Musgrove v. Ambrose Properties

• Decision Date: 06 December 1978
• Citation: 87 Cal.App.3d 44,150 Cal.Rptr. 722
• Court: California Court of Appeals Court of Appeals
• Parties: Elizabeth MUSGROVE, Plaintiff, Appellant and Cross-Respondent, v. AMBROSE PROPERTIES, etc., Defendant, Respondent and Cross-Appellant, Unigard Insurance Group, Plaintiff in Intervention and Appellant. Civ. 52045.

Page 722

150 Cal.Rptr. 722

87 Cal.App.3d 44

Elizabeth MUSGROVE, Plaintiff, Appellant and Cross-Respondent, v. AMBROSE PROPERTIES, etc., Defendant, Respondent and Cross-Appellant, Unigard Insurance Group, Plaintiff in Intervention and Appellant.

Civ. 52045.

Court of Appeal, Second District, Division 1, California.

Dec. 6, 1978.

Wax & Appell and Edward J. Mizrahi, Los Angeles, for plaintiff, appellant and cross-respondent.

Morris & Polich, John K. Morris and Robert S. Wolfe, Los Angeles, for defendant, respondent and cross-appellant.

Grancell, Kegel & Tobin and John Reiner, Los Angeles, for plaintiff in intervention and appellant.

LILLIE, Acting Presiding Justice.

Plaintiff sued for personal injuries sustained when she was struck by a bicycle ridden by defendant Sidney Farrington (a 14-year-old boy) ¹ on the premises of a shopping center owned by defendant Ambrose Properties. She was injured in the course and scope of her employment, and Unigard Insurance Group, a workmen's compensation insurance carrier, paid to her disability indemnity and medical benefits totaling $7,669.91 on behalf of her employer. By leave of court, Unigard filed a complaint in intervention seeking judgment against defendants in the sum of $7,669.91 on the theory that their negligence caused plaintiff's injuries. (See Lab.Code, § 3853; Gilford v. State Compensation Ins. Fund (1974) 41 Cal.App.3d 828, 831, 116 Cal.Rptr. 615.)

Pursuant to stipulation, trial of the action was bifurcated, and the issue of liability was tried first. The following evidence was adduced on that issue. For more than a year prior to June 6, 1973, plaintiff, in the course of her employment, drove to the Belmont Shopping Center once a week to deposit mail in a mailbox located there; there on the afternoon of June 6, she double-parked her car in back of other cars in the parking lot of the shopping center, leaving the engine running. The mailbox was located beside one of several pillars which supported a canopy extending over a sidewalk. The sidewalk ran in front of a row of shops. At the outer edge of the sidewalk, and parallel to it, was a passageway three or four feet wide, beyond which was the parking lot. Plaintiff walked from her car to the mailbox and deposited mail; as she stepped from behind the pillar out into the passageway, she was struck by a bicycle ridden by Sidney who was riding from east to west, and did not see plaintiff in time to avoid striking her. Immediately before the accident, plaintiff looked north toward the parking lot; she did not look down the passageway in either direction before entering it. Consequently, she did not see Sidney approaching on his bicycle. Plaintiff was in a hurry to return to her car, but not to the point of endangering her safety. As a result of the accident, plaintiff's left hip was broken and her left elbow was skinned. Before June 6, 1973, plaintiff had seen bicycles ridden on the sidewalk, but not on the passageway. She never registered a complaint either to Ambrose or to any of its tenants regarding the riding of bicycles at the shopping center. Bicycle traffic there was at its heaviest from 2:30 to 5:30 p. m., after school was dismissed for the day.

Ambrose Properties, a corporation, has owned the Belmont Shopping Center since its completion in 1964. In 1973, Jay Ambrose, a stockholder and officer of the corporation, visited the Belmont Shopping Center once a week, usually on Saturday. Mr. Ambrose knew that bicycles were ridden on the premises, but he never received a complaint from any tenant regarding bicycle riding there. Ambrose Properties posted no signs at the shopping center prohibiting the riding of bicycles on the sidewalk and the passageway. It employed no one to patrol or police the premises in order to prevent bicycle riding in those areas. There was no evidence that a bicycle had struck a pedestrian at the shopping center prior to plaintiff's being struck on June 6, 1973.

