While casebooks present landmark decisions as if the law evolved logically along a linear course, many of the cases that lead to fundamental shifts in the law take strange twists and turns. The recently published book Torts Stories (Foundation Press, 2003), edited by Stanford Law Professor Robert L. Rabin and Boalt Hall Professor Stephen D. Sugarman, presents ten such cases, providing the stories behind the stories: the telling details about plaintiffs, defendants, lawyers, and judges involved in these cases, as well as facts and testimony that were left out of the court opinions. By gaining a more complete picture of these cases, students may better appreciate, in the words of Rabin, “the dynamic character of tort law. “

Take the chapter [excerpted on p. 25] by Rabin, the A. Calder Mackay Professor of Law, on Rowland v. Christian. The case dramatically altered the framework that courts use to consider land occupier liability, but years after the decision Nancy Christian, the case’s defendant, still didn’t know that her bathroom sink had changed the face of tort law. 

Indeed, when Christian picked up the telephone on a mid-November day in 2002, she was unaware that 35 years earlier the California Supreme Court had issued a landmark ruling in the dispute in which she had been a principal player. The caller on the other end of the phone that day was Rabin, and he explained that he was looking for the Nancy Christian of the famous Rowland v. Christian case. “There was silence on the other end of the line,” Rabin recalls. “And then she said, ‘Are you sure you have the right person?'”

 Only after Rabin described how James Rowland had injured his hand when he visited the apartment of a Nancy Christian in San Francisco on November 30, 1963, did she remember the incident and that Rowland, a friend of a friend, had sued her for damages. Christian said that shortly after he filed his claim, she gave a statement to the lawyer for her insurance carrier. She had not thought about the case since then. 

It might appear odd that such a critical ruling could have so little meaning to the defendant. Yet some of tort law’s most notable doctrinal breakthroughs have arisen from situations in which neither side in the case had any inkling that they were making legal history, nor had they any interest in doing so.

Rowland v. Christian is one in a series of landmark California high court rulings from 1960 through 1980 that, according to Rabin, reshaped “the basic framework of liability for accidental harm to an extent unprecedented in the annals of American tort law.” The Rowland decision abolished the categories of invitee, licensee, and trespasser that for more than a century had tied the duties owed by land occupiers to the status of the land entrant who had suffered accidental harm. 

The majority opinion, written by Justice Ray Peters, replaced these rigid rules of liability with a general standard for negligence: 

“A man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values.”

The high court’s decision is stunning in its boldness and simplicity, and it becomes even more startling when viewed in full historical context. As the following passage from Rabin’s chapter reveals, neither of the parties in the case, nor their lawyers or the lower court judges, had ever considered such a radical resolution. 

–Jonathan Rabinovitz

A Modest Case Transformed 

BY ROBERT L. RABIN

James Rowland had a plane to catch and didn’t want to leave his car at the airport if he could avoid it, while he was away from San Francisco in Portland. He went looking for his friend, Bob Kohler, thinking that he might leave his car in front of Kohler’s apartment and get a ride from him to the airport. No luck, Kohler was out. But it occurred to him that Kohler might just be nearby at the apartment of Nancy Christian, a mutual friend, whom Kohler had been dating. He had been there once before at a party given by Christian. So he phoned her, only to find out that Kohler was not there. But when he mentioned his reason for calling, Christian offered to give him a ride to the airport.

When he arrived Christian was busy painting the apartment, which she had just moved into a month earlier. They had a drink and then Rowland asked to use the bathroom facilities before they left for the airport. The rest is history, tort history. A cracked bathroom faucet that cut him badly enough to sever tendons and nerves, requiring hospitalization, came between Rowland and his Western Airlines flight to Portland. It was November 30, 1963-just over five years before the California Supreme Court would decide Rowland v. Christian. 

In his complaint, Rowland avers in standard legalese that “said bathroom fixtures were dangerous to all persons using them, which said fact was well known to the defendants.” Dangerous, perhaps, but no mention is made of whether the danger was concealed. Elusively, earlier in the complaint Rowland asserts that “the cold water faucet on the bathroom sink was cracked and should be replaced”-and he alleged that Christian had knowledge of the crack in the cold water faucet (which she did not dispute). But neither in the complaint, nor in his supporting affidavit, is there even the barest description of the bathroom facilities. 

Christian, in turn, does no better in bringing the matter towards joinder. Her answer claims in conclusory fashion that Rowland was “guilty of contributory negligence” and that he failed to use “his natural faculties, including that of eyesight.” Nowhere, however, in her answer or affidavit in support of her motion for summary judgment, does she describe the appearance of the faucet. Neither party makes the factual assertion [of a hidden or concealed defect] that could have been so critical to the appropriate resolution of the motion for dismissal on the pleadings. 

