Summer 2003 – Issue 66 - Stanford Lawyer - Stanford University

26 t\ TORT STORYSUMMER2003according to news accOlUlts and the reminiscences of survivingfi-iends. But he was not primarily a plaintiffs' lawyer andby all accounts he was not an appellate lawyer who took casesto the state Supreme Court. Healy seems to have been morein his element, at least before the trial court, in defendingwhat appeared to be a routine premises liability case. But he,too, was not an appellate practitioner. In short, these werenot test case lawyers-~lIld this is transparent in the writtenrecord, which Justice Peters and his colleagues had beforethem when they decided to hear an appeal in the case.But that written record can only be understood in thecontext of a closer look at the obligations owing to a socialg1Jest when James Rowland had his fateful encounter withthe cracked faucet. Like every other state, California at thetime subscribed to the tripartite invitee-licensee-trespasserframework_ Significantly, however, Cali fornia appeared to doso in the most begrudging fashion. To be sure, as far asentrants on business premjses were concerned, tile CaliforniaSupreme Court, in Oettinge7' v. Stewrn1, had followed thestep taken by most states in broadly recognizing an obligationof due care, without reference to tile particularities ofwhether the proprietor stood to recognize an economic benefitfrom the entrant's presence. If Rowland's injury hadoccurred in the bathroom at his neighborhood cafe, hewould have been owed a full obligation of due care, evenif he stopped in solely to use the facilities.Social guests in a private residential setting, however,were anotller matter. Here, confusion reigned among thelower appellate courts and the California Supreme Courthad done virtually nothing to clarify matters. A number ofappellate court cases suggested that tile social guest took thepreneises as he or she found tleem; in other words, that theland occupier had no obligation to take safety precautionsbeyond whatever seemed personally adequate for the immediatefamily. Translated into a rule of conduct applicable tolicensees, this was frequently taken to mean that the landoccupier in California owed no duty beyond avoiding willfuland wanton injury to a visitor.By contrast, the vast majority of states required a warningto a social guest whenever the host had knowledge of adanger tllat he had reason to expect would not be discovered,a rule enunciated in the Restatement Second of Torts,§342. In short, the Restatement required warning of knownconcealed dangers, without reference to a standard of concealedrisk created by the land occupier's conduct that borderedon reckless misconduct.The confused state of the law in California, and indeedthe uneven doctrinal developments in other states as well,frequently boiled down to definitional haggling over whatconstituted a "trap." In earlier times, and in contemporaneousCalifornia decisions, the illustration often relied on wasa spring gun-surely suggesting a far more limited obligationfrom premises occupiers than if they had to concernthemselves about a range of "traps" including obscuredbanana peels in the front yard and slippery spots on the diningroom floor. But for William Prosser in the edition of hisauthoritative u-eatise on torts contemporaneous withRowland, "trap" had taken on a new, and more expansive,meaning:[Trap] originally was used in the sense of presenting anappearance of safety where it did not exist; but the significancewhich gradually became attached to it was not oneof intent to injure, or even of any active misconduct, butwas merely that the possessor of the land was under anobligation to disclose to the licensee any concealed dangerousconditions of the premises of which he had knowledge.Robert L. Rabin, A. Calder Mackay Professor of LawProsser's reference at this point is to the above-mentionedRestatement Second of Torts, §342-Prosser, itmight be noted, was the Reporter on the RestatementSecond-for what he characterizes as "the overwhelmingweight of authority."This, tllen, was the battletleld on which Berman andHealy clashed. Berman, unsurprisingly, was disabled immediately-theu'ial court granted summary judgment to defen-