Jamison v. Mark C. Bloome Co.

• Decision Date: 25 November 1980
• Citation: 112 Cal.App.3d 570,169 Cal.Rptr. 399
• Court: California Court of Appeals Court of Appeals
• Parties: April JAMISON and Tranessa Oliver, a Minor, by and through her Mother and Guardian ad Litem, April Jamison, Plaintiffs and Appellants, v. MARK C. BLOOME COMPANY, a corporation, Defendant and Respondent. Civ. 57649.

Page 399

169 Cal.Rptr. 399

112 Cal.App.3d 570

April JAMISON and Tranessa Oliver, a Minor, by and through her Mother and Guardian ad Litem, April Jamison, Plaintiffs and Appellants, v. MARK C. BLOOME COMPANY, a corporation, Defendant and Respondent.

Civ. 57649.

Court of Appeal, Second District, Division 3, California.

Nov. 25, 1980.

Hearing Denied February 11, 1981.

Arthur H. Zacks, Los Angeles, for plaintiffs and appellants.

Murchison & Cumming, and Bonnie S. Bass, Los Angeles, for defendant and respondent Mark C. Bloome Company, Inc.

POTTER, Acting Presiding Justice.

Plaintiffs April Jamison and Tranessa Oliver appeal from a judgment for defendant Mark C. Bloome Company, Inc., after defendant's motion for nonsuit was granted.

The complaint sought damages for personal injuries sustained when plaintiffs slipped and fell on the sidewalk adjacent to defendant's premises which "were used for the purpose of servicing automobiles." The complaint alleged that the proximate cause of the accident was defendant's negligence in allowing oil to flow from said premises onto the sidewalk.

The evidence in behalf of plaintiffs was adequate to show that the plaintiffs did slip and fall in oil which had flowed from defendant's premises onto the sidewalk. The accident occurred in the evening hours after the close of defendant's business operations. The source of the oil was two 55-gallon oil drums used for the storage of waste oil. They had been overturned and emptied. There were four such barrels in which the waste oil was collected so that it could be periodically collected and recycled. The four drums were stored outside of a service building on a bed of gravel encased by a 2 X 4 wood frame. The day following the accident, two of the four cans were found to have been overturned and the caps removed.

Access to the drums was limited by the presence of a large truck-trailer permanently parked parallel to the wall of the building against which the drums were stored. The distance between the trailer and building was insufficient to allow passage between it and the drums. Access to the middle drums required reaching over the two end drums.

There was no evidence of the precise manner in which the contents had been spilled from the drums. It was obvious, however, that there had been deliberate human intervention since the caps had been unscrewed from the drums and they had been moved some distance after they were emptied. Since no motivation was apparent, the only logical inference was that the spilling of the drums was malicious mischief by unknown vandals. Defendant's premises were located in south central Los Angeles (at 108th and Western), approximately one-half block from Washington High School.

Plaintiff examined two of defendant's employees as adverse witnesses. Richard McClure, a mechanic who worked at the station at the time of plaintiffs' accident, testified that it had been possible to accommodate the drums inside the service building by relocating the facilities which contained new oil so that both new and old oil containers were locked up at night.

Jerry Rogers, a regional vice president of defendant company, was also examined by plaintiffs. He had been a district supervisor in charge of five stores, including the one at 108th and Western at the time of plaintiffs' accident and at the time of his testimony was a supervisor of the activities of 20 stores. In his capacity as supervisor, he had authorized the maintenance of the oil drums in their outside location, based upon aesthetics and avoidance of excessive carrying distances from the service bays. Rogers confirmed McClure's testimony that it had been possible to accommodate the drums inside the service building by removing shelving and moving new oil supplies.

Rogers was also examined as to the incidence of vandalism at defendant's facilities. His testimony in this respect was that prior to the occurrence of plaintiffs' accident, the location at 108th and Western had the highest incidence of vandalism of any of the five stores that he supervised. This vandalism included a variety of destructive acts, including the breaking of windows in the office building, the throwing of rocks at the sign on the front of the building and gas pumps had been "kicked and damaged and banged on." A plastic or glass cover of a message board was also continually broken. There was no evidence, however, that the acts of vandalism had ever previously been directed at the waste oil drums nor that any person had ever been endangered or injured as a result of the acts of vandalism. There also had been several burglaries which involved people "breaking in and stealing tires."

The trial court based its ruling granting the nonsuit upon the lack of any duty on defendant's part. After noting that the cause of plaintiffs' injury was "an intentional act or acts committed with a certain amount of deliberation," the court concluded that defendant's failure "to have anticipated that unknown third persons would commit an unlawful act against the property ... that ... would be the direct cause of injury" was not a breach of duty.

Contentions

Plaintiffs contend that the court erred in granting the motion for nonsuit because: (1) the evidence is sufficient to show defendant's negligence in light of the prior acts of vandalism, making the risk of harm foreseeable; (2) it is not necessary that the manner in which the harm occurred be foreseeable; and (3) the intervening act of tampering with the oil drums does not break the chain of causation.

Defendant contends that the evidence is insufficient as a matter of law to establish a breach of defendant's duty toward plaintiffs.

Discussion

Summary

Duty of care is a question of law. The plaintiffs' evidence does not establish any breach of duty on defendant's part. Though prior acts of vandalism had occurred, they did not endanger anyone's personal safety. Consequently, they did not give defendant reason to know that plaintiffs required protection from such conduct.

Duty of Care is a Question of Law for the Court

The "existence of a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member" is a sine qua non of a negligence action. (Routh v. Quinn (1942) 20 Cal.2d 488, 491, 127 P.2d 1.) "Whether such a duty is owed in a given situation is a question of law for the court to determine." (Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799, 803, 87 Cal.Rptr. 50.)

Plaintiffs' Evidence Fails to Show Any Breach of Duty on Defendant's Part

The evidence establishes that plaintiffs were injured as a result of the slippery condition of the sidewalk adjoining defendant's premises occasioned by the flow of a large volume of waste oil from two 55-gallon drums on defendant's property which had been deliberately emptied by persons unknown. There is no evidence that any representative of defendant had so emptied the barrels so defendant's negligence, if any, consists of its failure to prevent vandals from doing so. Though defendant had taken no effective steps to secure the drums, they were not a dangerous condition of defendant's property until so tampered with. (Richter v. Adobe Creek Lodge (1956) 143 Cal.App.2d 514, 516-517, 299 P.2d 941.) Defendant had no opportunity to deal with a dangerous condition created by the spillage since it occurred after close of business and only a short time before plaintiffs slipped and fell in the oil. The rules applicable, therefore, to the determination of duty are those which relate to a possessor of land in respect of harmful acts of third parties thereon which cause personal injury.

The fundamental rule of possessor's liability is stated by our Supreme Court in Rowland v. Christian (1968) 69 Cal.2d 108, 119, 70 Cal.Rptr. 97, 443 P.2d 561:

".... The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative."

In so eliminating limitations upon the possessor's duty to act "as a reasonable man in view of the probability of injury to others" based upon non-invitee status, the court did not suggest any departure from existing rules defining the duty of care toward invitees. At most it held that persons lacking that status were, under appropriate circumstances, entitled to the same protection.

We examine, therefore, the duty of defendant as the possessor of land on the assumption that its duty to plaintiffs was the same as that which it owed to business invitees. The duty of the possessor of land to invitees to protect them from physical harm caused by the intentionally harmful acts of third persons is stated in Restatement Second of Torts, section 344, pages 223-224, as follows:

"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

"(a) discover that such acts are being done or are likely to be done, or

"(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it."

Comment (f) to section 344 states (id., at pp. 225-226):

"Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that...