Burdette v. Rollefson Construction Co.

TRAYNOR, J.

Plaintiffs appeal from the judgment in favor of defendants after a trial before the court without a jury in an action to recover damages for personal injuries sustained by Dorothy M. Burdette (hereinafter referred to as “plaintiff”) in falling to the public sidewalk from a point outside her apartment.

The appeal is on an agreed statement of facts. Defendant Hisehemoeller, the owner of a lot located at 11305 Biona Drive in the city of Los Angeles, and defendant Rollefson Construction Company (hereinafter referred to as “Rollefson”) entered into an agreement wherein Rollefson was to erect a six-unit apartment building on the lot. Rollefson was to participate either in the profit from a sale of the property or in the rental income, in lieu of a profit over and above the actual cost of construction of the building. Shortly before the building was completed, plaintiff and her husband leased apartment 2 for a one-year term. Defendants had not procured a certificate of occupancy when the Burdettes moved in on October 1, 1956.

The apartment building is situated at the summit of a steep hill that rises 15 to 18 feet above the public sidewalk. To enter plaintiff’s apartment, it is necessary to leave the public sidewalk, climb a flight of 10 steps, make a right-angle turn, traverse a private sidewalk that follows the edge of the hill for 30 or 40 feet, and climb a flight of four steps to a platform immediately outside the front door of the apartment. No part of the platform, private sidewalk, or either set of stairs was enclosed by protective guard rails at the time of the accident.

On October 10, 1956, plaintiff, accompanied by a friend, was preparing to leave her apartment. She held the door open for her friend and paused to close the door. The friend had almost reached the top of the flight of 10 steps leading to the public sidewalk when she heard plaintiff’s cries, turned, and saw plaintiff lying upon the public sidewalk. Plaintiff has no memory of what occurred after she closed the door until she found herself back in her apartment after the accident. Thus, there were no eyewitnesses to the accident, and the trial court properly found that plaintiff was not guilty of contributory negligence. (Scott v. Burke, 39 Cal.2d 388, 394 [247 P.2d 313]; Gigliotti v. Nunes, 45 Cal.2d 85, 93 [286 P.2d 809] ; Campagna v. Market St. Ry. Co., 24 Cal.2d 304, 309 [149 P.2d 281]; Gallichotte v. California Mut. etc. Assn., 4 Cal.App.2d 503, 508 [41 P.2d 349].) Under these circumstances the only reasonable inference is that plaintiff lost her footing and then tumbled down the steep embankment to the public sidewalk below and that a guard rail would have prevented her tumbling to the public sidewalk whether or not it would have prevented her initial loss of footing. The crucial issue, therefore, is whether or not the accident occurred at a place where defendants were under a duty to provide a guard rail.

Defendants contend that the Building Code of the city of Los Angeles required guard rails only for the platform and the four steps leading to it, and that since the accident may have occurred after plaintiff reached the private sidewalk, she has failed to prove that defendants’ negligence in not providing guard rails for the platform and stairs caused her injury.¹

Plaintiff contends that the building code required guard rails for the private sidewalk as well as the stairs and platform, and that since she fell either from the platform, the flight of four steps, or the private sidewalk, defendants’ negligence in not providing any guard rails was necessarily the proximate cause of her injuries.

It is conceded that section 91.3305(g) of the building code required guard rails for the platform and the flight of four steps. The dispute centers about the applicability of section 91.4404(a), which provides: “Guard Rails Required. Where a floor, roof or deck is accessible from a stairway or doorway and the floor, roof or deck is more than four feet (4') above the adjoining ground or floor level, a protective guard rail shall be provided in such a manner as to separate completely the doorway from the edge of the floor, roof or deck and also enclose all traffic lanes and all equipment requiring periodic servicing.” This section was enacted “to safeguard life and limb” (Building Code, § 91.0315) by preventing persons from falling from dangerously high horizontal surfaces to which they have access from doorways or stairways, and it must be interpreted to promote its purpose. The private sidewalk was accessible from a stairway, and on one side it was 15 to 18 feet above the adjoining ground level. It was this lower adjoining ground level, not the ground level on which the private walk rested and which adjoined it on the other side, that was relevant to the application of the section, for it was there that the danger lay. Thus, it is immaterial that the agreed statement described the private walk as being at ground level, for the photographs make clear that the ground level referred to in the agreed statement was not that of the public sidewalk below but that of the adjoining apartment building on which the private walk also rested. Moreover, even had the parties intended in the agreed statement to define “adjoining ground level” within the meaning of the ordinance, their private agreement could not control its

interpretation. (See Desny v. Wilder, 46 Cal.2d 715, 729 [299 P.2d 257]; San Francisco Lumber Co. v. Bibb, 139 Cal. 325, 326 [73 P.864].)

