Khanoyan v. All Am. Sports Enterprises, Inc.

• Decision Date: 21 September 1964
• Citation: 40 Cal.Rptr. 596,229 Cal.App.2d 785
• Court: California Court of Appeals Court of Appeals
• Parties: Michael KHANOYAN, Plaintiff and Appellant, v. ALL AMERICAN SPORTS ENTERPRISES, INC., Defendant and Respondent. Civ. 27955.

Page 596

40 Cal.Rptr. 596

229 Cal.App.2d 785

Michael KHANOYAN, Plaintiff and Appellant, v. ALL AMERICAN SPORTS ENTERPRISES, INC., Defendant and Respondent.

Civ. 27955.

District Court of Appeal, Second District, Division 4, California.

Sept. 21, 1964.

Harney, Ford & Schlottman and Robert E. Ford, Los Angeles, for plaintiff and appellant.

McBain & Morgan and James L. Roper, Los Angeles, for defendant and respondent.

BURKE, Presiding Justice.

On May 22, 1960, plaintiff was a paying spectator and business invitee at a 'destruction Derby,' a form of entertainment operated by defendant consisting of a series of collisions between old 'jalopies.' The winner of the derby was the driver of the last vehicle remaining in operating condition. Seated in the twelfth row of the grandstand, plaintiff was struck in the chest by a portion of a fan blade flying from one of the colliding vehicles participating in the derby.

Plaintiff's suit for damages for personal injuries, tried before a jury, resulted in a judgment for defendant. A motion for new trial was denied and plaintiff appeals from the judgment.

The sole issue raised on appeal is the asserted error of the trial court in refusing to instruct the jury upon the doctrine of res ipsa loquitur. The appeal is brought on a settled statement, which, omitting exhibits, is partially set forth in the footnote. ¹

Plaintiff states that the elements required to entitle him to the inference of negligence on the part of defendant under the doctrine of res ipsa loquitur are (1) that it is the kind of accident which ordinarily does not occur in the absence of someone's negligence; (2) that it was caused by an agency or instrumentality in the exclusive control of the defendant; and (3) that the accident was not due to any voluntary action on the part of the plaintiff. (Shahinian v. McCormick, 59 Cal.2d 554, 559, 30 Cal.Rptr. 521, 381 P.2d 377; Raber v. Tumin, 36 Cal.2d 654, 659, 226 P.2d 574; Ybarra v. Spangard, 25 Cal.2d 486, 489, 154 P.2d 687.) The facts here involved, plaintiff contends, fulfill such requirements and the doctrine should apply.

The plaintiff requested instructions on the doctrine ² which the trial court refused to give. The underlying hypothesis for res ipsa loquitur is that, when certain elements exist and when the facts relating to the happening or occurrence of an accident are either disputed (Shahinian v. McCormick, supra, 59 Cal.2d 554, 30 Cal.Rptr. 521, 381 P.2d 377) or unknown (as in Cho v. Kempler, 177 Cal.App.2d 342, 348, 2 Cal.Rptr. 167, 76 A.L.R.2d 774), an inference arises of negligence, based on the presumed probability ability which entitles a plaintiff to a res ipsa loquitur instruction.

Defendant, on the other hand, contends that when all of the physical facts and evidence as to the nature and cause of an accident are admitted and undisputed, as it asserts is the case here, there is no reason or basis whatever for applying the doctrine since the issue of whether or not the defendant or defendants were negligent is squarely presented to the jury as a question of fact. (Keller v. Pacific Tel. & Tel. Co., 2 Cal.App.2d 513, 525-526, 38 P.2d 182.)

It is agreed here that the sole theory of liability is that the protective screen provided by defendant was not high enough to intercept the flying particle which caused the alleged injuries. Furthermore, it is admitted that all the pertinent facts and circumstances relating to the accident in question were presented in evidence and that they are undisputed. Thus, defendant asserts, there is no basis in law or logic to instruct the jury on the doctrine of res ipsa loquitur which creates an inference based upon probabilities, when the precise and exact facts are all known. To do so, it contends, would only confuse and mislead the jury. Defendant concludes that the trial judge's refusal to give a res ipsa loquitur instruction was therefore proper and did not prejudice plaintiff in any manner.

In Keller v. Pacific Tel. & Tel. Co., supra, 2 Cal.App.2d 513, 525-526, 38 P.2d 182, 187, it is held: 'The doctrine of res ipsa loquitur is applicable only in the absence of actual knowledge of just how an accident occurs. * * * 'The very hypothesis of the doctrine is that the plaintiff has no knowledge of just what caused the accident, and that, since the instrumentality by means of which the accident occurred is solely within the control of the defendant, negligence will be inferred upon proof of a prima facie case, in the absence of an adequate explanation on the part of the defendant exempting him from liability.''

