Premo v. Grigg

• Decision Date: 23 September 1965
• Citation: 237 Cal.App.2d 192,46 Cal.Rptr. 683
• Court: California Court of Appeals Court of Appeals
• Parties: Roy PREMO, Jr., et al., Plaintiffs and Appellants, v. Douglas R. GRIGG et al., Defendants and Respondents. Civ. 11001.

Page 683

46 Cal.Rptr. 683

237 Cal.App.2d 192

Roy PREMO, Jr., et al., Plaintiffs and Appellants, v. Douglas R. GRIGG et al., Defendants and Respondents.

Civ. 11001.

District Court of Appeal, Third District, California.

Sept. 23, 1965.

As Modified on Denial of Rehearing Oct. 15, 1965.

Hearing Denied Nov. 16, 1965.

Watt, Peckham & Ginnell, by Jordan N. Peckham, Chico, for appellants.

Laughlin & Craig, by Robert E. Laughlin, Chico, for respondents.

PIERCE, Presiding Justice.

Plaintiffs appeal from a summary judgment in a wrongful death action.

Defendants' motion therefor was accompanied by the declaration of Robert E. Laughlin, defendants' attorney, and by certain depositions which were considered by the court under the parties' stipulation. The grounds of the motion were that as a matter of law defendants were not negligent, in that said declaration and depositions showed no duty of care existed; also that plaintiff Roy Premo was guilty of contributory negligence barring recovery. We find the summary judgment was properly granted.

The complaint alleged that defendants had negligently permitted a dangerous condition to exist on their restaurant premises, to wit: a hot water supply system with water at such dangerous and excessive temperatures as to be likely to cause severe burns to anyone using the water. It was further alleged that on November 10, 1962, plaintiff Roy Premo, not knowing that the water was at a dangerous and excessive temperature, had drawn a bucket full from the tap and had set the bucket on the floor; that his daughter, Debra, had fallen into the bucket, receiving severe burns from which she died on January 10, 1963.

The facts established by the declarations and depositions before the court in the summary judgment proceeding were these: the place is a pizza parlor owned and operated by defendants. Plaintiff Roy Premo was employed there as a part-time dishwasher and janitor. On the night in question he was cleaning the place, assisted by his wife, plaintiff Loyce C. Premo. The couple had brought their four-year-old daughter, Debra, with them as had been their custom. Defendants knew of this custom and tacitly permitted it. The father, preparatory to a floor-mopping operation, filled a bucket with undiluted hot water from one of the kitchen taps and carried the bucket into the front dining room where he left it unattended, returning to the kitchen. Neither his wife nor the child was then in the room where the bucket had been left. Three to five minutes later Premo and his wife heard the child scream. Mrs. Premo, who had been working in the hallway adjacent to the dining room, was the first to reach her daughter, found her immersed in the bucket. The child died from burns received.

A day or two after the accident defendant Kinner told Premo, according to the latter's deposition, 'the water was 180 degrees according to the thermostat on the water heater.' The father testified he knew the water was hot when he drew it from the tap, knew that it was too hot for anyone to 'bathe' in, but did not realize just how hot the water was.

Water used for dishwashing in restaurants such as the one here involved is required to be heated to at least 180 degrees Fahrenheit. (Health & Saf. Code, sec. 28559.)

The evidence shows that although defendants knew that Premo was using water from the kitchen tap to fill his bucket for the floor-mopping operation they were unaware of the fact that he was using the hot water without mixing it with cold. ¹

It is settled law, which defendants concede, that a summary judgment is proper when it clearly appears from the declarations, affidavits and depositions before the court that there is no possible triable issue of fact. (Code Civ.Proc. sec. 437c; and see Aguirre v. Southern Pac. Co., 232 A.C.A. 777, 782-783, 43 Cal.Rptr. 73.)

On the facts recited above, we hold that as a matter of law plaintiffs have no triable cause of action.

A cause of action for negligence consists of four elements: (1) the duty of the defendant with respect to the injured person's injury; (2) the violation of that duty; (3) the causal relation between the defendant's conduct and the injury suffered; and (4) the plaintiff's loss, i. e., damages. (Prosser, Torts (3d ed.) p. 146; see Green, Duties, Risks, Causation Doctrines, 41 Tex.L.Rev. 42, 59.)

The problem in the case at bench is one of intervening cause; whether there intervened a 'force' which was a 'superseding cause.' The California Supreme Court recently has considered the superseding intervening cause cases, as one eminent scholar in the field of torts has declared courts should do, ² not as presenting issues of causation, or even of proximate (i. e., legal) causation, but as a problem of determining the duty of the defendant to protect the person injured against the particular intervening cause.