Defendants contend, however, that the private sidewalk was not a “floor ... or deck” within the meaning of the ordinance. “Deck” has been defined as “a flat space, resembling or likened to a ship’s deck, esp. when exposed to the open air; . . .” (Webster's New International Dictionary, 2d ed., 1941, p. 680.) “Floor” has been defined as “The surface, or the platform, of a structure on which to walk, work, or travel; ...” (Webster’s New International Dictionary, supra, at p. 970.) The private sidewalk was a flat space exposed to the open air, and it was a platform of the building on which to walk. It resembled a ship’s deck in that it was a distinct level area adjoining the building between the floor level above and the ground level below. Like a ship’s promenade deck bordered by ship’s cabins on one side and the ship’s side on the other, it was dangerous if it lacked a railing at its edge. Although it might usually be described as a sidewalk, it was also a “floor ... or deck” within the meaning of the ordinance reasonably construed to promote its manifest objectives.

The private sidewalk was also a “traffic lane” leading from the floor of the platform outside the door to the flight of 10 steps. Section 91.4404(a) requires all traffic lanes to be enclosed by guard rails when a floor or deck accessible to a door or stairway is more than 4 feet above the adjoining ground level. It does not provide that the guard rails may terminate where the traffic lane reaches the edge of the immediate level accessible to the door or stairway, and the only reasonable interpretation is that the rails must continue until the traffic lane reaches a safe level or terminates. Otherwise the ordinance would sanction a trap. A guard rail begets reliance, and its termination suggests safety. A railing that is not coterminous with the peril against which it guards may be more dangerous than none at all. (See Laird v. T. W. Mather, Inc., 51 Cal.2d 210, 216, 218 [331 P.2d 617].)

Defendants contend, however, that the court cannot apply section 91.4404(a) to the facts of this case, on the ground that to do so would permit plaintiff to change the theory of her case on appeal. This contention is without merit. Although ordinarily a party may not deprive his opponent of an opportunity to meet an issue in the trial court by changing Ms theory on. appeal, this rule does not apply when, as in this case, the facts are not disputed and the party merely raises a new question of law. (Ward v. Taggart, 51 Cal.2d 736, 742 [336 P.2d 534] ; Panopulos v. Maderis, 47 Cal.2d 337, 340-341 [303 P.2d 738].)

Defendants contend that the trial court’s finding that their negligence was not the proximate cause of plaintiff's injuries is supported by the language of the agreed statement that “there is no evidence in the entire record showing or tending to show the cause of plaintiff’s injuries. ” As we have seen, however, there is evidence that compels the conclusion that one cause of plaintiff’s injuries was the absence of a guard rail at the place she fell. We cannot assume that by including the quoted language in the agreed statement, plaintiff agreed that her appeal was without merit and that we should disregard the record. (Palmer v. City of Long Beach, 33 Cal.2d 134, 144 [199 P.2d 952].) The only reasonable conclusion that can be drawn from the record is that the quoted language refers only to the absence of direct evidence of the cause of the injuries or of any evidence of the cause of plaintiff’s initial loss of footing. To interpret it to mean that there is no evidence that a guard rail would have prevented plaintiff’s tumbling to the public sidewalk 15 to 18 feet below would render the agreed statement self-stultifying, for the only inference that can reasonably be drawn from the record is that a guard rail would have prevented plaintiff’s injuries. The trial court’s finding that defendants’ negligence was not the proximate cause of plaintiff’s injuries may be explained by its theory, apparently acquiesced in by plaintiff below, that defendants were negligent only in failing to provide guard rails for the platform and stairway and that there was no evidence that plaintiff did not fall from the private sidewalk. Since it appears as a matter of law, however, that defendants were negligent in failing to provide a railing for the platform, the stairway, and the private sidewalk, that plaintiff fell at one of those three places, and that a railing would have prevented her tumbling to the public sidewalk, the trial court’s finding that defendants’ negligence was not the proximate cause of her injuries cannot be sustained. (Bissett v. South S.F. Belt Ry. Co., 67 Cal.App. 325, 328 [227 P. 671]; Murray v. Southern Pacific Co., 177 Cal. 1, 10 [169 P. 675] ; Traylen v. Citraro, 112 Cal.App. 172, 174-175 [297 P. 649] [hearing denied by this court] ; Edgar v. Citraro, 112 Cal.App. 178,180 [297 P. 654] [hearing denied by this court]; Gallichotte v. California Mut. etc. Assn., 4 Cal.App.2d 503, 507-509 [41 P.2d 349] ; Hession v. City & County of San Francisco, 122 Cal.App.2d 592, 603 [265 P.2d 542]; Alarid v. Vanier, 50 Cal.2d 617, 621 [327 P.2d 897].)

The judgment of the trial court is reversed.

Gibson, C. J., Peters, J., and Peek, J. pro tem.,^* concurred.

1 This theory was apparently adopted by the trial court. Thus, after finding that the absence of guard rails around the platform and the flight of four steps was a violation of the Building Code, the court went on to find that "... it is untrue that the absence of said handrails or guardrails or the presence of any dangerous or hazardous condition for which defendants, or either of them, were responsible or accountable, was a direct or proximate cause of any fall or other incident which caused injury to the plaintiff, Dorothy M. Burdette." (Findings of Fact, No. 6.)

* Assigned by Chairman of Judicial Council.