Nolin v. National Convenience Stores, Inc.

• Decision Date: 24 July 1979
• Citation: 95 Cal.App.3d 279,157 Cal.Rptr. 32
• Court: California Court of Appeals Court of Appeals
• Parties: Iris NOLIN, Plaintiff and Respondent, v. NATIONAL CONVENIENCE STORES, INC., a corporation, dba Stop 'N' Go Markets, Defendants and Appellants. Civ. 54985.

Page 32

157 Cal.Rptr. 32

95 Cal.App.3d 279

Iris NOLIN, Plaintiff and Respondent, v. NATIONAL CONVENIENCE STORES, INC., a corporation, dba Stop 'N' Go Markets, Defendants and Appellants.

Civ. 54985.

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

July 24, 1979.

Rehearing Denied Aug. 16, 1979.

Hearing Denied Oct. 18, 1979.

Vletas & Greer, Gus Vletas and Barry E. Shanley, Beverly Hills, for defendants and appellants.

Lerer & Hobart, Los Angeles, and Roger A. Kander, Long Beach and G. Dana Hobart, Los Angeles, for plaintiff and respondent.

JEFFERSON, Associate Justice.

This is an action for damages for negligence. Plaintiff, Iris Nolin, by a second amended complaint, sought damages sustained by her in a slip-and-fall accident on the premises of defendant, National Convenience Stores, Inc., a Texas corporation doing business as Stop 'N' Go Markets. The first cause of action of plaintiff's complaint was directed toward the recovery of compensatory damages. The second cause of action requested punitive damages on the basis that defendant's "reckless, wanton, and intentional misconduct . . . (and its) callous and conscious disregard for (her) safety . . ." had caused plaintiff injury. ¹

Trial was by jury. The trial judge, having determined that there was sufficient evidence to warrant such instruction, instructed the jury concerning punitive damages.

Plaintiff was awarded total compensatory damages of $68,101, reduced by 10 percent the percentage found by the jury to be plaintiff's comparative fault to a net recovery of $61,291. In addition, plaintiff was awarded $50,000 in punitive damages making a total recovery of $111,291.

Defendant National has appealed from the judgment on the ground that there was insufficient evidence to support the giving of an instruction on punitive damages to the jury, contending that, as a matter of law, defendant's conduct did not meet the criteria set forth in Civil Code section 3294 of "oppression, fraud, or malice." ²

I A Summary of the Evidence

There is no dispute that plaintiff slipped and fell toward dusk on November 13, 1974, at a Stop 'N' Go store owned by defendant in Long Beach. Plaintiff claimed that she lost her footing due to the presence of foreign substances on the ground oil and gasoline, primarily near the self-service gasoline pumps located on the premises. The fall occurred after plaintiff had filled the tank of her automobile with gasoline from the self-service pumps. She sustained a badly fractured ankle, and, as a result, is permanently disabled.

What was of critical importance below was the evidence adduced concerning the circumstances surrounding plaintiff's fall. It was plaintiff's contention, accepted by the jury, that defendant National had so carelessly maintained the area surrounding its self-service gasoline pumps that it had displayed a conscious disregard for the safety of its customers.

We summarize next the evidence adduced on this point, bearing in mind that "(i)n resolving the issue of the sufficiency of the evidence, we are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party (citations) and in support of the judgment (citation). All issues of credibility are likewise within the province of the trier of fact. . . . All conflicts, therefore, must be resolved in favor of the respondent (the prevailing party)." (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926, 101 Cal.Rptr. 568, 571, 496 P.2d 480, 483.)

Much of the testimony concerning the operation of defendant's Stop 'N' Go market was provided by former employees of defendant corporation, which operated eight stores in the Long Beach area.

At the subject store where plaintiff's accident occurred, two self-service gasoline pumps had been installed in December 1973. A problem of maintenance developed within the four-or-five-month period before plaintiff fell due to the defective condition of a nozzle on one of the pumps. When in use, the nozzle would overflow, spilling gasoline on the pump apron and sometimes on customers filling their tanks. Defendant's mechanical maintenance supervisor denied at trial that he had ever been informed of this problem, although store employees declared that they had requested repairs of the nozzle many times.

