; discussing those who fact, purchase In already residence existing multiple properties. applying majority’s who analysis, those decide to rent out the family home on a regular basis are also now liable for strictly defects item any located formulation, therein. Under the where the majority’s relevant rela- is that of tionship tenants, landlord to his and landlord is now property any strictly liable for defects of which he or she has no or reason to knowledge 2One Appeal recently Court of liability undertook an extensive review of strict in the context of machinery “they sellers of used inspected, repaired which neither nor modified.” (LaRosa Court, Superior 741, 743.) v. 122 Cal.App.3d “policy It reviewed five predicates” Note, liability for strict described in Used Sales Products: Should of Defective Liability Apply? (1979) (1) Strict namely, enterprise liability (forcing So.Cal.L.Rev. enterprise deterrencе; injuries (2) (3) to bear by products); costs of caused its defective distribution; risk practicality (problems proof by application made easier of strict liability) implied representations safety product present because on the market. (122 Cal.App.3d 756-760.) pp. at Appeal The Court of found that as to the risk-distribution rationale, heavily by so relied upon majority, very pervasiveness here “the . . . insufficient, suggests itself, rationale probably by justify liability.” that it is strict 759.) p. at diminishing problems As to proof, the court observed “ease of recovery really liability; is not precisely rationale for strict more it describes the effect liability strict expected Obviously recovery pervasive was if ease of have. were a rationale ” (Id. 760.) for strict then p. strict would be the universal These rule. validity conclusions have in our context as well.

know and which no matter how esoteric appear any part of that Noth- understanding necessary comprehend working part.3 of mul- in the confined to landlords ing majority’s necessarily approach residences. tiple of com-

The weakness of the of the relevant stream majority’s analysis that “a con- concluding merce is revealed consideration of its basis for liability.” business is not essential to of strict tinuing relationship imposition It relies Alad Ray Corp. v. upon 3], of a manufacturer mili- unavailability proposition

tates in favor of engaged the imposition “persons ante, (See 466.) who can the cost of enterprise p. spread compensation.” Alad, we held that a which had all assets corporation acquired to run the busi- manufacturer of the defective аnd which continued product form, be held strictly ness in a manner almost identical to its could original liable for defects in a manufactured corporation. product predecessor over and the established business “By taking continuing producing ladders, Alad II ‘an of the overall distributing integral Alad became part the cost of injuries that should bear producing marketing enterprise Co., (Vandermark Ford Motor from defective resulting products’ 262).” Alad 19 Cal.3d at (Ray Corp., supra, circumstances, be held Under those narrow we held the successor could liable. in the

Similar of the manufacturer or others unavailability orig- complete inal states majority chain of distribution is not at issue here. As the simply facts, builder a door in its recitation of the here settled with the plaintiff $150,000 assembler and installer for a minimum of and has actions pending of in the unavailability defendants addition to the landlord. No against legal More- recovery. kind in Alad occurring problem plaintiff’s presented over, the there is no that the between relationship reasonable suggestion in manufacture and landlord here and any party participating original to the almost complete distribution of the shower door can be analogized of in It to conclude that entities Alad. is overlap corporate illogical shower landlord scheme for the marketing here became of the overall part been had since they long doors in which merely by purchasing property installed. regarded as sharply general “Only a seller who can be 3This contrasts with the view that kind involved in the engaged supplying goods merchant or one in of the business (5th (Prosser Law of Torts ed. subjеct liability & Keeton on the case is to strict . . . .” 1984) 705.) viewpoint in Price where Liability, p. We to this Products 100 at conformed § apply to a lessor of liability of in tort to the court concluded “that for the doctrine strict general leasing, in in the same

personalty, the lessor should be found to be the business ” manufacturing retailing. or personalty sense as the seller of is found to be the business anything contained majority at makes landlords “merchants” entailed, role familiarity or the actual property, expertise or on their no matter what the or regard particular product at issue. of the landlord with to the retailers, lessors, bailors, or others in the original Unlike wholesalers can- used owning property chain of distribution of the the landlord product, it, best, do only not He adjust costs chain. protection up ” “distribution, more to his tenants. charging down the chain of namely by above, no Unlike the a “merchant” has opportunity others mentioned such indemnification linked with to enter into with those more closely agreements if when he buys will have little idea making any product—he walls, as to the found in the of items such as the origin wiring without doubt even if will have no bargaining power he has such knowledge Moreover, to enter into his any with such agreements suppliers. responsi- extends to a faced a retailer bility unlike the situation myriad products, of a line of henceforth are in a business. risky Landlords particular goods. No matter how and no matter how carefully they impossible inspect, defect, discern the for countless they are now last outpost unrelated in which have no products they expertise.4 particular

Consideration of the inherent unfаirness—in extending problems—and strict landlords has led almost other every jurisdiction deciding this issue to decide of such is unwarranted. imposition a New Jersey court so held in a decision affirmed that state’s appellate court. The highest contained a discussion of some opinion cogent reasons use of this why this context: theory recovery inappropriate

“The reasons for the enforcement of strict underlying liability against manufacturer, seller or lessor of or the mass builder-vendor of products homes do not apply ordinary family dwelling. landlord of a multiple

