McCollum v. Friendly Hills Travel Center

• Decision Date: 12 September 1985
• Court: California Court of Appeals Court of Appeals
• Parties: Dennis Allan McCOLLUM, Plaintiff, Cross-Defendant, and Appellant, v. FRIENDLY HILLS TRAVEL CENTER, et al., Defendants, Cross-Complainants and Respondents. B011700.

Page 919

217 Cal.Rptr. 919

172 Cal.App.3d 83

Dennis Allan McCOLLUM, Plaintiff, Cross-Defendant, and Appellant, v. FRIENDLY HILLS TRAVEL CENTER, et al., Defendants, Cross-Complainants and Respondents.

B011700.

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

Sept. 12, 1985.

Review Denied December 19, 1985.

Garber, Sokoloff & Van Dyke and Gerald Sokoloff, Fullerton, for plaintiff, cross-defendant and appellant.

Law Offices of Stephen J. Sundvold, Fountain Valley, and Correse A. Cunningham, for defendants, cross-complainants and respondents.

McCLOSKY, Associate Justice.

Plaintiff Dennis Allan McCollum appeals from "the Judgment Granting the Motion for Summary Judgment in favor of FRIENDLY HILLS TRAVEL AGENCY [sic ] and TERRI TAPPEY made on or about January 17, 1985 and the dismissal of the complaint and from all judgments or orders which have been or will be entered in favor of defendants based on said Motion for Summary Judgment." ¹

FACTS

In his second amended complaint appellant pleads three unlabeled causes of action against respondents. The first cause of action alleges negligence, the second alleges a breach of express warranty and the third alleges a breach of an implied warranty. In all three causes of action appellant seeks redress for injuries he sustained when he fell while water skiing due to the allegedly negligent manner the "water skiing aspect of his vacation was maintained." Respondents, while acting in their capacity as travel agents, booked appellant into the hotel where he was injured.

Respondents answered the complaint denying generally its allegations and raising several affirmative defenses. Respondents also cross-complained for comparative contribution. Appellant generally denied the allegations of that cross-complaint.

The respondents filed a motion for summary judgment which appellant opposed. The facts presented in the moving and opposing papers are largely undisputed. For purposes of reviewing the propriety of the trial court's ruling we construe the evidence therein in the manner most favorable to appellant.

In July of 1981, appellant Dennis McCollum went to Friendly Hills Travel Center to arrange a water skiing and water sports vacation at Club Med in Cancun, Mexico. Appellant was informed by travel agent Ms. Terri Tappey that the Cancun Club Med was booked for several months. She offered appellant brochures on alternative facilities. Appellant took a number of these brochures home and on his second visit to the agency he asked about the Negril Beach package advertised in one of them. He specifically asked whether or not he would have to take his own water skiing equipment to the resort. According to the appellant, the agent referred to a thick binder which appellant believed contained additional information beyond that included in the brochure, and Ms. Tappey then told appellant that it would not be necessary for him to bring his own equipment. The appellant also states that the agent made some calls regarding Negril Beach, one of which was placed to the Jamaican Tourist Board, inquiring into vacancies at the hotel. ²

Shortly thereafter appellant purchased his ticket from the agent. Appellant testified that once in Jamaica he found the hotel had only one pair of skis available for use by the patrons and that this pair was old and in bad repair. ³

The appellant used the skis three times. He inspected them before each use, and they appeared to him to be worn but safe. The boat which the hotel used for water skiing had only a driver with no observer.

The third time appellant used the water skis the driver took appellant out of the calm water and into the open sea where the water was rougher. The driver sped up to between 35 and 45 knots per hour. Appellant signaled the driver several times to slow down but to no avail. The driver then made too fast a turn for the prevailing water conditions which caused appellant to fall, hitting "the water hard and twisting [his] neck." Appellant maintains that 22 days after that incident he suffered a stroke as a result of that fall and is now paralyzed on the left side of his body from the stroke. The trial court granted a summary judgment in favor of respondents.

