Levy-Zentner Co. v. Southern Pac. Transportation Co.

• Decision Date: 09 November 1977
• Docket Number: LEVY-ZENTNER
• Citation: 142 Cal.Rptr. 1,74 Cal.App.3d 762
• Court: California Court of Appeals Court of Appeals
• Parties: COMPANY, Plaintiff, Cross-Defendant and Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY et al., Defendants, Cross-Complainants and Appellants, S. Reikes & Sons of California, Inc., et al., Defendants, Cross-Defendants and Respondents. VERMONT MARBLE COMPANY et al., Plaintiffs and Appellants, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Appellant. HARMS OF CALIFORNIA et al., Plaintiffs and Appellants, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Appellant. MURRAY H. FOX COMPANY, INC., et al., Plaintiffs and Appellants, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Appellant, S. Reikes & Sons of California, Inc., Defendant and Respondent. Civ. 37997, 37998, 37999 and 38004.

Page 1

142 Cal.Rptr. 1

74 Cal.App.3d 762

LEVY-ZENTNER COMPANY, Plaintiff, Cross-Defendant and Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY et al., Defendants, Cross-Complainants and Appellants, S. Reikes & Sons of California, Inc., et al., Defendants, Cross-Defendants and Respondents.

VERMONT MARBLE COMPANY et al., Plaintiffs and Appellants, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Appellant.

HARMS OF CALIFORNIA et al., Plaintiffs and Appellants, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Appellant.

MURRAY H. FOX COMPANY, INC., et al., Plaintiffs and Appellants, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Appellant, S. Reikes & Sons of California, Inc., Defendant and Respondent.

Civ. 37997, 37998, 37999 and 38004.

Court of Appeal, First District, Division 2, California.

Nov. 9, 1977.

Dunn & McDonald by James T. McDonald, Paul Newman, San Francisco, Nevin & Nevin by James P. Nevin, San Francisco, Thornton, Taylor & Downs by Francis X. Doherty, Greg S. Tolson, San Francisco, Hall, Henry, Oliver & McReavy by Jeffrey Kaufman, San Francisco, for plaintiff, cross-defendant and appellant.

Knox, Ricksen, Snook, Anthony & Robbins, Stephen S. Harper, Oakland, Richard G. Logan, Oakland, for defendants, cross-complainants and appellants.

TAYLOR, Presiding Justice.

1] In these consolidated actions, ¹ Southern Pacific Transportation Company (Southern Pacific) appeals from adverse judgments entered on 10-2 verdicts in favor of the tenants and owners, who sought property damages after Southern Pacific's Kentucky Street warehouse (warehouse) was completely destroyed by a five-alarm fire on June 29, 1969. ² On its appeals, Southern Pacific contends that the cumulative effect of the following errors on the only and close issue of its liability requires reversal: 1) insufficiency of the evidence to support the judgment and verdict, as there was no substantial evidence of its negligence 2) the court's conditional res ipsa instruction and refusal of Southern Pacific's proffered instructions on contributory negligence and BAJI 3.13 (right to assume the good conduct of others); 3) the admission into evidence of certain accident reports prepared by some of Southern Pacific's employees; 4) the introduction into evidence of a request for the admission of interrogatories propounded by Southern Pacific to its codefendant Reikes, and Reikes' responses; and 5) the exclusion of Southern Pacific's evidence as to its duty of reasonable care under the particular economic circumstances of a low rent warehouse.

The tenants and owners appeal from that portion of the judgments after a court trial ³ denying them prejudgment interest. They contend that Civil Code section 3287, subdivision (a), applies to tort actions for property damage, and that in the instant case their damages were certain or capable of being made certain within the language of the statute. We have concluded that the portion of the judgment on the verdict against Southern Pacific must be affirmed; however, the portion of the judgment denying prejudgment interest must be reversed as prejudgment interest pursuant to Civil Code section 3287, subdivision (a), is available as a matter of law in tort actions for property damages from the date when the defendant has notice of an amount certain or capable of being made certain.

I Southern Pacific's Appeal

Viewing the record most strongly in favor of the judgment on the verdict against Southern Pacific, ⁴ the following facts appear: In 1969, Southern Pacific's warehouse was located in the Mission Bay Yard, an unfenced freight switching yard that is part of a complex of transportation facilities located near San Francisco Bay.

The warehouse, a wooden shed built in 1907, fronted to the east on 1400 Third Street; to the west, there was a railroad switching yard. The warehouse was 80 feet wide and originally 1064 feet long; however, an earlier fire on February 7, 1969, had destroyed approximately 113 feet of the north end of the warehouse. The warehouse rested on piers approximately three feet above the ground on the rail side to accommodate freight-hauling wagons. The open space beneath was insufficiently enclosed with boards and wire screens, as a number of screens and boards were missing or loose. Thus, the southern end of the warehouse was not enclosed. As there were no barriers, the 951-foot length of the space underneath the building at the time of the June 29, 1969 fire created a wind tunnel effect.

