Nava v. McMillan
| Decision Date | 31 August 1981 |
| Citation | 176 Cal.Rptr. 473,123 Cal.App.3d 262 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Lorraine NAVA, a minor, by Patricia Nava Perrine, her Guardian ad Litem, Plaintiff and Appellant, v. Yvonne Gayle McMILLAN, Estate of Elma Nelson, Alexander M. Robertson, and Julius Sarkozy, Defendants and Respondents. Civ. 59683. |
Yagman & Yagman, and Stephen Yagman, Los Angeles, for plaintiff and appellant.
Haight, Dickson, Brown & Bonesteel, Roy G. Weatherup, William K. Koska, and Jerry M. Custis, Los Angeles, for defendant and respondent Estate of Elma Nelson.
Murchison & Cumming, and Bonnie S. Bass, Los Angeles, for defendant and respondent Julius Sarkozy.
Robert G. Loken, Woodland Hills, for defendant and respondent Yvonne Gayle McMillan.
Plaintiff appeals from an order of dismissal entered after the trial court sustained defendants Nelson's and Sarkozy's demurrer to the first amended complaint, without leave to amend. We affirm.
BACKGROUND :
Plaintiff Lorraine Nava, a teenaged minor, through her guardian ad litem brought a personal-injury action against defendants Yvonne McMillan, Elma Nelson, 1 Alexander M. Robertson, and Julius Sarkozy. In the first cause of action of her "First Amended Complaint for Personal Injuries (Negligence, Strict Liability)", plaintiff alleged that on February 14, 1978, she sustained injuries after being struck, while a pedestrian on Burnet Avenue in the County of Los Angeles, by an automobile negligently driven by defendant McMillan. In her second and third causes of action, plaintiff alleged that she stepped from the sidewalk into the street, causing her to be hit by the McMillan vehicle, after being frightened by dogs "of a vicious disposition" which were kept behind a chain link fence on the respective properties of defendants Nelson and Sarkozy. Plaintiff alleged that the injuries she sustained after being struck by the McMillan vehicle were the "direct and proximate result of the negligence, recklessness and carelessness" of defendants Nelson and Sarkozy, who failed to restrain their dogs though they knew or should have known of the dogs' vicious disposition. As to defendant Robertson, plaintiff alleged in her fourth cause of action that his negligent maintenance of bushes and shrubs on the common sidewalk in front of his property caused her to leave the sidewalk and to enter the street, where she was subsequently struck by the McMillan vehicle. Plaintiff's fifth cause of action against "Does 56 through 80" alleged that the dangerous condition in which those unnamed defendants maintained their property caused plaintiff to leave the sidewalk and to enter the street.
The trial court sustained defendants Nelson and Sarkozy's demurrer, without leave to amend, and ordered the action as to them dismissed. Plaintiff appeals, claiming the trial court erred in sustaining the demurrer. Neither defendant McMillan nor defendant Robertson is a party to this appeal.
DISCUSSION :
A demurrer reaches only those defects which appear on the face of the complaint or which are judicially noticeable. (Richard P. v. Vista Del Mar Child Service (1980) 106 Cal.App.3d 860, 865, 165 Cal.Rptr. 370; Johnson Rancho etc. Dist. v. County of Yuba (1963) 223 Cal.App.2d 681, 684, 35 Cal.Rptr. 828.) It admits all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601.)
As far as we have been able to determine, no appellate court, either in or outside this state, has published a decision dealing with the precise issue presented here, namely, the imposition of tort liability upon an owner of a dog whose mere appearance or barking 2 allegedly causes a passerby, who is completely separated from the dog by a chain link fence, to leave the sidewalk and to enter the street, where she is then struck by an automobile.
An essential element of tort liability is the existence of a legal duty, which has been breached by a defendant. (4 Witkin, Summary of Cal. Law (8th ed.) Torts, § 5, p. 2306.) The question of whether such a duty exists is a question of law. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 342, 134 Cal.Rptr. 375, 556 P.2d 737.)
Though in most instances negligence is caused by heedlessness or carelessness, it may also exist where the actor has considered the possible consequences carefully and has exercised his own best judgment. The real basis for negligence, therefore, is not carelessness, but behavior which society in general views as involving an unreasonable risk of harm to others. (Prosser, Torts (4th ed. 1971) § 31, p. 145.) To determine whether a duty exists, the following factors must be weighed: the foreseeability of harm, the degree of certainty of 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 the 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; Hale v. George A. Hormel & Co. (1975) 48 Cal.App.3d 73, 86-87, 121 Cal.Rptr. 144.)
The complaint at bench failed to allege the nature of conduct engaged in by the dogs which caused plaintiff to become frightened; it alleged merely that, while walking on a sidewalk, plaintiff "encountered" some dogs in the fenced-in yards of defendants Nelson and Sarkozy, and became "scared and frightened" by the dogs, causing her to go into the street, where she was then struck by an automobile. In any event, even if the dogs had been barking or jumping against the fence which separated them from the sidewalk, such activities are quite common for a dog. (See and compare Hagen v. Laursen (1953) 121 Cal.App.2d 379, 263 P.2d 489; Chandler v. Vaccaro (1959) 167 Cal.App.2d 786, 790, 334 P.2d 998.) Here, the dogs did not jump over the fence of the premises at which they were kept; they remained behind it, never touching plaintiff. It is an integral part of our whole system of private property that an owner or occupier of land has a privilege to use the land according to his own desires. This privilege is of course qualified by a due regard for the interests of others who may be affected by it. The possessor thus has a duty to make only a reasonable use of his property, without causing unreasonable risk of harm to others in the vicinity. (Prosser, Torts, supra, § 57, p. 351.) The measure of care with respect to animals is the same. In this particular instance, defendants could not reasonably foresee that the mere appearance of the dogs at the fence or their barking might cause plaintiff, who was on the public side of the fence, to become frightened and to run into the street where she was subsequently struck by an automobile.
Our conclusion on the unforeseeability of harm in this case also applies to...
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