CONTENTIONS

Appellant raises the following contentions on appeal: (1) "There is a duty owed by a travel agent to the traveler established by the agency relationship between the two parties. Agency is a question of fact for a jury's determination." (2) "Defendants' fiduciary duty to plaintiff is further established by the civil aeronautics board and the standards of the American Society of Travel Agents to which defendants subscribed." (3) "The duty of a travel agent as an agent of the traveler is a case of first impression in California and it requires delineation analogous to that of a real estate broker as recently set forth in this state." (4) "Defendants made misrepresentations to plaintiff as to the adequacy of the water skiing facilities and these are disputed triable issues of fact as established by contradictions in the testimony of Terri Tappey and Dennis McCollum." (5) "The cases cited by defendants are distinguishable as they impose liability for the acts of others, while in the instant case we are concerned with the liability of defendants for their own acts and omissions." (6) "The exculpatory paragraph entitled 'Responsibility' in the hotel's travel brochure

is invalid as a matter of law, and if not, there are factual issues to be decided as to the efficacy of the paragraph." (7) "Travel services do come with express and implied warranties and there is a factual issue as to the warranties in this case." (8) "Dennis McCollum has factually established a cause of action in negligence and has satisfied the requirements of duty, breach of duty, proximate cause and injury."

DISCUSSION

I

Appellant's first series of contentions concern the propriety of the trial court's ruling summarily adjudicating appellant's cause of action for negligence in favor of respondents. The principal question raised by these contentions is the nature and scope of the duty that respondents, as travel agents, owed plaintiff traveler for whom they arranged a vacation. We must determine, as a matter of law, whether respondents breached no duty they owed appellant by informing him that the hotel into which they booked him would provide water skis, thereby making it unnecessary for him to bring his own skis. Appellant claimed that this constituted a breach of duty because he was subsequently injured by the substandard skiing equipment and conditions at the hotel.

"In ruling on a motion for summary judgment, '[t]he determination whether facts have been adduced ... which present triable issues of fact is to be made in the light of the pleadings.' (Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 380 ; ...) However, the court may only examine the pleadings in order to define the issues of which summary judgment disposes. [Citations.]" (Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 442, 165 Cal.Rptr. 741.) " 'The aim of the procedure is to discover ... whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion....' " (Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851-852, 94 Cal.Rptr. 785, 484 P.2d 953, quoting Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

"A moving defendant must show clearly that plaintiff's action has no merit. If a plaintiff's cause of action could be based on either of two theories, he will not be subject to defeat by summary judgment where the defendant's declarations show only that one of the two theories cannot be established. It is the defendant's burden to rule out all possible merit. Only if the declarations of the moving defendant considered in light of the issues raised by the pleadings together with the admissions and affirmative allegations set forth in the pleadings of the plaintiff would, standing alone support the summary judgment motion does the court look to any counteraffidavits and counterdeclarations." (Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117, 127; emphasis in original, 109 Cal.Rptr. 724.) "[A] motion for summary judgment must be denied if the party opposing the motion presents any facts which give rise to a triable issue [citations]. However, the rule applies only to material issues, i.e., facts which are material to the lawsuit and could change the result one way or the other if resolved in favor of one side or the other." (Pettus v. Standard Cabinet Works, supra, 249 Cal.App.2d 64, 69, 57 Cal.Rptr. 207.)

"[T]he determination that a duty of care exists is an essential precondition to liability founded on negligence." (Hooks v. Southern Cal. Permanente Medical Group, supra, 107 Cal.App.3d at p. 443, 165 Cal.Rptr. 741.) "The determination of duty is primarily a question of law." (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) "A duty of care may arise through statute or by contract. Alternatively, a duty may be premised upon the general character of the activity in which the defendant engaged, the relationship between the parties or even the interdependent nature of human society. [Citations.] Whether a duty is owed is simply a shorthand way of phrasing what is ' "the essential question--whether the plaintiff's interests are entitled to legal protection against the defendant's conduct." ' (Dillon v. Legg (1968) 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316], quoting from Prosser, Law of Torts (3d...