Barker v. Wah Low

• Decision Date: 27 August 1971
• Citation: 19 Cal.App.3d 710,97 Cal.Rptr. 85
• Parties: James Dale BARKER et al., Plaintiffs and Appellants, v. WAH LOW et al., Defendants and Respondents. Civ. 26360.
• Court: California Court of Appeals Court of Appeals

Page 85

97 Cal.Rptr. 85

19 Cal.App.3d 710

James Dale BARKER et al., Plaintiffs and Appellants, v. WAH LOW et al., Defendants and Respondents.

Civ. 26360.

Court of Appeal, First District, Division 1, California.

Aug. 27, 1971.

Boccardo, Blum, Lull, Niland, Teerlink & Bell, by Stanley A. Ibler, Jr., San Jose, for appellants.

Hoge, Fenton, Jones & Appel, Inc., by John L. Hendry, San Jose, for respondent Joe Arellano.

Russ & Benson, by Richard H. McConnell, San Francisco, for respondents Wah Low and Lotus Bowl Corporation.

SIMS, Associate Justice.

Plaintiffs, the widow and five surviving minor children of a patron of a drive-in restaurant, have appealed from separate summary judgments in favor of the owners and of the operator of the restaurant, respectively, in an action for the wrongful death of the patron. The record on the motion for summary judgment indicates that the patron received the injuries which resulted in his death, while waiting at the service window when he was crushed against the restaurant building by a car which lurched forward over a wooden barrier.

The plaintiffs contend that there was a triable issue of fact concerning whether the defendants were negligent in failing to protect the patron from the potentially harmful conduct of the defendants' other customers, and that, therefore, the court erred in granting a summary judgment. The owners and the operator by separate briefs assert that there was no triable issue of fact, because the issue presented by the motion for summary judgment, the duty of the defendants, was an issue of law which the trial court properly resolved in their favor. A review of the facts in the light of applicable precedents reveals that the question of whether the owners and operator had fulfilled the general duty of care to a patron of the drive-in was, under the circumstances of this case, a question of fact. The judgments must be reversed.

Insofar as the owners and the operator of the drive-in restaurant are concerned ¹ the plaintiffs alleged that they failed 'to provide adequate bumper guards in an area where vehicles would be driving upon the premises at their invitation' and failed 'to adequately direct vehicular traffic upon * * * (their) property * * * by failing to place signs directing traffic and warnings to vehicular traffic for the protection of business invitees within the area of travel of vehicles invited upon the premises by defendants.'

The following facts are uncontroverted: On January 1, 1965, Lloyd Barker was a patron of Pepe's Drive-In, a restaurant in Gilroy, California, owned by defendant Lotus Bowl Corporation, and leased and operated by defendant Joe Arellano. Mr. Barker was standing at an outside service window at which patrons may make purchases without entering the building. Parking spaces, delineated by white lines, were provided so that patrons could park their cars close to and facing the building. Running parallel to the service window was a wide sidewalk bordered by raised wooden 'bumper stops' forming the front end of the parking stalls. As Barker was waiting to be served, a car parked in one of the stalls immediately in front of the window moved forward over the wooden 'bumper stops' pinning him against the wall, causing severe personal injuries which resulted in his death on January 7, 1965.

The attorney for the owners filed a declaration which asserted that the driver of the vehicle had answered a request for admissions as follows: 'My vehicle was parked in front of Pepe's. I came out and started the car. When I pushed on the accelerator, it stuck to the floor and when I pulled the gear lever down to reverse, it hit low gear and lunged forward. I tried to put on the brakes to stop, but I had already hit the man in front of my car.'

