*1 Dist., No. 55270. Second Div. Two. May [Civ. 1979.] BIGBEE, Petitioner,
CHARLES COUNTY, THE OF SUPERIOR COURT ANGELES LOS Respondent; COMPANY, INC., al.,
WESTERN ELECTRIC et Real Parties Interest.
Counsel
Binder & Cacciatore and P. Thomas Cacciatore for Petitioner.
No for appearance Respondent.
Lawler, Hall, Felix & J. Richard Mark V. Steven J. Morrissey, Berry, Miller, Bart Robert M. Ralls and Kimball for Real Parties Interest. Opinion Proceeding in
FLEMING, court to mandate require respondent J. vacate its order without leave amend demurrers sustaining the second amended defendants and real in interest to parties writ. an alternative plaintiff-petitioner. granted
Facts 2, 1974,
At Charles 12:20 a.m. on November plaintiff-petitioner Bigbee Boulevard, in a at 2208 booth Century Inglewood, *3 California, call, when, to making telephone according plaintiff’s the booth was struck a 1972 Ford automobile pleadings, by by intoxicated Leola North Roberts. Plaintiff an action brought against Club, Roberts for an action Turf negligent driving; against Hollywood Inc., others, and for of alcoholic to Roberts serving quantities beverages at a time knew she was intoxicated and would soon be they driving vehicle on the and an action real the Pacific highway; parties, Inc., and Western Electric Telephone Telegraph Company, Company, others, location, for and and defective and maintenance negligent design, of the booth. this last cause of action is before us. telephone Only Plaintiff’s second amended that saw vehicle Bigbee complaint alleges booth, booth, about to strike the to flee the but was telephone attempted maintenance, fabrication, from so prevented doing by faulty design, control, interest; in that as a result and the booth real repair by parties of the sustained loss of a leg. impact Bigbee multiple injuries, including Plaintiff was that the booth pleads telephone improperly additionally sited real in that it was too close to a stream parties placed traffic, knew or should which real habitually parties speeding, dangerous of the have known an unreasonable risk of harm to users presented to booth. Pacific and Western Electric are have been Telephone alleged installation, service, manufacture, for responsible ownership, design, maintenance, control, and location booth. repair, telephone
The verified demurrers and answers filed real Pacific parties and Western Electric Telephone allege complaint plaintiffs’ original filed in October 1975 raised the location the booth but question did not mention the In door. second amended faulty plaintiff’s complaint 1978, filed claims were made and real August present parties that, demurred had not stated (i) a cause of action upon grounds in in either because lack negligence product liability cause; no existed because (ii) Pacific and product liability Western Electric furnished a “service” in that only “product,” furnished; booth a structure which the “service” was merely failed (iii) (iv) adequately plead negligence; plaintiff’s was defective for court sustained the uncertainty. superior amend, demurrers without leave to and this followed. general petition writ, to the of our issuance real obtained a Subsequent parties judgment them from the cause. dismissing
Discussion
in a
booth
dangerous
siting
potentially
Improper
v. Helms
(Schwartz
amount
actionable
location can
Bakery
negligence.
510,
430 P.2d
Mann
68];
The real on demurrer between real and dispute parties involves the issue of and act independent intervening foreseeability. v. 96 681 P.2d Causes such as Gibson Garcia (1950) 119], Cal.App.2d [216 58 causes such as Schrimscher v. (1976) favor while plaintiff, Bryson 660 favor real 125], Cal.App.3d parties. Cal.Rptr. [130 Schrimscher, of a this court affirmed In summary entry supra, without to a leave not the sustention demurrer pleading judgment, Schrimscher, an officer of the amend, in a cause in which plaintiff vehicle Patrol, saw defendant California Biyson’s stopped Highway shoulder of the San off the 10-foot-wide Diego freeway. Bryson partially vehicle, which had in a another been involved collision with had gone to move his vehicle directed over the embankment. Schrimscher Bryson handcuffed an then arrested and off apparently entirely freeway, vehicle. and him in back seat of intoxicated patrol Bryson, placed embankment, Schrimscher for After the vehicle over the called checking and truck. Within 20 minutes of the awaited the arrival of tow Shelton, accident, also under influence a car driven by original alcohol, vehicle, it into Schrimscher and hit injuring driving Bryson’s for defendant him. The trial court granted summary judgment Biyson had matter of law that because the defendant been as a concluding handcuffed, his from the scene and removed prior negligence physically Schrimscher’s was injuries. affirmed, this an instance antecedent view was negligence taking which was not act an reasonably interrupted by independent 56 Club (1976) Baseball Los (Fish foreseeable. Angeles Dodgers Atchison, & Santa 620 Sanders 807]; Topeka Cal.Rptr. Cal.App.3d 555].) Fe Co. (1977) Cal.Rptr. Ry. Cal.App.3d Garcia, In Gibson v. (1950) plaintiff appealed favor of defendant Los Transit Lines Angeles