Gardner v. Downtown Porsche Audi

• Decision Date: 02 May 1986
• Docket Number: No. B008999,B008999
• Citation: 180 Cal.App.3d 713,225 Cal.Rptr. 757
• Court: California Court of Appeals Court of Appeals
• Parties: Bruce GARDNER, Plaintiff and Respondent, v. DOWNTOWN PORSCHE AUDI, Defendant and Appellant.

Page 757

225 Cal.Rptr. 757

180 Cal.App.3d 713

Bruce GARDNER, Plaintiff and Respondent, v. DOWNTOWN PORSCHE AUDI, Defendant and Appellant.

No. B008999.

Court of Appeal, Second District, Division 7, California.

May 2, 1986.

As Modified May 30, 1986.

Review Denied July 17, 1986.

Rubin, Eagen & Feder and Don Erik Franzen, for defendant and appellant.

Sam B. Dunford for plaintiff and respondent.

JOHNSON, Associate Justice.

This case raises an issue common in daily life yet one which has received almost no attention in California appellate decisions. May an automobile repair garage avoid liability for its negligence by having car owners sign a waiver form when they leave their cars with the garage? In this opinion, we hold they cannot and affirm the judgment below.

FACTS AND PROCEEDINGS BELOW

In late June 1978, respondent Bruce Gardner (Gardner) took his 1976 Porsche 911 automobile to be repaired at appellant Downtown Porsche Audi (Downtown). The record on appeal suggests Gardner signed a form repair order bearing the disclaimer "NOT RESPONSIBLE FOR LOSS OR DAMAGE TO CARS OR ARTICLES LEFT IN CARS IN CASE OF FIRE, THEFT OR ANY OTHER CAUSE BEYOND OUR CONTROL." For purposes of this appeal, Downtown concedes it was negligent in the care and safekeeping of Gardner's vehicle. While it was parked in the repair garage someone stole the 1976 Porsche. Gardner sued Downtown for failing to redeliver this car.

On September 16, 1983, the case was tried before a judge. Judgment was entered on December 14, 1983, awarding

Gardner $16,000 plus costs. Downtown filed a notice of appeal on December 31, 1984, based on the judgment roll. The time for briefing expired on December 13, 1985.

DISCUSSION

Downtown concedes negligence but argues the disclaimer absolves it of liability for this failure to exercise due care. Assuming the truth of Downtown's contention Gardner signed a repair slip containing this exculpatory language, and even assuming he read and understood it, we find the attempted exemption from liability to be against public policy and thus ineffective to excuse Downtown's negligence.

In the absence of a disclaimer the duties and liabilities of a bailee for hire--such as Downtown--are clear. Unless it can redeliver the subject of the bailment--in this instance, the 1976 Porsche--the bailee must prove it exercised due care in its care and custody of this property. If it fails to establish the absence of negligence the bailee is liable to the bailor for any damages suffered due to the failure to redeliver the bailed property. (Witkin, 3 Summary of Cal. Law (8th ed. 1973), Personal Property, § 137, and cases cited therein.) This is true even where a third person stole the subject of the bailment and thus made redelivery impossible. (Perera v. Panama-Pacific Int. Exp. Co. (1918) 179 Cal. 63, 175 P. 454; England v. Lyon Fireproof Storage Co. (1928) 94 Cal.App. 562, 271 P. 532; Greenberg Bros., Inc. v. Ernest W. Hahn, Inc. (1966) 246 Cal.App.2d 529, 54 Cal.Rptr. 770; Beetson v. Hollywood Athletic Club (1930) 109 Cal.App. 715, 293 P. 821.)

It is these well-settled duties and liabilities which Downtown sought to avoid by asking customers to sign a form which said it was "not responsible for loss (of) cars ... in case of ... theft...." ¹

Traditionally the law has looked carefully and with some skepticism at those who attempt to contract away their legal liability for the commission of torts. (Prosser and Keeton, Torts, Fifth Edition (1984) pp. 482-483.) This general policy of the common law found legislative expression early in California's history with the enactment of Civil Code section 1668. This 1872 statute reads:

"CERTAIN CONTRACTS UNLAWFUL. All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law." (Civ.Code, § 1668, italics added.)

