Coffman v. Kennedy

• Decision Date: 12 October 1977
• Citation: 74 Cal.App.3d 28,141 Cal.Rptr. 267
• Court: California Court of Appeals Court of Appeals
• Parties: Jean K. COFFMAN, Plaintiff and Appellant, v. David KENNEDY, Defendant and Respondent. Civ. 39936.

Page 267

141 Cal.Rptr. 267

74 Cal.App.3d 28

Jean K. COFFMAN, Plaintiff and Appellant, v. David KENNEDY, Defendant and Respondent.

Civ. 39936.

Court of Appeal, First District, Division 4, California.

Oct. 12, 1977.

Pettit, Evers & Martin, Joseph W. Rogers, Jr., Otis McGee, Jr., San Francisco, for plaintiff and appellant.

Raymond J. Bergez, Hardin, Cook, Loper, Engel & Bergez, Peter W. Davis, Carole D. Bergeron, Crosby, Heafey, Roach & May, Oakland, for defendant and respondent.

CHRISTIAN, Associate Justice.

Jean K. Coffman appeals from a judgment dismissing her complaint for personal injuries after the court had sustained without leave to amend the demurrer of respondent David Kennedy.

Appellant alleges the following facts in her complaint which, for purposes of this appeal, must be accepted as true: On May 25, 1975, at 6:05 p. m., appellant's automobile collided with an automobile being driven by one Hughes. Respondent was riding as a passenger in the Hughes vehicle. At the time of the collision Hughes was intoxicated and was speeding. The complaint alleges that Hughes was operating his vehicle in conscious disregard for the safety of others, and that the collision was the proximate result of this conduct of Hughes and of the conduct of Kennedy. It is alleged that Kennedy had served Hughes the alcoholic beverages which had caused Hughes to be intoxicated at the time of the accident.

Appellant's first cause of action seeks recovery against Kennedy on a theory of aiding and abetting the wilful misconduct of Hughes. (See generally, Prosser, Law of Torts (4th ed. 1971) § 46, pp. 291-293.) The complaint alleges: "At and for a substantial period of time before the collision defendant Kennedy was aiding, abetting and encouraging the . . . conduct of Hughes; defendant Kennedy's conduct in this regard proximately contributed to the collision." While a defendant may be held liable in tort for actively aiding or encouraging a wrongdoer (see Thomas v. Doorley (1959) 175 Cal.App.2d 545, 550, 346 P.2d 491), it is essential that the defendant's own conduct was tortious. The particular defendant who is to be charged with responsibility must have proceeded tortiously i. e., with intent to commit a tort or with negligence. (See Prosser, Law of Torts, supra, § 46, p. 292.) In her first cause of action, appellant has failed to plead facts which show wrongful conduct on the part of respondent (see Rubinow v. County of San Bernardino (1959) 169 Cal.App.2d 67, 70, 336 P.2d 968; Pascoe v. Southern Cal. Edison Co. (1951) 102 Cal.App.2d 254, 257, 227 P.2d 555). It was therefore proper to sustain the demurrer.

Appellant's second cause of action seeks to impose vicarious liability on respondent for the alleged negligence of the driver on the theory that respondent was a joint adventurer of the driver, Hughes. The complaint alleges that: "At the time of the collision Hughes and defendant Kennedy were engaged in a joint enterprise and the collision was the proximate result of the conduct of Hughes and Kennedy performed pursuant to the accomplishment of the objectives of that joint enterprise." This allegation fails to state facts sufficient to show the necessary requirements for a joint enterprise contract, common purpose, and equal right of voice and control. (See Campagna v. Market St. Ry. Co. (1944) 24 Cal.2d 304, 308-309, 149 P.2d 281; Pope v. Halpern (1924) 193 Cal. 168, 174, 233 P. 470; Prosser, Law of Torts, supra, § 72, pp. 477, 478.) No joint enterprise existed where there was no contract, common purpose and equal right of voice and control. Something more is required for a joint enterprise than merely traveling together to a destination for a common purpose. (See DeSuza v. Andersack (1976) 63 Cal.App.3d 694, 701, 133 Cal.Rptr. 920; Prosser, Law of Torts, supra, § 72, at p. 477.) The trial court did not err in sustaining respondent's demurrer to the second cause of action.

Appellant's third cause of action seeks to impose liability on respondent on the ground that respondent was negligent in failing to control the driver of the vehicle in which respondent was riding. But there is no duty owed by a passenger to a third person to control the conduct of an automobile driver who may be under the influence of intoxicating beverages. (See DeSuza v. Andersack, supra, 63 Cal.App.3d at pp. 703-704, 133 Cal.Rptr. 920.) A passenger must, of course, exercise ordinary care for his own safety, and in this regard, has a duty to protect against actual negligence or recklessness of the driver. (Pobor v. Western Pac. R. R. Co. (1961) 55 Cal.2d 314, 324, 11 Cal.Rptr. 106, 359 P.2d 474.) However, absent a special relationship between the parties, there is no duty to control the conduct of a third person so as to prevent him from causing physical harm to another. (Rest.2d, Torts, § 315, pp. 122-123.) ¹

Appellant's fourth cause of action alleges that respondent "negligently and unlawfully" furnished alcoholic beverages to the driver, Hughes, who, as a result of intoxication, injured appellant. The complaint alleges that: "Hughes' intoxicated condition at the time of the collision was negligently and unlawfully induced by defendant Kennedy, in that Kennedy had served Hughes the alcoholic beverages that made him intoxicated at the time of the collision; defendant Kennedy's negligence and unlawful conduct in this regard proximately contributed to the collision."

