Forrand v. Foodmaker, Inc.

• Citation: 227 Cal.Rptr. 74,182 Cal.App.3d 196
• Court: California Court of Appeals
• Decision Date: 10 June 1986
• Parties: Keith Ward FORRAND, Plaintiff and Respondent, v. FOODMAKER, INC., doing business as Jack In The Box, Defendant and Appellant. Civ. B006084.

Page 74

227 Cal.Rptr. 74

182 Cal.App.3d 196

Keith Ward FORRAND, Plaintiff and Respondent, v. FOODMAKER, INC., doing business as Jack In The Box, Defendant and Appellant.

Civ. B006084.

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

June 10, 1986.

As Modified June 16, 1986.

Review Denied Aug. 20, 1986. ^*

Greines, Martin, Stein & Richland and Alan G. Martin, Beverly Hills, Morgan, Wenzel & McNicholas and Timothy B. Bradford, Los Angeles, for defendant and appellant.

Hurley & Grassini and Lawrence Grassini, North Hollywood, for plaintiff and respondent.

HASTINGS, Associate Justice.

After a jury trial, the negligence of defendant/appellant Foodmaker, Inc., doing business as Jack-in-the-Box (appellant), was found to have been the sole cause of injuries sustained by plaintiff/respondent Keith W. Forrand (respondent). To have reached this verdict, the jury believed the following to be true:

On July 17, 1977, at approximately 6:50 a.m., Glenn Dore (Dore) a 15-year-old runaway, committed an armed robbery against appellant Jack-in- restaurant. He knocked on the drive-through window; and when Michelle Laberteaux (Laberteaux), the shift manager, responded, he placed a 3- 1/2 foot long, .22 caliber rifle on the window ledge, pushed it into her stomach and demanded money. She eventually put money in a restaurant bag, and almost simultaneously with this act or shortly thereafter, respondent arrived at the restaurant to buy a cup of coffee, as he had done almost daily for a year. As he entered the restaurant, Thelma Hotstetter (Hotstetter), a waitress, exclaimed, "Stop him!" ¹ She did not tell respondent a robbery had just occurred nor that the robber was armed. Respondent, believing the person had failed to pay all or part of his order, returned to his car, drove a block or so away, spotted Dore, turned and stopped his car in such a way as to block Dore's path. Respondent exited his car and confronted Dore, who shot him through the head. ² Respondent survived and sued Jack-in-the-Box for negligence. The jury returned a verdict against Jack-in-the-Box and awarded respondent $2,879,000. Further facts shall be discussed where necessary to answer the various contentions of the parties.

Appellant made the following unsuccessful motions: two motions for nonsuit, made after opening statement and after close of respondent's case-in-chief; a motion for judgment notwithstanding the verdict; a motion for a new trial. Appellant appeals the denial of each of these motions.

Appellant raises four issues on appeal. They are: (1) as a matter of law, no duty exists which was breached by a cry of "Stop him!" in the aftermath of a robbery; (2) the trial court prejudicially erred and abused its discretion when it admitted evidence of the alleged violation of company guidelines regarding employee conduct during a robbery and excluded testimony that this conduct had nothing to do with the shooting; (3) there is no substantial evidence to support the verdict that appellant's negligence was a legal cause of respondent's injuries; and (4) a new trial on damages is required because of erroneous admission of evidence, attorney misconduct and excessive damages.

Respondent counters that (1) a duty to warn did exist and was breached; (2) the facts give rise to liability under the traditional analysis of duty; (3) the evidence pertaining to appellant's policy regarding employee conduct during a robbery was relevant and properly admitted, and, even if considered error, its exclusion would not have altered the outcome of the trial; (4) substantial evidence does exist as to the issue of causation; and (5) the damages are not excessive and all damages testimony was properly admitted.

The paramount issue to be resolved is whether a duty of care is owed by appellant to respondent. This determination is an essential precondition to liablity founded on negligence. (Vandermost v. Alpha Beta Co. (1985) 164 Cal.App.3d 771, 776, 210 Cal.Rptr. 613.) While duty is a question of law, foreseeability of the risk is a primary consideration in establishing the element of duty. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) Foreseeability is a question of fact unless decisional law has established that there could be no foreseeability of the risk under same or similar fact situations. Appellant argues such decisional law exists here, therefore, the trial court should have made the determination regarding foreseeability as a matter of law and in its favor. In support of this contention, appellant cites Vandermost v. Alpha Beta (1985), supra, and Young v. Desert View Management Co. (1969) 275 Cal.App.2d 294, 79 Cal.Rptr. 848 (petition for hg. by Supreme Court den.).

