McGarvey v. Pacific Gas & Elec. Co.

• Decision Date: 30 June 1971
• Citation: 95 Cal.Rptr. 894,18 Cal.App.3d 555
• Court: California Court of Appeals Court of Appeals
• Parties: Robert McGARVEY, Plaintiff and Appellant, v. PACIFIC GAS & ELECTRIC COMPANY, Defendant and Respondent. Civ. 12524.

Page 894

95 Cal.Rptr. 894

18 Cal.App.3d 555

Robert McGARVEY, Plaintiff and Appellant, v. PACIFIC GAS & ELECTRIC COMPANY, Defendant and Respondent.

Civ. 12524.

Court of Appeal, Third District, California.

June 30, 1971.

Hearing Denied Aug. 25, 1971.

Edward P. Freidberg, Sacramento, for plaintiff-appellant.

Richard H. Peterson, Charles T. Van Deusen, San Francisco, and Archibald M. Mull, Jr., Sacramento, Cal., for defendant-respondent.

PIERCE, Presiding Justice.

Plaintiff Robert McGarvey appeals from a defense judgment after the trial court granted a summary judgment as to plaintiff's first cause of action and plaintiff elected to stand on his second cause of action after a general demurrer thereto had been sustained. The basis of both causes of action was personal injuries suffered by McGarvey, a motorcyclist, when defendant Howell (an employee of P.G. & E. not involved in this appeal) allegedly made a left turn as a part of an intended U-turn and struck McGarvey.

We will hold: (a) that P.G. & E. did not owe McGarvey a duty of care under the count of the complaint claiming a direct liability, and (b) that P.G. & E. was not vicariously liable because at the time of the accident Howell was not acting within the course and scope of his employment.

FACTS

As alleged in the complaint plaintiff was driving a 1965 Honda motorcycle in a westerly direction on Fruitridge Road in Sacramemto County, on May 15, 1968. Defendant Howell was driving a 1956 Ford car, also in a westerly direction, on Fruitridge Road. Defendant Howell made a U-turn in front of plaintiff's motorcycle and the motorcycle collided with the car, causing plaintiff's injuries.

P.G. & E. maintained a place of business at the Northeast corner of two intersecting Sacramento County streets, Florin-Perkins (north-south) and Fruitridge (east-west). Plaintiff put an aerial map in evidence. It is a part of the record before us. There are three buildings spread along the south half of the approximately blocklong premises. The main building is located at the southwest corner of the property (the northeast corner of the intersection). To the north of that building is a parking lot. It fronts upon Florin-Perkins Road and occupies almost the entire northwest quarter of the property. Fruitridge has been widened along the block adjacent to the P.G. & E. property and, as shown by the photograph, cars are parked practically continuously along both the north and south sides of the street parallel to the curb yet leaving a traveled roadway for both westbound and eastbound traffic on Fruitridge.

Of the three buildings noted the shop is the most easterly. To its west, midway between the shop and the middle building, is a driveway. Apparently, somewhere in the vicinity or at this driveway Howell stopped along the curb to let off a rider, Perry, who was a coemployee. Both worked at the shop. He had started up again and, according to Howell's testimony, was making a left turn and had almost reached the center line of the highway when the collision took place. Howell had not seen the motorcycle before the accident but had heard its horn. The turn which he had made was preparatory to a U-turn. Howell was making the U-turn for the purpose of parking his car along the south curb. The point at which Perry had left the Howell automobile was next to but not in the driveway to the shop. The motorcycle came in contact with the left front of the automobile.

Howell and Perry had a pooling arrangement for driving to work, each driving his car on alternate weeks. The turning movement described was one adopted by each when driving his car.

Off-street parking had been provided by P.G. & E., but it was not used by Howell and Perry because it was too far away from the shop where the two men worked. No instructions had been given indicating where they should park. Their foreman, who also parked along the curb but on the opposite side of the street, was aware that this was a general practice. It was the habit of those who parked on the street to make U-turns in the morning because when they left at the end of the day their cars would be heading in the direction they would be driving to reach their homes. The traffic would be less congested when the employees working in the shop (who arrived at work earlier than office employees) arrived at work and left for the day.

There was nothing about Howell or Perry going to work or returning from work to their homes that was work connected.

The foregoing is a summary of the testimony of Howell and Perry in depositions given.

