Bigbee v. Superior Court

• Decision Date: 25 May 1979
• Citation: 155 Cal.Rptr. 545,93 Cal.App.3d 451
• Court: California Court of Appeals Court of Appeals
• Parties: , 17 A.L.R.4th 1298 Charles BIGBEE, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR COUNTY OF LOS ANGELES, Respondent; WESTERN ELECTRIC and the Pacific Telephone & Telegraph Company et al., Real Parties in Interest. Civ. 55270.

Page 545

155 Cal.Rptr. 545

93 Cal.App.3d 451, 17 A.L.R.4th 1298

Charles BIGBEE, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR COUNTY OF LOS ANGELES, Respondent WESTERN ELECTRIC and the Pacific Telephone & Telegraph Company et al., Real Parties in Interest.

Civ. 55270.

Court of Appeal, Second District, Division 2, California.

May 25, 1979.

Rehearing Denied June 21, 1979.

Binder & Cacciatore by Thomas P. Cacciatore, Los Angeles, for petitioner.

Robert M. Ralls and R. Bart Kimball, Los Angeles, for Pacific Telephone & Telegraph Co., real party in interest.

Lawler, Felix & Hall, J. Richard Morrissey, Mark V. Berry and Steven J. Miller, Los Angeles, for Western Electric Co., real party in interest.

FLEMING, Associate Justice.

Proceeding in mandate to require respondent court to vacate its order sustaining without leave to amend the demurrers of defendants and real parties in interest to the second-amended complaint of plaintiff-petitioner. We granted an alternative writ.

FACTS

At 12:20 a. m. on 2 November 1974 plaintiff-petitioner Charles Bigbee was in a telephone booth at 2208 Century Boulevard, Inglewood, California, making a telephone call, when, according to plaintiff's pleadings, the booth was struck by a 1972 Ford automobile driven by an intoxicated Leola North Roberts. Plaintiff brought an action against Roberts for negligent driving; an action against Hollywood Turf Club, Inc., and others, for serving quantities of alcoholic beverages to Roberts at a time they knew she was intoxicated and would soon be driving a vehicle on the highway; and an action against real parties, The Pacific Telephone and Telegraph Company, Western Electric Company, Inc., and others, for negligent and defective design, location, and maintenance of the telephone booth. Only this last cause of action is before us. Plaintiff's second-amended complaint alleges that Bigbee saw the vehicle about to strike the telephone booth, attempted to flee the booth, but was prevented from doing so by the faulty design, fabrication, maintenance, control, and repair of the booth by real parties in interest; that as a result of the impact Bigbee sustained multiple injuries, including loss of a leg. Plaintiff additionally pleads that the telephone booth was improperly sited by real parties in that it was placed too close to a stream of habitually speeding, dangerous traffic, which real parties knew or should have known presented an unreasonable risk of harm to users of the booth. Pacific Telephone and Western Electric are alleged to have been responsible for ownership, installation, service, design, manufacture, maintenance, control, repair, and location of the telephone booth.

The verified demurrers and answers filed by real parties Pacific Telephone and Western Electric allege that plaintiffs' original complaint filed in October 1975 raised the question of the location of the booth but did not mention the faulty door. In plaintiff's second-amended complaint filed August 1978, the present claims were made and real parties demurred upon grounds that, (i) plaintiff had not stated a cause of action either in negligence or in product liability because of lack of proximate cause; (ii) no product liability existed because Pacific Telephone and Western Electric furnished only a "service" and not a "product," in that the booth was merely a structure in which the "service" was furnished; (iii) plaintiff failed adequately to plead negligence; and (iv) plaintiff's complaint was defective for uncertainty. The superior court sustained the general demurrers without leave to amend, and this petition followed. Subsequent to the issuance of our writ, real parties obtained a judgment dismissing them from the cause.

DISCUSSION

Improper siting of a telephone booth in a potentially dangerous location can amount to actionable negligence. (Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 60 Cal.Rptr. 510, 430 P.2d 68; Mann v. State of California (1977) 70 Cal.App.3d 773, 777, 139 Cal.Rptr. 82.) Whether one or both of the real parties is liable for such conduct if it occurred presents a factual question which is not before the court. Similarly, defects in the creation and maintenance of the booth itself may give rise to tort liability. (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56, 148 Cal.Rptr. 596, 583 P.2d 121.) Such defects have been pleaded.

The real dispute on demurrer between plaintiff and real parties involves the issue of independent intervening act and foreseeability. Causes such as Gibson v. Garcia (1950) 96 Cal.App.2d 681, 216 P.2d 119, favor plaintiff, while causes such as Schrimscher v. Bryson (1976) 58 Cal.App.3d 660, 130 Cal.Rptr. 125, favor real parties.

