Vandermost v. Alpha Beta Co.

• Decision Date: 15 February 1985
• Citation: 164 Cal.App.3d 771,210 Cal.Rptr. 613
• Court: California Court of Appeals Court of Appeals
• Parties: Anthony B. VANDERMOST, Plaintiff and Appellant, v. The ALPHA BETA COMPANY, etc. et al., Defendants and Respondents. B007194.

Page 613

210 Cal.Rptr. 613

164 Cal.App.3d 771

Anthony B. VANDERMOST, Plaintiff and Appellant, v. The ALPHA BETA COMPANY, etc. et al., Defendants and Respondents.

B007194.

Court of Appeal, Second District, Division 4, California.

Feb. 15, 1985.

Hearing Denied April 17, 1985.

Curtis L. Gemmil and Jay Oberholtzer, Whittier, for plaintiff and appellant.

Brumer, Rubin & Hiles and Robert S. Rubin, Los Angeles, for defendants and respondents.

McCLOSKY, Acting Presiding Justice.

Plaintiff Anthony B. Vandermost appeals from the "Order For New Trial and the Final Judgment ... in favor of Defendants [Alpha Beta Company, doing business as Alphy's Restaurants and Holly Brouwer] and against Plaintiff, following the granting of Defendants' Motion for Judgment Notwithstanding the Verdict in favor of Plaintiff."

CONTENTIONS

Plaintiff contends on appeal that (1) "the trial court erred, abused its discretion, and prejudiced [him] by granting the judgment notwithstanding the verdict; (2) the order for new trial must be reversed and the jury verdict reinstated because there is no substantial evidence in the record to support the trial court's findings."

DISCUSSION

We first review the propriety of the trial court's granting of the judgment notwithstanding the verdict. "[A] motion for judgment notwithstanding the verdict may not be granted unless, indulging in every presumption in favor of the opposing party's evidence, there is no evidence of substantial value to support a verdict in favor of the opposing party." (Stevens v. Roman Catholic Bishop of Fresno (1975) 49 Cal.App.3d 877, 889, 123 Cal.Rptr. 171.) "The court may not weigh the evidence but must resolve all conflicts in the evidence in favor of the plaintiff and decide, as a matter of law, that plaintiff would not be entitled to a verdict in his favor." (Rollenhagen v. City of Orange (1981) 116 Cal.App.3d 414, 417, 172 Cal.Rptr. 49.) With these standards in mind, we summarize those facts most favorable to plaintiff.

On the evening of February 16, 1980, at approximately 11:20 p.m., plaintiff arrived at the Alphy's Restaurant located in Bellflower, California with a group of friends consisting of Kevin Larsen, Jeff Janoian, Jeff Phipps and Ben Swanson. During the course of the evening and prior to his arrival at Alphy's, plaintiff drank approximately eight partial cans of beer. He was not, however, feeling the effects of alcohol.

Shortly after the group had been seated they heard a commotion coming from the area where the cash register was located. Plaintiff heard a noise which sounded like a firecracker. Plaintiff left the booth in order to investigate. He observed a man, later identified as Raymond Moreno, at the cash register talking to defendant Brouwer who was working as the cashier. Ben Swanson heard Mr. Moreno say "give me the money or I am going to shoot someone." Mr. Moreno then fired the handgun he was carrying into the ceiling.

In response to Mr. Moreno's demands, Ms. Brouwer closed the register drawer thereby automatically locking it. She made eye contact with plaintiff and fled to the kitchen. Mr. Moreno unsuccessfully attempted to open the register by banging on it with his gun. Plaintiff observed that Mr. Moreno was "pissed off, angry, confused." Plaintiff began to move toward the exit. Mr. Moreno then approached plaintiff and demanded "give me all your money" to which plaintiff responded "I don't have any money." Mr. Moreno retorted, "Oh yeah" and shot plaintiff in the upper arm. Mr. Moreno also shot one Roderick Garrison who entered the restaurant during the course of the robbery. Mr. Moreno said nothing before shooting Mr. Garrison, but after that shooting he stated: "That will prove I'm not fucking around." The entire attempted robbery took no more than two minutes.

Ms. Brouwer testified that she did not recall her employer instructing her as to how to act during the course of a robbery.

As a result of his injuries, plaintiff filed a complaint seeking recovery from defendants for their negligence during the course of the robbery. Defendants answered denying the charging allegations of that complaint.

