*1 Dist., One. Dec. No. 52045. Second Div. 1978.] [Civ. MUSGROVE,
ELIZABETH Plaintiff and Appellant, PROPERTIES, AMBROSE Defendant and Appellant; GROUP, UNIGARD INSURANCE Intervener and Appellant.
Counsel J. Mizrahi for Plaintiff and & and Edward
Wax Appellant. Appell and Defendant S. Wolfe for Polich, John K. and Robert & Morris Morris Appellant. and for Intervener
Grancell, & Tobin and John Reiner Appellant. Kegel Opinion
LILLIE, P. J. Plaintiff sued Acting for sustained when personal injuries she was struck ridden defendant by bicycle (a by Sidney Farrington aof center owned 14-year-old boy)1 premises shopping by defendant Ambrose She was in and course Properties. injured scope of her and Insurance a workmen’s employment, Unigard Group, carrier, insurance to her and compensation paid disability indemnity $7,669.91 medical benefits on behalf of her leave of totaling By employer. court, filed a in intervention Unigard complaint seeking judgment against $7,669.91 in defendants the sum of that their theory negligence Code, 3853; caused (See Lab. § State plaintiff’s injuries. Gilford Ins. Fund Compensation bifurcated, Pursuant to trial of the action was and issue stipulation, was tried first. The evidence adduced on that liability following issue. For more than a to June in course year prior plaintiff, of her drove Belmont Center once week employment, Shopping there; mail in mailbox located there on afternoon of June deposit 6, she her car in back of other cars in the lot of the double-parked parking center, The mailbox shopping was located leaving engine running. beside one of several which over a pillars supported canopy extending sidewalk. The sidewalk ran front of a row of At outer shops. edge sidewalk, it, and awas three four feet parallel passageway wide, which was the lot. Plaintiff walked her car beyond from parking the mailbox mail; as she from behind deposited stepped pillar out into the she was struck ridden passageway, by Sidney west, who was did east to not see time to riding plaintiff *6 accident, avoid her. before the looked striking Immediately plaintiff lot; north toward the she did not look down the in parking passageway either direction before it. did not see she entering Consequently, Sidney car, on his Plaintiff was in a to return to her approaching bicycle. huriy accident, but not to the her a result As point endangering safety. left and left was broken her elbow was skinned. Before plaintiff’s hip 6, 1973, sidewalk, June but had seen ridden on bicycles plaintiff She a never either Ambrose passageway. registered complaint or to .of its tenants at the any regarding riding bicycles shopping center. traffic there was at its heaviest from 2:30 to after 5:30 Bicycle p.m., school was dismissed for the day. 1 Jannie mother Farrington, of Sidney, also was named as a defendant. were Judgments Jannie,
entered favor of and Sidney and against No plaintiff. was taken appeal from either of those judgments. has owned the Belmont
Ambrose Shopping Properties, corporation, Ambrose, in 1964. In a stockholder Center since its completion Jay and officer of the visited the Belmont Center once Shopping corporation week, on Mr. Ambrose knew that were usually Saturday. bicycles ridden on the but he never received a from premises, complaint there. tenant Ambrose no regarding bicycle riding Properties posted signs at the center on the sidewalk shopping prohibiting riding bicycles and the It no one to passageway. patrol employed police premises in order to in those areas. There was no evidence bicycle riding prevent had at the center struck pedestrian prior shopping June struck on 1973. plaintiff’s being trial,
At the made conclusion liability juiy phase trial on the issue of jury special findings.2 Following damages, $40,000 returned a verdict of in favor of Ambrose. against plaintiff was entered on the verdict. That also directed a judgment Judgment verdict in favor of Ambrose on Unigard against Unigard’s complaint ..and in intervention.