The warehouse was the oldest building in the Mission Bay Yard, and characterized as hazardous by experts because of its age, design and all wood construction. The individual bays exceeded 10,000 square feet and made containment of the fire difficult. As the result of the poor condition of the boards and screens, there was access to the area below the warehouse for itinerants. In addition, there was an accumulation of debris borne across the yard by the prevailing westerly winds.

Immediately abutting the southern end of the warehouse was a 125-foot extension known as the Coors Building. In 1947, Levy-Zentner built a warehouse a few feet south of the Coors Building. Levy-Zentner's building was 300 feet long, but 13 feet narrower than the neighboring buildings, and had a concrete foundation. The Levy-Zentner building had a standard fire wall, "the most foolproof fire protection tool available."

The Southern Pacific warehouse had no fire walls and was an "open area" from "a fire protection point of view." There were no automatic or manual alarm systems or a sprinkler system in the warehouse or nearby area. The available city fire hydrants were inadequate and Southern Pacific did not provide additional private hydrants of its own. ⁵

The day of the fire, Sunday, June 29, 1969, was clear, windy and quiet. The only tenant activity at the warehouse was a brief visit by Mr. S. DiLeo, of L & S Drayage, between 12:45 and 1:30 p.m. There was some switching activity in the yard, but none on Track 178, the one immediately adjacent to the warehouse, Coors, and Levy-Zentner buildings. At this time, the area "is virtually abandoned except for passing police cars." "Most security rounds are set up to give the greatest coverage of properties during periods of time when they are otherwise unattended." On June 29, 1969, Southern Pacific had only one patrolman for all of its spurs in the City and County of San Francisco. No one was patrolling the Mission Bay Yard.

Southern Pacific's Mission Bay Yardmaster, William Honsinger, was the first witness to the fire. At 5:05 p. m., he was standing outside the yard office southwest of the warehouse about three-fourths of the way toward its north end. ⁶ Honsinger went into the yard office and telephoned Mr. McDonnell of Southern Pacific's Police Department to advise him that there was smoke near Track 178.

Honsinger then took a two-gallon water fire extinguisher from the yard office and drove down between the tracks to a point five tracks west of Track 178. Honsinger did not call the fire department as the fire appeared too insignificant to him. He crossed three or four of the tracks and then realized that the smoke was coming from underneath, rather than beside, the warehouse. Honsinger returned to his vehicle and radioed McDonnell. McDonnell initially did not notify the fire department as he thought Honsinger could handle the matter on his own. McDonnell's report to Stone, Southern Pacific's Chief Special Agent, indicated that he had telephoned the fire department at 5:30 p.m. Honsinger estimated the elapsed time between the first telephone call and subsequent radio call as about five minutes. Honsinger first stated that he telephoned the fire department at the first sighting at 5:05 p.m., but then admitted that he never notified the fire department.

Southern Pacific Police Patrolman Dennis Barlesi intercepted Honsinger's radio call while he was at Fourth and Berry Streets, about 5:10 or 5:15 p.m. Barlesi could not remember a request made by Honsinger to notify the San Francisco Fire Department. Barlesi immediately drove to the warehouse, parked on the east side, and went around to the west side of the warehouse to combat the fire with a small CO2 fire extinguisher. ⁷ He saw smoke coming from underneath the warehouse and the floor burning from beneath. He also saw "Flames on the underpart of the loading dock creeping along the loading dock itself." Barlesi did not notify the fire department as he assumed that someone had already done so. By this time, neither he nor Honsinger nor McDonnell had notified the San Francisco Fire Department.

The fire department's official records indicated that the first alarm was received at 5:18 p.m., ⁸ 13 minutes after it was first seen by Honsinger. According to the tenants' and owners' expert Berg, this 13-minute delay in reporting the fire made the difference between a fire that might have been contained and the violent, uncontrollable blaze that occurred.

Engine Company 19, stationed one block from the warehouse, was the first fire unit to arrive on the scene; Company 19 arrived on the east side of the warehouse at about 5:19 p.m., within one and one-half minutes of the first alarm. Milton Anderson, a fire-fighter in No. 19, stated that they forcibly opened a door on the east side of the warehouse at 5:21 p.m. and that approximately 30 seconds later there was an explosion which knocked down and injured nearby fire-fighters. At the same time, on the west side of the warehouse, Barlesi was similarly injured by the sudden blast.

San Francisco Fire Investigator, Robert Gerhow, and Inspector O'Donnell, stationed at Engine Company 14 at Oak and Franklin Streets, responded to the second alarm at 5:23 p.m., and arrived at about the time of the third alarm (5:23 p.m.). The city's investigation began with an interview with Honsinger in the yard office, but was subsequently impeded because the yard office...