The attorney for plaintiffs filed a declaration in opposition which set forth matters which had been developed in depositions of the operator, of a representative of the owners, and of the wife of the driver. The first is that of defendant Joe Arellano which states that the parking stalls in front of the building pointed towards the building and that he served the customers at a service window on the side of the building facing the head-in parking, and that customers lined up along that side of the building. The deposition of Wah Low states that he knew people would be standing along the service window alongside the building and knew that if a car came forward over a parking stall it would hit the people standing in that vicinity. The deposition of Patricia Vargas, wife of Jose Vargas, states that when their car hit the barricade it didn't stop but went over it and hit Barker and pinned him against the wall. ²

I

In Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, in a controversy involving issues in part similar to those present in this case, the court noted: 'The summary judgment procedure is drastic and should be used with caution so that it does not become a substitute for an open trial. This court in two recent cases has stated: 'Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor * * * and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.' (Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 452, 398 P.2d 785, 788; Joslin v. Marin Mun. Water Dist., 67 Cal.2d 132, 146--147, 60 Cal.Rptr. 377, 429 P.2d 889.) A defendant who moves for a summary judgment must prevail on the basis of his own affidavits and admissions made by the plaintiff, and unless the defendant's showing is sufficient, there is no burden on the plaintiff to file affidavits showing he has a cause of action or to even file counter-affidavits at all. A summary judgment for defendant has been held improper where his affidavits were conclusionary and did not show that he was entitled to judgment and where the plaintiff did not file any counteraffidavits. (de Echeguren v. de Echeguren, 210 Cal.App.2d 141, 146--149, 26 Cal.Rptr. 562; Southern Pac. Co. v. Fish, 166 Cal.App.2d 353, 362 et seq., 333 P.2d 133.)' (69 Cal.2d at p. 111, 70 Cal.Rptr. at p. 99, 443 P.2d at p. 563. See also Curreri v. City etc. of San Francisco (1968) 262 Cal.App.2d 603, 606--607, 69 Cal.Rptr. 20; Smith v. City of San Jose (1965) 238 Cal.App.2d 599, 48 Cal.Rptr. 108; and Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 49--50, 46 Cal.Rptr. 552.)

II

The plaintiffs alleged that the owners and operator were negligent in that they failed 'to provide adequate bumper guards in an area where vehicles would be driving upon the premises at their invitation,' and failed 'to adequately direct vehicular traffic upon * * * (their) property * * * by failing to place signs directing traffic and warnings to vehicular traffic for the protection of business invitees within the area of travel of vehicles invited upon the premises by defendants.' They rely on principles found in section 344 of the Restatement of Torts Second, which provides: 'A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the Accidental, negligent, or intentionally harmful acts of third persons or animals, and By the failure of the possessor to exercise reasonable care to ( ) (a) Discover that such acts are being done or Likely to be done, or ( ) (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise To protect them against it.' (Emphasis added.)

Comment 'd' under section 344, provides in pertinent part: 'A * * * possessor of land who holds it open to the public for entry for his business purposes is not an insurer of the safety of such visitors against the acts of third persons, * * * He is, however, under a duty to exercise reasonable care to give them protection. * * * There are * * * many situations in which the possessor cannot reasonably assume that a warning will be sufficient. He is then required to exercise reasonable care to use such means of protection as are available, or to provide such means in advance because of the likelihood that third persons * * * may conduct themselves in a manner which will endanger the safety of the visitor.'

Comment 'f' provides in part: 'Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know Or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, Or his past experience, is such that he should reasonably anticipate careless * * * conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, * * *.' (Emphasis added.)

The foregoing principles have been recognized and applied in this state. (See Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 124, 52 Cal.Rptr. 561, 416 P.2d 703; Edwards v. Hollywood Canteen (1946) 27 Cal.2d 802, 809--810, 167 P.2d 729; Curreri v. City etc. of San Francisco, supra, 262 Cal.App.2d 603, 612--613, 69 Cal.Rptr. 20; Sorensen v. Hutson (1959) 175 Cal.App.2d 817, 826--827, 346 P.2d 785; Dillon v. Wallis (1957) 148 Cal.App.2d 447, 451, 306 P.2d 1044; and Winn v. Holmes (1956) 143 Cal.App.2d 501, 504, 299 P.2d 994.)

Five days before plaintiffs' motion for a new trial was denied in this case, the court rendered its decision in Rowland v. Christian, supra, in which it ruled that the liability of an occupier of land should be...