Korsak v. Atlas Hotels, Inc. , 3 Cal. Rptr. 2d 833 ( 1992 )

NARES, J.

I respectfully dissent. The majority, in determining an evidentiary issue requires reversal, has stood this case on its head. The only prejudicial error demonstrated by this record was suffered by respondent Korsak, and not appellant Atlas Hotels, Inc. (Hotel).

In this case, Hotel conveniently lost the admittedly defective shower head before it could be inspected by Korsak’s expert. The trial judge refused to allow evidence that another shower head had fallen off in the same building. Finally, when Korsak’s trial attorney offered jury instructions (BAJI Nos. 4.00 and 4.03) on res ipsa loquitur, they were refused. The trial judge responded to a request to argue the point as follows: “I’ve been on the bench over 17 years. I’ve given the res ipsa loquitur instructions twice. So, if you want to argue, go ahead. This is not a res ipsa case.” After argument the judge confirmed his determination to refuse res ipsa instructions on the ground the shower head was not under the exclusive control of Hotel, as Korsak had rented the hotel room for a week. Yet despite every one of these adverse rulings, the jury found Hotel negligent, and awarded damages to Korsak.

Where the result below is right, an appellate court should affirm whether or not the ground upon which the trial court relied was correct. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19 [112 Cal.Rptr. 786, 520 P.2d 10]; Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329 [48 P. 117].) A hotel owner owes his guests protection from personal injury. (Rest.2d Torts, § 314A; Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806 [205 Cal.Rptr. 842, 685 P.2d 1193]; Wallace v. Speier (1943) 60 Cal.App.2d 387, 391 [140 P.2d 900.) Korsak was injured in his hotel room when a shower head fell off a water pipe. Three observations are appropriate: (1) This kind of accident does not normally occur absent negligence on someone’s part; (2) the instrumentality, a fixture in a hotel room, was (contrary to the trial judge’s ruling) as a matter of law in the exclusive control of Hotel; and (3) Korsak did nothing wrong. On these facts the jury should have been instructed that either they may draw an inference of negligence by Hotel (BAJI No. 4.02) or (where, as here, the three elements are not disputed) they must find such negligence (BAJI No. 4.03). (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489-493 [154 P.2d 687, 162 A.L.R. 1258].)

As Hotel points out, the trial court refused Korsak’s request to instruct on res ipsa loquitur. On these facts such refusal was error. If the trial court had correctly instructed the jury, however, the result would have been the same: judgment for Korsak. Accordingly, the judgment should be affirmed, rather than reversed. (Code Civ. Proc., § 906.)

There can be no dispute that Hotel owed Korsak a duty of maintaining its premises in a reasonably safe manner. (Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416, 421 [282 P.2d 890].) The only issue is whether Hotel breached that duty by failing to maintain and inspect the shower head, which its own employee admitted was defective. This case is indistinguishable from Wallace v. Speier, supra, 60 Cal.App.2d at page 390, in which testimony by two plumbers relative to frequency of inspections of shower heads and the length of time these fixtures should be used was unsuccessfully challenged by hotel owners. Hotel’s challenge here should similarly be unsuccessful. Admission or rejection of expert testimony lies largely within the discretion of the trial court, and an appellate court should not disturb the trial court’s action unless there is a clear showing of abuse (Reynolds v. Natural Gas Equipment, Inc. (1960) 184 Cal.App.2d 724, 739 [7 Cal.Rptr. 879]) and “it appears that there has been a miscarriage of justice.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566 [86 Cal.Rptr. 65, 468 P.2d 193].) Even conceding that permitting Korsak’s expert witness to mention that some hotels had an inspection program was such an abuse, there remains the question of prejudice. It is utterly impossible to imagine that the jury in this case was swayed in its determination of liability by the testimony set out in the majority opinion.

The majority ignores the rulings adverse to Korsak, and disregards the testimony of Hotel’s own employees that no one inspected the shower head because “[i]t would have taken a wrench to do that.” Instead, the majority limits its review to testimony by Korsak’s mechanical expert regarding his telephone calls to some unnamed hotels about maintenance practices. As the expert witness testified, these calls were made after he had formed the opinion that, but for the absence of proper maintenance, this type of accident could not have occurred. According to the trial court, this limited testimony did not violate the ruling in limine prohibiting this expert from testifying regarding the custom and practice in the hotel industry. I see no reason to challenge this determination, nor in any event to find prejudicial error therein.

Where, as here, a defendant deprives an injured plaintiff of the means of establishing the fact an admittedly defective shower head was the only cause of substantial damage to the plaintiff, I would affirm the judgment, because whether or not one calls the shifting of the burden of proof res ipsa loquitur, Hotel was in a better position than Korsak “to offer evidence on the issue of causation, and fairness required that the burden of proof be shifted to [it].” (Witkin, Significant Developments in California Substantive Law 1970-1990 (1991) p. 281. See, e.g., Ybarra v. Spangard, supra, 25 Cal.2d at pp. 490-494; Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 774 [91 Cal.Rptr. 745 [478 P.2d 465]; and Vahey v. Sacia (1981) 126 Cal.App.3d 171, 178-179 [178 Cal.Rptr. 559].) Hotel failed to produce any competent, admissible evidence it ever inspected or performed maintenance on this shower head at any time. The jury was most unlikely to have been influenced by the testimony relied upon for reversal by the majority, and had it been correctly instructed, would necessarily have reached the same result now challenged. On these facts the proper result is to affirm the judgment, and not reverse. Therefore, I dissent.

Respondent’s petition for review by the Supreme Court was denied April 15, 1992.