In Schrimscher, supra, this court affirmed the entry of a summary judgment, not the sustention of a demurrer to a pleading without leave to amend, in a cause in which plaintiff Schrimscher, an officer of the California Highway Patrol, saw defendant Bryson's vehicle stopped partially off the ten-foot-wide shoulder of the San Diego Freeway. Bryson had been involved in a collision with another vehicle, which had gone over the enbankment. Schrimscher directed Bryson to move his vehicle entirely off the freeway, then arrested and handcuffed an apparently intoxicated Bryson, and placed him in the back seat of the patrol vehicle. After checking the vehicle over the enbankment, Schrimscher called for and awaited the arrival of a tow truck. Within twenty minutes of the original accident, a car driven by Shelton, also under the influence of alcohol, hit Bryson's vehicle, driving it into Schrimscher and injuring him. The trial court granted summary judgment for defendant Bryson concluding as a matter of law that because the defendant had been physically removed from the scene and handcuffed, his prior negligence was not a proximate cause of plaintiff Schrimscher's injuries. We affirmed, taking the view this was an instance of antecedent negligence interrupted by an independent intervening act which was not reasonably foreseeable. (Fish v. Los Angeles Dodgers Baseball Club (1976) 56 Cal.App.3d 620, 128 Cal.Rptr. 807; Sanders v. Atchison, Topeka & Santa Fe Ry. Co. (1977) 65 Cal.App.3d 630, 135 Cal.Rptr. 555.)

In Gibson v. Garcia, supra (1950) 96 Cal.App.2d 681, 216 P.2d 119, plaintiff appealed a judgment in favor of defendant Los Angeles Transit Lines following an order sustaining its demurrer to plaintiff's complaint for personal injuries without leave to amend. Los Angeles Transit Lines maintained wooden poles adjacent to the curbing on Whittier Boulevard. Ada Gibson was standing on the sidewalk near one of these poles when a 1938 Plymouth automobile negligently driven by Paul Garcia collided with the pole. The pole broke a short distance above ground, and its fall severely injured Ms. Gibson. The allegations of the complaint against Los Angeles Transit Lines were in many respects similar to the allegations in the present case against Pacific Telephone and Western Electric. It was asserted that Los Angeles Transit Lines carelessly maintained the pole in a rotten condition and that it knew or should have known of the pole's condition; that Whittier Boulevard was a main and heavily traveled highway used daily by thousands of automobiles; that Los Angeles Transit Lines should have anticipated that accidents would occur upon the highway and that automobiles might run over the curbing and strike the pole; that in its weakened condition the pole constituted a hazard to persons on the sidewalk, a hazard which, in concurrence with the negligence of Garcia, caused injuries to the plaintiff.

Los Angeles Transit Lines, presenting arguments similar to those made here by Pacific Telephone and Western Electric, asserted that the impact of Garcia's car was an unforeseeable independent intervening act. The court of appeal did not agree stating:

"It is well-settled that proximate causation is not always arrested by the intervention of an independent force. If the original negligence continues to the time of the injury and contributes substantially thereto in conjunction with the intervening act, each may be a proximate concurring cause for which full liability may be imposed. (Citations.)" (Gibson v. Garcia, supra, 96 Cal.App.2d at p. 684, 216 P.2d at p. 121.

The precise act need not necessarily be foreseeable, said the court, citing Taylor v. Oakland Scavenger Co. (1941) 17 Cal.2d 594, 602, 110 P.2d 1044, Carroll v. Central Counties Gas Co. (1925) 74 Cal.App. 303, 240 P. 53 and Restatement of Torts, section 435, for the proposition that when an actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from becoming liable. The court concluded that the unforeseeability of the act of the intervening agency does not always provide a reliable criterion of non-liability.

The proper classification of an intervening act as a concurrent cause or as a superseding cause presents a question of fact, which sometimes may be resolved on motion for summary judgment, but less often can be resolved on demurrer. We think the allegations of the second-amended complaint are sufficient to pass the test of general demurrer.

Let a peremptory writ of mandate issue requiring respondent court to vacate its order sustaining the general demurrers of Pacific Telephone and of Western Electric without leave to amend, to vacate its judgment of dismissal of real parties, and to enter a new and different order overruling the general demurrers.

ROTH, P. J., concurs.

BEACH, Associate Justice (dissenting).

I dissent. The majority view extends the scope of duty to an extreme degree. That extension as applied in this case requires that any person who does business or otherwise invites others to his place of business must first determine the...