Hamilton

In an action for damages for personal injuries based on premises liability, plaintiff appeals from judgment of nonsuit in favor of defendant Gage Bowl, Inc., entered after the conclusion of plaintiff’s opening statement. (Code Civ. Proc., § 581c.)

Facts

The complaint alleged: In a parking lot owned and operated by defendant Gage Bowl, Inc., plaintiff sustained personal injuries when she was struck by a sign which fell from a building adjacent to the parking lot owned by defendants General Veneer and Geneerco, Inc., and occupied by defendant Howard Manufacturing, Inc. Defendants negligently maintained, managed and operated the parking lot and the adjacent building.

*1709 Plaintiff settled with defendants General Veneer, Geneerco and Howard Manufacturing for $220,000 and the action was dismissed with prejudice as to those defendants. The action was ordered to arbitration as to the remaining defendant, Gage Bowl, Inc. Following rendition of an arbitration award of $130,000 in favor of plaintiff, Gage Bowl timely requested a trial de novo by jury. (Code Civ. Proc., § 1141.20.)

Plaintiff’s opening statement, made at that trial, set forth the following facts which plaintiff…

I respectfully dissent. I believe Gage Bowl had a duty to inspect the sign and the judgment of nonsuit should be reversed.

The majority correctly cites the following rule as stated in Schwartz: “An invitor may be liable for an injury, whether it occurs on his property or on a common passageway or on an adjacent sidewalk or street being used for his special benefit, if, and only if, the injury is caused by a dangerous condition, or unreasonable risk of harm, within the invitor’s control.” (Italics added.) (Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 243, fn. 10 [ 60 Cal.Rptr. 510 , 430 P.2d 68 ].) However, I respectfully disagree with the majority’s application of this rule to the facts of this case.

The majority contends Hamilton’s opening statement failed to indicate Gage Bowl exercised control over the sign within the meaning of Schwartz- It therefore concluded Gage Bowl had no duty to discover the dangerous condition of the sign. To the contrary, I believe Hamilton’s opening statement set forth facts to indicate Gage Bowl exercised sufficient control over the sign to impose upon it the duty to inspect the sign.

Hamilton clearly says in her opening statement the…

In an action for damages for personal injuries based on premises liability, plaintiff appeals from judgment of nonsuit in favor of defendant Gage Bowl, Inc., entered after the conclusion of plaintiff's opening statement. (Code Civ. Proc., § 581c.)

The complaint alleged: In a parking lot owned and operated by defendant Gage Bowl, Inc., plaintiff sustained personal injuries when she was struck by a sign which fell from a building adjacent to the parking lot owned by defendants General Veneer and Geneerco, Inc., and occupied by defendant Howard Manufacturing, Inc. Defendants negligently maintained, managed and operated the parking lot and the adjacent building.

Plaintiff settled with defendants General Veneer, Geneerco and Howard Manufacturing for $220,000 and the action was dismissed with prejudice as to those defendants. The action was ordered to arbitration as to the remaining defendant, Gage Bowl, Inc. Following rendition of an arbitration award of $130,000 in favor of plaintiff, Gage Bowl timely requested a trial de novo by jury. (Code Civ. Proc., § 1141.20.)

Plaintiff's opening statement, made at that trial, set forth the following facts which…