following judgment order its demurrer to for sustaining plaintiff’s injuries personal without leave amend. Los Transit Lines maintained wooden Angeles on to the Whittier Boulevard. Ada Gibson poles adjacent curbing on the these sidewalk near one of when a standing poles Plymouth automobile Paul Garcia collided with the The negligently pole. short broke a distance above and its fall Ms. pole ground, severely injured Gibson. Los Transit allegations complaint against Angeles Lines were in similar to in the case many respects allegations present It Western Electric. was asserted that Los Transit Lines maintained the in a rotten condition Angeles carelessly pole that it condition; knew or should have known of the pole’s Whittier Boulevard was a main and traveled used heavily highway daily automobiles; thousands of that Los Transit Lines should have Angeles that accidents would occur and that anticipated upon highway automobiles run over the and strike the that in its might curbing pole; weakened condition constituted a hazard to on the pole persons sidewalk, which, Garcia, a hazard in concurrence with the negligence caused to the injuries plaintiff. *5 Lines,
Los Transit similar to those made Angeles arguments presenting here Electric, and Western asserted that the by Telephone impact of Garcia’s car was an unforeseeable The act. independent intervening Court of did not “It is well that settled Appeal agree stating: causation is not the arrested intervention of an by always independent If force. the continues to the the time of and original negligence injury act, contributes in thereto with the substantially conjunction intervening each abe cause for which full may be proximate concurring may liability Garcia, v. (Gibson at imposed. p. [Citations.]” The foreseeable, court, act need not the precise be said necessarily citing Oakland Co. 17 Cal.2d Taylor (1941) P.2d Scavenger 1044], Carroll Central Counties Gas Co. (1925) P. Cal.App. Torts, and 53], Restatement of section for the when that proposition an actor’s conduct is a substantial factor in about harm to bringing another, the fact that the actor neither foresaw nor should have foreseen the extent of the or harm in manner which it occurred does not him from prevent liable. The court concluded that becoming of the act of does unforeseeability intervening agency always a reliable criterion of provide nonliability.
The of an act a cause or classification as concurrent proper fact, as a which sometimes may presents superseding on motion for but less often can be be resolved summary judgment, think second amended resolved on demurrer. allegations are sufficient to the test of demurrer. pass general court to Let writ of mandate issue requiring respondent peremptory demurrers of Pacific vacate its order sustaining general amend, without to vacate its and Western Electric leave judgment and order of real and to enter a new different dismissal overruling parties, demurrers. general J., Roth, P. concurred.
BEACH, J. —I dissent.Theview extends the to an scope majority duty in extreme That extension as this case that degree. applied requires any who does business or otherwise invites others his person place must first least to be hit business determine likely by I intoxicated driver’s that is such an automobile. submit this unreasonably to be meet. The standard as near high illusory impossible is that a cause of action based result succeed pleader framing rather on the element of on than purely conjecture possibility, “that common sense words foreseeability, magic simply using should have known” defendant knew in the exercise of reasonable care was hit while to be a drunken driver likely toward A attitude service. common sense defendant’s practical using seem would make these sham. opinion allegations majority pleadings claim, the the facts to back his that if does not have *6 up suggests and the of case matter be can insufficiency exposed plaintiff’s brought up All But it not that is that motion for easy. judgment. by summary to alive in court is statement need to his case to do keep present that All or other vehicular so-called “traffic “expert.” safety engineer” to it is in the was unsafe need contain that such statement expert opinion of such that location. booth at availability ready place to either is of such a common an with an side opinion support expert of it. thus have now that well take notice occurrence we may judicial But the of fact.” determination of a scope seeming genuine “question a the first in a case such as this and should remain in instance is duty 7 799 law. v. Cal.Rptr. Thriftimart, Cal.App.3d [87 {Nevarez can I am unable understand how defendant Pacific to 50].) it of the end of an unaimed know or how should have known journey’s
457
missile which defendant
had no
in
Telephone Company
part
launching.
illustrative
of the tavern
in
By
comparison negligence
keeper
fueling
whom he
inebriate
knows has to travel down a hazardous mountain road
is a substantial cause in
about the
bringing
inability
negligent
to
inebriate
handle the automobile. The likelihood of
to
properly
injury
as the
someone
result of
combined acts of the tavern
and the
keeper
623,
is
5
inebriate
foreseeable.
