Rufo v. N.B.C. National Broadcasting Co.

• Decision Date: 05 January 1959
• Citation: 334 P.2d 16,166 Cal.App.2d 714
• Court: California Court of Appeals Court of Appeals
• Parties: Florence RUFO, Plaintiff and Appellant, v. N.B.C. NATIONAL BROADCASTING COMPANY, a corporation, Defendant and Respondent. Civ. 23057.

Page 16

334 P.2d 16

166 Cal.App.2d 714

Florence RUFO, Plaintiff and Appellant, v. N.B.C. NATIONAL BROADCASTING COMPANY, a corporation, Defendant and Respondent.

Civ. 23057.

District Court of Appeal, Second District, Division 1, California.

Jan. 5, 1959.

Phill Silver, Hollywood, for appellant.

Moss, Lyon & Dunn, Fulton W. Haight, and Henry F. Walker, Los Angeles, for respondent.

FOURT, Justice.

This is an appeal from an order granting a motion for a non-suit.

The plaintiff alleged in her complaint that the defendant had its principal place of business in Hollywood, California, and maintained a broadcasting studio at the corner of Sunset Boulevard and Vine Street; that upon said premises it maintained certain doorways to the studio which are the means of ingress and egress of the studio; that at the front of the studio there is a cement walkway with trees planted in basins. She further alleged that on August 10, 1953, at about 4:20 o'clock p.m., she was present upon the premises of the defendant as a guest of the defendant to see a performance and that while she was walking to the end of a line composed of other guests she was pushed and shoved into the basin of a tree well in the cement walkway through the carelessness of the defendant, and that she thereupon fell and received injuries. She also alleged that the negligence of the defendant consisted of the following: (1) the defendant maintained the premises so that there was a sudden drop-off around the tree basin; (2) the defendant failed to warn her of the existence of the drop-off from the sidewalk, and it failed to maintain any supervision over the lineup of people who were waiting to enter the studio, and as a result of which she was then shoved backward with force and violence and fell to the cement near one of the trees where there was a sudden drop-off from the cement to the dirt around the tree.

Appellant's opening brief states, "Plaintiff's complaint was an action for personal injuries sustained on a public sidewalk in front of the defendant's premises."

The answer filed by the defendant denied that the cement sidewalk with trees planted in basins therein was on any premises owned, operated or maintained by it, and denied that there was any negligence upon the part of the defendant, and denied that the plaintiff was injured.

A summary of the testimony is as follows: The plaintiff was with two other persons each of whom had tickets for, and desired to enter a show at the defendant's studio. When they arrived in the vicinity of the studio they saw many people who were to attend the show and observed that such people had already formed into a line. One of the ladies who was with the plaintiff stated that she and the plaintiff started to get into the line, and she also stated that at the start of the line there were two persons abreast, but toward the end of the line it widened to three and four persons abreast across the sidewalk, and that there was space for only one person to pass between the people in the line and the tree where the accident occurred. The witness described the base of the tree and its relation to the sidewalk, and said that the dirt around the tree was about an inch below the level of the sidewalk. The plaintiff and her companions were in no particular hurry because when they arrived at or near the studio it was about twenty minutes before the studio opened for the show. They saw two lines formed, one for those persons with tickets, which extended east on Sunset Boulevard toward Argyle Street, and one for those without tickets which extended west toward Vine Street. The three women became separated. One of the ladies testified that she was walking in front of the plaintiff, and heard someone say, "A woman has fell;" that she then turned around and by that time the plaintiff was on the ground. She further testified that an usher from the defendant's studio, who had been on or near the steps entering the studio prior to that time, went to the plaintiff and the plaintiff was then taken to a restroom in the building. The witness also stated that there had been no usher on the sidewalk supervising the lineup of persons before the plaintiff fell down. The witness indicated that there was a crowd immediately adjacent to the tree, and that it was necessary to walk single file to get through. This witness also stated that the sidewalk where the accident occurred was about nine feet wide.

The plaintiff testified that as she and her companions arrived there was quite a commotion among the people trying to get into the line, and that by the time she got to where the tree was located there was no room left for anybody to walk by the line of people without stepping into the base or basin around the tree, and that a person had to make her way through the crowd. She stated that she was pushed and shoved, and that her foot went into the dirt around the tree and she fell to the cement sidewalk. She did not recall seeing an usher other than the one at the head of the line.

