*1 opinion. party sistent with this Each bear own costs shall its appeal. on this pro Kincaid, tem.,* concurred.
Ashburn, J., and J. petition rehearing April 21, 1958, A for a was denied hearing by petition appellant for a May Supreme 21, Carter, J., Court denied 1958. was of petition opinion granted. should be Dist., Div. Three. Mar. 22336. Second No. 1958.] [Civ. Respondent, HUNTER RADOFF, v. JOHN CHARLES al., Appellants. et *Assignedby Judicial Chairman of Council. *2 & Donovan and
Goebel Herbert Appellants. J. Beck for Joseph Ethelyn W. Fairfield and F. Black for Respondent. (Parker), J. WOOD damages Action for personal for injuries resulting being dog. attacked and bitten nonjury In a trial plaintiff. Defendants appeal judgment. from the Appellants contend that the evidence was insufficient support the findings; findings and that not do judgment. July 9, 1955, On when was injured, the defendant pet Yee was the owner of a store on Mr. Santa Monica Boule- Angeles. prior vard Los On day, to that defend- ant Mr. Hunter operating assisted Mr. Yee in the store. The defendants owned the herein referred to. Mr. Hunter stayed every including day, nighttime, store because nearby attempted there been had robberies at the store of Sears, Company Roebuck had someone broken pet July window at the back of the store. Prior 9 German shepherd watchdog, which had as been trained given pet dog might been in order that the be disposed The as a of. defendants (north they end) him of the at the rear store. outside chain, a window bar chained, The with a 15-foot pet At rear of the on a store next to rear store. packing cases, pet store, door, and near its rear there feet was about three cans, and an old counter which trash large packing there, was used high. A which was crate, was used rear of the store shelter The door store, parking area back There was a customers. dog weighed paved asphalt. between with which area standing tall when pounds, feet 80 and 100 about 5% legs. hind department Sears, An automobile service Roebuck and Company feet is about 10 west the side of the store. asphalt space paved with The 10-foot is used Sears *3 yard. parking is storage (north There area at rear as the paved end) department, of which area the service is with paved parking areas, paved the asphalt. The and 10-foot pet the the space department, store and service are between boundary parking area the line between the of level. At pet the space, there is a curb and the 10-foot which about store high and 6 inches wide. 6 inches plaintiff July 9, m., Radoff about a. Mr. drove said On department automobile service of automobile the Sears his having battery charged. of automobile purpose the the park department him to his told automobile at that Someone department particular (north end) of that the the rear at place the at parked his automobile indicated Plaintiff service. space parking the parking about 10 feet from awas which man, suggesting pet The service after the store. back of area battery, the a new cable removed plaintiff needed that took the cable to a trash dropped it. Plaintiff and cable used pet and about 40 store at rear was the which can stepped he going In trash can the automobile. from the feet pet parking back of the store. area onto the the curb over back and started to the can the dropped the cable He gone about three had that after he He testified automobile. fell his face and he leg, and something snapped his steps that and saw wrist; away, farther he looked back he rolled dog dog at the grabbed leg; was that his that time had get plain- growling, baring teeth, trying to the his anything any Plaintiff before tiff. did not hear noise or see dog upper part the bit bitten in the back of the him. He was premises leg. pet store sign There no on the indicating Neither of that was at rear of the store. the pet prem- plaintiff the defendants was on the knew that injured. until plaintiff ises after the been had Mr. trial, Hunter at the that after the incident testified, plaintiff) involved, (not here an man had he that old learned teasing been dog. Hunter the time his testified, Mr. deposition prior involved, taken, that here incident an old man neighborhood in the teased the premises plaintiff court found entered defendants’ that defendants, without the knowledge, consent or invitation express or implied, insofar as the defendants con- cerned, plaintiff trespasser; was a that the defendants should anticipated have an with such dog; knowl- attack edge defendants care to warn failed exercise reasonable those who parking entered defendants’ lot condition risk involved. Appellants argue finding they that the should an attack supported by is not the evidence. There was evidence that defendants knew that shepherd police German had been trained aas they watchdog; him as him chained, awith 15-foot chain, door; outside store and near the rear dog weighed pounds, between 80 and 100 and was about standing feet tall legs; when on his hind customers used 5% the rear Also, door of the store. there was evidence that defendant knew, injured, Hunter before dog had been old man teased an when “an older person person came as if around” acted were the old man him. In who teased Frederickson Kepner, it was said at pages (a) propensities danger 908 and 909: “The vicious *4 (b) knowledge dog ous character of a and thereof his may be from evidence the owner inferred (1) (2) (3) tied as a and also from his size foregoing Applying the rules to the breed. facts [Citations.] jury apparent in instant it is could have the case since foregoing that, inferred from the evidence defendant police dog pounds weight his German of 75 permitted tied on premises as a the be watchdog, and to unfettered only evenings accompanied by (a) in the someone, and when dangerous (b) the had a defendant had nature, knowledge dangerous Hence, of the animal. character injury there the caused since was direct evidence that plaintiff plaintiff, be liable to to defendant would resulting grant damage for the trial it was error court ’’ motion for a nonsuit. The evidence was sufficient finding that defendants should have an attack plaintiff
Appellants argue
that since
further
only duty they
to him
trespasser,
owed
refrain
injury.
