Robertson v. Wentz

Citation187 Cal.App.3d 1281,232 Cal.Rptr. 634
CourtCalifornia Court of Appeals
Decision Date16 December 1986
PartiesHorace B. ROBERTSON, Plaintiff and Appellant, v. Marilyn WENTZ, Defendant and Respondent. A029699.

Glen L. Moss, Hayward, for plaintiff and appellant.

Thomas McInerney, Seth J. Schwartz, Haims, Johnson, MacGowan & McInerney, Oakland, for defendant and respondent.

NEWSOM, Associate Justice.

On January 20, 1982, Roy Wentz, Jr. (hereafter Roy), then a minor, robbed a bookstore in San Lorenzo, and in the process shot and killed Renee Robertson. Roy was apparently under the influence of drugs at the time of the crimes. Appellant, who is Renee Robertson's surviving spouse, filed an action against respondent for wrongful death, based both upon her alleged negligence in controlling and supervising her minor son, and statutory violations. The dispute before us concerns the lower court's entry of summary judgment in favor of respondent on all causes of action.

Roy is the son of respondent and Roy Wentz (hereinafter Roy, Sr. or the father.) Respondent and Roy, Sr. were married in 1957, and filed for divorce in May of 1976, the decree becoming final in March of 1978. The custody provision awarding respondent sole legal custody of Roy was never modified, and was in effect at the time of the shooting. Respondent was also awarded child support. Respondent remarried and moved to Middletown, California, in Napa County.

Roy lived with respondent after the divorce until 1979, when he moved in with his father in San Lorenzo. Between July and September of 1981, Roy resided with his employer, Gordon Sales. Then in September of 1981, Roy returned briefly to respondent's house in Middletown. Respondent received no child support payments during the time Roy lived with his father, or during the three months in 1981 when he again resided with her. In mid-January of 1982, Roy left respondent's house and recommenced living with his father.

Roy was introduced to guns early in life, receiving a .22 caliber weapon for his fifth birthday. However, as the record shows, his parents allowed him to actually hold the gun only after he had taken a safety course at about age 10. Respondent was aware that, by the time Roy moved back with her, he owned two rifles, a shotgun, and two pellet pistols. To respondent's knowledge, Roy had never misused the guns or demonstrated a propensity to do so. She believed him well-disciplined in the use of firearms.

Roy began drinking on a social basis and smoking marijuana at age 13. Respondent testified that she did not become aware of her son's drinking until 1981, when he was about 16 years old. She discovered his use of cocaine and marijuana in the summer of 1981, when it seemed that "every cent" he earned went for drugs supplied by his employer. In the summer of 1981, Roy asked respondent if he could move back in with her to "get away from the drugs, the booze, the whole thing." Respondent testified that neither she nor her present husband ever took any disciplinary action other than spending many hours counseling Roy about his problems and imposing strict rules upon him.

Respondent knew of only one disciplinary problem her son had at school: after discovering that he had not passed the GED exam (a high school equivalency test), Roy went to school "irate" and threw a cigarette on the school grounds; thereafter when Roy denied the vice principal's accusations, respondent was called in to discuss the boy's behavior. She was also aware of a single criminal incident, a misdemeanor arrest for possession of marijuana. Respondent spoke with her son about these incidents, but did not otherwise discipline him.

Respondent characterized Roy as an average student, very athletic, who played football and wrestled. She testified, however, that as her son approached 18 years, he became scared; "he was not prepared to go out and face the world." According to Respondent, Roy had no self-confidence. She perceived her son as "a 12 year-old boy in this great big grown-up body."

The shooting took place five days before Roy turned 18. The morning of the incident, respondent's daughter, Kelly, called her to say that Roy was coming back to Middletown to get his own apartment and go to school. Kelly was very upset and told respondent that Roy sounded "really weird;" she felt that "something was really wrong." Roy was highly intoxicated on hallucinogenic mushrooms and alcohol, and had taken his father's loaded .38 caliber special that morning from an unlocked bedside table drawer. Although respondent testified that she had reason to believe Roy's father kept guns in his house, she was not sure that he did so. She had never been to the home of Roy's father in San Lorenzo, and had not discussed his guns with her former husband prior to the shooting.