Under section 2055, Code of Civil Procedure, a supervising usher of the defendant company was called and he testified that he went to the scene of the accident. He said that it was procedure to have the people who expected to attend the show form in lines on the sidewalk and wait until the studio doors opened. He had instructed the pages working under him to keep the people in the lineup two abreast, to stand close to the inside edge of the sidewalk area rather than close to the curb near the street so as to leave sufficient space for pedestrians to pass to and fro; the pages also were to keep the line straight and orderly, and to see to it that there was no pushing and to see if people had tickets, and further to stop any cutting into the line by unauthorized persons.

It is to be noted that the plaintiff knew of and saw the crowd on the sidewalk, and saw the tree and the basin surrounding it. There was no evidence that the defendant planted any of the trees or had any control over them, or was in any manner responsible for them or for the basin around them. There was no evidence to show that the plaintiff ever knew or was aware that the defendant's ushers ever had come onto the public sidewalk to give any information or make any requests, and there was no evidence that the plaintiff had placed any reliance upon any usher. There was no evidence that the people in the lineup or those on the sidewalk were boisterous, noisy or unruly. Neither of the plaintiff's companions saw the accident.

In the plaintiff's deposition she stated that people were going in both directions on the sidewalk at the time of the accident, whereas, at the trial she testified that they were all traveling in the same direction excepting those standing irregularly in the lineup facing her. She further testified at the trial that she remembered that it was a man who had pushed her, "*** because as I was trying to get in that line making my way through there. I remember him on my left side here." There is no claim that such man was in anywise connected with the defendant.

After introducing the evidence above set forth, the plaintiff rested her case and the motion for a non-suit was granted.

Appellant now asserts that it was error to grant such a motion, claiming that the defendant was under a duty to exercise reasonable care to protect the plaintiff from injury caused from the wrongful acts of other invitees, and further, that independent of such duty there was a duty to refrain from doing any affirmative act that would render the sidewalk dangerous for public use.

Counsel for the appellant has referred to many cases and many situations, however, a review of such cases convinces us that none of them is in point in the present case. This is not a case where the plaintiff was an invitee of the defendant on its own premises, nor was she hurt by any condition on the premises of the defendant, nor was she hurt by anyone from the premises of the defendant, nor is it a case where a crowd became unruly and boisterous to the defendant's knowledge and defendant failed to do anything about such conduct, nor is it a case where the defendant roped off the sidewalk or placed any obstructions thereon. The plaintiff makes no claim that the condition was a nuisance. Most, if not all, of appellant's citations relate to cases where the injury occurred upon the premises of the inviter, and not in the street or sidewalk area adjoining the premises. For example, Stockwell v. Board of Trustees, 64 Cal.App.2d 197, 148 P.2d 405, was with reference to an episode which occurred upon the Stanford University campus; Sample v. Eaton, 145 Cal.App.2d 312, 302 P.2d 431, involved a patron attending a wrestling match where another spectator threw a bottle within the premises; Winn v. Holmes, 143 Cal.App.2d 501, 299 P.2d 994, involved a patron inside of a restaurant who was assaulted by other patrons; Charonnat v. San Francisco Unified School Dist., 56 Cal.App.2d 840, 133 P.2d 643, was a school ground case where a boy was hurt by another student upon the playgrounds; Conner v. East Bay Municipal Utility Dist., 8 Cal.App.2d 613, 47 P.2d 774, 48 P.2d 982, was a case where the defendant was doing street work and negligently performed such work so as to hurt the plaintiff; Terrell v. Key System, 69 Cal.App.2d 682, 159 P.2d 704, 705, was a case of one passenger being hurt by a "milling, brawling crowd" and the conductor who saw the situation did nothing to prevent the unruly group from hurting the plaintiff; Edwards v. Hollywood Canteen, 27 Cal.2d 802, 167 P.2d 729, involved a dance hostess who was hurt upon the dance floor of the defendant by an obnoxious participant upon the dance floor; Thomas v. Studio Amusements, Inc., 50 Cal.App.2d 538, 123 P.2d 552, involved a skating rink patron who was hit while upon the floor by a person recklessly cutting in on the skating area; Tschumy v. Brook's Market 60 Cal.App.2d 158, 140 P.2d...