Bigbee v. Pacific Tel. & Tel. Co.

• Decision Date: 23 June 1983
• Court: California Supreme Court
• Parties: , 665 P.2d 947 Charles BIGBEE, Plaintiff and Appellant, v. PACIFIC TELEPHONE AND TELEGRAPH COMPANY et al., Defendants and Respondents. L.A. 31613

Page 857

192 Cal.Rptr. 857

34 Cal.3d 49, 665 P.2d 947

Charles BIGBEE, Plaintiff and Appellant, v. PACIFIC TELEPHONE AND TELEGRAPH COMPANY et al., Defendants and Respondents.

L.A. 31613.

Supreme Court of California

June 23, 1983.

Binder & Cacciatore and Thomas P. Cacciatore, Los Angeles, for plaintiff and appellant.

Robert M. Ralls, Bart Kimball, Waters, McCluskey & Corcoran, Laurence R. Corcoran, Lawler, Felix & Hall, J. Richard Morrissey, Mark V. Berry, Steven J. Miller, John E. Carlson, Springer, Heath, Henrickson & Murry and William C. Heath, Los Angeles, for defendants and respondents.

BIRD, Chief Justice.

This appeal questions the correctness of a summary judgment entered in favor of four defendants in this personal injury action. The determinative issue is whether, under the evidence presented on the motion, foreseeability remains a question of fact for the jury. (See Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.)

I.

On November 2, 1974, plaintiff, Charles Bigbee, was severely injured when an automobile driven by Leona North Roberts struck the telephone booth in which he was standing. Plaintiff thereafter brought an action for damages against Roberts and the companies allegedly responsible for serving her alcoholic beverages. A settlement was reached as to these defendants. In addition, plaintiff sued the companies allegedly responsible for the design, location, installation, and maintenance of the telephone booth, including Pacific Telephone and Telegraph Company (Pacific Telephone), the owner of the booth, Western Electric Company, Inc. (Western Electric), Western Industrial Services, Inc. (Western Industrial), and D.C. Decker Company (Decker).

Plaintiff sought recovery against the latter defendants ¹ on theories of negligence and strict liability in tort. A second amended complaint (hereafter, the complaint), filed in 1978, alleged in substance that on the night of the accident, at approximately 12:20 a.m., plaintiff was standing in a public telephone booth located in the parking lot of a liquor store on Century Boulevard in Inglewood, California. Roberts, who was intoxicated, was driving east along Century Boulevard. She lost control of her car and veered off the street into the parking lot, crashing into the booth in which plaintiff was standing.

Plaintiff saw Roberts' car coming toward him and realized that it would hit the telephone booth. He attempted to flee but was unable to do so. According to the allegations of the complaint, the telephone booth was so defective in design and/or manufacture, or so negligently installed or maintained that the door to the booth "jammed and stuck, trapping" plaintiff inside. Had the door operated freely, he averred, he would have been able to escape and would not have suffered injury.

Additionally, plaintiff alleged that the telephone booth was negligently located in that it was placed too close to Century Boulevard, where "traffic ... travelling easterly, generally and habitually speeded in excess of the posted speed limit," thereby creating an unreasonable risk of harm to anyone who used the telephone booth.

In September of 1978, Pacific Telephone and Western Electric both demurred to the complaint on the grounds that it failed to state facts sufficient to constitute a cause of action in negligence or in strict liability. The trial court sustained the demurrers without leave to amend.

Plaintiff then sought review of this ruling by petition for writ of mandate. (See generally, Coulter v. Superior Court (1978) 21 Cal.3d 144, 148, 145 Cal.Rptr. 534, 577 P.2d 669.) The Court of Appeal issued an alternative writ ² and, after hearing, concluded that the complaint was sufficient to withstand a general demurrer. (Bigbee v. Superior Court (Bigbee I) (1979) 93 Cal.App.3d 451, 155 Cal.Rptr. 545.) Accordingly, the appellate court issued a peremptory writ of mandate directing the trial court to vacate the judgment of dismissal and to overrule the demurrers.

When the case was returned to the trial court, all four defendants filed answers generally denying the material allegations of the complaint. Discovery was conducted and on July 29, 1980, defendants filed a joint motion for summary judgment, arguing that the undisputed facts demonstrated the absence of two elements essential to plaintiff's case. (See Code Civ.Proc., § 437c; Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell (1977) 70 Cal.App.3d 331, 338, 339, 138 Cal.Rptr. 670.) More specifically, defendants argued that they had no duty to protect phone booth users from the risk encountered by plaintiff--a car veering off the street and crashing into the phone booth--since that risk was unforeseeable as a matter of law. ³ For the same reason, they maintained that Roberts' intervening negligent driving constituted a "superseding cause" of plaintiff's injuries. Therefore, no act or omission of theirs could be found to be a proximate cause of those injuries. ⁴

In support of their motion, defendants produced evidence which established, in substance, that the accident occurred in the manner alleged in the complaint, and that plaintiff could have escaped injury had the door to the phone booth not jammed. In addition, several "new facts" were brought before the court.

