Ingham v. Luxor Cab Co.

• Decision Date: 15 November 2001
• Docket Number: No. A093683.,A093683.
• Citation: 113 Cal.Rptr.2d 587,93 Cal.App.4th 1045
• Court: California Court of Appeals Court of Appeals
• Parties: Mary E. INGHAM, Plaintiff and Appellant, v. LUXOR CAB COMPANY, Defendant and Respondent.

113 Cal.Rptr.2d 587

93 Cal.App.4th 1045

Mary E. INGHAM, Plaintiff and Appellant, v. LUXOR CAB COMPANY, Defendant and Respondent.

No. A093683.

Court of Appeal, First District, Division 2.

November 15, 2001.

Rehearing Denied December 17, 2001.

Review Denied January 23, 2002.

Stephen M. Mackouse, Esq., San Francisco, for Plaintiff and Appellant.

Leach, McGreevy & Labrador, Peter C. Labrador, Esq., for Defendant and Respondent.

KLINE, P.J.

STATEMENT OF THE CASE

Mary E. Ingham filed a complaint against respondent Luxor Cab Company alleging wrongful ejectment and intentional and negligent infliction of emotional distress. The trial court granted respondent summary judgment and denied appellant's motion for reconsideration. We reverse.

STATEMENT OF FACTS¹

Appellant is a 57-year-old woman who has suffered from diabetes since 1978. As a result, she experiences kidney failure requiring dialysis, diabetic neuropathy causing numbness and pain in her limbs and body, carpal tunnel syndrome, and depression requiring therapy. The dialysis treatments she received in 1997 and 1998 caused fatigue and stabbing shoulder pain, and made her bones brittle. Because she was physically unstable and suffered dizzy spells that caused falls, appellant needed a cane to stand or walk.

Appellant resided in San Francisco, on Hayes Street, between the cross streets of Clayton and Ashbury. On December 8, 1998, she had an appointment scheduled for 10:00 or 10:30 a.m. with Dr. Alcoury, a dentist whose office was located at 100 Buchanan Street in San Francisco, on the corner of Buchanan and Hermann. Appellant ordinarily would have traveled to the clinic either by taxi or bus. The Hayes Street bus stopped near her house, and she sometimes took it to Fillmore and then transferred to a bus that took her to the corner of Fillmore and Hermann. From there she would walk the remaining block and a half or so to the clinic, which was a fairly level walk. Appellant had been going to this dentist once every two weeks for two or three months.

On the day of the appointment there was a power outage in San Francisco. Appellant felt it would be useless to call a taxi company on the phone, and knew the Hayes Street bus, being electrical, would not be operating, so she went to Haight Street to wait for either a non-electric bus or a taxi, whichever came first, to take her to the dental clinic. Had appellant used a Haight Street bus, she would have taken it to the corner of Haight and Fillmore, then another bus to the corner of Fillmore and Hermann, and then walked about a block and a half to the clinic, as she did when she used the Hayes Street bus.

Appellant successfully hailed a Luxor cab. She spoke with the driver, but testified at deposition that she could not recall that he had any distinguishing features, although he spoke unaccented English. After putting her cane on the back seat, she entered the cab in an elaborate manner, backing onto the seat, pulling her legs into the car, and using her hands to lift her left leg into the cab. After she seated herself, appellant gave the driver the address of the dental clinic. He drove a couple of blocks south on Clayton Street, turned east and "went a round about [sic] way on residential streets like over the hill," got back onto Haight, went past Buchanan and stopped at Laguna Street. Appellant did not realize they had passed Buchanan until they reached Laguna, where the driver pulled over and stopped before the intersection. The driver told her "something about the power outage was bothersome and he was in a hurry to get to his coffee shop and wait out the power outage." After also stating that there were too many cars on the street, he told appellant to get out. Appellant observed there were no traffic problems that day, even though traffic lights were not working. She told the driver she was on dialysis, showed him the cane she needed, and said she did not think she could walk to the clinic from there, as there was a steep hill and she lacked balance and did not feel very well. At some point appellant began crying and begged the driver to take her the remaining two blocks. After he refused and told her again "to get out," she paid him and left the car, which then sped off.

