Gleason v. Fire Protection Engineering Co.

THE COURT.

A general demurrer filed by respondents to appellant’s second amended complaint was sustained, following which a judgment of dismissal was entered.

According to the complaint, respondent Clifford was doing business under the name of Fire Protection Engineering Co. The Townsend Co., a corporation, which was joined as a defendant, was the owner of a certain building in San Francisco which was leased to Baker, Hamilton and Pacific Co., a corporation. Plaintiff was an employee of the company last named. For some time prior to September 28, 1929, respondents were engaged in repairing a fire protection system in the building, and had constructed on the roof two water-tanks. Immediately west of the tanks was a glass skylight which had been constructed and was maintained and controlled by the Townsend Co. It was alleged that on the above date respondents negligently permitted one of the tanks to overflow, with the result that the water ran through a broken pane of glass in the skylight and damaged certain goods stored below which were owned by plaintiff’s employer; that on the same date plaintiff was directed by his employer to go upon the roof and take measures to prevent

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a further flow of water into the building; that the overflow had caused the roof adjoining the skylight to become wet and slippery, owing to which the plaintiff, while endeavoring to cover the hole, slipped and fell through the skylight and was injured. It was further alleged that an ordinance of the city and county of San Francisco then in force and effect required skylights such as this to be inclosed with a substantial railing at least three feet high and protected by wire screens; also to be glazed with wire glass not less than one-quarter inch thick, none of which requirements had been met in this instance.

It may be stated at the outset that none of the facts alleged made it the duty of respondents to place or maintain the skylight in the condition prescribed by the ordinance. Appellant claims, however, that the allegations of the complaint sufficiently show that respondents were negligent and that such negligence was a proximate cause of his injuries. ■

To constitute actionable negligence it must appear that the defendant owed plaintiff the duty to protect him from injury