Defendant's district representative, Watson, charged with responsibility for the smooth operation of defendant's stores in the area, often visited the premises and admitted in his deposition that he was aware of the overflowing nozzle, having been informed of it many times.

The manager of the subject store, Larson, was concerned about the overflowing gasoline because of the fire hazard and the danger of slips and falls by patrons. Larson mentioned to supervisor Watson that there had been two separate incidents where people had fallen around the pumps prior to plaintiff's accident in November 1974. Watson, according to Larson, had dismissed the possibility of successful negligence suits against defendant by stating that "the store didn't have anything to worry about because they had a team of lawyers that would tie it up in court for years." Company invoices introduced at trial established that an attempt had been made to repair the nozzle in July 1974; but that attempt was apparently unsuccessful, as the pump continued to malfunction even after plaintiff's accident.

Gasoline was not the only substance which regularly spilled around the pumps. The store sold motor oil by the can oil that patrons would attempt to pour into their vehicles on the premises. Since the store provided no method for either opening the oil cans or for draining the cans into customer vehicles, customers would borrow ordinary can-openers from store clerks for this purpose and, on occasion, would fashion makeshift funnels to transfer the oil from the can to their automobile engines. Empty oil cans and oil spills were often in evidence around the pumps.

Defendant gave no pre-employment or in-service training to employees concerning cleanup procedure. The subject store was manned by three employees, each working an eight-hour shift alone as the store was open on a 24-hour basis. It was company policy that the employee on duty was not to leave the store during his shift when customers were present inside. On the "graveyard" shift, in the late evening and early morning hours, the employee on duty was expected, if there was time, to clean up outside the store, including the pump area. The testimony was somewhat divergent concerning the frequency of cleanup; it apparently varied according to which employee was on duty. There was a hosing down of the area about once a week, and sometimes sweeping up in between times, but defendant did not provide any solvents or particular cleaning materials for the task.

The result was that the pump area constituted a continuing peril to all who ventured there. This danger was compounded by the fact that, at night, the lighting was very poor. Witnesses testified that, prior to plaintiff's accident, two members of the public had fallen there as well as several of defendant's own employees.

Manager Larson testified that when it became clear that a dangerous condition existed, and that her warnings to supervisor Watson went unheeded, she unilaterally advised the employees under her supervision to place warning signs on the pumps. Supervisor Watson, however, insisted that the signs be removed as damaging to the store's "image," because of their makeshift nature, although he also refused Larson's request for an officially-approved printed sign. In addition, at Larson's suggestion, store clerks advised patrons over the loud speaker system of the hazards around the pumps; but supervisor Watson ordered that this practice be terminated.

As indicated previously, plaintiff's fall occurred near nightfall, when the lighting was very poor. She had just replaced the gas cap on her tank at the rear of her vehicle and observed nothing on the ground prior to the accident. After she fell, however, she observed a puddle of oil about one and one-half feet in diameter located partially under the rear of her vehicle; she also noticed a strong smell of gasoline on her clothing.

II The Right To Recover Punitive Damages in an Action Founded on Negligence

Traditionally, the law has not favored the imposition of punitive damages. Thus, it has been said that "(t)hey are not a favorite of the law and the granting of them should be done with the greatest caution. They are only allowed in the clearest of cases." (Gombos v. Ashe (1958) 158 Cal.App.2d 517, 526, 322 P.2d 933, 939). The statutory authorization for punitive damages is found in Civil Code section 3294 which provides: "In an action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, express or implied, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant."

In the case at bench an unintentional tort action we are dealing with "malice," one of the trilogy of conditions "oppression, fraud, or malice" set forth in Civil Code section 3294 to justify an award of punitive damages. In an early case, Davis v. Hearst (1911) 160 Cal. 143, 116 P. 530 the Supreme Court emphasized that the malice intended by section 3294 to justify an award of punitive damages referred to "the motive and willingness to vex, harass, annoy, or injure" (Id. at p. 162, 116 P. at p. 539), and that it is only upon a showing adequate to establish this meaning of malice "that punitive damages have ever been awarded." (Id. at p. 162, 116 P. at p. 539.)

It has been suggested that the Davis v. Hearst formulation of the concept of "malice" is not troublesome as long as plaintiff is charging a defendant with an intentional tort rather than an unintentional tort. (G. D. Searle & Co. v. Superior Court...