In Fernandez
Consolidated
wilful or wanton
v.
Fisheries, Inc.,
73],
P.2d
it was said
[219
“
many
holding
there
are
cases
pages 96 and 97:
[W]hile
inflicting
only
required
refrain from
wanton
owner is
land
trespasser
[citation], there
injuries on a
or licensee
or wilful
trespasser
holding
‘a
is
many
that after
seen
eases also
are
be
to avoid
position
must
exercised
danger,
in
of
due care
negligence
not
do so.’
injuring him, and
is
[Citation.]
only
to situations
duty
not
extends
of reasonable care
This
trespasser’s presence, but
knows of a
the land owner
where
presence.
know of
to situations where he should
(vol.
Thus,
336)
of
the Restatement
Torts
2,
declares
§
possessor
trespasser’s
if the
of
not
land does
know of a
‘from
him
presence, but
facts known to
should know or
may
trespassing,
‘subject
another
or
be’
he is
believe that
bodily
liability
harm
thereafter caused to
the tres
possessor’s
carry
passer
upon
failure to
on his
activities
trespasser’s safety.’
care
the land with reasonable
being
(Many California
are
in accord in the
cases
cited
section.)
Many courts,
to this
California annotation
duty
trespassers
imposing
reasonable care
this
of
towards
drawn a
licensees,
distinction between active
passive negligence, and have limited
reasonable care test
negligence.
quite
California has
acts of
to overt
[Citation.]
imposed duty to
clearly adopted this distinction
exercise
trespassers
known
far
care
licensees
so
reasonable
towards
operations
In the
case
are concerned.
well-reasoned
as active
Oettinger
19,
Stewart, 24 Cal.2d
expressly
contrary
overruled.”
cases to
A.L.R.
not know
present case
defendants did
In the
premises until
after
presence
*5
injured.
reasonably infer, how
could
was
The court
large
a
ever,
was located near
fact that the
shopping
parking
should
area that the defendants
might
trespass
persons
walk or
believed or
to
was allowed
within the 15-foot radius where the
in
from view
range, and where at
was concealed
times he
In
the counter.
crates,
his shelter or behind
trash cans or
a
Schultz,
103],
Northon v.
P.2d
[279
injured
in a
visitor
home was
when a
against
therein ran
legs
back of
the visitor’s
and caused her to fall.
In that
case
court indicated
owner’s
allowing
conduct in
against
to run
the visitor was “active conduct.”
Oettinger
(p. 490)
It was said therein
that since the
in
decision
Stewart,
The findings, evidence sufficient findings support judgment. is affirmed. Vallée, J., concurred. SHINN, judgment. P. J.I concur in the There was no negligence
active of the They merely defendants. created dangerous a premises condition for portion intruders of the set aside if sight he had been in trespassers upon all the time, his domain only would have had to blame if he themselves chased away, them even the use Any of extreme grown-up measures. gumption should have enough stay out of the reach of a watchdog, chained especially one as faithful and efficient as a well-trained Ger shepherd. man But large packing the defendants’ nap crate in during presence which the daytime, when his might go pitfall He would then unnoticed. constitute a unwary. warning Defendants should have maintained injuries, liable for sign. rendered them Their failure do so presence of the trespassers unaware who were
even liability to agree there was a alone, I reason, For this plaintiff. April 15, 1958, rehearing petition for a was denied A Supreme hearing Court petition for
appellants’ McComb, were J., May Schauer, J., and 21, 1958. denied *6 granted. petition should be opinion that the Third Dist. Mar. 1958.] No. 9175. [Civ. RITCHIE, R. Respondent, v. W. HELMICK, PAUL C. Appellant. Sidney Appellant. E. Ainsworth for Blaine McGowan Stanley Respondent. Mitchell for Edgar Martin and J. L. appeals from an adverse PEEK, J.Defendant possession of a tractor recover which was one in an action to to defendant. Defendant con of three sold equipment Magnolia in fact sold to the (1) tends