Young v. Desert View Management Corp.

• Decision Date: 29 July 1969
• Citation: 79 Cal.Rptr. 848,275 Cal.App.2d 294
• Parties: Rupert G. YOUNG, Plaintiff and Appellant, v. DESERT VIEW MANAGEMENT CORPORATION dba Huddle Eastland, Defendant and Respondent. Civ. 32872.
• Court: California Court of Appeals Court of Appeals

Page 848

79 Cal.Rptr. 848

275 Cal.App.2d 294

Rupert G. YOUNG, Plaintiff and Appellant, v. DESERT VIEW MANAGEMENT CORPORATION dba Huddle Eastland, Defendant and Respondent.

Civ. 32872.

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

July 29, 1969.

Rehearing Denied Aug. 15, 1969.

Hearing Denied Sept. 24, 1969.

Abrams & Fox and Martin L. Abrams, El Monte, for plaintiff and appellant.

Wyman, Bautzer, Finell & Rothman and Charles L. fonarow, Beverly Hills, for defendant and respondent.

DUNN, Associate Justice.

This appeal is from a judgment of nonsuit entered following an opening statement made to the jury by appellant's attorney. The rules governing the granting of such nonsuit (Code Civ.Proc. § 581c) are simple: '(4) A non-suit may be granted on opening statement only 'where it is clear that Counsel has undertaken to state all of the facts which he expects to prove and it is plainly evident that the facts thus to be proved will not constitute a cause of action.' (Weyburn v. California Kamloops, Inc., (200 Cal.App.2d 239, 19 Cal.Rptr. 357.), Supra; Bias v. Reed, (167 Cal. 33, 145 P. 516), Supra; Greenwood v. Mooradian, (137 Cal.App.2d 532, 290 P.2d 955.) Supra, Wright v. Arcade School Dist., 230 Cal.App.2d 272, 275, 40 Cal.Rptr. 812.) (5) It may be granted where plaintiff has been afforded full opportunity to present all of the facts and such presentation shows the inadequacy of the case as a matter of law.' Palazzi v. Air Cargo Terminals, Inc., 244 Cal.App.2d 190, 194--195, 52 Cal.Rptr. 817, 820 (1966). And also see: Wright v. Arcade School Dist., 230 Cal.App.2d 272, 275--276, 40 Cal.Rptr. 812 (1964); Gallegos v. Union-Tribune Publishing Co., 195 Cal.App.2d 791, 796, 16 Cal.Rptr. 185 (1961). In the present case appellant's attorney was given an opportunity to augment his statement, did so, and only thereafter was respondent's motion for nonsuit granted.

To decide the issue, we must review the essential facts of appellant's case as outlined by his attorney, drawing therefrom all reasonable inferences favoring appellant. So considered, the following must be deemed true for purposes of this appeal: The plaintiff, aged 58, was a 'handyman' who worked part time for defendant, Desert View Management Corporation doing business as 'Huddle Eastland'. On Friday night, January 29, 1965, he had dinner in defendant's restaurant and thereafter went into the bar. While there, a man entered the coffee shop, laid a pistol on the cash register and demanded money from Helen Olson, respondent's assistant manager-cashier. She gave him money which he put in his pocket and holding the pistol in his right pocket he grasped Helen Olson and started walking with her toward a hallway running between the coffee shop and the dining room. She broke away from him, ran through the kitchen and into the bar where appellant was seated. She said to fellow employees, 'Help, I have been robbed'. Marilyn Redman, a cocktail waitress, heard her and said to appellant, 'A man robbed--just robbed Helen. Help. Let's get a license number.' Or, according to appellant, she said, 'Mr. Young, someone just held up the coffee shop. Will you go out and see if you can get the license number?' The appellant said nothing but stood up and went through a door leading outside. Other patrons were behind him. Appellant saw no cars in the parking lot or moving but he saw a man walking. He went up to the man and said, 'did you see the fellows that knocked off the coffee shop?' The man said 'Yes, and I am about to knock you off, too', whereupon he drew a gun. Appellant started running across the lot but was shot in the back. As stated to the jury by counsel, the '* * * whole transaction took place in a very short period of time'. At the time Helen Olson was being led to the hall by the robber, she whispered to Katherine Geisler, a waitress, 'Robbery'. This waitress told the manager, Mr. Adlin, that the coffee shop had been robbed and he telephoned the police. They asked him to hold on and he went out the back door and up a ladder onto the roof of the building. None of respondent's employees told appellant the robbery was effected with a pistol. Marilyn Redman was not told of a gun and assumed no gun was involved in the robbery. When appellant went outside and saw the man walking, the man was doing so in a normal manner and did nothing to indicate to plaintiff that he was the robber or had a gun.

