Horses, Water Heaters And Brokers!

Around the turn of the century, when horses became frightened  by
the  sight,  sounds,  and  odors of  gasoline-powered  "horseless
carriages,"  an occasional lawsuit would arise when  some  damage
resulted to the horse or to a horse-drawn carriage.  The owner of
the  horse  would generally meet with defeat absent, as mentioned
in one case, "proof of an unusual amount of vapor escaping at the
time  of  the accident, [or] any amount of noise greater than  is
ordinarily heard in running a machine of that character."

Just  when  you  thought  such  cases  were  only  of  historical
interest, the California Supreme Court in May, 1997, decided  the
case of a rider who was thrown from his horse after the horse was
frightened  by  loud noises from a garbage truck operating  in  a
parking  lot  near  a  public bridle  path.   The  Supreme  Court
determined  that the plaintiff had no claim since  there  was  no
evidence  that  the  defendant "operated  its  garbage  truck  in
anything but the regular and necessary manner of a garbage  truck
acting like a garbage truck."

The California Supreme Court also observed:

     "The  present  unfortunate  encounter  falls  within  a
     centuries-long continuum of contacts between horses and
     machinery.   Whatever  the  standards  of  the  leisure
     classes, as exemplified by the sentiment attributed  to
     Mrs. Patrick Campbell ("My Dear, I don't care what they
     do,  so  long  as  they don't do it in the  street  and
     frighten the horses"),1 the courts have long recognized
     that  the  needs of a modern, industrial society  often
     conflict  with  and  generally must  prevail  over  the
     delicate sensibilities of horses."

In   another  action  arising  out  of  a  fire  in  Sun  Valley,
California, a plaintiff sued the Southern California Gas  Company
because the fire was ignited by the pilot of an unelevated  water
heater in his garage.

The  plaintiff  was working in his garage, spraying  metal  parts
with a spray can of carburetor cleaner.  An open five-gallon  can
of  gasoline  was  nearby and he was standing approximately  four
feet  from a water heater, which was also located in the  garage.
A  fire  occurred  when  vapors from the  carburetor  cleaner  or
gasoline were ignited by the pilot light on the water heater.

Los  Angeles  Municipal  Code provides, since  1988,  that  water
heaters must be elevated at lest 18 inches above the level of the
floor.

The Court determined that

     "a   duty  should  not  be  imposed  on  [the  Southern
     California  Gas Company] to warn its customers  of  the
     potential  dangers  of  an unelevated  gas-fired  water
     heater in a garage when it learns that its customer has
     such  a  water heater and to disconnect the  customer's
     gas  service if the customer fails to heed the  warning
     and elevate the water heater."

The  Court thus concluded that each of us has a certain level  of
responsibility  for  our own conduct.  The Gas  Company  was  not
responsible  for the positioning of the water heater  or  for  "a
lack  of safety in plaintiff's use of flammable liquids near  the
water heater."

In  another  recent case, the buyers in a condominium development
brought an action against both the buyers' and the sellers'  real
estate  agents  and brokers, claiming that the defendants  either
knew or should have discovered the existence of a pending lawsuit
between   the  development's  homeowners  association   and   the
developer  concerning alleged construction defects in the  common
areas of the property.

According to the Court, there was no showing that the brokers

     "had  knowledge,  either  actual  or  imputed,  of  the
     subsidence  at  the development or of  the  litigation.
     [The  broker] could not disclose what he did not  know,
     nor  was he on notice of facts putting him under a duty
     to inquire about the Association's knowledge of pending
     litigation,  in  order  to  verify  what  the   sellers
     disclosed or did not disclose.  He should not be deemed
     to  have  such a duty as a matter of law simply because
     this   property   is   located  in   a   planned   unit
     development."

The  Court therefore determined that although construction defect
litigation   is  as  common  as  weeds,  it  is  apparently   not
sufficiently common to require a real estate agent to  conduct  a
search for it.

The  moral of the story?  We live in an ever increasing litigious
society.  Be careful out there!

_______________________________
     1  Mrs.  Campbell's  comment appears in Bartlett's  Familiar
Quotations.

[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from New Era Magazine
Myles M. Mattenson © 1998-2002