Ambrose moved for the verdict or for a new judgment notwithstanding trial. The court the motion for granted judgment notwithstanding and, Proc., verdict of its own Civ. (Code motion as 629) § granted against the directed verdict. On the Unigard, judgment notwithstanding grounds of the evidence to the verdict and that the verdict is insufficiency justify Proc., law Civ. subd. the court 6), (Code § conditionally against order to be Ambrose’s motion for new trial such (as granted plaintiff), the verdict is reversed on effective if the only notwithstanding judgment Proc., The also Civ. court (Code 629.) § conditionally granted, appeal. motion, on the same its own a new trial as to grounds. Unigard, entered. the verdict notwithstanding subsequently Judgment from that Plaintiff and judgment, Unigard appeal a new trial.3 Ambrose from order cross-appeals for failure is dismissed entered on the verdict. cross-appeal judgment Court, 17(a); Rules of rule thereof. (Cal. to file brief support 417, 426 Penzner Agency Redevelopment 2 “ which contribut *7 on the of plaintiff No. 1. Was there negligence part ‘Question her No. ed as a cause of injury? proximate “ the property the of corporation 2. Was there on negligence part No. ‘Question cause of her Yes. which as a injury? owner contributed “ which Farrington of Sidney No. 3. Was there negligence part ‘Question ” her No.’ as a cause of injury? contributed proximate notwith judgment from the order granting and to 3 Plaintiff Unigard purport appeal final to judgment, is but a preliminary the verdict. Such an order step standing
51 be A the verdict may notwithstanding granted judgment properly evidence, when, conflicting only disregarding giving plaintiff’s entitled, the to it is in evidence all value which every indulging legally therefrom, the is be result inference which drawn legitimate may there determination that is no evidence of sufficient to substantiality a verdict in favor of v. Voorheis-Trindle Co. (McFarland support plaintiff. 698, 52 Cal.2d 703 The trial court 923].) P.2d (1959) granted [343 was the verdict on the there no judgment notwithstanding ground evidence that Ambrose violated owed to any duty plaintiff. is for an caused to another his
Everyone responsible injury (Civ. want of care or skill in the of his ordinary management property. Code, rule, the to 1714.) Under this test to be the § proper applied “is in his of landowner whether the of he management liability property as a in the has acted reasonable man view of to probability injury licensee, and, others, the as status although trespasser, plaintiff’s have of the facts rise to such a status some invitee may light giving status is not determinative.” liability, bearing question 108, 97, Cal.2d 443 P.2d v. (Rowland Christian (1968) Cal.Rptr. [70 561, land held to the 32 A.L.R.3d An owner of 496].) open public to control for is under a to take affirmative action business purposes of visitors to of third which threaten the acts safety wrongful persons he has such acts and where reasonable cause to premises anticipate Bowl, therefrom. v. Centennial resulting (Taylor probability injury 488, 597, (Jordan (1961) 55 602 Cal.Rptr. v. Talbot therefore is not appealable. [12 18, 1977; 20, 161].) made on March plaintiff’s 361 P.2d notice of 6 A.L.R.3d The order herein was 23, 1977; notwithstanding filed March from the order was judgment appeal 25, 2(c), Rule Rules Court provides part: verdict was entered March 1977. California “A but after the has filed to rendition of the judgment, judge notice appeal prior in the court for reviewing good announced his intended cause, discretion of the ruling, may, This to a be treated as filed after rule judgment.” applies immediately entry (Evola (1958) v. Co. notice of order. Wendt Construction appeal nonappealable 658, we treat as 660-661 P.2d Accordingly, plaintiff’s appeal [323 2(c) filed been after Rule is entry judgment. Unigard’s having inapplicable filed the rule that notice inasmuch as it was after Under entry judgment. appeal, of Court, (Cal. rule must be in favor its Rules of construed liberally sufficiency appeal to a 1(a)), to an “order” have been interpreted apply notices referring appeal it clear from what so as where is reasonably “judgment” right appeal protect have been and where could possibly appellant appeal, respondent attempting 886, (Vibert v. 64 Cal.2d 67-68 Cal.Rptr. misled or prejudiced. Berger [48 289].) In 390]; (I960) 358 P.2d P.2d Luz 55 Cal.2d 59-60 Lopes have taken from the with we deem been accordance these Unigard’s appeal principles, order granting the verdict rather than from nonappealable judgment notwithstanding the judgment. 904.1, Proc., (Code trial (d).) a new Civ. appealable. § subd. order-granting *8 52 114,