The reconciling of these two apparently conflicting views, both of which find support in the decisions, depends upon a comparison of the facts in the instant case with those in recent decisions of the Supreme Court.

In Di Mare v. Cresci, 58 Cal.2d 292, 298-300, 23 Cal.Rptr. 772, 776, 373 P.2d 860, 864, the physical circumstances which brought about plaintiff's injury were fully known as in the case before us. A step on the stairway gave way beneath plaintiff; she fell through the resulting opening up to her waist and was injured. The question for the jury was to determine whether by the exercise of reasonable care the lessor of the premises should have discovered the faulty condition of the stairway and corrected it. The Supreme Court held that these circumstances warranted the application of the doctrine of res ipsa loquitur, the court declaring that the doctrine is applicable' * * * where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible. [Citations.] On the basis of the existence of such probabilities, the doctrine has been applied where the defendant was responsible for construction, maintenance, or inspection of the defective premises which caused the injury. [Citations.]

'The introduction of evidence of specific acts of negligence does not deprive the plaintiff of the benefit of the doctrine unless the facts as to the cause of the accident and the care exercised by the defendant are shown as a matter of law thus eliminating any justification for resort to the inference of negligence. [Citations.] The doctrine may be invoked whether or not the defendant was in a better position than the plaintiff to explain what occurred so long as it appears more probable than not that the injury resulted from the defendant's negligence. [Citations.] If the rules were otherwise, a plaintiff would be penalized for producing all of the evidence he has as to the cause of the accident, and in some cases the trier of fact might be denied evidence useful and relevant to the proper determination of the case. Language in McKenzie v. Pacific Gas & Elec. Co., 200 Cal.App.2d 731, 735, 19 Cal.Rptr. 628; Grigsby v. Pacific Gas & Elec. Co., 182 Cal.App.2d 64, 65, 5 Cal.Rptr. 616; Hendershott v. Macy's, 158 Cal.App.2d 324, 327-329, 322 P.2d 596; and Billeter v. Rhodes & Jamieson, Ltd., 104 Cal.App.2d 137, 147, 231 P.2d 93, is disapproved insofar as it is inconsistent with the views expressed above. * * *

'The facts giving rise to the doctrine being undisputed, the jury was properly instructed that the inference of negligence arose as a matter of law. This of course, does not mean that there was liability as a matter of law but only that defendant had the burden of meeting or balancing the inference [citation], and the instruction given in the present case recognized that the inference could be balanced by defendant by showing that she did, in fact, exercise due care or that the accident was caused by factors which did not involve negligence on her part.'

Similarly, in Furtado v. Montebello Unified School Dist., 206 Cal.App.2d 72, 23 Cal.Rptr. 476, this court in following the law of Di Mare v. Cresci, supra, held that the circumstances of the case were such as to warrant the application of the doctrine. There, as in the case before us, the physical facts of the accident were fully known. An instructor, who was demonstrating two steel bars to pupils in his class, dropped one of the bars which struck plaintiff on the top of his foot. Defendants argued, as they do in the case before us, that the doctrine was inapplicable, claiming that the cause of the accident was well known. They maintained further that to apply the doctrine, under the facts presented, permitted, if in fact it did not require, the jury to give double weight to the evidence against defendants, first, through presentation of the facts themselves as to how the accident occurred, and then through utilizing the inference of negligence under the doctrine. They asserted, as does the defendant here, that plaintiffs' evidence revealed exactly and specifically wherein and how plaintiffs claim negligence to have existed. The defendants in Furtado, supra, asserted that they were thereby required not only to meet this specific charge of negligence but also by the instruction to the jury to bear the burden of meeting the inference. This court ruled that under the Di Mare case the giving of the instruction was proper.

Similarly, in Shahinian v. McCormick, supra, 59 Cal.2d 554, at 563, 30 Cal.Rptr. 521, at 526, 381 P.2d 377, at 382, 'Even if it could be said that there was testimony which tended to show specific acts of negligence or which touched upon the cause of the accident, that fact alone will not deprive the plaintiff of a res ipsa loquitur instruction.'

In Bischoff v. Newby's Tire Service, 166 Cal.App.2d 563, 568, 333 P.2d 44, 47, plaintiff drove his car to defendants' tire shop, removed one of the wheels and took it and a spare tire into the shop for a tire change. Defendant was installing the spare tire when the head of the hammer he was using flew off and hit plaintiff in the face. Plaintiff contended on appeal that the trial court failed to give his requested instructions on res ipsa loquitur and ...