In Vandermost, supra, plaintiff was injured when he left his restaurant seat to investigate a commotion near the cash register. He saw a robber and heard him say, "Give me the money, or I am going to shoot someone." The robber fired his gun; the cashier closed the cash register drawer and fled. When the robber failed in his attempt to open the drawer, he confronted plaintiff demanding money. When plaintiff denied having any money, the robber shot him. Plaintiff sued, seeking recovery for the restaurant's negligence during the course of the robbery. Another division of this court held that, though an owner or occupier of land held open for business has a duty to protect visitors from the wrongful acts of third persons, in this situation the weak evidence of foreseeability, the tenuous connection between the injury and defendant's conduct, the lack of moral blame attached to defendant's conduct, and the strong public policy reasons for not imposing a duty compelled the conclusion that no duty of care existed. ³

In Young, supra, plaintiff was in defendant's bar when a robber entered the attached coffee shop. Robber laid his gun on the cash register and demanded money. After the cashier gave him the money, the robber grabbed her and started walking toward the hallway. She broke away, ran through the kitchen to the bar and exclaimed, "Help, I've been robbed." Another waitress turned to plaintiff, told him of the robbery, and asked for assistance in getting the license plate number. When plaintiff went out to the parking lot, he saw a man walking. He asked the man if he had seen the robber. The man identified himself as the robber and drew his gun. As plaintiff ran, the robber shot him in the back. The waitress who sought plaintiff's help did not know the robber was armed. Neither she nor any other employee had told plaintiff the robber had a gun. The court refused to impose a duty of care. It commented, "[I]n the excitement and confusion of an armed robbery, neither victim nor spectators can be expected to react as calmly as observers in a chess match." (Young, 275 Cal.App.2d at p. 297, 79 Cal.Rptr. 848.) The court examined what defendant knew or could have known. Here, there was no evidence that the employees knew the robber lurked outside or that defendant could have been aware that the robber would do anything but hurriedly abscond. In addition, the court likened the request by the waitress for assistance in getting the license plate number to a cry for help. It concluded, " 'Robbery. Help' offers no apparent springboard ... for a successful dive into litigation." (Young, supra, at p. 297, 79 Cal.Rptr. 848.)

When we analyze the case at bench in light of factors cited by both Vandermost and Young, particularly the minimal nature of foreseeability, we reach a similar conclusion.

We preface this discussion with the reminder that foreseeability is not coterminous with duty. (Cohen v. Southland Corp. (1984) 157 Cal.App.3d 130, 138, 203 Cal.Rptr. 572.) When it is minimal and the other factors listed in footnote 3, supra, are also weak, a determination that no duty exists is required. (Vandermost, supra, 164 Cal.App.3d at p. 779, 210 Cal.Rptr. 613.)

Accepting, as we must, that the jury believed Hotstetter said "stop him" could she have foreseen that her statement would cause respondent to re-enter his car and search or chase Dore for over a block from the premises. ⁴ We conclude that such foreseeability that might exist is so minimal as to require a negative response. When Hotstetter spoke to respondent she was acting within the time framework of the robbery. That the robbery was just completed or in progress is supported by respondent's testimony that Dore was still at the walkup window when he arrived. At best, Hotstetter's ability to analyze sufficiently the full consequences of her statement was slight, even though she testified she was calm at the time. ⁵ (Young, supra, 275 Cal.App.2d at p. 297, 79 Cal.Rptr. 848.) Respondent strongly urges that appellant had a duty to warn him that Dore was armed. However, as stated above, the jury believed Hotstetter was acting and speaking within the time framework of the robbery. We shall not impose a duty which presupposes rational thought during a time which normally produces the antithesis. (Young, supra, at p. 297, 79 Cal.Rptr. 848.) Had respondent been shot on the premises trying to stop Dore the cases cited indicate that foreseeability of harm is also weak in such a highly volatile situation. It thus follows that respondent's chase of Dore in his car and away from the premises was of his own doing and clearly an unforeseeable event that should not cast liability on appellant.

Our decision is further strengthened by the existing rule regarding the duty owed by an owner or occupier of land held open for business. He or she has a duty to protect visitors from the wrongful acts of third persons which threaten the safety of visitors to...