Planck v. Hartung

Opinion

PARAS, J.

Plaintiff Jessie Planck appeals from a summary judgment in favor of defendant Rita McDavid Hartung (hereinafter McDavid) in an action for property damage.

On May 26, 1976, a fire caused damage and destruction in the La Vista Blanc Condominiums at Mammoth Lakes, California. According to plaintiff, owner of a burned condominium unit, the fire originated in the condominium unit of defendant Richard Hartung and was occasioned by the use there of a barbeque owned by defendant McDavid.

A deposition of Hartung and a declaration of McDavid, both offered in support of the summary judgment motion, disclose the uncontradicted nature of their relationship and the events at the time of the fire. They were not married. McDavid and her minor children had moved into Hartung’s unit about six weeks before the fire, and lived with him as a family. McDavid had brought to the residence certain personal property, including the barbeque in question. It was a common and ordinary, kettle-type, charcoal-burning item, with a vent on the bottom and another at the top. It was used on an outdoor balcony. Throughout the six-week period the barbeque was used some fifteen times for the preparation of family meals, each time by Hartung alone and never by McDavid. On the date of the fire Hartung prepared the coals, cooked the meat, and finally ultimately closed the hood; McDavid did nothing with reference to the barbeque. She was the first to notice the fire after dinner. She was never aware of any danger in connection with the use of the barbeque or with the manner in which Hartung operated it.

[841]

McDavid’s motion was grounded on the proposition that she did nothing, whether negligent, wilfull or other, to bring about the fire and she is not to be held accountable for the acts of Hartung. The trial court agreed, as do we.

Planck variously asserts the existence of triable issues of fact as to McDavid. She argues first that any negligence of Hartung must be imputed to McDavid because the two were engaged in a joint venture. For purposes of imputed liability, a joint venture is “[A]n association of two or more persons who combine their property, skill, or knowledge to carry out a single business enterprise for a profit.. . . [T]here must be an agreement between the parties under which they have a community interest,... in a common business undertaking, an understanding as to the sharing of profits and losses, and a right to joint control.”