Pena v. Sita World Travel, Inc.
| Decision Date | 28 December 1978 |
| Citation | 152 Cal.Rptr. 17,88 Cal.App.3d 642 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Grace PENA, Plaintiff and Appellant, v. SITA WORLD TRAVEL, INC., and United Associated Tour and Travel Service, Defendants and Respondents. Civ. 53054. |
Renzi & Kilbride, Glendale, for Grace Pena plaintiff and appellant.
Hiestand & Bower, Los Angeles, for Sita world Travel Inc. defendant and respondent.
Dryden, Harrington & Swartz, Los Angeles, for United Assoc. Tour and Travel Service defendant and respondent.
Shield & Smith, Los Angeles, for Auto Club of So. Calif. defendant and respondent.
Plaintiff Grace Pena appeals an order dismissing her nineteenth and twentieth causes of action pursuant to the sustaining of defendants' demurrers thereto. We affirm the dismissal order.
In the summer of 1975, plaintiff went on a ten-day prepaid tour of Mexico. The tour had been arranged by Sita World Travel, Inc. (Sita) and sold to plaintiff by United Associated Tour and Travel Service (United), which allegedly remitted some of the payment to Sita. While traveling through Mexico, plaintiff was injured when a bus in which she was riding overturned. As a result of said injury, plaintiff and three other injured passengers filed suit against Sita, United, and the Automobile Club of Southern California, which had sold the tour to some of the other plaintiffs. The complaint in its second amended form set forth twenty causes of action, five per plaintiff, with plaintiff Grace Pena alleging: (16) negligence in the selection of the transportation to be used in Mexico, and in defendants' failure to warn of a Mexican law limiting recovery of damages in accidents such as the one at bench; (17) and (18) intentional misrepresentations as to the safety of the transportation selected; (19) strict liability in tort; and (20) indemnification from United for failure to warn of Sita's disclaimer clause. General demurrers were sustained as to the nineteenth and twentieth causes of action and plaintiff then voluntarily dismissed the sixteenth, seventeenth, and eighteenth causes of action. This appeal is taken from the ensuing dismissal of plaintiff's nineteenth and twentieth causes of action.
The function of a demurrer is to test the sufficiency of a complaint as a matter of law and absent clear error or abuse of discretion by the trial court, the order of dismissal following the sustaining of the demurrer will be affirmed on appeal. (Banerian v. O'Malley (1974) 42 Cal.App.3d 604, 610-11, 116 Cal.Rptr. 919.)
1. Strict Liability. In California, to state a cause of action for strict liability in tort, plaintiff must allege that her injury was caused by a defective product. (Shepard v. Alexian Brothers Hosp. (1973) 33 Cal.App.3d 606, 608-09, 109 Cal.Rptr. 132; Barton v. Owen (1977) 71 Cal.App.3d 484, 498, 139 Cal.Rptr. 494.) The courts of this state have repeatedly refused to extend this doctrine to the sale of services such as the guidance of others in their economic, financial, or personal affairs. (Gagne v. Bertran (1954) 43 Cal.2d 481, 487, 275 P.2d 15; Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 978, 95 Cal.Rptr. 381; Shepard v. Alexian Brothers Hosp., supra, 33 Cal.App.3d pp. 613-14, 109 Cal.Rptr. p. 132.) The guidance of others in their personal affairs is precisely what the defendants at bench were doing. Defendant travel agencies in selecting and coordinating transportation, accommodations, and meals for prospective travelers were clearly performing a service, and the fact that these arrangements were presented in the...
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