Fox v. City and County of San Francisco

• Decision Date: 14 April 1975
• Citation: 120 Cal.Rptr. 779,47 Cal.App.3d 164
• Court: California Court of Appeals
• Parties: George R. FOX, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, a Municipal Corporation, Defendant and Appellant. Civ. 32268.

Page 779

120 Cal.Rptr. 779

47 Cal.App.3d 164

George R. FOX, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, a Municipal Corporation, Defendant and Appellant.

Civ. 32268.

Court of Appeal, First District, Division 1, California.

April 14, 1975.

Hearing Denied June 11, 1975.

Thomas M. O'Connor, City Atty., of the City and County of San Francisco, John J. Taheny, Jr., Deputy City Atty., of the City and County of San Francisco, San Francisco, for defendant and appellant.

Belli, Ashe, Ellison & Choulos, Melvin M. Belli, Robert B. Ingram, San Francisco, Freedman & Low, Marshall S. Freedman, Beverly Hills, for plaintiff and respondent.

WEINBERGER, ^* Associate Justice.

In this action for damages for injuries sustained by respondent on August 4, 1966, resulting from a collision between a bicycle he was riding and a Municipal Railway bus operated by one Jesse Lane, the jury returned a verdict in his favor and against the City and County of San Francisco, in the sum of $225,000.00. This appeal is from the judgment entered upon the verdict.

At the time of the accident respondent, George R. Fox, was 33 years old and was employed by a blueprint reproduction firm as a bicycle messenger picking up and delivering blueprints throughout San Francisco. His employer furnished the bicycle he used in his work, and during the nearly five year period he had been so employed, he estimated that his wages averaged about $150.00 per week including overtime pay. His testimony disclosed that immediately before the accident he had no health problems of any kind, no visual impairment nor hearing loss. Except for the amputation of a finger in an industrial accident some years earlier, he admitted no physical impairment whatsoever.

Three doctors testified concerning respondent's mental and physical condition after the accident. They found Mr. Fox to be in the very low normal range of intellectual capacity, having an I.Q. somewhere between 52 and 70. It was the doctors' opinion that this impaired mental capacity had existed from birth or very early childhood. Despite his subnormal intelligence the evidence is uncontroverted that before the accident Mr. Fox had been able to hold his job, ride his bike in downtown San Francisco, live alone and apparently attend to his own affairs. Even after the accident, he was able to pass the test and qualify for a California motor vehicle driver's license.

The only testimony regarding the circumstances surrounding the accident was given by respondent, the bus driver, and a passenger on the bus. Mr. Fox testified that he was working as a bicycle messenger delivering blueprints at the time of the accident. He was proceeding westerly on Market Street in downtown San Francisco and as he approached Powell Street there were two or three cars ahead of him, the closest being ten to fifteen feet away, and that he did not have to slow down on their account. He testified that as he drove along Market Street he would travel 'two to four feet from the curb' unless he had to pull out around a parked or a stopped car. He demonstrated to the court and jury what he meant when he said he traveled 'two to four feet' from the curb by holding up his hands and the trial judge stated that the distance the plaintiff indicated was more like a couple of inches than two to four feet. Respondent testified that he let the cars approaching Powell Street ahead of him make their turn; that he did not go around them, but stayed behind, and they were moving the whole time he saw them. After the cars turned, he went on straight across the intersection, staying close to the edge of Market Street. He testified he did not remember the bus passing him just before the accident and did not know whether the bus and bicycle collided.

Mr. Lane, the bus driver, testified he did not recall how far the bus was from the curb when a passenger stated that he thought the bus had hit someone on a bicycle. He remembered seeing someone riding a bicycle as the bus was traveling several blocks east of Powell Street and he sounded the horn to go around the bicycle rider. He testified that he did not remember seeing a bicycle rider again until after the accident when he saw the plaintiff lying in the street. Mr. Lane testified that before the accident he stopped the bus behind two or three cars stopped at the northeast corner preparing to turn right into Eddy or Powell Street; that he waited momentarily, then, as the cars moved forward, he swung somewhat to his left, swung back to his right, straightened out the bus and proceeded across the Powell Street intersection. He estimated his speed at about ten miles per hour.

