Hanson v. Luft

DOOLING, J.

*

Plaintiff, a child 5 years old, brought this action to recover damages for burns which she received when her pajamas were ignited while she was standing in front of an open gas heater in an apartment which her parents had rented from the defendants. The trial court sustained a demurrer to the second amended complaint without leave to amend. A photograph of the heater is made a part of the complaint, and it is alleged to have seven burners for the use of gas immediately in front of a backing of clay radiant; that the distance from the burners to the front of the heater is from 3 to 4% inches and at the top of the radiant the distance of the flame from the front of the canopy

[445]

is 2 inches; that the height of the flame and radiant is 7 inches and its width 10 inches; that after burning for a few minutes the radiant becomes incandescent and attains a temperature of upwards of 700° Fahrenheit; and that there was no grillwork, screen, bars or any other device to prevent the clothing of persons coming in contact with the open flame. From the photograph and the allegations of the second amended complaint, it is clear that whatever the extent of the danger from the fact that the heater was open and unguarded the fact that it was so open and unguarded was obvious to any person who observed it.

Plaintiff attempts to state a cause of action on the theory that the hazard from this heater was known to defendants and unknown to plaintiff and that defendants did not warn plaintiff’s parents or plaintiff of such danger.

It is the settled rule that while a landlord is under a duty to warn the tenant of any hidden danger or defect in the leased premises of which he has knowledge

(Shotwell

v.

Bloom,

60 Cal.App.2d 303 [140 P.2d 728]; Prosser, Torts (2d ed.) pp. 466-467; Rest., Torts, § 358), there is no duty to warn the tenant of obvious and patent defects and dangers

(Hatch

v.