Nash v. Fifth Amendment

• Decision Date: 26 March 1991
• Docket Number: No. A050250,A050250
• Citation: 279 Cal.Rptr. 465,228 Cal.App.3d 1106
• Court: California Court of Appeals Court of Appeals
• Parties: , 1991 A.M.C. 2228 Jewell NASH, Plaintiff and Appellant, v. The FIFTH AMENDMENT, Defendant and Respondent.

Page 465

279 Cal.Rptr. 465

228 Cal.App.3d 1106, 1991 A.M.C. 2228

Jewell NASH, Plaintiff and Appellant, v. The FIFTH AMENDMENT, Defendant and Respondent.

No. A050250.

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

March 26, 1991.

As Modified April 17, 1991.

Review Denied July 31, 1991.

[228 Cal.App.3d 1108] Andrew French Loomis, Oakland, for plaintiff and appellant.

Glenn Gould, Martin, Ryan & Andrada, Oakland, for defendant and respondent.

POCHE, Acting Presiding Justice.

A bar charters an excursion ship for the purpose of having a Halloween party. The ship is owned and operated by a common carrier. During the party a passenger is killed by a bullet fired from a handgun which struck the deck after falling from beneath the costume of another passenger who is a peace officer authorized to carry a concealed weapon while not on duty. The question presented is whether a duty of care was owed by the bar to the passenger. Our answer is no.

BACKGROUND

Defendant The Fifth Amendment is a bar in Oakland, owned by Myra Gaudet, that sponsored a costume party on Halloween of 1988. Employees of defendant chartered an excursion boat on which the party would be held, advertised the event, and sold tickets.

In addition to employees of defendant and the boat's crew, approximately 85 to 90 people boarded the vessel when it departed from the Berkeley marina at about 8 p.m. One of the guests was Felton Clark, a correctional sergeant at San Quentin, who was dating Linda Tucker, an employee of defendant. Clark was wearing a Ninja costume. Unbeknownst to anyone but himself, Clark was carrying a semi-automatic handgun beneath his costume. At approximately 11:30 p.m., while Clark and Tucker were dancing, the gun fell to the deck and discharged. A single bullet struck Eugene Nash in the chest as he sat at a table on the edge of the dance floor. The ship's captain was notified, and he in turn notified the Coast Guard that he was returning immediately to the Berkeley marina. Members of the ship's crew administered oxygen to Mr. Nash. Paramedics met the ship at the marina, administered additional aid to Mr. Nash, and transported him to an Oakland hospital, where he died shortly after arrival. ¹

Within a month Mr. Nash's family commenced this action by filing a complaint for damages. The sole cause of action alleged against defendant was for negligence resulting in wrongful death. ² Arguing that as a matter of law it owed no duty to plaintiff and that the death of Mr. Nash was not foreseeable, defendant moved for summary judgment. The trial court agreed and entered a judgment dismissing the complaint. Plaintiff thereupon perfected this timely appeal. (See note 2, ante.)

REVIEW

"[I]n order to prove facts sufficient to support a finding of negligence, a plaintiff must show that defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury." (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292, 253 Cal.Rptr. 97, 763 P.2d 948.) "As a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Such a duty may arise, however, if '(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.' (Rest.2d Torts (1965) § 315....)" (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203, 185 Cal.Rptr. 252, 649 P.2d 894; accord Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435, 131 Cal.Rptr. 14, 551 P.2d 334.) The existence of a duty is a question of law to be decided by the court. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124, 211 Cal.Rptr. 356, 695 P.2d 653; Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750, 167 Cal.Rptr. 70, 614 P.2d 728; Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 307-310, 29 Cal.Rptr. 33, 379 P.2d 513, overruled on other grounds Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912.) "Any number of considerations may justify the imposition of duty in particular circumstances, including the guidance of history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall." (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) "[T]he major ones [of those considerations] are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561; accord Nally v. Grace Community Church, supra, 47 Cal.3d at p. 293, 253 Cal.Rptr. 97, 763 P.2d 948; Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at pp. 124-125, 211 Cal.Rptr. 356, 695 P.2d 653.)