At the conclusion of the liability phase of the trial, the jury made special findings. ² Following trial on the issue of damages, the jury returned a verdict of $40,000 in favor of plaintiff and against Ambrose. Judgment was entered on the verdict. That judgment also directed a verdict in favor of Unigard and against Ambrose on Unigard's complaint in intervention.

Ambrose moved for judgment notwithstanding the verdict or for a new trial. The court granted the motion for judgment notwithstanding the verdict and, of its own motion (Code Civ.Proc., § 629) granted as against Unigard, judgment notwithstanding the directed verdict. On the grounds of insufficiency of the evidence to justify the verdict and that the verdict is against law (Code of Civ.Proc., § 657, subd. 6), the court conditionally granted Ambrose's motion for new trial (as to plaintiff), such order to be effective only if the judgment notwithstanding the verdict is reversed on appeal. (Code of Civ.Proc., § 629.) The court also conditionally granted, on its own motion, a new trial as to Unigard, on the same grounds. Judgment notwithstanding the verdict subsequently was entered. Plaintiff and Unigard appeal from that judgment, and from order granting a new trial. ³ Ambrose cross-appeals from the judgment entered on the verdict. The cross-appeal is dismissed for failure to file a brief in support thereof. (Cal.Rules of Court, rule 17(a); Redevelopment Agency v. Penzner (1970) 8 Cal.App.3d 417, 426, 87 Cal.Rptr. 183.)

A judgment notwithstanding the verdict properly may be granted only when, disregarding conflicting evidence, and giving plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn therefrom, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff. (McFarland v. Voorheis-Trindle Co. (1959) 52 Cal.2d 698, 703, 343 P.2d 923.) The trial court granted judgment notwithstanding the verdict on the ground there was no evidence that Ambrose violated any duty owed to plaintiff.

Everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property. (Civ.Code, § 1714.) Under this rule, the property test to be applied to the liability of a landowner" is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such a status have some bearing on the question of liability, the status is not determinative." (Rowland v. Christian (1968) 69 Cal.2d 108, 119, 70 Cal.Rptr. 97, 104, 443 P.2d 561, 568.) An owner of land held open to the public for business purposes is under a duty to take affirmative action to control the wrongful acts of third persons which threaten the safety of visitors to the premises where he has reasonable cause to anticipate such acts and the probability of injury resulting therefrom. (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121, 52 Cal.Rptr. 561, 416 P.2d 793.) As explained in Restatement Second of Torts, section 344, comment f: "Since the (landowner) is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it."

The determination of duty is basically a question of law. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) Foreseeability of the risk is of primary importance in establishing the element of duty (Dillon v. Legg (1968) 68 Cal.2d 728, 739, 69 Cal.Rptr. 72, 441 P.2d 912), and foreseeability is a question of fact. (Weirum v. RKO General, Inc., supra, 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) Accordingly, a mixed question of law and fact may arise out of the relationship of foreseeability to the creation of a duty. (Barker v. Wah Low (1971) 19 Cal.App.3d 710, 721-722, 97 Cal.Rptr. 85.) "(C)ourts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen. The courts thus mark out the areas of liability, Excluding the remote and unexpected." (Dillon v. Legg, supra, 68 Cal.2d 728, 741, 69 Cal.Rptr. 72, 81, 441 P.2d 912, 921.) (Emphasis added.)

In the case at bench, the evidence and the reasonable inferences therefrom show that Ambrose knew bicycles were ridden at the Belmont Shopping Center, and that pedestrians also were present on the premises. Under these circumstances, it cannot be said, as a matter of law that the possibility of a bicyclist striking a pedestrian was so "remote and unexpected" that an ordinary man should not reasonably have foreseen it. The foreseeability of such an accident thus was a question of fact, and the evidence permits a finding that the chance of a bicyclist striking a pedestrian, unless precautions were taken, was foreseeable. The fact that no similar accident occurred before plaintiff was struck does not show that such an accident might not reasonably have been anticipated. (Weirum v. RKO General, Inc., supra, 15 Cal.3d 40, 47, 123 Cal.Rptr. 468, 539 P.2d 36; Ridley v. Grifall Trucking Co. (1955) 136 Cal.App.2d 682, 686, 289 P.2d 31.)

The elements of actionable negligence, in addition to a...