Wallace v. Der-Ohanian

• Decision Date: 15 January 1962
• Docket Number: D,DER-OHANIA
• Citation: 18 Cal.Rptr. 892,199 Cal.App.2d 141
• Court: California Court of Appeals Court of Appeals
• Parties: Triss WALLACE, by her Guardian ad Litem, Marion Wallace, Plaintiff & Respondent, v. Reneeefendant & Appellant. Civ. 54.

Page 892

18 Cal.Rptr. 892

199 Cal.App.2d 141

Triss WALLACE, by her Guardian ad Litem, Marion Wallace, Plaintiff & Respondent, v. Renee DER-OHANIAN, Defendant & Appellant.

Civ. 54.

District Court of Appeal, Fifth District, California.

Jan. 15, 1962.

Hearing Denied March 14, 1962.

Hays & Hays, Fresno, for appellant.

Morgan, Beauzay, Smith & Holmes, Robert Morgan, Burton Wines, San Jose, for respondent.

CONLEY, Presiding Justice.

This is an action by which the plaintiff, an 11 year old girl, sued the defendant, Renee Der-Ohanian, also known as Renee K. Arakelian, doing business as Happy Valley Ranch, operator of a camp for children, for injuries and damages sustained by her through sexual abuse by an unknown person when she was a visitor at the camp.

Mrs. Der-Ohanian, born in Armenian Turkey, was brought to New York in 1929 by a missionary and educated at Columbia University; she is a registered nurse; she has children of her own and has had long experience in conducting children's camps and schools. In August, 1956, she opened a summer school or camp on her ranch. In the first year 12 children attended; in the following year 42 were present at the camp; and in 1958 the total attendance was 82. The school was conducted by Mrs. Der-Ohanian, assisted by male and female counselors. The activities consisted principally of art and crafts classes, singing, folk dancing, swimming and instruction in the Armenian language and culture. The school was nondenominational, and the average age of the children who attended was 10 to 12 years.

The plaintiff, Triss Wallace, had attended the school for a time earlier in the year 1960. At the close of the term the defendant held a reunion of past pupils, called by her a 'Buddy Day'; she invited her former pupils, including respondent, to return to the camp over Labor Day. This invitation was accompanied by a statement that if the minor so invited should bring another child with her, both of them would be entertained over the week end without charge. While it is questionable whether the fact that compensation was or was not given would make any difference as to the amount of attention required of Mrs. Der-Ohanian, it should be noted that this entertainment of the children was not in any basic sense free, but had a commercial angle; through the invitations and by advertisement over the radio in the near-by city of Fresno the defendant hoped to increase enrollment at the school at a later date.

The plaintiff, accompanied by an adult relative and bringing with her another 11 year old girl, Nancy Burke, arrived at the camp in the late afternoon, and the girls were left in the care of the appellant. The two little girls were assigned to a room in one of the barracks-like buildings, and no adult or supervisor was placed in the room with them. In fact, there was a decided shortage of proper supervision, and this forms the essential ground for the claim that respondent was negligent. The action is premised upon the lack of proper care for the plaintiff.

The two 11 year old girls were assigned to sleep all by themselves in a roughly constructed building which had six rooms in a row. The girls were placed in the third room, the last occupied room in the building, and neither an adult nor any other camp counselor was with them.

Room two was occupied by a Mrs. Hennessey, her daughters and her father, Haig Misakian. Room one was assigned to a Mrs. Thompson and her children. Defendant claims that she requested Mrs. Hennessey and Mrs. Thompson to 'look after the girls.' Mrs. Hennessey, as a witness, did not recall any such statement, and Mrs. Thompson did not testify. Mrs. Hennessey's conduct, from her own testimony, indicates that she never felt any obligation to protect the two girls in their room.

Of the three camp counselors, one was ill, and the other two went to a dance in Fresno and did not return to the camp until the following morning. The only adult camp attendant anywhere in the vicinity of the two girls at night was the defendant herself. She was sleeping in the girls' dormitory, a separate building some 60 feet from where the two minors were. While there were windows in the dormitory facing the end (the number one, or Thompson) room of the barracks, that room had a solid wall where it faced the dormitory, and, of course, there were necessarily two more walls between the end room and the plaintiff's room. The defendant testified she went to bed at about 10:30 p. m. and heard nothing all night long.

During the night an unidentified man came to the unlocked door of the room occupied by the two children, and, threatening the plaintiff with a knife and a statement that he would kill her if she did not keep quiet, he took her to another part of the ranch, raped her, and sexually abused her otherwise. The trial judge remarked in his memorandum opinion, '* * * there were certain discrepancies in the testimony of the various witnesses, and some features of the case are most puzzling, * * *' There are, in fact, many details which are puzzling and which might have led the trial judge to discredit the story of the little girl as being based on fantasy, but from the standpoint of this court, inasmuch as there was substantial evidence supporting all of the findings of the trial court as to negligence, proximate cause and damages, we must accept the fact on appeal that the little girl was, in fact, raped and otherwise subjected to grave sexual abuse.

The principal points raised by appellant are, first, the claim that the defendant was not negligent, and second, that there is no proximate causal connection between the negligence, if any, of the appellant and the injury and damage to respondent. It is an incontrovertible fact that the actual harm done physically to the plaintiff was directly caused by the criminal act of a person unknown; respondent is in no sense responsible for the commission of the crime itself. Her responsibility, if any, is based on her alleged negligence in not acting with due care for the safety of a child left in her custody.

Under the heading of 'Childhood; Youth; Immaturity' in 38 American Jurisprudence, Negligence, section 40, pages 685, 686, it is said in part:

'More care must be exercised toward children than toward persons of mature years. Children of tender years and youthful persons generally are entitled to care proportioned to their inability to foresee and avoid the perils that they may encounter, as well as to the superior knowledge of persons who come into contact with them. The duty to avoid doing them an injury increases with their inability to protect themselves, and with their childish indiscretions, instincts and impulses. A child of immature years has capacity to exercise and is required to exercise for his own safety only such care and self-restraint as belong to childhood.

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'The measure of precaution which must be taken by one having a child in his care, who stands in no relation to the child except that he has undertaken to care for it, is that care which a prudent person would exercise under like circumstances.'

Section 449 of the Restatement of Torts, page 1202, provides as follows:

'If the realizable likelihood that a third party may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.'

The foregoing excerpt from the Restatement is quoted with approval in the case of Richardson v. Ham, 44 Cal.2d 772, 776-777, 285 P.2d 269, 272. In that case the defendant was held liable for injuries caused when a bulldozer was left unlocked at night and young men, stimulated by liquor and curiosity, started it and caused damages by its uncontrolled course from the top of a mesa. In the opinion it is said:

'The extreme danger created by a bulldozer in uncontrolled motion and the foreseeable risk of intermeddling fully justify imposing a duty on the owner to exercise reasonable care to protect third parties from injuries arising from its operation by intermeddlers. See Jensen v. Minard, 44 Cal.2d [325, 327, 328] 282 P.2d 7; Warner v. Santa Catalina Island Co., 44 Cal.2d [310, 317] 282 P.2d 12, and cases cited.

'In the absence of an effective lock the bulldozer engine could be started by pushing in a lever and stepping on the starter. Moreover, the engine could be started with the bulldozer in gear, and if so started, the bulldozer would commence to move immediately. Although this risk could be avoided by the use of a simple but effective lock, there is evidence that no such lock was used. Accordingly, there is substantial evidence that defendants did not exercise reasonable care to prevent intermeddlers from setting their bulldozer in motion.

'It is contended, however, that even if defendants were...