Years later, when I interviewed her, Nancy Christian was more revealing about the real-life setting alluded to so obscurely in the written pleadings. The apartment, which she had moved into slightly more than a month earlier, was “a pigsty”-a total mess, as she recollected. Indeed, she eventually moved out in desperation when an army of cockroaches descended during re-decoration of the upstairs apartment precipitated by the tenant above her vacating the premIses. 

As to the faucet, the crack wasn’t really concealed as she recalls it, but it was caked in dirt and grime. She surmised that Rowland might not have noticed the defective condition. These observations are many years later, of course. Nonetheless, Christian’s recollections clearly suggest indifferent lawyering, at best, on the part of Rowland’s attorney, whose only realistic hope for avoiding summary judgment, under the circumstances, had been to raise a colorable factual claim that the defect was concealed. 

But what motivated Rowland’s attorney to sue Christian, a young woman of modest means, in the first place? The answer is at once both unsurprising and surprising. Unsurprising, in that Christian was only a nominal defendant; she turns out to have had renter’s insurance. At the same time, it is rather surprising that she had such insurance at all. It was quite uncommon for big-city apartment renters of modest means to carry liability insurance in the early 1960s. In fact, she carried the insurance not out of regard for personal liability concerns, but because she had some valuable sterling silverware that was a family heirloom. Such are the fortunes that led this case to be brought-and launched it on its uncertain path to the California Supreme Court. 

As befits her nominal presence in the case, Christian had virtually no relationship with her attorney. John Healy was a small-time insurance defense lawyer who was handling the case for her insurance carrier. Christian’s sole contact with him was in the preparation of her affidavit and deposition testimony. In a surprising twist, however, she was in fact a good friend of Rowland’s attorney, Jack Berman–a good enough friend in fact that two months into the case, when Berman moved to a new office, he gave Christian his carpeting to help along her continuing efforts to make her apartment more livable! Indeed, it is only a short step, although not certain from this point in time, to conjecture that Rowland retained Berman, who was primarily a criminal defense lawyer not a personal injury practitioner, as his attorney on the suggestion of Christian, who had known Berman socially for some time before the case arose. 

Jack Berman and John Healy were “street lawyers,” as an attorney who knew both of them well back in the 1960s described them to me. He was not speaking pejoratively. Berman was a well-known figure in the criminal courts, and indeed something of a colorful San Francisco character, according to news accounts and the reminiscences of surviving friends. But he was not primarily a plaintiffs’ lawyer and by all accounts he was not an appellate lawyer who took cases to the state Supreme Court. Healy seems to have been more in his element, at least before the trial court, in defending what appeared to be a routine premises liability case. But he, too, was not an appellate practitioner. In short, these were not test case lawyers–and this is transparent in the written record, which Justice Peters and his colleagues had before them when they decided to hear an appeal in the case. 

But that written record can only be understood in the context of a closer look at the obligations owing to a social guest when James Rowland had his fateful encounter with the cracked faucet. Like every other state, California at the time subscribed to the tripartite invitee-licensee-trespasser framework. Significantly, however, California appeared to do so in the most begrudging fashion. To be sure, as far as entrants on business premises were concerned, the California Supreme Court, in Oettinger v. Stewart, had followed the step taken by most states in broadly recognizing an obligation of due care, without reference to tile particularities of whether the proprietor stood to recognize an economic benefit from the entrant’s presence. If Rowland’s injury had occurred in the bathroom at his neighborhood cafe, he would have been owed a full obligation of due care, even if he stopped in solely to use the facilities.

Social guests in a private residential setting, however, were another matter. Here, confusion reigned among the lower appellate courts and the California Supreme Court had done virtually nothing to clarify matters. A number of appellate court cases suggested that tile social guest took the premises as he or she found them; in other words, that the land occupier had no obligation to take safety precautions beyond whatever seemed personally adequate for the immediate family. Translated into a rule of conduct applicable to licensees, this was frequently taken to mean that the land occupier in California owed no duty beyond avoiding willful and wanton injury to a visitor. 

By contrast, the vast majority of states required a warning to a social guest whenever the host had knowledge of a danger that 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 known concealed dangers, without reference to a standard of concealed risk created by the land occupier’s conduct that bordered on reckless misconduct. 

The confused state of the law in California, and indeed the uneven doctrinal developments in other states as well, frequently boiled down to definitional haggling over what constituted a “trap.” In earlier times, and in contemporaneous California decisions, the illustration often relied on was a spring gun-surely suggesting a far more limited obligation from premises occupiers than if they had to concern themselves about a range of “traps” including obscured banana peels in the front yard and slippery spots on the dining room floor. But for William Prosser in the edition of his authoritative u-treatise on torts contemporaneous with Rowland, “trap” had taken on a new, and more expansive, meaning:

 [Trap] originally was used in the sense of presenting an appearance of safety where it did not exist; but the significance which gradually became attached to it was not one of intent to injure, or even of any active misconduct, but was merely that the possessor of the land was under an obligation to disclose to the licensee any concealed dangerous conditions of the premises of which he had knowledge. 