Roy's living arrangements at the time of the shooting are not entirely clear. Roy felt that he was then residing with his mother, and merely visiting his father. Respondent testified, however, that she and Roy, Sr. had agreed that their son was to stay with his father, get counseling and possibly visit military recruitment centers. She felt that Roy needed guidance and counseling. On January 15, 1982, respondent had discovered Roy in bed with his 13 year-old girlfriend, and had ejected him from the house. After Roy left, respondent called Roy, Sr. to tell him their son was coming. Respondent knew of no immediate or long range plans for her son to move back in with her.

Appellant argues that the trial court erred in granting respondent's summary judgment motion and dismissing his negligence cause of action. There are two facets to appellant's negligence action: first, that respondent negligently failed to supervise and control her minor son; and second, that respondent did not exercise due care "in safeguarding firearms from her son." Contending that his negligence action presents triable issues of fact which remain to be litigated, appellant insists that entry of summary judgment against him was improper.

It is well settled that summary judgment is a " 'drastic procedure to be used sparingly and with circumspection....' " (Harris v. De La Chapelle (1976) 55 Cal.App.3d 644, 647, 127 Cal.Rptr. 695.) A defendant moving for summary judgment has the burden of establishing that the action is without merit; a factual showing negating all causes of action on all theories is required. (Tresemer v. Barke (1978) 86 Cal.App.3d 656, 666, 150 Cal.Rptr. 384; Harris v. De La Chapelle, supra, 55 Cal.App.3d at p. 647, 127 Cal.Rptr. 695.) "If he fails in that burden, summary judgment must be denied despite the lack of opposing declarations." (Tresemer v. Barke, supra, 86 Cal.App.3d at p. 666, 150 Cal.Rptr. 384.) But if all material issues of fact are eliminated and the declarations filed in support of the motion establish that the defendant is entitled to judgment as a matter of law, summary judgment should be granted. (Tauber-Arons Auctioneers Co. v. Superior Court (1980) 101 Cal.App.3d 268, 273, 161 Cal.Rptr. 789.) " 'Applicable substantive law determines the facts necessary to support a particular theory of relief and hence the sufficiency of properly framed factual statements in declarations to support a summary judgment.' " (Tresemer v. Barke, supra, 86 Cal.App.3d at pp. 666-667, 150 Cal.Rptr. 384.)

The essential elements of a cause of action for negligence are (1) defendant's legal duty of care to plaintiff, (2) defendant's breach of duty by negligent act or omission (3) injury to plaintiff as the result of the breach, and (4) compensable damages. (Rosales v. Stewart (1980) 113 Cal.App.3d 130, 133, 169 Cal.Rptr. 660.)

The case before us presents the issue of whether respondent, in her role as parent, had a legal duty to prevent her son from shooting Renee Robertson. "Whether a duty is owed is simply a shorthand way of phrasing what is the ' "essential question--whether the plaintiff's interests are entitled to legal protection against the defendant's conduct." ' " (J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803, 157 Cal.Rptr. 407, 598 P.2d 60.) " 'While the question whether one owes a duty to another must be decided on a case-by-case basis, every case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct....' " (Id., at p. 806, 157 Cal.Rptr. 407, 598 P.2d 60.) Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.)

The primary consideration in establishing the element of duty is the foreseeability of the risk. (Sun 'N Sand, Inc. v. United California Bank (1978) 21 Cal.3d 671, 695, 148 Cal.Rptr. 329, 582 P.2d 920; DeSuza v. Andersack (1976) 63 Cal.App.3d 694, 702, 133 Cal.Rptr. 920.) " 'As a general principle, a "defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous." ' " (Tresemer v. Barke, supra, 86 Cal.App.3d 656, 670, 150 Cal.Rptr. 384.) "Foreseeability is a question of fact unless decisional law has established that there could be no foreseeability of the risk under same or similar fact situations." (Forrand v. Foodmaker, Inc. (1986) 182 Cal.App.3d 196, 199, 227 Cal.Rptr. 74.)

As a corollary principle, "[i]n general, one owes no duty to control the conduct of another person [Citation.]...." (Megeff v. Doland (1981) 123 Cal.App.3d 251, 257, 176 Cal.Rptr. 467; see also Harland v. State of California (1977) 75 Cal.App.3d 475, 480, 142 Cal.Rptr. 201.) Exceptions have been delineated where the defendant stands in a "special relationship" to either the person whose conduct needs to be controlled or the foreseeable victim of that conduct. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435, 131 Cal.Rptr. 14, 551 P.2d 334; Megeff v. Doland, supra, 123 Cal.App.3d at p. 257, 176 Cal.Rptr....

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