Inc. 561, 65 Cal.2d (1966) 121 416 P.2d As 793].) Cal.Rptr. [52 Torts, 344, in Restatement Second of section f: comment explained “Since not is an insurer of the visitor’s he is safety, [landowner] under no he exercise care until knows or has ordinarily reason duty to know that the acts of the third are or are about person occurring, however, know, occur. He know have reason to may, past that there is a likelihood of conduct on the of third experience, part visitor, which is persons general likely endanger safety even he has no reason of it on the though expect part any particular business, individual. If the or character of his or his place past experience, is such that he should careless or criminal conduct reasonably anticipate of third either ator some part persons, generally particular time5— he be under a to take it.” may duty precautions against
The determination of (Weirum law. basically question General, v. 40, 468, RKO 15 46 Inc. Cal.3d 539 (1975) P.2d [123 Cal.Rptr. 36].) risk is of Foreseeability primary importance establishing 728, element of (Dillon v. 68 Cal.2d 739 (1968) duty. Legg [69 72, 912, 441 P.2d 29 A.L.R.3d ais 1316]), Cal.Rptr. foreseeability General, Inc., 40, fact. RKO (Weirum v. 15 Cal.3d 46.) question supra, a mixed law and fact arise out Accordingly, question may to the creation of a relationship (Barker foreseeability duty. v. Wah Low 710, (1971) 721-722 Cal.App.3d [97 85].) basis, on a all “[C]ourts, case-to-case the circum- analyzing ' stances, will decide what the man under such circumstances ordinary should have foreseen. The out the courts thus mark areas reasonably the remote and v. (Dillon liability, excluding unexpected.” supra, Legg, 741.) (Italics added.) In bench, at case the evidence and the reasonable inferences therefrom show that Ambrose at the knew were ridden Belmont bicycles Center, and that also were Shopping pedestrians premises. present Under circumstances, said, these it cannot be matter of law that as a of a was “remote and so possibility bicyclist striking pedestrian that an man not have foreseen should unexpected” ordinary reasonably it. fact, such an accident thus foreseeability question the evidence of a that the chance permits finding bicyclist striking taken, unless The fact that were was foreseeable. pedestrian, precautions no similar not accident occurred before was struck does show plaintiff that such an accident have been reasonably anticipated. might General, Inc., RKO (Weirum 47; 15 Cal.3d v. Ridley supra, Grifall Co. P.2d Trucking
53 to addition a duty actionable The elements of negligence, as the the breach care, such and a breach of use due include duty, Co. v. States Liab. Ins. (United of the cause resulting injury. proximate 418, 463 586, P.2d Inc. 1 Cal.3d 594 (1970) Haidinger-Hayes, Cal.Rptr. [83 770].) if the a fact issue for the
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67
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232, 237-238,
Given a breach of duty by question Mooslin, (Starr that breach caused the is also factual issue. damage Trailer Co. 988, 998; v. Rentmaster supra, Cal.App.3d Klopfenstein The evi to take failure dence herein that Ambrose’s supports finding cause measures to control was the plaintiff’s bicycle riding proximate injuries. sum,
In if we the evidence to establish all the give tending negligence value to entitled, which it that evidence a verdict in legally supports favor of It that follows court erred trial plaintiff. the verdict.
judgment notwithstanding The court a new trial evidence is granted grounds *10 verdict, insufficient to the and that the verdict is In law. justify against it of both the court the same reason to support grounds, specified gave verdict, the the the granting judgment notwithstanding support Ambrose owed no to at its center to duty namely: pedestrians shopping reasons, control there.4 In the court’s the bicycle riding specification references to the evidence were these: “there was no indicated only way owner, in the . evidence . . where the as center distinguished shopping the owner, from street store can public reasonably [bicyclists] prevent from in the of those riding bicycles presence pedestrian patrons stores”; centers or even street “There was no intimation shopping public evidence, in the at least to the of this center and the developer shopping thereof, defendant-owner that accidents between riders and bicycle more than accidents between automobiles and pedestrians, any pedes- trians, center”; would occur the maintenance the very design “The evidence here does show not or circumstances any knowledge, the center owner attributable to creating chargeable knowledge, shopping such volume as to make the concerning premises, any bicycle riding se, to or than automobiles others more per dangerous any pedestrians here, se, others”; be would deemed to per dangerous pedestrians “Before on a he have or be can be foisted defendant must notice liability with of a notice condition or chargeable dangerous danger injury absent”; must be foreseeable. That here notice is reasonably remarkably “there is a absence of evidence that other accident took complete any any all center”; the of the of this “the place maintenance years shopping evidence is uncontradicted that had never received any [Ambrose] complaint concerning bicycle riding.”