First, the deposition testimony of Michael Zellis supported plaintiff's assertion that he could have escaped. Zellis was standing next to the phone booth occupied by plaintiff just prior to the accident. He testified that he saw Roberts' car veer toward the booth and that although he waited several seconds before running away, he was able to get out of the car's path and to avoid injury.

Second, the phone booth in which plaintiff was standing when injured was one of two booths located in the parking lot of the Fortune Liquor Store. The booths were situated close to the front wall of the store, between the front door and the sidewalk bordering Century Boulevard, near an entrance to the parking lot. Plaintiff occupied the booth nearest the street, 15 feet to the south of the curb line of Century Boulevard. ⁵

Third, Century Boulevard is a six-lane thoroughfare which runs east and west. For several blocks on either side of the liquor store, it is straight and level. The posted speed limit is 35 or 40 miles per hour.

Fourth, Roberts may have been speeding when she lost control of her car. In the opinion of defendants' expert witness, her car was traveling at a speed of 30 to 35 miles per hour when it struck the phone booth.

In opposition, plaintiff introduced declarations which established that this accident was not the first one involving a phone booth at this particular location. On February 13, 1973, some 20 months prior to plaintiff's accident, another car struck a phone booth in this same location. ⁶ Following this previous accident, defendants placed three steel "bumper posts" between the phone booths and the parking lot. No such posts were placed between the booths and Century Boulevard.

In addition, plaintiff introduced a telephone company manual which states that telephone booth doors, when operating normally, "should open with a slight pull on the handle ...."

At the hearing on the motion, which was held on August 27, 1980, the dispute between the parties centered on whether the evidence presented triable issues of fact as to the questions of duty and proximate cause. At the close of argument, the court granted the motion and entered a judgment of dismissal. ⁷

This appeal by the plaintiff followed.

II.

Defendants contend that their duty to use due care in the location, installation, and maintenance of telephone booths does not extend to the risk encountered by plaintiff ⁸ and that neither their alleged negligence in carrying out these activities nor any defect in the booth was a proximate cause of plaintiff's injuries. These contentions present the same issue in different guises. Each involves this question--was the risk that a car might crash into the phone booth and injure plaintiff reasonably foreseeable in this case? (See, e.g., Weirum v. RKO General, Inc., supra, 15 Cal.3d 40, 45-46, 123 Cal.Rptr. 468, 539 P.2d 36; Akins v. County of Sonoma (1967) 67 Cal.2d 185, 198-199, 60 Cal.Rptr. 499, 430 P.2d 57; see generally, 2 Harper & James, Law of Torts (1956) §§ 18.2, 20.5, at pp. 1022, 1141-1143; Rest.2d Torts, § 281, coms. e, f and h; see also Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 127, 104 Cal.Rptr. 433, 501 P.2d 1153.)

Ordinarily, foreseeability is a question of fact for the jury. (Weirum v. RKO General, Inc., supra, 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) It may be decided as a question of law only if, "under the undisputed facts there is no room for a reasonable difference of opinion." (Schrimscher v. Bryson (1976) 58 Cal.App.3d 660, 664, 130 Cal.Rptr. 125; accord Richards v. Stanley (1954) 43 Cal.2d 60, 66, 271 P.2d 23; see generally, Rest.2d Torts, § 453, com. b.) Accordingly, this court must decide whether foreseeability remains a triable issue in this case. If any triable issue of fact exists, it is error for a trial court to grant a party's motion for summary judgment. (Code Civ.Proc., § 437c ⁹: see generally, Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

There is a threshold question as to whether the facts assumed to be true by the court in Bigbee I, supra, 93 Cal.App.3d 451, 155 Cal.Rptr. 545 ¹⁰ and the facts presented in this case are sufficiently different to permit this court to redecide the question as to whether foreseeability is a triable issue.

In Bigbee I, the Court of Appeal impliedly determined that under the facts alleged in the complaint, foreseeability was a question of fact for the jury and could not be decided adversely to plaintiff as a matter of law. (See 93 Cal.App.3d at pp. 454-456, 155 Cal.Rptr. 545; see generally, 3 Witkin,...