Michael R. v. Jeffrey B.

• Decision Date: 02 August 1984
• Citation: 158 Cal.App.3d 1059,205 Cal.Rptr. 312
• Court: California Court of Appeals Court of Appeals
• Parties: MICHAEL R., a minor, by his guardian ad litem, Plaintiff and Appellant, v. JEFFREY B., a minor, et al., Defendants and Respondents. Civ. B 002317.

Page 312

205 Cal.Rptr. 312

158 Cal.App.3d 1059

MICHAEL R., a minor, by his guardian ad litem, Plaintiff and Appellant, v. JEFFREY B., a minor, et al., Defendants and Respondents.

Civ. B 002317.

Court of Appeal, Second District, Division 6, California.

Aug. 2, 1984.

Joyce & Nadasi, Leslie F. Nadasi and Randolph Joyce, Simi Valley, for plaintiff and appellant Michael R.

Lawler & Ellis and Margot Davis, Ventura, for defendant and respondent Bruno N.

STONE, Presiding Justice.

Michael R., a minor, appeals through his guardian ad litem from a judgment entered in favor of respondents upon an order granting respondents' motion for summary judgment. The issue herein is whether verbal encouragement to commit assault with a deadly weapon is affirmative conduct sufficient, as a matter of law, to impose civil liability for damages ensuing from that assault. We hold that it is, reverse the judgment and order the trial court to reinstate appellant's complaint against respondents.

FACTS

December 18, 1979, at approximately 8 p.m. Michael R., while walking home from a school banquet, was struck in the eye with a marble and, as a result, was blinded in that eye. Earlier that day Lance T., Bruno N., Jr., Edie K. and Jeffrey B. took turns shooting marbles with a wrist rocket (slingshot). Only Jeffrey B. shot marbles at automobiles driving by the open field in which they were playing. According to deposition testimony incorporated in the opposition's motion for summary judgment, Lance T. had had at least one prior altercation with Michael R. and Bruno N. also, did not like him and Bruno N. was aware of the bad blood between Lance T. and Michael R. Two female school mates had also had arguments with Michael R. culminating in Michael R's being shoved by one of them in Lance T's and Bruno N's presence.

As Michael R. left the school after the banquet, Lance T. pointed him out to Jeffrey B. and according to Jeffrey's testimony, Bruno N., Edie K. and Lance T. prompted and encouraged him to shoot Michael R. with the wrist rocket. Jeffrey B. testified that he did not know Michael and had no intention of shooting at him until incited by the others. Jeffrey B. was prosecuted in juvenile court for assault with a deadly weapon and pleaded "guilty."

At deposition the school principal said that neither Bruno N. nor Lance T. denied involvement in the incident. In their depositions, however, the defendants denied that Jeffrey B. was given any encouragement to shoot at Michael. For purposes of the summary judgment motion, respondent Bruno N., admits making the statement, "Hey shoot him; go for it."

In appellant's complaint, entitled "FIRST AMENDED COMPLAINT FOR DAMAGES (NEGLIGENCE AND NEGLIGENT SUPERVISION OF CHILD)" he alleged that "Jeffrey B., Lance T., Bruno N., Edie K. and Does I through 4, negligently, recklessly, wantonly and intentionally shot a marble in the direction of plaintiff by the use of a slingshot or other device, in a reckless and wanton disregard of the possible consequences to plaintiff by reason thereof and said defendants knew or should have known that said conduct would unreasonably expose the general public and in particular the plaintiff to probable serious harm.... Said defendants were involved in joint activity and were aiding and abetting each other in the perpetration of shooting marbles in a manner that would unreasonably expose others to serious harm."

Respondents' motion for summary judgment was grounded upon the facts that: 1) no evidence existed that Bruno N. participated in the incident and 2) he had no duty under California law to control the conduct of the third person who injured plaintiff. The basis of the latter argument is that there is no known tort of "negligent encouragement."

Appellant's opposition raises the theory of common design; they had all used the slingshot; they all saw Jeffrey B. shoot at cars; they knew that Lance T. and his female friends "had it in for" Michael; and when Michael came along, Lance, Edie and Bruno encouraged Jeffrey to shoot at him. Consequently, appellant argues that defendants

had a duty to terminate the joint enterprise from the first instance Jeffrey B. used the slingshot in a reckless manner and a further duty to warn all foreseeable victims.