While the order a new trial to rest on two granting purports the verdict is the grounds—that law and against insufficiency evidence—the trial court’s of reasons reveals that the specification only former order, involved. The to the it ground extent that purports a new trial for evidence, insufficient or falls the grant stands factors upon stated in the Civ.Proc., (Code 657.) reasons. Those specification § state in effect the that trial deemed the evidence be court specifications insufficient because aas matter of law not the evidence does establish any of the defendant to'the there was no actual because notice duty plaintiff Thus, condition. it is clear from the statement that the dangerous 4 The of reasons specification with begins statement: “In following N.O.V. this Court Judgment feels that there is no basis higher impose duty owner of a center than property we can shopping owner of a impose upon property street store. Both public are to the same subject riders passage who are invited impliedly patronize them. . . .” it not because disbelieved a new trial court trial granted inferences it drew or because presented by plaintiff testimony Rather, the statement to the record unfavorable the total plaintiff. as case court, entirely after trial establishes treating plaintiff’s established. law no credible, as matter of concluded that “A new trial shall Code of Civil Procedure section 657 provides part: be of the evidence justify granted upon ground insufficiency verdict . . . the court is convinced unless evidence weighing *11 after record, therefrom, from the entire reasonable inferences that including . the . . have .” should reached different verdict. . . (Italics jury clearly Thus, added.) of the evidence for a new as insufficiency ground trial means “the that arises in the mind of the trial insufficiency judge the when he evidence and that which finds the weighs conflicting supports verdict and in his less than that which is judgment weighs, opinion, 680, to it.” v. 167 683 P.2d (1959) Rosen (Bray Cal.App.2d [335 opposed court’s of herein indicates that the reasons 137].) merely specification there was a total lack of evidence to court concluded finding support riding.5 to control that Ambrose owed duty Contrary pedestrians 657, did the evidence and the of section the court not to mandate weigh that no such existed. inferences therefrom in reasonable duty determining 216, 227 in v. 8 (1970) As stated McCown Cal.App.3d [87 Spencer the court a new trial on this “It is that granted Cal.Rptr. apparent 213]: it there was a because believed [insufficiency evidence] ground the verdict rather than lack of material evidence total any support it, court, failed because the after believed the evidence weighing and the have reached a different verdict.” should jury preponderate that, on 657 further Code of Civil Procedure section provides appeal the a new the from an order trial insufficiency ground granting upon verdict, that the “it shall be evidence conclusively presumed justify the as made for reasons said order to such only specified ground reasons, order shall be said and such said order or specification the record as to there no basis in reversed such if substantial only ground Here, reasons the the (Italics added.) such reasons.” specified for record, or are irrelevant to a find court either no support of Ambrose.6 It on the determination of the existence of part reasons, which not challenge specification 5 PIaintiff does adequacy Sons, & (See Witt Inc. Jerry Sc ala v. of section 657. to satisfy requirements appears 592, 359, 864]; v. Perez 68 475 P.2d Mercer (1970) 3 Cal.3d 363-364 Cal.Rptr. [90 P.2d 112-116 Cal.Rptr. [65 reasons, true, that the evidence its fails 6 Itis the court in specification as stated by could reasonably Ambrose have taken which indicate nature of precautions of a new trial cannot follows that be sustained granting ground of the evidence to the verdict. justify insufficiency As to the second that the law, too, verdict is ground, that against cannot be sustained. The law” does not phrase situation “against import in which the court the evidence and a balance weighs finds against verdict, as it does in considering ground insufficiency evidence. The of a new trial on the the verdict is ground law is authorized against where there is no substantial only evidence to sustain the (S. verdict. F. Area Transit Dist. v. Bay Rapid McKeegan (1968) 265 263, 272-273 204]; Cal.App.2d Cal.Rptr. [71 Thompson Guyer-Hays (1962) 461].) Inasmuch as the evidence is sufficient to a verdict in favor of a new support plaintiff, trial was that the verdict is law. granted improperly ground against
Ambrose moved for a new trial on (Code additional Civ. grounds *12 Proc., 1, 3, 5, brief, 7), § subds. but its in Ambrose does not reply that the for a order new trial is on of sustainable these argue any grounds. 657,7 In accordance with Code of Civil Procedure section we have reviewed the entire record in an effort to determine whether the order should be affirmed on in stated the motion not but grounds order; in the our review the conclusion that it cannot. specified compels The The order is reversed. the verdict judgment notwithstanding a new the trial is reversed. from The granting judgment cross-appeal entered on the verdict dismissed. J., concurred.