In general, when a third person becomes aware of danger, or should, if he acted reasonably, be aware of it, a defendant has a right to assume that he will act reasonably and will not be held liable for the intervening act. It is only where the intervening misconduct is to be anticipated, 'and the risk of it was unreasonable, that liability will be imposed * * *.' (Prosser, op. cit. supra, p. 323.)

Illustrative are the unlocked-car cases. In Richards v. Stanley (1954) 43 Cal.2d 60, p. 63, 271 P.2d 23, our Supreme Court (per Justice Traynor) held that an owner of an automobile is generally under no duty to persons injured by a thief of the car. This was held true despite an ordinance requiring that cars be locked. (The ordinance was held not designed for the protection of the victim of the thief's negligence.) It was stated in Richards (on p. 65, 271 P.2d p. 27) '* * * Ordinarily * * * in the absence of a special relationship between the parties, there is no duty to control the conduct of a third person so as to prevent him from causing harm to another.'

In Richards, supra, there was a forewarning of a rule announced in a later California case in the statement by the court (on p. 66, 271 P.2d p. 27): 'In the present case Mrs. Stanley did not leave her car in front of a school where she might reasonably expect irresponsible children to tamper with it * * *.' The later case is Richardson v. Ham (1955) 44 Cal.2d 772, 285 P.2d 269. There a construction partnership was held liable for leaving an unlocked bulldozer in a position where it was readily accessible to teen-agers, three of whom did appropriate it, driving it off a mesa and seriously injuring plaintiffs. It was held (on p. 776, 285 P.2d 269) there was a reasonably foreseeable risk that defendants' bulldozers might be tampered with when left unattended. This liability was extended in Hergenrether v. East (1964) 61 Cal.2d 440, 39 Cal.Rptr. 4, 393 P.2d 164, to apply where a 2-ton truck was left unlocked and parked overnight on Redding's so-called 'skid row.' (See also Murray v. Wright, 166 Cal.App.2d 589, 333 P.2d 111.) We turn now to cases other than the unlocked vehicle type.

In Gonzalez v. Derrington (1961) 56 Cal.2d 130, 14 Cal.Rptr. 1, 363 P.2d 1, plaintiffs in four consolidated actions sued for wrongful death and injuries incurred in an explosion and fire intentionally caused by two men who had bought the gasoline in a service station. The gasoline had been sold in an open container in violation of an ordinance. Although violation of the ordinance was negligence, it was held that the injuries and deaths were produced by an 'efficient, intervening cause,' and that the violation of the ordinance was therefore not the proximate, or legal, cause. The court points out (on p. 133, 14 Cal.Rptr. p. 3, 363 P.2d p. 3) that 'It cannot logically be said that there is an 'extreme danger,' or that it is foreseeable, that gasoline bought in an open can will be used intentionally to injure others.' Although the intervening act by the third persons in Gonzalez was an intentional tort, it is the nature of the hazard, the reasonable likelihood that a third person will act in a particular manner, which fixes the duty and liability--this regardless of whether that person's act be innocent, negligent, intentional, or criminal. (Richardson v. Ham, supra, 44 Cal.2d 772, 777, 285 P.2d 269.)

We find in other jurisdictions cases involving injuries to children where defendants, although their acts started a chain of causation leading to the child's injury, were held not liable because of superseding intervening forces, e. g., in Leoni v. Reinhard (1937) 327 Pa. 391, 194 A. 490, where a piece of unslaked lime fell from defendant's truck and was picked up by boy walking along the highway. He put it in a bucket of damp earth and fish worms he was carrying and almost immediately it exploded, causing the loss of an eye; also in Dahl v. Valley Dredging Co. (1914) 125 Minn. 90, 145 N.W. 796, where a dredging company kept naptha in a quart coffee pot for use in priming a gasoline engine. On a Sunday boys playing on the dredger lighted a match and set fire to some waste. One of them found the pot of naptha and poured it onto the fire and was seriously burned. (Cf. Richardson v. Ham, supra.)

Regarding cases of the type discussed above, Dean Prosser states (Prosser, op. cit. supra, p. 321): '* * * The virtually unanimous agreement that the liability must be limited to cover only those intervening causes which lie within the scope of foreseeable risk, or have at least some reasonable connection with it, is based upon a recognition of the fact that the independent causes which may intervene to change the situation created by the defendant are infinite, and that as a practical matter responsibility simply cannot be carried to such lengths.'

Section 442 of Restatement Second of Torts sets forth 'Considerations Important in Determining Whether an Intervening Force is a Superseding Cause.' They are:

'(a) the fact that its intervention brings about harm different in kind from that which would otherwise have...