Cal.3d 153
Sager,
(Vesely
Cal.Rptr.
[95
Petitioner cites no that as a matter of law there is authority establishing aof its service or other convenience at public utility public location after made tests to determine the particular only having mathematical if harm from automobiles probabilities, any, possible drunken drivers. But that is the exact on which by premise action rests. The plaintiff’s Telephone Company authorities relied on do not such by majority any support premise. Prosser,
As the law is to It is explained by contrary. negligence that most will drive The risk an unusual expect people properly. accident is not the test Prosser states: “In where foreseeability. general, the risk is reasonable is free to relatively slight, proceed [the upon man] that other will exercise care. It assumption would not people proper be to move traffic if motorists could not assume that other will easy cars to the and drive (Prosser, (4th Torts ed. keep right, 1971) accordingly.” § Thus it follows one who establishes his business p. near a street cannot be held to a of a drunken driver or of greater foreseeability the infinite number of in which a drunken driver can cause harm. ways contrast, This is the at situation bench. Prosser illustrates a different By situation the statement: “One who leaves another in the helpless or forces street, walk in the creates the risk that highway, pedestrian he will be struck.” 171-172.) It (Prosser, this second § pp. of situation that cases Mann v. State type California, 82], Schwartz Helms Cal.Rptr. Bakery Limited, Cal.2d 430 P.2d both relied 68], Cal.Rptr. upon there be some cases that majority, belong. Although truly hold the act of a business near a street is merely locating city negligence, *7 our research has no such case and cites none. The cases produced cited the in of a close are by majority support similarly proposition totally Garcia, In Gibson v. P.2d inapplicable. the 119], Cal.App.2d was based not on of a location for the but liability choosing pole, utility the of the defendant in the itself upon negligence become letting pole contrast, the decision dangerous. to a inherently By booth at a location is conduct than much different a knowingly keeping is which to break and fall a and thus user utility pole likely rotting injure of the street or Schwartz v. sidewalk. Helms Bakery Limited, supra, Cal.2d is a of enticement a In case of a child into zone of that danger. case the fact is that a to and child was enticed cross pivotal distinguishing addition, the street of the the vendor’s truck. In the by presence bakery was also child directions the truck driver to meet him given by again street, farther the after the to run home his child was to and up money get cross the street. This was added affirmative conduct of defendant. again 773, a California In Mann State California, supra, a Patrol officer came two stranded cars on very dangerous Highway upon to the San He failed to the Bernardino advise persons get place, Freeway. a area After with them and tow out of the ordering danger. speaking aid truck, the without his he left in his vehicle and thus left motorist amber The motorist and were the of his car’s passengers protection light. hit on the and were left negligent, standing freeway subsequently to his whereabouts. The decision in half blind driver confused as elderly for the of California was Mann holds that a directed verdict State merely could the cause of because the act officer be improper actually to and The injured persons exposed danger. principle placing leaving of Schwartz of Mann is same. That is that defendant and principle of a in and each knowledge appreciation danger possessed superior the less reliant and case led informed unsuspecting plaintiff affirmatively into danger. the issue discusses this case as one
The involving majority opinion act thereof as an issue independent intervening foreseeability I This is matter of not a fact. respectfully disagree. questions act all. The act as a defense does at doctrine intervening until to an act arises. It as not arise such first anticipate applies, where there is on the authorities relied recognize, majority only contributes defendant negligence negligence original i.e., in the or a substantial factor is bringing substantially injury; the fact that The overlooks harm about opinion plaintiff. majority the law contributes to the when the law injury, substantially person says and a on reasonable with based expectations responsibility dealing fault, § (Prosser, supra, common sense physics. approach p. when it factual as true testing complaint accept allegations the defendant states that at bench a demurrer. would to this that this harm come or should have known
knew *8 manner. But this is no more than that the manner of this truly saying the act of a drunken third injury by intervening driving party foreseeable defendant. The of this kind of is a allegation foreseeability mere conclusion. The at bench is cast in a factual legal situation where at the outset there is no disclosed to foresee this duty the conduct at location. (Nevarez particular particular Thrifimart, supra, It 799.) follows that to not foresee such event is not There is no or of an act. The negligence. problem intervening act an issue after the defendant is poses only negligent. Prosser, Causes, 44, see 270.) § (Generally p. Intervening well drunk drivers are not take notice that erratic as as judicial and their automobiles end their at all kinds uncommon. They journeys walls of an endless list of have been known to crash through places. They homes, churches, schools, restaurants, stores, gasoline places, including stations, was a etc. In the case the location booth present mere fortuitous circumstance. There was no into a false luring plaintiff he safe from sense of or belief that was totally carelessly security Defendant did not lure into a automobiles. Telephone Company that had a foreseeable risk of harm of which defendant place alone knew. The of authority Telephone Company overwhelming weight is that the owner of or of is not an insurer of the premises property safety who be thereon or or as persons might using property C.J.S., business invitees. (65 731.) (45), § Negligence, p. is an user of
Accepting
proposition
expected
defendant Pacific
services
Telephone Company’s
property,
duty
safe for such user
defects which are
keep premises
applies only
nature
hidden
which the user cannot observe or
dangers. Danger
knows,
and of which the defendant
or in the exercise of
appreciate
exists,
care
reasonable
should know
is the
with which the
type
danger
owner’s
concerned.