Wendell R. Kaufman was the immediate supervisor of Howell. When the motion for summary judgment was made, he filed a declaration in support of the motion. It was considered together with the two depositions; also a declaration opposing the motion was filed. (It will be discussed below.) Kaufman's declaration related to questions raised regarding the vicarious liability of P.G. & E. According to the declaration, Howell's work day began at 7:30 a.m. He received no mileage allowance or other payment for either compensation or expenses for the time spent traveling between his home and place of employment. On the day of the accident, May 15, 1968, Howell was performing no service for the benefit of P.G. & E. at the time of the accident. Howell was not required by P.G. & E. to use his automobile or any other specific type of transportation in going to and from work.

The declaration opposing the motion was that of Julius G. Minix. On May 28, 1968, a week after the accident, he had taken movies and had had the aerial photograph made. He described what he had seen: many parked cars on the street, evidencing the fact that there was inadequate parking, and he had also observed cars making U-turns. At certain hours the intersection described is a busy one. The streets which intersect are used by personnel from Aerojet, Mather Air Force Base and the Sacramento Army Depot, as well as by P.G. & E. employees. This causes a 'tremendous traffic jam' and 'a long back up of traffic.'

Since the trial court's order sustains a demurrer to the second count of the complaint (relating to the direct liability of P.G. & E.), that count must be tested by the allegations of the complaint, except that we may consider the map described above which plaintiff himself put into evidence.

In the complaint the failure of P.G. & E. to provide parking space to accommodate all the cars of its employees is alleged. Also alleged is that employees are required, allowed and encouraged to park along the shoulders of Fruitridge; that defendant provides no one to direct traffic and traffic jams occurred which discourage some employees from entering the parking lot; that employees customarily made U-turns (as described above) when going to work rather than when leaving work, and this caused traffic hazards of which P.G. & E. was aware. ¹

THE COURT PROPERLY SUSTAINED THE GENERAL DEMURRER OF P.G. & E. TO THE COUNT CHARGING DIRECT LIABILITY

The trial court sustained a general demurrer to the second alleged cause of action with leave to McGarvey to amend. He did not choose to do so but appealed from judgment following the order sustaining the demurrer. ² When the demurrer was orally argued the court had before it written points and authorities submitted by P.G. & E. raising substantially the same points raised before this court on appeal. After oral argument the court took the matter under submission. No reply memorandum was filed by plaintiff.

The question on a general demurrer is whether or not, on the face of the complaint, a duty to plaintiff is shown on the part of defendant, breach of which proximately resulted in injury and damage to the noncontributorily negligent plaintiff. This is an issue of law for the court's determination. (Code Civ.Proc., §§ 589, 591; James v. Superior Court (1968) 261 Cal.App.2d 415, 67 Cal.Rptr. 783.) There is an exception to the rule that matters considered on demurrer must appear on the face of the complaint. The exception relates to 'any matter of which the court must or may take judicial notice * * *.' (Code Civ.Proc. § 430.) A court sitting in a particular locality 'may take judicial notice of the existence and location of streets, their character and relation to each other, the congestion of pedestrian or vehicular travel, etc. (See Hom v. Clark (1963) 221 Cal.App.2d 622, 638 (35 Cal.Rptr. 11) * * * (hg. den.).)' (Witkin, Cal.Evidence 2d, § 176, p. 162.) We also have in this appeal a somewhat anomalous situation; there was before the trial court and there is before this court not only an aerial photograph but the declaration of one Julius Minix describing the location of buildings, the flow of traffic, the places where automobiles are parked, etc., in the area involved in this litigation. Both the map and the declaration were introduced by plaintiff. Much of the evidence produced by both sides in connection with the motion for summary judgment related not to the vicarious liability of P.G. & E. under the doctrine of Respondeat superior but to the alleged direct liability and duty of care claimed by plaintiff. In several respects plaintiff has pleaded one thing and proved another. Both his pleadings and proof were before the trial court when its final ruling on both matters was made. (See fn. 2.) No cases have been cited to us and we have found none directly in point. ³ But a stream cannot rise higher than its source. The bases of plaintiff's law suit are (1) the alleged insufficiency of P.G. & E.'s off-street parking and of the exits and entrances from and to such parking during peak traffic conditions, and (2) its requiring or encouraging employees to park on public streets with a concommitant tolerance of their making U-turns to reach a parking space. It is upon these facts as related by plaintiff's own evidence (summarized above) that he must rely if he is to prove a duty of care.

One of the elements of actionable...