Schwartz v. Helms Bakery Limited

• Decision Date: 31 July 1967
• Citation: 60 Cal.Rptr. 510,67 Cal.2d 232,430 P.2d 68
• Court: California Supreme Court
• Parties: , 430 P.2d 68 Scott SCHWARTZ, a Minor, etc., Plaintiff and Appellant, v. HELMS BAKERY LIMITED et al., Defendants and Respondents. L.A. 29389

Page 510

60 Cal.Rptr. 510

67 Cal.2d 232, 430 P.2d 68

Scott SCHWARTZ, a Minor, etc., Plaintiff and Appellant, v. HELMS BAKERY LIMITED et al., Defendants and Respondents.

L.A. 29389.

Supreme Court of California

July 31, 1967.

John F. Dunne, Jr., Michael P. Balaban and Dunne & DeLoach, Beverly Hills, for plaintiff and appellant.

Morgan, Wenzel, Lynberg, Stearns & Morris, Morgan, Wenzel, Lynberg & Morris, Allen J. Kent, William Marshall Morgan and John P. McNicholas, Los Angeles, for defendants and respondents.

TOBRINER, Justice.

Plaintiff Scott Schwartz, age four, was struck by an automobile as he crossed a street in the middle of the block to buy a doughnut from defendant Taylor, the driver of a retail truck owned by defendant Helms Bakery Limited. The trial court granted a motion for nonsuit. We reverse. We hold that by undertaking to direct the child to an assigned rendezvous with the truck the defendants assumed a duty to exercise due care for his safety. The trial court therefore erroneously withdrew from the jury the questions whether defendants negligently discharged their duty and whether such negligence proximately caused plaintiff's injury.

We state the facts of the case according to the familiar rule that we view the evidence most favorably to plaintiff, disregarding conflicting evidence on behalf of the defendants, and indulging every reasonable inference in favor of plaintiff. We may affirm the judgment of nonsuit only if no substantial evidence would support a verdict for plaintiff. (O'Keefe v. South End Rowing Club (1966) 64 Cal.2d 729, 733, 51 Cal.Rptr. 534, 414 P.2d 830.)

Plaintiff suffered injury a few minutes after 5 p.m. in the gathering dusk of January 27, 1964, when he was struck by the car of defendant Ferguson, ¹ which was traveling south along Westgate Avenue. The apartment house in which plaintiff lived is located 150 feet north of Iowa Avenue on the west side of Westgate Avenue, a 40-foot-wide two-way through street. Approximately seven minutes before the accident plaintiff encountered the driver at the southwest corner of Westgate and Iowa Avenues. The driver saw plaintiff run down the sidewalk from his house and dart across Iowa to reach the truck, averting injury only when a car proceeding west on Iowa stopped abruptly to avoid hitting him.

Plaintiff asked, 'Would you wait for me? I want to go home and get a dime.' The driver testified, 'I knew where the lad lived, so I told him * * * that I would go up Westgate Street and I would meet him up the street.' The driver said nothing else, and the plaintiff ran back across Iowa toward his home.

After making two stops totalling about three minutes almost directly across the street from plaintiff's house, the driver stopped to transact another sale at a point farther up the block, 200 feet beyond plaintiff's house. At that moment, after the driver had spoken with his customer for about four minutes, and had ceased to expect that plaintiff would return, plaintiff called, shouting from across the street: 'Hey, wait$' The driver started to say, 'Don't run across the street$' at the same time that plaintiff ran from behind a parked car into the path of an oncoming vehicle.

Defendants contend that under these circumstances they bore no duty to plaintiff to exercise due care for his safety. We explain that since the driver undertook to direct the conduct of the child, he entered into a legal relationship with him. A second and concomitant legal relationship arose between the child and the driver when the driver invited the child to become a customer of his business. From each such relationship the common law imposes a duty upon defendants to exercise ordinary care for the safety of persons such as plaintiff, and to avoid the creation of unreasonable risks of foreseeable harm. ² We believe that reasonable minds could differ upon the questions whether defendants' discharge of their duty of due care failed to meet the standard of reasonableness, and, if so, whether such breach proximately caused plaintiff's injury. We hold that the court erred in taking these questions from the jury.

We note initially that three other jurisdictions, which have dealt recently with cases presenting circumstances closely analogous to those before us, have required that street vendors adhere to a high duty of care for the safety of children purchasing their wares.