invitee assumes all normal and obvious
duty
C.J.S.,
risks.
California has
(65
(53),
§
Negligence,
p.
Although
eliminated the idea of
the use of classes such as
measuring duty by
Christian,
invitee,
460 of the of which at bench
Irrespective formality pleading plaintiff to avoid the his is attempts foregoing legal principles, allegation nonetheless a conclusion of law. do not fact or pleadings allege any facts to that, how, the bare conclusion or to show support legal defendant had to Telephone Company superior knowledge ability foresee exact hit, at the where than did danger spot plaintiff who elected to use the location with no less plaintiff knowledge That is the the fact of surroundings. knowledge knowledge direct, traffic vehicular from which came presence sole source of to plaintiff. injury
With reference to defendant to a decision Telephone Company’s place location, booth at the action would particular plaintiff’s simply allow the to on an basis of after-the-fact one accident. jury guess single Plaintiff would else a have where would' have been jury speculate better to a from the hazards of locate safe public wildly all other automobiles and harm which befall possible user. No to matter where or services are order public placed, utility useful, be cannot be made All hazards cannot be safe. they totally eliminated. illustration, Nevarez v.
By way Thriftimart, supra, Cal.App.3d to no that an owner has explains premises adjacent public highway control over those who use the It follows that the owners public highways. of such in close to held cannot be premises proximity busy highway liable to to his who are driver injuries patrons injured by negligent while the customer on his is to or from the It clear owner’s store. way that Nevarez v. is a more case to this Thriftimart, supra, appropriate guide Limited, than are the cases of v. Schwartz Helms 67 Cal.2d Bakery 232, Mann v. State and Gibson California, supra, Garcia, 681. supra, Cal.App.2d
The matter at is not bench one of an artful merely permitting pleader an action a defendant because the uses pursue against merely the old trite that “defendant knew or in the course of expression bench, reasonable care should have known of the At danger plaintiff.” we deal with the threshold Is there a question: duty protect plaintiff that which is as obvious to it is to Whether as defendant? is owed in a factual is a for the situation law duty given court to determine. (Nevarez Thriftimart, supra, Cal.App.3d should therefore the task as a matter of face and say positively directly law: “There is here to no insure the safety plaintiff against *10 driver, acts of a third automobile over whom defendant negligent party has no control.” As to the cause of on action based alleged theory “sticky door” (remembered three after the it accident), approximately years unforeseeable destruction of a enough recognize telephone booth the manner here is not a risk which the alleged phone booth was intended to booth is not to protect. purpose phone a means of in conduct which provide has a engaging high probability use in connection with vehicular traffic. It is not intended to be used in some that carries with it a activity that it will be struck high probability an unaimed four-wheeled missile. The and manner of use are purpose its such that a exit is not Some hasty reasonably contemplated. things of in are with places capsulation as for provided rapid ejection systems, It is not example, to not jet fighter a need for airplanes. negligent expect such immediate from a booth. ejection phone is true
Again, that the booth assuming plaintiff’s allegation manufactured defendant Western Electric defectively Company, Inc., both the of harm and the manner in which the harm type or injury occurred were both so unforeseeable that as a matter of law the defendant Western Electric should not be deemed liable. As to Company defendant Western Electric this would be a case of true Company, of an application act even if defendant superseding Western Electric had manufactured the booth or Company negligently the door. I would the writ. deny
A for a was denied June petition 1979. rehearing