# Donahoo v. Kress House Moving Corp.

> California Supreme Court · November 21, 1944 · 25 Cal. 2d 237

URL: https://www.frixlaw.com/law-library/cases/9549414

## Case

- **Full name:** LETTIE DONAHOO, Respondent, v. KRESS HOUSE MOVING CORPORATION (A Corporation) Et Al., Appellants
- **Court:** California Supreme Court
- **Decided:** November 21, 1944
- **Citations:** 25 Cal. 2d 237; 153 P.2d 349; 1944 Cal. LEXIS 312
- **Precedential status:** Published
- **Opinion:** Dissent by Schauer
- **Judges:** Schauer
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9549414

## Opinion text

SCHAUER, J.
I dissent. The findings of the trial court do not, in my opinion, support the conclusion “That it was *249 the duty of . . . defendants to provide a reasonably safe passageway on said property for plaintiff to walk upon and use as a means of ingress and egress. ...” The trial court found “that the plaintiff and her daughter occupied the Donahoo house with the knowledge and implied consent of the defendants” and that “defendants knew at all times prior to and at the time of the accident that it was necessary for plaintiff and her daughter to have means of ingress and egress to and from their place of abode and that by reason of debris, boards and timbers and moving equipment which were piled up in front of the new location of the Donahoo home and because of rainy weather and muddy conditions that had been created thereby, that . . . their only . . . means of ingress and egress to and from their house was by the use of the front entrance and through a portion of the yard . . .; that the defendants . . . failed to provide a reasonably safe passageway from the front entrance of the Donahoo house. ...”
Defendants are house movers. By their contract with Hansen they agreed to move houses and so far as the evidence shows they carried on the moving operations in an ordinary and reasonable manner which necessarily involved the littering of the premises with materials and the digging of holes. The majority opinion now holds that “When the defendants permitted these two women [plaintiff and her daughter] to remain upon the premises, they accepted them as invitees,” and that “Having complete control of the property, they [defendants] stood in the same position as a landlord” and assumed the same duty of furnishing a safe passageway to these tenants as a landlord who maintains common hallways and entrances in an apartment house.
There appears no basis for the imposition on the defendants of an affirmative duty to construct and maintain a means of ingress and egress for the plaintiff. The contract with Hansen did not give rise to such a duty. So far as appears, by that contract defendants simply agreed to move houses ; the “possession” which was agreed to be furnished them was possession for the sole purpose of performance of the contract by the moving of the houses in the usual manner.
Neither does it appear that the “implied consent of the defendants,” with which, as found by the trial court, plaintiff occupied the house, coupled with the knowledge of the defendants “that it was necessary for plaintiff ... to have *250 means of ingress and egress,” imposed upon the defendants the duty of providing a passageway. If defendants could consent to the occupation of the house by plaintiff it would seem that they could have refused such consent. But according to the holding of the majority opinion the defendants had no such simple choice of permitting or refusing to permit plaintiff to occupy the house during the moving operations; since they did not object, their “implied consent,” the majority hold, became an invitation to plaintiff, not merely to occupy and go to and from the house, but also to walk about the premises in the dark in the assurance that defendants had provided a safe pathway. The defendants did nothing to give plaintiff any such assurance. They did not lay out any temporary walk, nor were they requested to do so by the tenants of the Donahoo house. The only “path” consisted of small boards which had apparently been haphazardly thrown about. Defendants received no benefit from the occupancy of the premises by plaintiff and her daughter during the moving operations. Defendants’ consent was purely a matter of convenience to such occupants. Could defendants not consent that the occupants merely remain at their own option and risk and subject to whatever conditions might be created in the course of the moving operations ? By what right can this court impose any further obligation upon defendants? Are we to presume not merely a bare consent to occupancy but also an uncompensated covenant to depart from usual business practices for the benefit of the recipients of defendants’ bounty? What is the measure of defendants’ responsibility under the majority holding? Must they from hour to hour as the house slides back on the lot keep it in contact with a paved and rail-guarded walk? I perceive no established or just basis in law for answers to those questions which will support the majority holding. It has heretofore been the law that a licensee, whether business visitor or gratuitous licensee, “must accept or reject the possessor’s consent to enter the land under the conditions which are known to him or which he could discover by the use of his senses” (II Rest., Torts, § 341, Comment d) and that ‘1 The licensee is not entitled to enter the land of another except in so far as he is privileged to do so by the possessor’s consent. Therefore, the mere fact that the possessor has consented to his entry gives him no right to expect that the possessor will change the method in which he conducts his activity so as to secure *251 the licensee’s safety. If he knows of the nature of the activities conducted upon the land and the manner in which they are conducted, he has all that he is entitled to expect, that is an opportunity for an intelligent choice as to whether or not the advantage to be gained by coming on the land is sufficient to justify him in incurring the risks incident thereto.” (Id Comment a.)
