Bloomberg v. Interinsurance Exchange

• Decision Date: 13 November 1984
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 161 Cal.App.3d 807 161 Cal.App.3d 807, 162 Cal.App.3d 571 Ronald BLOOMBERG et al., Plaintiffs and Appellants, v. The INTERINSURANCE EXCHANGE OF the AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, Defendant and Respondent. Civ. B001001.

Page 853

207 Cal.Rptr. 853

Previously published at 161 Cal.App.3d 807

161 Cal.App.3d 807, 162 Cal.App.3d 571

Ronald BLOOMBERG et al., Plaintiffs and Appellants, v. The INTERINSURANCE EXCHANGE OF the AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, Defendant and Respondent.

Civ. B001001.

Court of Appeal, Second District, Division 5, California.

Nov. 13, 1984.

As Modified on Denial of Rehearing Dec. 13, 1984.

Simke, Chodos, Silberfeld & Soll, Inc., and Roman M. Silberfeld and Deborah Ashby McNulty, Los Angeles, for plaintiffs and appellants.

Shield & Smith and Theodore P. Shield and J. Lawrence Judy, Los Angeles, for defendant and respondent.

ASHBY, Acting Presiding Justice.

This appeal is taken from a dismissal following a sustained demurrer to appellants' third amended complaint (complaint). Appellants Ronald and Barbara Bloomberg allege that respondent Interinsurance Exchange of the Automobile Club of Southern California (respondent or Auto Club), ¹ by its negligence, caused the death of appellants' 16-year-old son. The bases of the demurrer were two: respondent owed no duty of care to appellants' son, and, if it did, the criminal act of an intoxicated driver was a superseding, intervening cause cutting off respondent's liability as a matter of law. Appellants urge this court to reverse on both grounds.

We accept as true the following facts as alleged in the complaint. (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57, fn. 10, 192 Cal.Rptr. 857, 665 P.2d 947.) Appellants' son Seth was a passenger in a car driven by David Camblin, also 16, on the night of September 20, 1980. While traveling on the Golden State Freeway the car developed engine trouble. Camblin pulled the car onto the shoulder of the road, near a callbox. At approximately 1:30 a.m., he placed a call that was answered by the California Highway Patrol (CHP), who transferred it to the Auto Club. The boys returned to the car to await the Auto Club's emergency assistance. An Auto Club tow truck dispatched at approximately 1:30 a.m. failed to locate the stalled car. At about 2:25 a.m., an intoxicated driver ² crashed into the car, causing injuries to appellants' son that resulted in his death.

DISCUSSION

On appeal from a judgment of dismissal entered upon the sustaining of a demurrer without leave to amend, we must treat the demurrer as admitting all material facts properly pleaded and all reasonable inferences which can be drawn therefrom. (Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 198, 185 Cal.Rptr. 892; Service Employees International Union v. Hollywood Park, Inc. (1983) 149 Cal.App.3d 745, 757, 197 Cal.Rptr. 316.) The allegations must be liberally construed with a view to attaining substantial justice among the parties. (Glaire v. LaLanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918, 117 Cal.Rptr. 541, 528 P.2d 357.) Review is not limited to the theory of recovery relied on in the complaint. We must determine if the factual allegations are adequate to state a cause of action under any legal theory. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103, Haller v. Burbank Community Hospital Foundation (1983) 149 Cal.App.3d 650, 655, 197 Cal.Rptr. 45.)

The threshold question is whether respondent owed a duty of care to appellants' son. Determining duty is primarily a question of law. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) The duty question must be decided on a case-by-case basis, but each case must be governed by the general rule that everyone is required to use ordinary care to prevent causing injury to others. (Weirum, supra; Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30, 36, 286 P.2d 21.) A defendant who enters upon an affirmative course of conduct affecting the interests of another is regarded as assuming a duty to act, and will be liable for negligent acts or omissions (Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 238, 60 Cal.Rptr. 510, 430 P.2d 68; Valdez v. Taylor Automobile Co. (1954) 129 Cal.App.2d 810, 817, 278 P.2d 91), because one who undertakes to do an act must do it with care. (Schwartz v. Helms Bakery Limited, supra, at p. 238, 60 Cal.Rptr. 510, 430 P.2d 68; Johnston v. Orlando (1955) 131 Cal.App.2d 705, 709, 281 P.2d 357; Brockett v. Kitchen Boyd Motor Co. (1968) 264 Cal.App.2d 69, 71, 70 Cal.Rptr. 136.) As Prosser states: "Where performance clearly has begun, there is no doubt that there is a duty of care." (Prosser, Handbook of the Law of Torts (4th ed. 1971) § 56.

The complaint alleges that David called the Auto Club. Seth and David then returned to their car to wait for the truck. The Auto Club set out the tow truck but it never arrived. While waiting, appellants' son Seth became the victim of a drunk driver and was killed. Based on these facts we cannot say that respondent owed no duty of care to appellants' son. The undertaking to send the tow truck clearly did affect his interest. Had they not expected respondent to send assistance, the boys may have made other arrangements. They could have called their parents, a friend or even CHP to be driven home or at least to a safer location. (See Fochtman v. Honolulu Police and Fire Depts. (1982) 65 Haw. 180, 649 P.2d 1114.) Appellants allege that the Auto Club failed to locate the stalled vehicle due to its negligence. If appellants can prove respondent's negligence, respondent will be held liable for its breach of duty. It was, therefore, error to sustain respondent's demurrer on the ground that respondent owed appellants' son no duty of care.

The allegations of the complaint vis-a-vis the Auto Club sound in a negligent performance of contract theory. Respondent's demurrer did not deny the existence of a contractual duty. Respondent relied instead on the theory that the Auto Club in no way contributed to the accident that caused the death of appellants' son. During oral argument respondent contended that appellants' son was not included in a contract for emergency services made between the Auto Club and appellants. Whether appellants can go forward on a contractual theory depends upon the wording of the contract, which is not in the record before us. Nevertheless, appellants should be given the opportunity to amend to state a cause of action, either solely or alternatively, which describes a negligent undertaking. (Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 118, 113 Cal.Rptr. 102, 520 P.2d 726; Cordonier v. Central Shopping Plaza Associates (1978) 82 Cal.App.3d 991, 998, 147 Cal.Rptr. 558.)

As stated above, respondent's position is that an intoxicated driver caused the death of appellants' son and that the Auto Club in no way contributed to the creation of the situation in which the accident occurred. To the extent that Seth and David relied on respondent to come to their...