The West Covina police, at times, had plainclothes and uniformed officers patrolling the parking area which was a quarter of a mile long and, especially on weekends, there were also plainclothes officers from the Department of Alcoholic Beverage Control and officers from the Sheriff's Department present.

In summary, it appears there was an armed robbery (Pen.Code § 211, 211a) committed against respondent's employee Helen Olson, who shortly thereafter escaped from the robber and told a fellow employee 'Help. I have been robbed'. One of these, Marilyn Redman, said to appellant, 'A man robbed--just robbed Helen. Help. Let's get a license number' or 'Will you go out and see if you can get the license number?'

If Redman had said only, 'A man just robbed Helen. Help' we probably would have seen no lawsuit filed. The historic outcry, 'Robbery. Help' offers no apparent springboard here for a successful dive into litigation. It is the addition of the invitation to 'get a license number' which appellant seemingly objects to, taking the view that it constituted a request that he go outside where danger knowingly lurked in the form of a robber with a gun. We do not so find it. Certainly, in the excitement and confusion of an armed robbery, neither victim nor spectators can be expected to react as calmly as observers of a chess match. But excluding such consideration there is nothing offered to show that any of the involved employees knew that the robber lurked outside. To the contrary, the statement 'Let's get a license number' indicated only the reasonable belief that, having committed the crime, the robber would now be making his getaway.

Appellant and respondent agree that the rule stated in Restatement of Torts § 344 has been adopted in California and is here applicable. This reads: 'A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the * * * intentionally harmful acts of third persons * * * and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.' ¹

Appellant lays great stress upon Taylor v. Centennial Bowl, Inc., 65 Cal.2d 114, 52 Cal.Rptr. 561, 516 P.2d 793 (1966). Therein, the rule is thus stated (p. 121, 52 Cal.Rptr. p. 565, 416 P.2d p. 797): '(4) Such a proprietor is, of course, not an insurer of the safety of his invitees, but he is required to exercise reasonable care for their safety and is liable for injuries resulting from a breach of this duty. (Edwards v. Hollywood Canteen, 27 Cal.2d 802, 809, 167 P.2d 729; Hinds v. Wheadon, 19 Cal.2d 458, 460, 121 P.2d 724; Winn v. Holmes, 143 Cal.App.2d 501, 503, 299 P.2d 994; Vaughn v. Montgomery Ward & Co., 95 Cal.App.2d 553, 556, 213 P.2d 417; 65 C.J.S. Negligence § 45, p. 521 et seq.; 2 Harper and James, The Law of Torts, § 27.12, pp. 1478--1488.) (5) The general duty includes not only the duty to inspect the premises in order to uncover dangerous conditions (Sexton v. Brooks, 39 Cal.2d 153, 156, 245 P.2d 496; Rest.2d Torts, § 344, com. f; 156 A.L.R. 1221, Oettinger v. Stewart, 24 Cal.2d 133, 148 P.2d 19), but, as well, the duty to take affirmative action to control the wrongful acts of third persons which threaten invitees Where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom. (Emphasis added.) (Edwards v. Hollywood Canteen, Supra, 27 Cal.2d 802, 809--810, 167 P.2d 729; Winn v. Holmes, Supra, 143 Cal.App.2d 501, 503--504, 299 P.2d 994; Thomas v. Studio Amusements, Inc., 50 Cal.App.2d 538, 543, 123 P.2d 552; Rest.2d Torts, § 344; 70 A.L.R.2d 628, 651--653; Harper and Kime, The Duty to Control the Conduct of Another, 43 Yale ...