“One who on behalf of the possessor of land . . . creates any . . . condition thereon is subject to the same liability, and enjoys the same immunity from liability, as though he were the possessor of the land, for bodily harm caused to others within and without the land, while the work is in his charge, by the dangerous character of the . . . condition.” (II Rest., Torts, §384; Hall v. Barber Door Co. (1933), 218 Cal. 412, 419 [ 23 P.2d 279 ].) The conditions here necessarily created by the defendants in the performance of their contract with Hansen were dangerous to one walking about in the mud and dark. But the defendants in creating such conditions were not negligent toward the plaintiff, who had elected to live in the midst of them. “A possessor of land is not subject to liability to his licensees, whether business visitors or gratuitous licensees, - for bodily harm caused to them by any dangerous condition thereon, whether natural or artificial, if they know of the condition and realize the risk involved therein.” (II Rest., Torts, § 340; Shanley v. American Olive Co. (1921), 185 Cal. 552, 555 [ 197 P. 793 ]; Blodgett v. B. H. Dyas Co. (1935), 4 Cal.2d 511, 512 [ 50 P.2d 801 ].) The moving of the two houses and the resultant conditions created by defendants involved a risk which should have been known to plaintiff because the risk was “necessarily inherent in the nature of the activity carried on” (II Rest., Torts, § 340, Comment c) and it was obvious to the senses.
The plaintiff, who had elected to occupy the house during the moving operations, was not entitled to expect that the land would remain in its normal condition and that her way of ingress and egress would remain substantially unobstructed. She testified not only that she did not know of the existence of the particular hole into which she fell, but that she had never even looked out from the front porch over the area where the accident occurred. But she had been living in the house during all the moving operations, which had continued for about three weeks before the accident, and it is inherently improbable and unbelievable that she was unaware that the *252 yard was torn up and littered with equipment. Furthermore, she testified that she turned on the house lights in order to illuminate the area to some extent and the accident happened as she was endeavoring to return to the house after once traversing the yard.
Plaintiff derived her privilege to remain on the land from the implied consent of the defendants, and the proposition stated in II Restatement, Torts, section 340, Comment e, applies: The licensee, whether business visitor (invitee) or gratuitous licensee, is “entitled to nothing more than knowledge of the actual conditions, which he will encounter if he avails himself of the possessor’s consent. If he knows the actual conditions, he has an opportunity to exercise an intelligent choice as to whether the advantage to be gained from his entry is sufficient to justify him in incurring the risk which he knows is inseparable from it.” (See, also, Mautino v. Sutter Hospital Assn. (1931), 211 Cal. 556, 561 [ 296 P. 76 ] ; Watwood v. Fosdick (1931), 212 Cal. 84, 85 [ 297 P. 881 ].) And in the exercise of an “intelligent choice” he must use his senses in perceiving that which is obvious. (II Rest., Torts, § 341, Comment d, quoted supra.)
The findings of fact do not support the conclusion that defendants “neglected to perform their duty ... [to exercise reasonable care] in the matter of guarding” the hole into which plaintiff fell. The following language from Webber v. Bank of Tracy (1924), 66 Cal.App. 29, 36 [ 225 P. 41 ], applies: “No man is held by law to a higher degre'e of care than the fair average of his profession, business, or trade, and the standard of due care is the conduct of the average prudent man. . . . Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set a standard which shall, in effect, dictate the customs or control the business of the community.” . It should not be expected that premises on which houses are being moved will be in a condition comparable to premises on which no such operations are proceeding. The area near the Donahoo house “was strewn with . . . everything that a person would use in moving and building foundations. ” It is common knowledge that the construction of foundations and the connecting of utilities ordinarily entail the digging of holes. There were brush and pieces of rope over which plaintiff might have tripped and beams against which she might have fallen (in- *253 eluding two beams on which plaintiff stepped just before she stepped down on the board which slipped into the hole), and all these obstructions, like the hole, were unguarded, but were in themselves most obvious warnings of danger. There is no more basis for holding that defendants, in order to escape liability, should have fenced the hole necessarily made by them in the performance of their work, than there is for holding that they should have cleaned up the entire premises when they temporarily suspended work because the heavy rains forced them so to do.
The majority opinion states that the unguarded hole “might well be called a trap created by the negligence of the defendants.” The hole was no more a trap than were the other obstructions to safe travel above mentioned. Defendants did not lay out the rough path of boards which led past the hole; they did not in any way invite or encourage plaintiff to walk near the hole. They did not negligently create an appearance of safety; in the lawful exercise of their calling they created conditions which presented an appearance of danger and which constituted a warning to plaintiff.
As stated in Mautino v. Sutter Hospital Assn. (1931), supra, 211 Cal. 556, 561 , “Even if the plaintiff were free from contributory negligence, ‘not every accident that occurs gives rise to a cause of action upon which the party injured may recover damages from someone. Thousands of accidents occur every day for which no one is liable in damages. . . .’ ” The plaintiff here voluntarily assumed the risk and lost. Her misfortune is regrettable but having assumed the risk she should bear the loss.
The judgment should be reversed.
Edmonds, J., concurred.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9549414. Public record. Not legal advice.