DISCUSSION

Issue finding rather than issue determination is the pivotal factor in a proceeding under Code of Civil Procedure section 437c. (Whaley v. Fowler (1957) 152 Cal.App.2d 379, 381, 313 P.2d 97.) If there is any doubt whether summary judgment should be granted, it should be resolved against the moving party. (Ibid.) To ascertain the existence or absence of triable issues, the trial judge examines "affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken" (Code Civ.Proc. § 437c), and may also draw reasonable inferences from the facts before him. (DeSuza v. Andersack (1976) 63 Cal.App.3d 694, 698, 133 Cal.Rptr. 920.) Although affidavits of the moving party are to be strictly construed and those of the opponent liberally construed, the party opposing a motion for summary judgment, which is supported by affidavits or declarations sufficient to sustain the motion, has the burden of showing that triable issues of fact exist. (Id. at p. 698, 133 Cal.Rptr. 920.)

On appeal Michael R. argues that the remark, "Hey shoot him; go for it" is a violation of Penal Code section 653f and constitutes negligence per se. ¹ Solicitation consists in asking another to commit one of the crimes specified in section 653f with intent that the crime be committed, but intent may be inferred from the circumstances of the asking. (People v. Gordon (1975) 47 Cal.App.3d 465, 472, 120 Cal.Rptr. 840.) Furthermore, it is not necessary to plead the statute where the alleged cause of action is not a violation of the statute, but rather negligence of the defendant, and the ordinance is merely evidence offered to show such negligence. (McNeill v. A. Teichert & Sons, Inc. (1955) 137 Cal.App.2d 5, 9, 289 P.2d 595.) Nor has appellant waived the right to argue favorable inferences because they were not argued to the trial court. Code of Civil Procedure section 437c requires the trial court to consider all inferences reasonably deducible from the evidence. That appellant's attorney did not urge the trial court at the original hearing on the motion to draw certain specific inferences relieves neither the trial court nor this court from a duty to take those inferences into account. (Maxwell v. Colburn (1980) 105 Cal.App.3d 180, 185, 163 Cal.Rptr. 912.) Furthermore, since respondent did not object to evidence in appellant's declarations in opposition to summary judgment, evidentiary objections have been waived. ²

Violation of a statute without justification constitutes presumptive failure to exercise due care if the violation proximately caused the injury and the person injured was one of the class of persons for whose protection the statute was adopted. (Satterlee v. Orange Glenn School Dist. (1947) 29 Cal.2d 581, 590, 177 P.2d 279 disapproved on other grounds in Alarid v. Vanier (1958) 50 Cal.2d 617, 624, 327 P.2d 897; Evid.Code § 669.)

Whether the injury involved resulted from an occurrence of the nature which the statute was designed to prevent and whether plaintiff was one of the class of persons for whose protection the statute was adopted are questions of law. (Nunneley v. Edgar Hotel (1950) 36 Cal.2d 493, 497-498, 225 P.2d 497; Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 822, 131 Cal.Rptr. 854.) Whether the party to an action has violated a statute is generally a question of fact. (Alarid v. Vanier, supra, 50 Cal.2d 617, 624, 327 P.2d 897.) Similarly, the question whether the violation has proximately caused or contributed to the plaintiff's injury is usually a matter for jury decision. (Satterlee v. Orange Glenn School Dist., supra, 29 Cal.2d 581, 590, 177 P.2d 279.) The statutory violation must be the proximate cause of the injury to constitute negligence per se. (Nunneley v. Edgar Hotel, supra, 36 Cal.2d 493, 498, 225 P.2d 497.)

Respondent contends that section 653f was intended neither to prosecute "vocal bystanders" nor provide for civil liability. We disagree. It is indisputable that an injury resulting from commission of an assault with a deadly weapon is the type of injury a statute prohibiting solicitation to commit assault with a deadly weapon was designed to prevent. Someone who encourages another to shoot a person is not a "verbal bystander." Such solicitation (admitted herein for the purpose of the motion) is precisely the conduct proscribed by the statute. Furthermore, "(t)hat section is designed not only to prevent solicitations from resulting in the commission of the crimes solicited, but to protect 'inhabitants of this state from being exposed to inducement to commit or join in the commission of the crimes specified ....' [Citations.] 'Purposeful solicitation presents dangers calling for preventive intervention and is sufficiently indicative of a disposition towards criminal activity to call for (criminal) liability ...' " (Benson v. Superior Court (1962) 57 Cal.2d 240, 243, 18 Cal.Rptr. 516, 368 P.2d 116.)

Additionally, the statute need not provide specifically for civil damages or liability. Violation of a statute embodying a public policy is generally actionable even though no specific civil remedy is provided in the statute itself. Any injured member of the public for whose benefit the statute was enacted may bring the action. (Laczko v. Jules Meyers, Inc. (1969) 276 Cal.App.2d 293, 295, 80 Cal.Rptr. 798.) In Krueger v. City of Anaheim (1982) 130 Cal.App.3d 166, 181 Cal.Rptr. 631, the city sought reimbursement from Krueger for workers' compensation payments to a city-employed security officer who was injured by Kruger, a fan the officer was attempting to eject from a baseball game. The trial court granted...