This section made it clear a party could not contract away liability for his fraudulent or intentional acts or for his negligent violations of statutory law. Less clear was the status of negligent violations of common law standards of care. While acknowledging some conflict in the cases, Witkin concludes California now follows the modern view of the Restatement of Contracts--"a contract exempting from liability for ordinary negligence is valid where no public interest is involved ... and no statute expressly prohibits it...." (Witkin, supra, 1 Summary of Cal. Law, Contracts, § 485, p. 411, italics added.)

The converse is also true, however. Under Civil Code section 1668 an automobile repair garage cannot exempt itself ' "(1) It concerns a business of a type generally thought suitable for public regulation. (2) The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. (3) The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards. (4) As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. (5) In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional fees and obtain protection against negligence. (6) Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents." ' (Tunkl v. Regents of University of California, supra, 60 Cal.2d at pp. 98-101, 32 Cal.Rptr. 33, 383 P.2d 441 quoted in Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 518, 143 Cal.Rptr. 247, 573 P.2d 465.)

from liability even for ordinary negligence if the service it provides implicates the public interest. In a leading case striking down exculpatory clauses in hospital admission forms, Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, the Supreme Court set forth six characteristics typical of contracts affecting the public interest. ²

The Supreme Court emphasized a contract could involve the public interest even if it did not meet each and every one of these six criteria. (Tunkl v. Regents of University of California, supra, 60 Cal.2d at p. 101, 32 Cal.Rptr. 33, 383 P.2d 441.) But it has not told us how many have to be satisfied--or which ones--before exculpatory clauses become unenforceable. Fortunately, we need not address this thorny problem since we find the automobile repair contract in the instant case exhibits all six characteristics outlined in the Tunkl opinion.

To begin with, automobile repair shops are in a "business of a type ... thought suitable for public regulation" in the state of California. They are licensed by the state and their performance is regulated by the Bureau of Automotive Repair of the State Department of Consumer Affairs.

(See Automotive Repair Act, Bus. & Prof.Code, §§ 9880 et seq.)

Secondly, these repair shops are most definitely engaged in "performing a service of great importance to the public, ..." and, moreover, one which is a "matter of practical necessity " for nearly all not just "some members of the public." At oral argument respondent suggested only the most vital, life-and-death functions were sufficiently in the "public interest" to satisfy this criterion. But the Tunkl opinion does not support this reading. It makes plain the real purpose of this part of the test is to ensure that consumers of the service are truly in an inferior bargaining position. As the Supreme Court said in Tunkl: "Since the service is one which each member of the public, presently or potentially, may find essential to him, he faces, despite his economic inability to do so, the prospect of a compulsory assumption of the risk of another's negligence. The public policy of this state has been, in substance, to posit the risk of negligence upon the actor; in instances in which this policy has been abandoned, it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not to shift the risk to the weak bargainer." (Tunkl v. Regents of University of California, supra, 60 Cal.2d 92, 101, 32 Cal.Rptr. 33, 383 P.2d 441.) Thus, this element of the Tunkl test appears to boil down to the following question: Is the service merely an optional item consumers can do without if they don't want to waive their rights to recover for negligence or is it something they need enough so they have little choice if the provider attaches a liability disclaimer?

In any event, even accepting respondent's proposed test of a vital, life-or-death function, automobile repair services would qualify. The modern citizen lives--and all too frequently dies--by the automobile. ³ Members of the general public need cars not merely for discretionary recreational purposes but to get to and from their places of employment, to reach the stores where they can purchase the necessities--as well as the frivolities--of life, and the like. ⁴ An out of repair automobile is an unreliable means of transportation. Moreover, it is a dangerous one as well--to pedestrians and other drivers not just the owner. What is true of modern society in general is doubly true in Southern California, the capital of the motor vehicle. Indeed it is virtually impossible to exist in the Los Angeles area without a fully operational automobile. Thus, except for the few who can afford to buy a new car every time the ash trays fill up, people in this area find the automobile repair business a ...