After the trial, the matter was submitted to the jury which returned a verdict for plaintiff and against both defendants. Thereafter, defendants filed a motion for judgment notwithstanding the verdict and notice of intention to move for new trial. The court granted the judgment notwithstanding the verdict and in the alternative granted the motion for new trial "to be effective only in the event the plaintiff appeals and prevails and the appellate court reverses this Court's decision as to the motion for judgment notwithstanding the verdict." (See Code Civ.Proc., § 629; Widener v. Pacific Gas and Electric Co. (1977) 75 Cal.App.3d 415, 437-438, 142 Cal.Rptr. 304, cert. den. (1978) 436 U.S. 918, 98 S.Ct. 2265, 56 L.Ed.2d 759, for the proper construction of such an order.)

"[T]he determination that a duty of care exists is an essential precondition to liability founded on negligence." (Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 443, 165 Cal.Rptr. 741.) Accordingly, to determine the propriety of the trial court's ruling on the motion for judgment notwithstanding the verdict we must first determine whether defendants breached a duty they owed to plaintiff.

"The determination of duty is primarily a question of law. [Citation.] It is the court's 'expression of the sum total of these considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' (Prosser, Law of Torts (4th ed. 1971) pp. 325-326.) Any number of considerations may justify the imposition of duty in particular circumstances, including the guidance of history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall. [Citation.] 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. [Citation.] However, foreseeability of the risk is a primary consideration in establishing the element of duty. [Citation.]" (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36; fn. omitted.)

"It is settled law in California that an owner or occupier of land held open for business purposes has a duty to protect visitors from the wrongful acts of third persons which threaten the safety of visitors to the premises when he or she has reasonable cause to anticipate such acts and the probability of resulting injury. (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121 [52 Cal.Rptr. 561, 416 P.2d 793].)" (Cohen v. Southland Corp. (1984) 157 Cal.App.3d 130, 137-138, 203 Cal.Rptr. 572; fn. omitted.)

Alphy's as the occupier of a restaurant held open for business premises therefore owed plaintiff such a duty. Ms. Brouwer, as an employee of Alphy's, who was acting on Alphy's behalf during the subject events, is subject to the same liability as Alphy's. (Rest.2d Torts, § 383.) ¹

Accordingly, we must determine whether defendants' duty to protect plaintiff from the wrongful acts of third parties obligated them to cooperate with Mr. Moreno during the course of the robbery. ²

In determining the scope of a duty the foreseeability of harm is of primary importance. (Gomez v. Ticor (1983) 145 Cal.App.3d 622, 628, 193 Cal.Rptr. 600.) The other major factors in determining the existence and scope of a duty are: "[T]he degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561.) ³

Plaintiff, in support of his contention that defendants breached a duty in the case at bench, relies primarily upon Winn v. Holmes (1956) 143 Cal.App.2d 501, 299 P.2d 994 and Taylor v. Centennial Bowl, Inc., supra, 65 Cal.2d 114, 52 Cal.Rptr. 561, 416 P.2d 793.

In Winn, the trial court sustained a demurrer to plaintiff's complaint without leave to amend. The facts pleaded were that plaintiff while a patron of defendant's restaurant was threatened by two individuals, who were patrons at the special invitation of defendant. Defendant knew of these threats. Thereafter, the individuals attacked plaintiff and defendant did nothing to protect her. In reversing the trial court, the appellate court reasoned "[a] person who enters a restaurant to eat a quiet meal has the right to assume that the management will use reasonable care to guard him against injury. A restaurant keeper may not sit idly by when he knows that one of his customers is likely to be assaulted by a third person on the premises, and leave it to the customer to extricate himself from danger. In many of the cases the negligence of the proprietor consisted of the failure to warn the customer of danger of which the proprietor had knowledge, which, of course, is not the basis of plaintiff's claim of negligence. Defendant had no knowledge of threatened injury from third persons which was not also possessed by plaintiff. Under the rule we have stated the proprietor's duty arises from his control over the premises and his power to restrain or expel offenders against the peace and safety of the premises." (Winn v. Holmes, supra, 143 Cal.App.2d at p. 505, 299 P.2d 994.)

In Taylor, plaintiff, while a patron of defendant's bar, twice had verbal sexual advances made to her by a male patron. These advances were...