Myles M. Mattenson
ATTORNEY AT LAW
5550 Topanga Canyon Blvd.
Woodland Hills, California 91367
Telephone (818) 313-9060
Facsimile (818) 313-9260
|Horses, Water Heaters And Brokers!|
Horses, Water Heaters And Brokers!
Around the turn of the century, when horses became frightened by the sight, sounds, and odors of gasoline-powered "horseless carriages," an occasional lawsuit would arise when some damage resulted to the horse or to a horse-drawn carriage. The owner of the horse would generally meet with defeat absent, as mentioned in one case, "proof of an unusual amount of vapor escaping at the time of the accident, [or] any amount of noise greater than is ordinarily heard in running a machine of that character." Just when you thought such cases were only of historical interest, the California Supreme Court in May, 1997, decided the case of a rider who was thrown from his horse after the horse was frightened by loud noises from a garbage truck operating in a parking lot near a public bridle path. The Supreme Court determined that the plaintiff had no claim since there was no evidence that the defendant "operated its garbage truck in anything but the regular and necessary manner of a garbage truck acting like a garbage truck." The California Supreme Court also observed: "The present unfortunate encounter falls within a centuries-long continuum of contacts between horses and machinery. Whatever the standards of the leisure classes, as exemplified by the sentiment attributed to Mrs. Patrick Campbell ("My Dear, I don't care what they do, so long as they don't do it in the street and frighten the horses"),1 the courts have long recognized that the needs of a modern, industrial society often conflict with and generally must prevail over the delicate sensibilities of horses." In another action arising out of a fire in Sun Valley, California, a plaintiff sued the Southern California Gas Company because the fire was ignited by the pilot of an unelevated water heater in his garage. The plaintiff was working in his garage, spraying metal parts with a spray can of carburetor cleaner. An open five-gallon can of gasoline was nearby and he was standing approximately four feet from a water heater, which was also located in the garage. A fire occurred when vapors from the carburetor cleaner or gasoline were ignited by the pilot light on the water heater. Los Angeles Municipal Code provides, since 1988, that water heaters must be elevated at lest 18 inches above the level of the floor. The Court determined that "a duty should not be imposed on [the Southern California Gas Company] to warn its customers of the potential dangers of an unelevated gas-fired water heater in a garage when it learns that its customer has such a water heater and to disconnect the customer's gas service if the customer fails to heed the warning and elevate the water heater." The Court thus concluded that each of us has a certain level of responsibility for our own conduct. The Gas Company was not responsible for the positioning of the water heater or for "a lack of safety in plaintiff's use of flammable liquids near the water heater." In another recent case, the buyers in a condominium development brought an action against both the buyers' and the sellers' real estate agents and brokers, claiming that the defendants either knew or should have discovered the existence of a pending lawsuit between the development's homeowners association and the developer concerning alleged construction defects in the common areas of the property. According to the Court, there was no showing that the brokers "had knowledge, either actual or imputed, of the subsidence at the development or of the litigation. [The broker] could not disclose what he did not know, nor was he on notice of facts putting him under a duty to inquire about the Association's knowledge of pending litigation, in order to verify what the sellers disclosed or did not disclose. He should not be deemed to have such a duty as a matter of law simply because this property is located in a planned unit development." The Court therefore determined that although construction defect litigation is as common as weeds, it is apparently not sufficiently common to require a real estate agent to conduct a search for it. The moral of the story? We live in an ever increasing litigious society. Be careful out there! _______________________________ 1 Mrs. Campbell's comment appears in Bartlett's Familiar Quotations.
[This column is intended to provide general information only and is not intended to provide specific legal advice; if you have a specific question regarding the law, you should contact an attorney of your choice. Suggestions for topics to be discussed in this column are welcome.] Reprinted from New Era Magazine Myles M. Mattenson © 1998-2002