De Lima v. Magnesite Waterproofing & Refinishing

Opinion

LILLIE, P. J. Plaintiff, Nedra De Lima, appeals from judgment of nonsuit entered in favor of defendant Magnesite Waterproofing and Refinishing (MWR).

Factual and Procedural Background

In April 1978, at the request of Sherman Neusom, MWR replaced two outdoor staircases at an apartment building owned by Neusom, put magne[779]site on the stairs and sealed the magnesite with a plastic sealer. In May 1979 Neusom had the stairs resealed by Rafael Rodriguez. On June 20,1979 plaintiff, a tenant in Neusom’s building, slipped and fell while descending one of the staircases.

Plaintiff sued Neusom, MWR and Rodriguez for damages for personal injuries sustained as a result of the fall, alleging negligence. The cause was tried before a jury. After plaintiff completed the presentation of her evidence, MWR moved for judgment of nonsuit (Code Civ. Proc., § 581c, subd. (a)) on the grounds (1) the evidence failed to establish that MWTt owed plaintiff a duty of care; and (2) even if MWR owed a duty to plaintiff, the subsequent resealing of the stairs by Rodriguez was a superseding cause which relieved MWR of liability. The trial court granted the motion.1 Judgment of nonsuit was entered in favor of MWR. This appeal ensued.

Discussion

A trial court may not grant a defendant’s motion for nonsuit if the plaintiff’s evidence would support a jury verdict in the plaintiff’s favor. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 129 [211 Cal.Rptr. 356, 695 P.2d 653].) “In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give ‘to the plaintifl[’s] evidence all the value to which it is legally entitled, ... indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor____’ [Citation.]” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118 [184 Cal.Rptr. 891, 649 P.2d 224].) In an appeal from a judgment of nonsuit the reviewing court likewise is guided by the rule requiring evaluation of the evidence in the light most favorable to the plaintiff. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839 [206 Cal.Rptr. 136, 686 P.2d 656].) Only the grounds specified by the moving party in support of its motion should be considered by the appellate court in reviewing a judgment of nonsuit. (Ibid.) We summarize the evidence in accord with the stated rules.