In Mackey v. Spradlin, supra, 397 S.W.2d 33, the opinion discloses that the plaintiff darted from behind an ice cream truck into the path of an oncoming car. The court reversed a directed verdict for defendants, one of whom was the owner of the truck. Disclaiming application of the attractive nuisance doctrine, the court nonetheless said: 'the danger is enhanced by the sense of haste that is purposely aroused in the children of a neighborhood by the tinkling of bells and flashing of lights heralding the imminent arrival of an attraction that will stay but a moment and be gone unless they come at once. * * * Common sense and the most minimal regard for humanity suggest that one who intentionally attracts small children to a place in or so close to a street or highway that there is danger of their being struck by passing traffic should be under a duty to maintain a lookout for such traffic and, if he observes or in the exercise of ordinary care should observe a vehicle approaching close enough to constitute an immediate hazard, to warn the children present in the immediate area of the attraction or make such other reasonable effort to prevent their being injured as may be necessary in the circumstances.' (Id. at 37--38.)

In another 'Good-Humor-man' case, Jacobs v. Draper, supra, 142 N.W.2d 628, the court affirmed an order of the trial court denying defendants' motion for judgment notwithstanding the verdict or for a new trial. Plaintiff's decedent, a 3 1/2-year-old, had been killed by a passing car after running from behind an ice cream truck. The court relied in part upon the analysis of Dean Prosser: 'when children are in the vicinity, much is necessarily to be expected of them which would not be looked for on the part of an adult. It may be anticipated that a child will dash into the street in the path of a car * * *. In all such cases, the question comes down essentially to one of whether the risk outweighs the utility of the actor's conduct.' (Id. at 633; Prosser, Torts (3d ed.) § 33, pp. 175--176.) ³

The Georgia Court of Appeals reached a result similar to that in Mackey and Jacobs, supra, in Landers v. French's Ice Cream Co. (1958) 98 Ga.App. 317, 106 S.E.2d 325, 74 A.L.R.2d 1050. The court reversed an order sustaining a general demurrer in an action arising out of injuries caused by a speeding auto which struck the five-year-old plaintiff as he crossed the street to reach defendant's ice cream truck.

Although the California courts have not faced the precise problem before us, they have recognized (1) that one who undertakes to direct the actions of another must do so with due care; (2) that one who invites another to do business with him must exercise due care for his safety upon all premises of the business over which he exercises control; (3) that in dealing with a young child one must exercise greater caution than in dealing with an adult; and (4) that foreseeable intervening acts constitute no excuse from liability for negligence. After setting forth the authorities which establish these controlling principles, we apply them to the instant facts.

(1) Firmly rooted in the common law lies the concept that although one individual need do nothing to rescue another from peril not of that individual's own making, nevertheless, '(h)e who undertakes to do an act must do it with reasonable care.' (Johnston v. Orlando (1955) 131 Cal.App.2d 705, 709, 281 P.2d 357, 360; Valdez v. Taylor Automobile Co. (1954) 129 Cal.App.2d 810, 817, 278 P.2d 91; Griffin v. County of Colusa (1941) 44 Cal.App.2d 915, 923, 113 P.2d 270; Rest.2d, Torts, §§ 324, 324A; 38 Am.Jur. 659; Negligence, § 17.) '(I)f the defendant enters upon an affirmative course of conduct affecting the interests of another, he is regarded as assuming a duty to act, and will thereafter be liable for negligent acts or omissions * * *.' (Valdez v. Taylor Automobile Co., supra, 129 Cal.App.2d 810, 817, 278 P.2d 91, 95, citing Prosser, Torts, § 32, p. 190.) 'If the conduct of the actor has brought him into a human relationship with another, of such character that sound social policy requires some affirmative action or some precaution on his part to avoid harm, the duty to act or take the precaution is imposed by law. * * * Where a person is under the special protection of another, the latter is bound to exercise reasonable care to prevent harm to him, and this duty may include protection from the dangerous conduct of third persons.' (Harper & Kime, The Duty to Control the Conduct of Another (1934) 43 Yale L.J. 886, 898; see also Silva v. Providence Hospital of Oakland (1939) 14 Cal.2d 762, 775, 97 P.2d 798; Perry v. D.J. & T. Sullivan, Inc. (1933) 219 Cal. 384, 390, 26 P.2d 485.) ⁴

(2) The courts have long held that one who invites another to do business with him owes to the invitee the duty to exercise reasonable care to prevent his being injured on 'the premises.' The physical area encompassed by the term 'the premises' does not, however, coincide with the area to which the invitor possesses a title or a lease. The 'premises' may be less ⁵ or greater ⁶ than the invitor's property. The premises may include such means of ingress and egress as a customer may reasonably be expected to use. The crucial element is control. 'It is clear * * * that if the tenant exercises control over a common passageway outside the leased premises, he may become liable to his business invitees if he fails to warn them of a dangerous condition existing thereon.' (Johnston v. De La Guerra Prop., Inc., supra, 28 Cal.2d 394, 401, 170 P.2d 5, 9.) ⁷ An...