Appellant felt she had no choice but to continue the rest of the way on foot. No bus traveled between the drop-off point and the dentist's office, and she saw no cabs. She walked one block south on Laguna and then turned west on Hermann. The block of Hermann she needed to negotiate was entirely uphill. She walked a few feet and stopped, walked a few more feet and stopped, and repeated this process at least three more times. Then she "tilted" and fell backwards and to her left onto the sidewalk, skinning her left knee and fracturing her hip. She had not tripped on any object, nor was there anything unusual about that stretch of sidewalk other than the incline.

DISCUSSION

The Standard of Review

Summary judgment is to be granted only when there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) All doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562, 42 Cal.Rptr.2d 697.) The standard of review for summary judgment rulings is de novo. (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819, 44 Cal. Rptr.2d 56.) Our Supreme Court has declared that "[d]uty, being a question of law, is particularly amenable to resolution by summary judgment." (Parsons v Crown Disposal Co. (1997) 15 Cal.4th 456, 465, 63 Cal.Rptr.2d 291, 936 P.2d 70.)

Respondent Breached the Duty to Deliver Appellant to the Address She Designated

Actionable negligence involves (a) a legal duty to use care, and (b) a breach of that duty which (c) is the proximate or legal cause of the resulting injury. (E.g., Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614, 76 Cal.Rptr.2d 479, 957 P.2d 1313.) At the commencement of the hearing on respondent's motion for summary judgment, the trial court stated its "tentative ruling" that "there is just no breach of the duty. I suppose more aptly, I might have said there is no duty." The court noted that appellant was not injured inside the cab, but "after she's out of the car." When appellant's counsel argued that appellant's injury was caused by her wrongful ejectment at a place other than her destination, the court rhetorically asked: "Where is it written in the law that the cab driver has an obligation to deliver a person to the ultimate destination that the person asked to be delivered to?"

In the order granting summary judgment, the court adopted its tentative ruling. The court's conclusion that "[t]here is no triable issue of fact re breach of duty," is seemingly predicated on the undisputed fact that, as stated in the order, "[appellant] walked one and one half blocks from where she exited the cab and then fell down." Stated differently, the court appears to have accepted respondent's argument that any duty respondent may have owed appellant was discharged at the time appellant left the cab at a safe place, and respondent could not be held liable for the injury she thereafter suffered.

In the trial court's view, a passenger of a taxicab has no contractual right to be taken to a designated place. The alleged breach of such a contract, the court reasoned, could not support causes of action that sound in tort. At the hearing on appellant's motion for reconsideration, the court observed that appellant had not alleged breach of contract. "If you had a contract action that might be an interesting thing. Of course, your contract damages, I'd probably be saying to you, `Sorry, go downstairs, or go to small claims court.' Because it's clearly not within the jurisdiction of the unlimited jurisdiction courts. Failure to transport somebody the last two blocks. You know, their fee for that might have been sixty cents, or whatever it is per quarter mile today.... [¶] So that as a contract case [you have] a very limited issue. So then your next point is look, she slipped and she fell on the sidewalk after she's discharged. Okay? You know, I guess what I am saying to you is I don't think that they have breached a duty here."

The trial court's analysis and conclusion were clearly erroneous.

A taxicab is a common carrier. (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 657, 320 P.2d 500; McNeil v. Yellow Cab Co. (1978) 85 Cal.App.3d 116, 118, 147 Cal.Rptr. 733; 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 768, pp. 107-108.) Except where a passenger is carried gratuitously (see Civ. Code, § 2096), such carriers are held to a high standard of care for their passengers. Civil Code section 2100 specifies that "A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill."

There are two general types of "legal duty." The first is the duty of a person to use ordinary care in activities from which harm might reasonably be anticipated. The second is an affirmative duty where the person occupies a particular relationship to others. In the first situation, a person is not liable unless he or she is actively careless. In the second, a person may be liable for failure to act affirmatively to prevent harm. (See 6 Witkin, Summary of Cal. Law, supra, Torts, § 732, p. 61.) As construed by the courts, Civil Code section 2100 elevates the duty of a common carrier to its passengers to the higher, affirmative duty. (See, e.g., Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785, 221 Cal. Rptr. 840, 710 P.2d 907.)

California's courts have, for example, long held that when a common carrier contracts to convey a person, such contract gives...