Campodonico v. State Auto Parks, Inc.

• Citation: 10 Cal.App.3d 803,89 Cal.Rptr. 270
• Court: California Court of Appeals
• Decision Date: 25 August 1970
• Parties: Beatrice H. COMPODONICO, Plaintiff and Appellant, v. STATE AUTO PARKS, INC., and corporation, Defendant and Respondent. Civ. 35574.

Page 270

89 Cal.Rptr. 270

10 Cal.App.3d 803

Beatrice H. COMPODONICO, Plaintiff and Appellant, v. STATE AUTO PARKS, INC., and corporation, Defendant and Respondent.

Civ. 35574.

Court of Appeal, Second District, Division 3, California.

Aug. 25, 1970.

Hillel Chodos, Beverly Hills, for appellant.

Kinkle, Rodiger, Graf, Dewberry & Spriggs, George P. Kinkle, Jr., Los Angeles, for respondent.

ALLPORT, Associate Justice.

This is an action for personal injuries and property damage allegedly suffered by plaintiff as a result of defendant's negligence and wrongful conduct in creating and permitting dangerous conditions in an automobile parking structure at 140 South Doheny Drive, Beverly Hills. It was alleged that as a proximate result of such conduct plaintiff was subjected to a criminal attack upon her person on July 28, 1966. It was also claimed that the parking area was so constructed and maintained as to encourage therein the presence of persons of degenerate tendencies, that on the occasion in question defendant's employee customarily in attendance was absent from his duty station, and that these conditions gave rise to or permitted the assault which caused the injuries and damage in question. The answer by general and specific denials put in issue the essential elements of the cause of action and affirmatively alleged the defenses of contributory negligency and assumption of risk. The jury returned a verdict in favor of defendant, and judgment was entered thereon. Plaintiff's motion for a new trial was denied. She has appealed from the judgment.

Contentions

It is contended on appeal (1) that the evidence established as a matter of law that defendant's negligence was a proximate cause of plaintiff's injuries; (2) that an erroneous instruction on the subject of proximate cause resulted in prejudicial error; (3) that the exclusion of evidence as to other crimes occurring in parking facilities operated by defendant resulted in prejudicial error; (4) that it was prejudically erroneous to exclude evidence that a former employee of defendant had himself molested two small girls on these premises shortly prior to the incident of July 28, 1966, and evidence that this fact was known to defendant; and (5) that prejudicial error was committed in the exclusion of certain extrajudicial statements by parking attendant Abraham Jess on the day after the incident to a customer, regarding protection against criminal acts.

Discussion

Defendant admits that plaintiff was lawfully upon the premises and that a legal duty was owed to her. The nature of that duty has been clarified, simplified, and stated succinctly by the Supreme Court in the relatively recent case of Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, as follows: 'It bears repetition that the basic policy of this state set forth by the Legislature in section 1714 ¹ of the Civil Code is that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property. The factors which may in particular cases warrant departure from this fundamental principle do not warrant the wholesale immunities resulting from the common law classifications, and we are satisfied that continued adherence to the common law distinctions can only lead to injustice, or if we are to avoid injustice, further fictions with the resulting complexity and confusion. We decline to follow and perpetuate such rigid classifications. The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.' (69 Cal.2d at pp. 118--119, 70 Cal.Rptr. at p. 104, 443 P.2d at p. 568.)

We do not agree with the contention advanced by plaintiff that the evidence established as a matter of law that defendant's negligence was a proximate cause of plaintiff's injuries, but in view of the conclusions to be reached herein no detailed discussion thereof is necessary.

We proceed to a consideration of point (2), the contention that it was prejudicial error to give and reread, at the request of the jury, the following portion of an instruction on causation:

'(I)f you decide that the original actor (defendant) was negligent, then you have to consider whether the effect reasonably to be expected from that negligence was altered by an efficient intervening cause. In other words, was the conduct of the second actor (a third party) an efficient intervening agency which alone was the proximate cause of injury? Or, on the other hand, was that later conduct of the secondary actor merely a concurring cause, and the conduct of each actor a proximate cause of the injury? As between these two possibilities, the test is this: If the original actor foresaw, or by the exercise of ordinary care, should have foreseen, the probability of the conduct of the second actor, and if the original actor foresaw or by the exercise of ordinary care should have foreseen, the probability of (sic) the original conduct plus the secondary conduct would result in an injury to the third person, then the conduct of both the original and secondary actors joined in proximately causing the injury.

'But if the conduct of the secondary actor was so highly extraordinary, and such an abnormal response to the situation created by the original actor's conduct so that a reasonable person would regard the second actor's conduct as highly extraordinary and an abnormal reaction to the situation created by the original actor's conduct or lack of conduct, and if the immediate cause of the injury was the conduct of the second actor, then the conduct of the original actor was not the proximate cause of the injury.'

Insofar as it is based upon BAJI 104--C (Revised) this instruction is erroneous. (Godwin v. La Turco, 272 Cal.App.2d 475, 77 Cal.Rptr. 305) wherein it was said: 'Appellants were entitled to a proper instruction upon the problem of supervening intervening cause, upon proper request. Counsel requested BAJI instructions 104--C (revised), 104--C.1 and 104--C.2. The first and third were held to be erroneous in Ewart v. Southern Cal. Gas Co., 237 Cal.App.2d 163, 46 Cal.Rptr. 631. Here, BAJI 104--C.1 was requested, but it suffers from the same deficiencies. In this connection, attention is invited upon retrial to the Restatement Second of Torts, as presented and discussed in Ewart, supra. (Id. 170--174, 46 Cal.Rptr. 631) upon which a proper instruction may readily be drafted.' (272 Cal.App.2d at p. 480, 77 Cal.Rptr. at p. 308.)

We agree with plaintiff that the first of the two paragraphs quoted above is subject to criticism under the general language of Ewart v. Southern Cal. Gas Co., 237 Cal.App.2d 163, 46 Cal.Rptr. 631. We also agree that the second quoted paragraph is susceptible to an erroneous interpretation which would give to defendant an advantage not cognizable in law. The potential for error in the second paragraph lies in the ambiguity of the words 'extraordinary' and 'abnormal.' These terms could be interpreted as meaning either: A. Unforeseeable (unpredictable, statistically extremely improbable, etc.); Or B. Outside the scope of that which would be done by ordinary man. The instruction was correct if...