Andrews v. Wells

• Decision Date: 12 September 1988
• Docket Number: No. C000631,C000631
• Citation: 204 Cal.App.3d 533,251 Cal.Rptr. 344
• Court: California Court of Appeals Court of Appeals
• Parties: Ralph D. ANDREWS, Plaintiff and Appellant, v. Jim WELLS and Timberlanes, Inc., Defendants and Appellants.

Page 344

251 Cal.Rptr. 344

204 Cal.App.3d 533

Ralph D. ANDREWS, Plaintiff and Appellant, v. Jim WELLS and Timberlanes, Inc., Defendants and Appellants.

No. C000631.

Court of Appeal, Third District, California.

Sept. 12, 1988.

Review Denied Nov. 30, 1988.

Popelka, Allard, McCowan & Jones, Marc L. Shea and Jeffry W. Lochner, San Jose, for plaintiff and appellant.

Clyde Small and Moss & Enochian, Larry B. Moss and Keith B. Reyen, Redding, for defendants and appellants.

SPARKS, Associate Justice.

The question in this appeal is whether a bartender and his employer breached a duty of care by failing to act on an inebriated customer's request to arrange transportation home. The answer depends on whether they had a duty to act and that in turn depends on whether they had established a special relationship with the customer. Finding no such relationship or duty under the undisputed facts of this case, we affirm the judgment of dismissal.

In this wrongful death action plaintiff Ralph D. Andrews appeals from a summary judgment entered in favor of defendants Jim Wells and Timberlanes, Inc. ¹ In granting summary judgment the trial court found "as a matter of law that the death of Plaintiff's Decedent did not proximately result from the breach of any legal duty on the part of either of the said Defendants." On appeal plaintiff asserts that the trial court erred in finding that defendants did not owe a duty of care to decedent, and that there are triable issues of fact presented whether defendants breached their duty of care and proximately caused decedent's death. We agree with the trial court that defendants did not owe a legal duty to decedent and shall affirm the summary judgment on that ground.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff's decedent, his son Jeffrey Andrews, died on March 18, 1983, as the result of being struck by a motor vehicle as he attempted to walk across a state road in Redding. An autopsy revealed that decedent had a high blood alcohol level (.35 or .38 percent) at the time of the accident. Plaintiff filed a wrongful death action against the driver of the vehicle, Herbert Moncrief. In September 1984 plaintiff amended his complaint to name Jim Wells and Timberlanes, Inc., as defendants.

Defendant Timberlanes, Inc. is the owner of a bowling alley in Redding called, naturally, Timberlanes. Timberlanes is equipped with a bar and defendant Wells is employed as the bartender at Timberlanes. During discovery it was learned that decedent had stopped at Timberlanes for a drink on the evening of his death.

Wells was acquainted with decedent because he had been stopping at Timberlanes for two or three months before his death. Wells believed that decedent's drinking capacity was limited and that he could not "handle a whole lot of liquor." ² On the evening of his death decedent arrived at the Timberlanes bar and was served one drink. Wells refused to serve him another drink because he appeared inebriated. Wells declared that decedent did not appear extremely intoxicated but that he was overly talkative and staggered slightly when he walked. At one point decedent asked Wells if he could arrange a ride home for him. Wells was busy preparing drinks for bowling alley customer and there were no other customers in the bar area who could give decedent a ride, so he did not reply. Not more than a minute later Wells saw that decedent had left, although he did not actually see him leave.

In his declaration Wells stated that decedent had asked him to arrange a ride for him on four or five other occasions. At these times he would request that Wells arrange a ride with some other patron; he never asked Wells to call a taxicab. On two of these occasions Wells was able to arrange a ride with other patrons. On the other occasions Wells was either too busy or there were no other patrons available to drive decedent home. On those occasions Wells did not know how decedent got home.

The Timberlanes bar is not equipped with a telephone. However, there is an intercom to the front desk from which a call for a taxicab can be made. There is a telephone at the front desk and upon request the clerk at the desk will call for a taxicab. There are also two pay phones at the front desk. At some time on the evening of his death, decedent approached the front desk to cash a check. He did not ask the clerk at the desk to call a taxicab for him.

