De Lima v. Magnesite Waterproofing & Refinishing

I concur in the judgment in this case. However, I do so only on grounds there was no need for the magnesite seller and installer, Mr. Booker, to duplicate the manufacturer’s warning on the can of sealer, at least in the circumstances of this case.

Contrary to the majority, I am of the opinion the seller had a duty to ensure its Magnesite customers were adequately warned of the need to use sand *784 when resealing the magnesite surface in the future. The seller cannot assume the customer will contract with it for these future, inevitably necessary, resealing operations. (Indeed the seller cannot assume the customer will employ any contractor to perform this function. The customer may choose to be a “do it yourselfer.”) Thus, it is reasonably foreseeable that someone other than the original seller/installer will be applying the new sealing compound required every year to maintain safety and effectiveness of the magnesite surface. It is also reasonably foreseeable the application of the new sealant will create a dangerous condition unless sand is included in the mixture. It is not obvious to the average customer or anyone else that the failure to use sand will produce a dangerous…

Plaintiff, Nedra De Lima, appeals from judgment of nonsuit entered in favor of defendant Magnesite Waterproofing and Refinishing (MWR).

Factual and Procedural Background

In April 1978, at the request of Sherman Neusom, MWR replaced two outdoor staircases at an apartment building owned by Neusom, put magne *779 site on the stairs and sealed the magnesite with a plastic sealer. In May 1979 Neusom had the stairs resealed by Rafael Rodriguez. On June 20,1979 plaintiff, a tenant in Neusom’s building, slipped and fell while descending one of the staircases.

Plaintiff sued Neusom, MWR and Rodriguez for damages for personal injuries sustained as a result of the fall, alleging negligence. The cause was tried before a jury. After plaintiff completed the presentation of her evidence, MWR moved for judgment of nonsuit (Code Civ. Proc., § 581c, subd. (a)) on the grounds (1) the evidence failed to establish that MWTt owed plaintiff a duty of care; and (2) even if MWR owed a duty to plaintiff, the subsequent resealing of the stairs by Rodriguez was a superseding cause which relieved MWR of liability. The trial court granted the motion. 1 Judgment of nonsuit was entered in favor of…