Fuller v. Standard Stations, Inc.

• Decision Date: 04 May 1967
• Citation: 250 Cal.App.2d 687,58 Cal.Rptr. 792
• Court: California Court of Appeals Court of Appeals
• Parties: Thomas E. FULLER, Jr., a Minor, by and through his Guardian ad Litem, Shirley Zauss, Plaintiff and Appellant, v. STANDARD STATIONS, INC., a corporation, Dewayne Owens, sued as Doe 1, Associated Oil Company, a corporation, and Tidewater Oil Company, a corporation, Defendants and Respondents. Civ. 11511.

Page 792

58 Cal.Rptr. 792

250 Cal.App.2d 687

Thomas E. FULLER, Jr., a Minor, by and through his Guardian ad Litem, Shirley Zauss, Plaintiff and Appellant, v. STANDARD STATIONS, INC., a corporation, Dewayne Owens, sued as Doe 1, Associated Oil Company, a corporation, and Tidewater Oil Company, a corporation, Defendants and Respondents.

Civ. 11511.

Court of Appeal, Third District California.

May 4, 1967.

Rehearing Denied May 22, 1967.

Hearing Denied June 28, 1967.

Leep, Saunders & Halpin, by Jack Halpin, Redding, for appellant.

Pillsbury, Madison & Sutro, by Nobel K. Gregory, San Francisco, Rust & Hoffman, Sacramento, for respondent, Standard Stations, Inc.

Rodegerdts, Means & Northup, by Frederick R. Estey, Woodland, for respondent, Associated Oil Co.

FRIEDMAN, Associate Justice.

The problem is whether damage liability may be imposed upon an automobile service station operator for selling gasoline to a recognizably intoxicated motorist who then injures a third person.

The minor plaintiff was injured and his father, mother, sister and brother were killed in a collision with an automobile driven by Herschel Baker, a defendant. In the second count of his complaint plaintiff names as defendants Standard Stations, Inc., operator of a service station near Vacaville, and Associated Oil Company, owner of a station in the nearby community of Winters. He alleges that on the day of the accident both service station operators supplied 'chattels' to Baker 'knowing or having reason to know that because of (his) intoxicated condition' he would use 'said chattels' in a manner involving the unreasonable risk of physical harm to others. The gasoline retailers filed a general demurrer, which the trial court sustained without leave to amend. Plaintiff appeals from the judgment.

Both in the trial court and in their briefs on appeal the parties have indicated that the 'chattels' consisted of gasoline supplied to Baker's automobile.

The complaint is obviously modeled upon the 'negligent entrustment' doctrine described in section 390, Restatement of Torts Second: 'One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.'

The negligent entrustment theory is frequently expressed in decisions imposing liability upon an automobile owner who permits its use by an incompetent or intoxicated driver who injures the plaintiff. (Johnson v. Casetta (1961) 197 Cal.App.2d 272, 275, 17 Cal.Rptr. 81; Knight v. Gosselin (1932) 124 Cal.App. 290, 294--295, 12 P.2d 454; additional cases cited, Restatement of Torts Second, Appendix, § 390; Fleckner v. Dionne (1949) 94 Cal.App.2d 246, 252--253, 210 P.2d 530 (dissent).) Approximately the same notion finds negative expression in the rule that, absent a special relationship, one person has no duty to prevent a second from harming a third even where the second person is using property of the first, unless the supplier has reason to believe that the second person is incompetent to manage it. (Richards v. Stanley (1954) 43 Cal.2d 60, 65, 271 P.2d 23; Grafton v. Mollica (1965) 231 Cal.App.2d 860, 863, 42 Cal.Rptr. 306.)

A strongly contrasting result is reached in decisions involving a tavernkeeper who knowingly sells liquor to an intoxicated customer, who then injures himself or another. California decisions exempt the tavernkeeper from liability as a matter of law. (Cole v. Rush (1955) 45 Cal.2d 345 289 P.2d 450, 54 A.L.R.2d 1137; Lammers v. Pacific Electric Ry. Co. (1921) 186 Cal. 379, 199 P. 523; Fleckner v. Dionne, supra, 94 Cal.App.2d 246, 210 P.2d 530; Hitson v. Dwyer (1943) 61 Cal.App.2d 803, 143 P.2d 952.)

Some jurists have confessed inability to distinguish between the defendant who knowingly supplies liquor to a drunken driver and one who places an automobile at his disposal. (Fleckner v. Dionne, supra, 94 Cal.App.2d at p. 253, 210 P.2d 530 (dissent); Mitchell v. Ketner (Tenn.1964) 393 S.W.2d 755, 759.) The incongruity between the liquor sale cases and the automobile entrustment decisions is partly explainable in historic terms. The common law gave no remedy against a tavernkeeper for injury or death following the sale of liquor, and the courts--at least in California--have deferred to the Legislature by declining to change the rule through judicial decision. (Cole v. Rush, supra, 45 Cal.2d at pp. 348--349, 354--355, 289 P.2d 450; Fleckner v. Dionne, supra, 94 Cal.App.2d at p. 249, 210 P.2d 530.) The courts of other jurisdictions have been disposed to qualify the common law rule, especially when the drunken customer inflicted injury on an innocent third person. (Rappaport v. Nichols (1959) 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821; MiKinney v. Foster (1958) 391 Pa. 221, 137 A.2d 502; see Annot. 75 A.L.R.2d 833; 18 W.Res.L.Rev. (vol. No. 1) 251 (1966); Johnson, Drunken Driving--The Civil Responsibility of the Purveyor of Intoxicating Liquor, 37 Ind.L.J. 317 (1962).)