"The relationship between a common carrier and its passengers is just such a special relationship, as is the relationship between an innkeeper and [its] guests, [and] between a possessor of land and those who enter in response to the landowner's invitation...." (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 789, 221 Cal.Rptr. 840, 710 P.2d 907; accord Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806, 205 Cal.Rptr. 842, 685 P.2d 1193; Rest.2d Torts, § 314A.) As to owners of real property, "the duty to take affirmative action for the protection of individuals coming upon the land is grounded in the possession of the premises and the attendant right to control and manage the premises.... [p] [T]he right of supervision and control 'goes to the very heart of the ascription of tortious responsibility....' " (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368-369, 178 Cal.Rptr. 783, 636 P.2d 1121 [citing and quoting Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850, 874, 73 Cal.Rptr. 369, 447 P.2d 609 (dis. opn. of Mosk, J.) ]; see Preston v. Goldman (1986) 42 Cal.3d 108, 118-119, 227 Cal.Rptr. 817, 720 P.2d 476; Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d 112 at p. 134, 211 Cal.Rptr. 356, 695 P.2d 653; Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 720, 725, 246 Cal.Rptr. 199; Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal.App.3d 1142, 1146-1147, 214 Cal.Rptr. 405.) There is no reason why this logic should not extend to defendant, whose special relationship duties arising by reason of its status as an innkeeper ³ therefore terminated when its guests became passengers of the carrier (i.e., the ship's owner). "While it is true that a landowner has a special duty to protect his invitees from the conduct of third persons, the imposition of liability on this ground ... is limited to those cases where the plaintiff is injured on premises which are owned, possessed or controlled by the defendant." (Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656, 664, 250 Cal.Rptr. 57 [citation and original emphasis omitted]; see Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 506, 238 Cal.Rptr. 436 ["The relationship between a business establishment and its customers requires the proprietor protect its patrons from third person misconduct on the business premises...." (Emphasis added) ]; Rest.2d Torts, § 314A, com. c, at p. 119 ["The rules stated in this Section apply only where the relation exists between the parties.... A carrier is under no duty to one who has left the vehicle and ceased to be a passenger, nor is an innkeeper under a duty to a guest who is injured or endangered while he is away from the premises." (Emphasis added) ].)

The aspects of the duties plaintiff would have us impose upon defendant prior to the ship's departure are somewhat vague and contradictory. In the complaint, plaintiff alleged that defendant "failed to carefully and properly screen the persons who came aboard[, ...] failed to refuse passage to undesirable persons ... particularly ... Clark," and thereby "allowed a deadly weapon to be brought aboard" the ship. In her briefs plaintiff argues that "given the degree of control which [defendant] exercised over the event and its patrons" and the fact that "the passengers were at [defendant's] mercy for the duration" of the trip, defendant "should have kept guns off the boat or warned its patrons against bringing them or at least warned the other patrons of the risk of serious injury that could be caused by an uncontrolled dangerous object, such as a loaded automatic pistol, at a drinking party on a ... boat."

Leaving aside the question whether there can be a duty to disarm peace officers, ⁴ it is obvious that the measures specified by plaintiff would naturally occur immediately before the ship was boarded. Even before its passengers were actually on board its ship, the carrier owed them a duty of exercising reasonable care. (KERMAREC V. COMPAGNIE GENERALE TRANSATLANTIQUE (1959) 358 U.S. 625, 630, 79 S.CT. 406, 409, 3 L.ED.2D 550.) ⁵ That duty became operative when the passengers entered upon ancillary property (such as a dock, gangway, or loading platform) of the carrier (see Warner v. Baltimore & Ohio Railroad Co. (1897) 168 U.S. 339, 347, 18 S.Ct. 68, 71, 42 L.Ed. 491; Mac Gregor v. Pacific Elec. Ry. Co. (1936) 6 Cal.2d 596, 600, 59 P.2d 123) or otherwise " 'placed [themselves] under the control of the carrier.' " (Orr v. Pacific Southwest Airlines, supra, 208 Cal.App.3d 1467 at p. 1473, 257 Cal.Rptr. 18 ...