“Such a landlord is not he whereby mass engaged production places his product—the it to a apartment—in large stream of commerce exposing number of consumers. He has not created with a defect which the product He preventable by greater care at the time of manufacture assembly. does not have the to know and correct the condition so as to be expertise saddled with for a defect of responsibility negligence. regardless 4One court up extending liability summed the difference between to lessors of com strict products general application mercial and to in our motel owners in a manner which has major holding products strictly context as well: “A of commercial consideration lessors possessed expert knowledge equip liable was that such lessors of the characteristics lessors, they ment or machines leased. Another consideration is that such like [Citations.] retailers, continually giving enduring relationship deal which suppliers, their them an permits apply them to seek do nоt contribution and indemnification. These considerations operator furnishings when a motel fixtures about which purchase makes a one-time of Therefore, special expertise. strictly he has no liable operator we hold that a motel is not ” (Livingston furnishings public. defects the fixtures and he held out to the rooms (1982) Begay 734, 738-739].) v. 98 N.M. 712 P.2d [652

486

“An involves several rooms with facilities constructed apartment many artisans with of by many constant differing types expertise, subject use and deterioration from causes. It is a unlike a many commodity wholly which is product to leave the manufacturer’s hands a safe con- expected dition with an implied which consumer representation upon justifiably relies.

“The tenant that at the time of the there are no hidden may expect letting dangerous defects known to the riot landlord and which tenant has been But warned. he does not that all will be in his expect perfect apartment for all the years his with the result that his landlord will be occupancy liable for all strictly of fault. He consequences any deficiency regardless that in accommodations only the event with the expects anything goes wrong therein, or the the landlord will it when he or equipment knows repair existence; should know of its and that if will results attach.” liability Inc., (Dwyer Skyline 301 Apartments, A.2d at Several other courts have reached similar conclusions in anal reviewing observed, cases. As the ogous Missouri Court of “No case has Appeals cited, been found, nor has one been strict the non- imposing upon defects, builder landlord for latent unsafe or dan rendering (Hender absent some or gerous, actual constructive noticе of the defects.” son v. W. 1977) C. Haas Rlty. Management, Inc. S.W.2d (Mo.App. 382, 387.)5 Cases without have rejecting knowledge application (See, utilized various 1984) v. Parkin approaches. e.g., Meyer (Minn.App. 350 N.W.2d 438-439 did not eliminate legislation requirement [recent of scienter on of landlord before he has to warn lessee of concealed part duty defects]; 1983)458 George Washington v. Weintraub University (D.C.App. A.2d 49 and fn. 9 reasonable care not be held exercising [landlord liable for losses caused from nor defects which he neither knew should known]; have of motel Livingston Begay, supra, P.2d [lessor liable; room not not strictly theory meant “unsafe apply design room”]; hotel Boudreau v. General Elec. Co. Hawaii App. 384, 389-390, 34 A.L.R.4th lessor liability requires 86] [strict claimed]; engaged business of in which defect is goods supplying Segal v. Justice Court Mut. 105 Misc.2d Housing Co-op 463, 467], N.Y.S.2d affd. 108 Misc.2d 1074 N.Y.S.2d 686] strict landlords under are public policy legislation; they [no not 1971) insurers Kidd 461 S.W.2d property]; v. Price (Ky.App. thereof].) [liability latent defect on notice or knowledge depends apparent 5The one exception pursuant may is in where to statute a landlord be Louisiana held liable for defects in the of his knowledge absence of actual of the defective condition (See 1235; 1983) property. Head (La.App. Parrv. Buxton v. Allstate Ins. So.2d 1983) (La.App. 607-608.) Co. 434 So.2d not in- who has of purchaser I would hold that a subsequent be claimed to or condition which stalled, the item altered or created defect any knowledge defective, no actual or constructive and who has or should knows If the landlord therein, liable. strictly should not be held to correct action defect, to take duty appropriate of the then he has a know continuing has no However, landlord where the or warn of the problem. manufacturer back leading with the chain of marketing ‍‌‌‌‌‌‌‌​​​​‌​​‌‌​‌​​‌​‌‌​‌‌​​​​​‌‌​​​​​​​‌‌‌‌‌‌​‍relationship the production influencing has no ofway of the defective and thus product, costs or of adjusting potential or design product manufacturer’s issue, imposi- the item business of marketing or others enterprise such rationales only supporting tion of strict liability inappropriate. “distributing” for the injured party are ease of proof responsibility of liability an extension The costs of such risk of to the landlord. damages prod- for the multiple relationships to those without expertise continuing will entail a for which now bear responsibility ucts and parts they amounts, It heretofore operated. shift in how our tort has system significant aid in the effect, tenants,6 nothing because it does insurance safety. of deterrence or goals product sum- that it granted

I would affirm the court’s decision to the extent trial in strict liabil- sounding to defendant on the cause of action mary judgment cause negligence while in the reversal as to the ity, joining majority’s action. J.,

Mosk, concurred. only logical result holding. The majority effect of its 6The never considers the economic insurance, increased cost of price housing will increase because of the is that the rental participants can sue purpose. Even if landlords assuming insurance can obtained for this likely involved will marketing, litigation costs original in the line of manufacture and distribution, of risk housing. Arguably, instead price also have an effect on the of rental to the risks involved attributable majority’s general conclusion will result in a increased cost today’s litigation pay for the additional without a concurrent benefit. Someone will have likely decision is to create.

Case Details

Case Name: Becker v. IRM Corp.

Court Name: California Supreme Court

Date Published: Apr 29, 1985

Citation: 698 P.2d 116

Docket Number: S.F. 24618

Court Abbreviation: Cal.