The early cases in California and other jurisdictions held that there was no right of action at common law against one who had furnished, whether by sale or gift, intoxicating liquor to a person who thereby becomes intoxicated and consequently injures the person or property of another. (See Vesely v. Sager (1971) 5 Cal.3d 153, 158-159, 95 Cal.Rptr. 623, 486 P.2d 151; Deeds v. United States (D.Mont.1969) 306 F.Supp. 348, 354; 53 A.L.R.3d 1285, 1286.) The reasoning of these cases was that there was no proximate cause, as a matter of law, because "one cannot be intoxicated by reason of liquor furnished him if he does not drink it." (Vesely v. Sager, supra, 5 Cal.3d 153, 159, 95 Cal.Rptr. 623, 627, 486 P.2d 151, 155, quoting Nolan v. Morelli (1967) 154 Conn. 432, 226 A.2d 383; see Deeds v. United States, supra, 306 F.Supp. at p. 354.) In Fuller v. Standard Stations, Inc. (1967) 250 Cal.App.2d 687, 691, 58 Cal.Rptr. 792, this rule was sharply criticized and characterized as "a back-eddy running counter to the mainstream of modern tort doctrine." In recent years, the courts in a growing number of jurisdictions have reexamined the rule of the earlier cases in the light of present-day conditions and have established some exceptions to the earlier rule. While recognizing the application of the rule to the so-called "able bodied" person, certain exceptions have been made where liquor was furnished to a minor or to a person obviously intoxicated, often in contravention of a criminal statute. ²

In 1971, in Vesely v. Sager, supra, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151, the California Supreme Court "unmasked the common law fiction" and "declared that the real question to be decided in each case is one not of probable cause but rather whether the defendant is guilty of a breach of duty to the injured party." (Brockett v. Kitchen Boyd Motor Co., supra, 24 Cal.App.3d 87, 90, 100 Cal.Rptr. 752, 753-754.) Rejecting the reasoning of the early cases, the Vesely court stated that: "(I)t is clear that the furnishing of an alcoholic beverage to an intoxicated person may be a proximate cause of injuries inflicted by that individual upon a third person. If such furnishing is a proximate cause, it is so because the consumption, resulting intoxication, and injury-producing conduct are foreseeable intervening causes, or at least the injury-producing conduct is one of the hazards which makes such furnishing negligent." (Vesely v. Sager, supra, 5 Cal.3d at p. 164, 95 Cal.Rptr. at p. 631, 486 P.2d at p. 159.) The court held that a commercial vendor who furnishes alcoholic beverages to a visibly intoxicated person breaches a duty to a third person who is injured as a result of the intoxication. The Vesely court noted that the statute prohibiting the furnishing of alcoholic beverages to an obviously intoxicated person (Bus. & Prof.Code, § 25602) was adopted for the purpose of protecting members of the general public from injuries resulting from the excessive use of intoxicating beverages. Since a presumption of negligence arises from the violation of a statute which has been enacted to protect a class of persons of which the plaintiff is a member (see Evid.Code, § 669), and since section 25602 of the Business and Professions Code was adopted for the purpose of protecting members of the general public from injuries resulting from the excessive use of intoxicating liquor, a presumption of negligence will arise where section 25602 of the Business and Professions Code has been violated. (Vesely v. Sager, supra, 5 Cal.3d at pp. 164-165, 95 Cal.Rptr. 623, 486 P.2d 151.) Since the issue was not presented in that case, Vesely did not decide whether a noncommercial furnisher of alcoholic beverages may be held liable in tort for providing alcoholic beverages to an obviously intoxicated person who, as a result of intoxication, injures a third person. (5 Cal.3d at p. 157.)

In Brockett v. Kitchen Boyd Motor Co., supra, 24 Cal.App.3d 87, 100 Cal.Rptr. 752, the court, basing its decision on the reasoning employed in Vesely v. Sager, held that any person, "whether he is in the business of dispensing alcoholic beverages or not, who disregards the legislative mandate (of § 25658, Bus. & Prof.Code) breaches a duty to anyone who is injured as a result of the minor's intoxication and for whose benefit the statute was enacted." (24 Cal.App.3d at p. 93, 100 Cal.Rptr. at p. 756.) The Brockett court limited its holding to the specific facts of that case, where an employer had knowingly made available to a minor at a...