Thompson, Moreover, basis there is no in the of riding presence pedestrians. prevent bicyclists on a the located evidence for the court’s that because the owner of a store assumption in can such his no street cannot the of bicycle riding vicinity premises, public prevent Ambrose, the the owner of a As contradiction, be center. imposed private “design shopping center, shows, the the without that maintenance” evidence shopping so as access to areas center was and maintained unrestricted designed give bicyclists The the of volume of traffic in relation to volume frequented by pedestrians. bicycle traffic at whether automobile the center is not to the question shopping simply pertinent safety Ambrose could have foreseen would the that reasonably bicyclists endanger accidents, The lack evidence and of prior concerning pedestrians. complaints does not that have the riding, establish Ambrose could not anticipated type reasonably accident which befell plaintiff. 7 The section reads: “On provision from an order a applicable appeal granting new trial the order shall be if it have affirmed should been granted upon any ground motion, stated in the whether or in the order or specified of reasons specification the I concurwith HANSON, J., and Dissenting. portions Concurring the erred the trial court that hold granting the majority opinion of the cross- the verdict and the dismissal notwithstanding judgment the reasons stated. on the verdict for the entered from judgment appeal the as that I dissent opinion majority only portion respectfully a new trial. order the conditional granting reversing reasons the same that the court below the fact In specified my opinion the it the a new trial for granting gave support granting verdict, alone, does not the compel notwithstanding standing judgment is the a new trial. Nor of the conditional order reversal granting the a trial inconsistent with affirmance of order new granting notwith- the trial court erred in conclusion that judgment granting of the two standards of review verdict. standing applicable motions are different. of a in the case
As out in judgment pointed opinion, majority be made that the verdict determination must notwithstanding ‘“ verdict is no evidence of “[tjhere sufficient substantiality support ” Co. in favor v. Voorheis-Trindle (McFarland plaintiff.” [Citation.]’ hand P.2d On other court discretion of trial of motion for new trial is left to sound as are in favor of the order all against appeal, presumptions “[o]n unless verdict, will not disturb the and the court ruling reviewing *13 is made of discretion manifest unmistakable abuse appear. 315, 68 Cal.2d Perez (Mercer Cal.Rptr. [65 [Citations.]” 436 P.2d 112-113: at Mercer the court said
In pages are served specification requirement by present purposes “[T]wo broad to the reasons, are related traditionally powers and both . . . for new trial. on a motion the trial exercised passing judge reasons of the functions specification requirement “[0]ne action, and thereby before deliberation judicial judicial promote (Review trial.’ for new orders or ill-considered hasty ‘discourage . . 81.). (Cont.Ed.Bar), Code Selected 1965 p. Legislation make the is to of this right appeal “The second requirement purpose is doubtless of reversals While the the order more rarity meaningful. due to the circumstance that discretion abused, is not often it must be that under the law an recognized prior an order appellant challenging a new trial tended to have granting his case. great difficulty presenting occurred, It often for that the notice of motion was example, predicated on all or most and the order statutory grounds, subsequent neither the found specified ground nor the grounds reasons applicable therefor; event, in that was left in the dark as to appellant which defend, the trial to aspect struck out quite understandably blindly in several directions at once. This however, was not process, likely court, illuminate the which remained reviewing uninformed of equally the basis on which the trial acted. . .”. judge Sons,
In Scala v. Witt & Inc. (1970) 3 Cal.3d Jerry 592, 475 Perez, P.2d 864], from Mercer v. quoted supra, where that court said at 115: “No hard and fast rule can page be laid down as to the content of such for specification [reasons a new trial], and it will to the facts and necessarily vary according circumstances of each case.”
In view the intent of Code Civil my Procedure section 657 legislative and the twofold aof purposes underlying requirement specification reasons as described in Mercer (68 Cal.2d at are satisfied. 112-113) pp.
Here, Ias construe the reasons set (as forth in the specified majority the trial reviewed and all the evidence opinion) judge weighed relating the factual issue of notice to defendant landowner Ambrose Properties and concluded that there was insufficient evidence to Ambrose charge with of the existence of a condition which was prior knowledge dangerous created ridden area where the in the accident by bicycles being happened.
I conclude the mature and careful record reflects the trial judge gave *14 his reasons reflection in the instant case and within adequately specified of Scala and Mercer for new trial on ground spirit granting the evidence I is insufficient the verdict. cannot he justify say his discretion in a new trial. abused manifestly unmistakenly for a was denied 1979. A rehearing January petition