After being informed that the bus had hit someone, Mr. Lane stopped immediately, got off the bus and looked under it but saw no one. Then he looked to the rear of the bus and saw respondent lying on the pavement to the rear and to the right of a line representing an extension backward of the right side of the bus.

George Homenko testified that he was a passenger on the bus that was involved in the collision with Mr. Fox. He had been sitting on the long seat on the right side immediately behind the front door of the bus. He first noticed respondent on his bicycle at Montgomery Street, about four blocks east of Powell Street. He notified Mr. Fox pass the bus as the bus stopped momentarily at the bus stop west of Stockton Street, one block east of Powell, and continue on in the curb lane.

The witness testified further that there were two or three cars stopped for a traffic signal in front of the Woolworth Store on the northeast corner of Market and Powell Streets. When the bus came up behind the automobiles, the respondent was stopped in the curb lane on the left-hand side of the automobiles next to the white line separating the curb lane from the lane nearer the westbound car tracks. When the signal changed, the bus driver pulled over to go around the automobiles that were making a right turn onto Eddy or Powell. The bus passed about 18 to 24 inches from the man on the bicycle. The bus driver sounded the horn, but Mr. Homenko did not know if the horn was sounded for the bicycle rider or the automobiles. The witness turned around to look forward and heard a 'thump' on the back right side of the bus. He told the bus driver that he thought the driver had hit someone or something and the driver stopped immediately. When the bus stopped it was approximately 20 feet beyond the place where Mr. Fox was lying on the pavement.

Mr. Homenko testified that as respondent got to the place where the collision occurred there were no cars in front or in back of him and that Mr. Fox was approximately 12 to 14 feet from the curb at that time. The witness stated that the bus was traveling in a 'fairly straight' direction across the intersection until he called out to the driver that there had been an accident.

This appeal raises a question not heretofore decided by the courts of this state, namely, what amount of caution is a mentally retarded adult plaintiff required to exercise for his own safety? Stated in another way, under what circumstances and to what extent may an adult retardate be held responsible for his contributory negligence?

Appellant's primary contention is that the court erred in giving BAJI instruction 3.36, as follows: 'The amount of caution required of a person whose faculties are impaired is the care which a person of ordinary prudence with similarly impaired faculties would use under circumstances similar to those shown by the evidence.' Appellant is correct in noting that the citations listed in the comment under BAJI 3.36 refer to cases and the Restatement section dealing with Physical disabilities. (Conjorsky v. Murray (1955) 135 Cal.App.2d 478, 287 P.2d 505; Jones v. Bayley (1942) 49 Cal.App.2d 647, 122 P.2d 293; Rest.2d Torts, § 283C.)

The Restatement Second of Torts makes no allowance for insanity or other mental deficiency when the actor, if he is an adult, is the Defendant. (Rest.2d Torts, § 283B.) When the actor is the Plaintiff, however, the Restatement specifically leaves open the question as to '. . . whether insane persons are or are not required to conform for their own protection to the standard of conduct which society demands of sane persons.' (Rest.2d Torts, § 464, Caveat.) The Restatement's position on mental deficiency which falls short of insanity, however, is that such impairment does Not excuse conduct which is otherwise contributory negligence. (Rest.2d Torts, § 464, com. g.)

It is our conclusion that, as regards the facts of this case, the position of the Restatement is correct and the challenged instruction should not have been given. Counsel for appellant pointed out to the trial judge in chambers that the authorities cited in support of BAJI 3.36 dealt with physical disabilities, and that there were no California cases which authorized the use of the instruction in a case in which the 'impaired faculties' consisted of mental deficiency falling short of insanity. The instruction was given over the appellant's objection.

Respondent relies upon DeMartini v. Alexander Sanitarium, Inc. (1961) 192 Cal.App.2d 442, 13 Cal.Rptr. 564, in which the plaintiff who had a history of mental disturbance voluntarily entered a private hospital specializing in the treatment of patients with mental and emotional problems. While a patient in the hospital, and one day after having received electric shock therapy, the plaintiff climbed a wall surrounding the hospital grounds and injured himself jumping down on the other side. He contended on appeal that he was incapable of contributory negligence as a matter of law and the jury should have been so instructed. The court held that it was proper to submit the matter to the jury and the following instruction was approved: ". . . it is necessary for you to visualize a person in a similar condition when ascertaining what acts or omissions would be negligent...