Not long after he left the Timberlanes bar decedent was struck and killed in an auto-pedestrian collision. The police report of the incident found no fault with the driver and ascribed the cause of the accident to decedent. Plaintiff, decedent's father, blames the death on the negligence of Wells and Timberlanes. He maintains that Wells and Timberlanes caused the death of his son by failing to arrange a ride or call a taxicab for decedent. ³

DISCUSSION

We begin with a brief review of the rules governing summary judgments. Code of Civil Procedure section 437c, subdivision (a) authorizes a party to move for summary judgment if it is contended that the action has no merit. "The motion for summary judgment shall be granted if all the [moving] papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ.Proc., § 437c, subd. (c).) Conversely, summary judgment may not be granted if the papers submitted show a triable issue of material fact. (Gigax v. Ralston Purina Co. (1982) 136 Cal.App.3d 591, 596, 186 Cal.Rptr. 395.) Nonetheless, summary judgment may not be defeated merely because there are disputed factual issues; if the defendant's showing negates an essential element of the plaintiff's case then no amount of factual conflict upon other aspects of the case will preclude summary judgment. (Clarke v. Hoek (1985) 174 Cal.App.3d 208, 214, 219 Cal.Rptr. 845.) On the other hand, it is the burden of the moving party to negate triable issues of fact in a fashion that entitles him to judgment on the issues raised by the pleadings and, should he do so, then the responding party must show the existence of sufficient evidence to require resolution in a trial. ( Gigax v. Ralston Purina Co., supra, 136 Cal.App.3d at pp. 596-597, 186 Cal.Rptr. 395.) On motion for summary judgment the judicial function is issue finding and not issue determination. (Ibid.) And in determining whether factual issues are presented the documents of the moving party are to be strictly construed while the documents of the opposing party must be liberally construed. (Ibid.)

Plaintiff has charged Wells and Timberlanes with negligently causing the death of his son. The elements of actionable negligence are the breach of a legal duty of care which proximately causes injury. (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594, 83 Cal.Rptr. 418, 463 P.2d 770; see generally, 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 732, p. 60.) While breach of duty and proximate cause normally present factual questions, the existence of a legal duty in a given factual situation is a question of law for the courts to determine. ( Clarke v. Hoek, supra, 174 Cal.App.3d at p. 213, 219 Cal.Rptr. 845.) Since the existence of a duty is an essential element of a negligence cause of action, summary judgment may be properly granted where the plaintiff is unable to show that the defendant owed such a duty. (174 Cal.App.3d at p. 214, 219 Cal.Rptr. 845.)

As Witkin notes, "[t]he 'legal duty' of care may be of two general types: (A) the duty of a person to use ordinary care in activities from which harm might reasonably be anticipated. (b) An affirmative duty where the person occupies a particular relationship to others. In the first situation, he is not liable unless he is actively careless; in the second, he may be liable for failure to act affirmatively to prevent harm." ⁴ (6 Witkin, supra, § 721, p. 61; citations omitted.) Thus, in considering whether a person had a legal duty in a particular factual situation, a distinction must be made between claims of liability based upon misfeasance and those based upon nonfeasance. "Misfeasant exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention.... [L]iability for nonfeasance is largely limited to those circumstances in which some special relationship can be established. If, on the other hand, the act complained of is one of misfeasance, the question of duty is governed by the standards of ordinary care [to prevent others from being injured as a result of affirmative conduct]." (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49, 123 Cal.Rptr. 468, 539 P.2d 36; see also Clarke v. Hoek, supra, 174 Cal.App.3d at pp. 215-216, 219 Cal.Rptr. 845.) In the words of the Restatement Second Torts, "[t]he fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." (Rest.2d Torts, § 314.) In short, all persons are required to avoid injuring others through their affirmative conduct, but in the absence of special factors no one is required to save another from a danger which is not of his making. (Williams v. State of California (1983) 34 Cal.3d 18, 23, 192 Cal.Rptr. 233, 664 P.2d 137.)

Here we deal with a question of nonfeasance. Defendants did not create a risk of harm to decedent by any affirmative action. Decedent's accident was proximately caused by his attempt to walk across a highway in an intoxicated condition. Plaintiff alleges that defendants could have and should have protected decedent from that risk of injury by arranging a ride home or calling a taxicab for him. The pivotal question here is whether defendants had a duty to save decedent from the risks attendant to his...