Fraters v. Keeling

PLUMMER, J.

The plaintiff appeals from a judgment of dismissal following the action of the trial court in sustaining demurrers to plaintiff’s third amended complaint. The plaintiff was given leave to further amend his complaint, but declining to do so, judgment of dismissal followed in due course. The action is one for personal injuries suffered by the plaintiff when going upon the premises belonging to, and under the control of the defendants.

The appellant contends that at the time of the injury he occupied the status of an invitee in relation to the defendants. The defendants contend that at the time of the injuries sustained the plaintiff occupied only the status of a bare licensee.

The third amended complaint contains the following allegations :

“3.

“That at all the times hereinafter mentioned the defendants owned, maintained and conducted for profit to themselves, certain property in Lake County, California, known and described as Lot ‘K’ of the Subdivision known as the Town of Lucerne, and in connection therewith owned, maintained and conducted a wharf extending southerly from said real property into the waters of Clear Lake, a distance of approximately three hundred feet, and having a float connected with said wharf on the easterly side of the southerly end thereof,

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for the purpose of providing golf, hunting, fishing, boating and bathing facilities, and the said defendants did by advertisement seek the patronage of the general public for such purposes on the aforesaid properties.

“4.

“That the aforesaid properties so owned, maintained and conducted by the said defendants, were, on the 20th day of April, 1935, and at the time of the injuries to the plaintiff hereinafter referred to in paragraph five hereof, in a defective and dangerous condition in the following particulars, to-wit: That said float had located within its exterior floor surface a hole in size sixteen inches by twenty-six inches, which at the time of the injuries to -the plaintiff hereinafter referred to in paragraph five, was unknown to the plaintiff'; that the easterly side of said float was water-logged and covered with water to a depth of about two inches, so that the said hole was obscured and was not marked by any signal or warning device whatsoever.