Prosser’s reference at this point is to the above-mentioned Restatement Second of Torts, §342-Prosser, it might be noted, was the Reporter on the Restatement Second-for what he characterizes as “the overwhelming weight of authority.” 

This, then, was the battlefield on which Berman and Healy clashed. Berman, unsurprisingly, was disabled immediately-the trial court granted summary judgment to defendant on the pleadings-through his failure to allege what would have been the baseline requirement even in a majority rule jurisdiction: a concealed defect. Undaunted, he appealed on behalf of Rowland, steadfastly sticking to his guns in his statement of the case in the California court of appeals: “Defendant knew that the handle was cracked and realized that this constituted a dangerous condition.” Once again, there is no averment on Rowland’s behalf that the crack was concealed. But then, almost as an afterthought, in the argument section of the brief, which runs less than two pages in its entirety, Berman for the first time suggests that “the only question with which this court is faced is whether the crack qualified as a concealed danger or deceptive condition.” If so, Berman continues, there is nothing to stop the court from adopting “the trap exception to the rule of nonliability”-an exception that he inexplicably fails to define in the handful of succeeding paragraphs in the argument. 

And so, the terms of engagement were set: Healy, in his reply brief, argued that California had never adopted Restatement Second, §342, and that the “so-called” trap exception, “[o]utside of deliberate, willful ‘entrapment,’ such as the maintenance of spring guns and other hideous devices … is largely a myth.” Berman, in turn, in a reply brief hardly over a page in length, rejoins that there is nothing to stop the court from adopting §342 in the case at hand. And there the matter ends-not a word urging the court to venture beyond clarification of the meaning of hidden defect to reconsider the legitimacy of the categories. 

The court of appeals set its sights on the arguments in the briefs, and quickly rehearsed three possibilities for addressing the trap exception: that it was no part of California law at all; that it had the narrow meaning suggested by defendant’s counsel; or, that it had the broad meaning suggested by plaintiff. And then, not surprisingly, the court held that it need not decide the question at all- although its sentiments quite clearly ran to a narrow obligation, if any, on the part of social hosts-since “[no] source in the record contains any allegation, factual or conclusory, which describes the faucet, its appearance, its location, the lighting, the bathroom, or … any other fact which would support the conclusion that plaintiff was injured by a concealed danger.” 

If, in hindsight, the dominant theme, as the case wound its way to the Supreme Court, was tunnel vision, the petition for a hearing before the high court served as the capstone. A word of context is necessary. At the time Rowland was decided there was no independent briefing before the Supreme Court; the Court reviewed cases de novo on the basis of briefs filed in the court of appeals-and the petition for a hearing (which could run thirty pages or more). Should the request for a hearing be granted, then, it is critical to note that the petition and reply constituted the final moment for the contesting parties to frame the issue, as they conceived it. True to form, Berman argued exclusively for adoption of §342, and Healy, taking his cue from the court of appeals decision, replied narrowly that there was no baseline averment of a concealed defect that would warrant reconsideration of the summary judgment in defendant’s favor. Neither submission reaches four pages in length, and not a word is devoted to the possibility that the categories might be abandoned. 

Might the possibility of abandoning the categories have been introduced at oral argument? Perhaps, but I can only offer speculation, since oral arguments before the Court were neither transcribed nor recorded at the time. My interviews with court clerks from the Rowland era suggest that, in most cases, when oral arguments were heard a draft of the final opinion had already been prepared and circulated by the Justice to whom opinion-writing had been assigned; in short, that oral arguments were viewed as a formality for the most part. Very likely then, if the prospect of abandoning the categories arose at all during oral arguments, it was on the initiative of the Justices rather than the parties. Whatever the case, the battle in the trenches in Rowland v. Christian confirms in singular fashion that this was a court prepared to refine and reformulate tort law according to its own lights, a proactive court extraordinaire.

The Aftermath 

After the Supreme Court remanded the case for trial under the newly-enunciated standard of ordinary care owed to all land entrants, Berman referred the case to a San Francisco firm of plaintiffs’ litigation specialists, Walkup, Downing, Wallach & Stearns, who quickly settled the matter. In keeping with the modest particulars of the case, surviving attorneys in that firm recall a settlement figure of under $10,000. Apparently, Rowland’s injuries had healed without any lasting difficulties. In fact, the major problem in getting the case settled, as one former Walkup attorney recalls, is that Rowland had moved out of the state, and once located, was annoyed about having to make a brief return appearance in a matter that was now far behind him. Nancy Christian herself entirely lost interest in the case once her insurance carrier’s lawyer, Healy, had finished deposing her, and never even bothered to inquire as to its outcome. Nor did she ever see Rowland again. None of this diminishes the significance of the case, of course. Some landmarks of the law have lasting impact on the lives of the immediate parties; others, like Rowland v. Christian, take on a life of their own, and the parties get on with their personal affairs with hardly a glance backwards.