Remarkably enough, the California tavernkeeper decisions unanimously declare that the customer's intoxication and not the sale of liquor is the proximate cause of the injury. (Cole v. Rush, supra, 45 Cal.2d at p. 356, 289 P.2d 450; Lammers v. Pacific Electric Ry. Co., supra, 186 Cal. at p. 384, 199 P. 523; Fleckner v. Dionne, supra, 94 Cal.App.2d at pp. 250--251, 210 P.2d 530; Hitson v. Dwyer, supra, 61 Cal.App.2d at p. 809, 143 P.2d 952.) Such declarations form a back-eddy running counter to the mainstream of modern tort doctrine. Presentday tort analysis views causation primarily as a fact question for the jury, not as a law proposition for the court. (Mosley v. Arden Farms (1945) 26 Cal.2d 213, 219, 157 P.2d 372, 158 A.L.R. 872; Ishmael v. Millington (1966) 241 Cal.App.2d 520, 525--526, 50 Cal.Rptr. 592; Restatement of Torts Second, § 434; Prosser on Torts (3d ed.) p. 329; see Cole v. Rush, supra, 45 Cal.2d at p. 366, 289 P.2d 450 (dissent).) A defendant may be liable if his negligence is a substantial factor in causing the injury, and the presence of intervening causal forces does not relieve him from liability if those forces were foreseeable. (Stewart v. Cox (1961) 55 Cal.2d 857, 863--864, 13 Cal.Rptr. 521, 362 P.2d 345; Richardson v. Ham (1955) 44 Cal.2d 772, 777, 285 P.2d 269; Eads v. Marks (1952) 39 Cal.2d 807, 812, 249 P.2d 257; Mosley v. Arden Farms, supra, 26 Cal.2d at p. 218, 157 P.2d 372; Ewart v. Southern Cal. Gas Co. (1965) 237 Cal.App.2d 163, 169--173, 46 Cal.Rptr. 631; Restatement Torts Second §§ 302, 302A, 431, 437.) If the realizable likelihood that another person may act in a particular manner is a hazard which makes the defendant negligent, that person's act, whether innocent or negligent, does not prevent the defendant from being liable for harm caused thereby. (Richardson v. Ham, supra, 44 Cal.2d at p. 777, 285 P.2d 269; Restatement of Torts Second, § 449; Prosser on Torts (3d ed.) pp. 175 et seq.)

Current judicial analysis considers the outer boundaries of negligence liability in terms of duty of care rather than proximate causation. The imposition of a duty of care and its extension to the expectable conduct of third persons is largely a question of law for the court. Where existence of a duty is brought into question, its affirmation rests in part upon social policy factors, in part upon an inquiry whether the actor's conduct involves a foreseeable risk to persons in the plaintiff's situation. (Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 307--308, 29 Cal.Rptr. 33, 379 P.2d 513; Richards v. Stanley, supra, 43 Cal.2d at pp. 66--67, 271 P.2d 23; Hergenrether v. East (1964) 61 Cal.2d 440, 444--445, 39 Cal.Rptr. 4, 393 P.2d 164; Richardson v. Ham, supra, 44 Cal.2d at p. 777, 285 P.2d 269; Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 6, 31 Cal.Rptr. 847.) In the consideration of a general demurrer or motion for nonsuit in a negligence action, the dispositive issue is usually the legal question of duty, not the fact question of proximate cause. (Amaya v. Home Ice, Fuel & Supply Co., supra, 59 Cal.2d at p. 307, 29 Cal.Rptr. 33, 379 P.2d 513.) This Court observed in Raymond v. Paradise Unified School Dist., supra (218 Cal.App.2d p. 6, 31 Cal.Rptr. p. 850): 'Divergent results are possible and judicial disagreements arise by approaching negligence determinations through the gateway of duty, on the one hand, or proximate causation on the other.'

When the facts at hand are approached as a duty of care problem, there may be justification for a rule imposing liability on a service station operator who sells gasoline to a recognizably intoxicated motorist. The operator is negligent as to persons beyond his vision when his conduct creates a recognizable risk of harm to them. (See com. c, Restatement of Torts Second, § 281(b).) The element of foreseeability offers no problem. There is no 'freak accident' here, no extraordinary combination of events culminating in an unforeseeable injury. (See Premo v. Grigg, 237 Cal.App.2d 192, 46 Cal.Rptr. 683; Prosser, Selected Topics on the Law of Torts: Palsgraf Revisited (1953) 191, 234--239.) Supplying motive power to a drunk driver involves a recognizable, indeed obvious, danger to other motorists and pedestrians. ¹ The assumption of foreseeability for pleading purposes does not prevent the defendant from presenting evidence that it did not know or have reason to believe that the customer was drunk and that it acted as a reasonably prudent person. ² Given the foreseeability of harm to the injured plaintiff, the inquiry then centers on the array of policy factors which justify affirmation or denial of the duty. (See, e.g., Amaya v. Home Ice, Fuel & Supply Co., supra, 59 Cal.2d...