Opinion
Rehearing Denied Jan. 15, 1964.
William W. Coshow, Redding, and Earl F. Hedlund, Red Bluff, for appellants.
Newton, Braun & Goodrich, by William J. Braun, Redding, for respondents.
PIERCE, Presiding Justice.
Plaintiffs-appellants were seriously injured when their pickup was struck by a 2 1/2-ton truck being negligently driven on a highway by an unidentified and unapprehended thief. Plaintiffs sued defendant Christy, the truck owner, and defendants East and Collier, employees to whom the truck had been entrusted before the accident. The plaintiffs' theory was that said employees had negligently left the truck parked unattended and without removing the key from the truck's ignition switch, the parking having been on a street in Redding characterized by a plaintiffs' witness as that city's 'skid row.' A nonsuit was granted as to the defendant Christy. The trial court allowed the case against East and Collier to go to the jury which returned a $30,000 verdict for each plaintiff, but then the court granted defendants' motion for judgment notwithstanding the verdict, from which plaintiffs appeal. The motion was upon the ground of the absence of any duty of care owed by defendants to plaintiffs or the class to which they belong under the facts proved.
These facts were: Christy, a Stockton roofing contractor, sent East and Collier in the truck to execute a roofing job near Redding. On July 12, 1961, when work for the day was completed, the two roofers drove into Redding in the truck where they proposed to eat dinner and stay in a hotel over night. Use of the truck for this purpose was authorized by defendant-employer The truck was parked on California Street between Butte and Yuba Streets but near the intersection with the latter. Neither East nor Collier removed the truck's ignition key and the truck's door was unlocked. The two dined and afterwards registered at a hotel in the vicinity. They then returned to the truck where they picked up their personal belongings, returned and spent the night at the hotel. They left the truck in its parked position on the street and forgot to remove the ignition key.
As stated above, the street where the truck had been left parked is described by plaintiffs' witnesses as a blighted area, argued by plaintiffs to be easily recognizable as such. The block in which the truck was left contains four bars, some with card rooms, a pawn shop, a secondhand store, two vacant lots, a vacant theatre, a restaurant and service station. The general area attracted drunks, vagrants and derelicts. The trial court gave a less lurid description of the neighborhood, quoted in footnote 4, infra.
Sometime during the night, the truck was stolen. In the early morning hours of July 13, 1961, its unknown operator, speeding and weaving from side to side across a two-lane highway southbound, struck the northbound vehicle in which the Hergenrethers, father and son, were riding. Both were seriously injured. The driver of the truck was never found. The fact that the truck was described by a witness as weaving from said to side on the highway might indicate the driver was intoxicated.
The court, in granting judgment for defendants n. o. v., relied upon Richards v. Stanley, 43 Cal.2d 60, 271 P.2d 23, which holds that in the absence of 'special circumstances,' the duty of the owner of an automobile to exercise reasonable care in the management thereof does not include a duty to remove the ignition key to protect persons on the highway from the negligent driving of a thief. The car had been parked unlocked on a downtown street in San Francisco. An ordinance prohibiting this was pleaded and offered in evidence. The offer was refused and a motion for nonsuit was then granted upon the ground that the complaint failed to state a cause of action.
This was affirmed on appeal. The ordinance was held to be inapplicable because it had contained provision that no violation would 'be admissible as evidence affecting recovery in any civil action' which (so the court stated on pages 62 and 63 of 43 Cal.2d, pages 24 and 25 of 271 P.2d) 'made [it] clear that the ordinance was not enacted for the benefit of persons who might be injured by the operation of stolen automobiles' and therefore did not create a statutory duty of care by Mrs. Stanley towards plaintiff.
The majority opinion in the Richards case (by Justice Traynor) then states (43 Cal.2d on page 63, 271 P.2d on page 25), quoting from Routh v. Quinn, 20 Cal.2d 488, 491, 127 P.2d 1, 149 A.L.R. 215: "It is an elementary principle that an indispensable factor to liability founded upon negligence is the existence of a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member.' [Citations.]' It is thereafter stated by the court (43 Cal.2d on page 66, 271 P.2d on page 27) that although when 'the existence of a duty rests on the reasonable foreseeability of injury to the plaintiff, it may become primarily a question for the jury unless reasonable minds cannot differ,' the facts before the court in Richards did not present such a case. It was held therefore that existence of the duty of care was a question of law for the court and that, under the facts pleaded, no duty of care to plaintiff was shown.
Justice Spence, dissenting, considered the facts pleaded sufficient to raise a question of fact for jury determination. The late Justice Carter concurred in the Spence dissent.
The court in Richards discussed the problem of defendant's liability in terms of whether or not an unreasonable risk of The court in Richards did not close the door to future plaintiffs in cases of this type. It referred to 'special circumstances' which might impel a court to find a duty. In this connection the opinion states (43 Cal.2d on page 66, 271 P.2d on page 27):
'In the present case Mrs. Stanley did not leave her car in front of a school where she might reasonably expect irresponsible children to tamper with it, see, Restatement, Torts, § 302, illus. 7, nor did she leave it in charge of an intoxicated passenger as did defendant in Morris v. Bolling, 31 Tenn.App. 577, 218 S.W.2d 754.'
The implication of this language is that such acts would constitute creation by the actor of unreasonable risk of harm and thus give rise to a duty towards plaintiffs injured thereby. It is this implication which appellants here rely upon, fortified by Richardson v. Ham, 44 Cal.2d 772, 285 P.2d 269, where the California Supreme Court (majority opinion by Justice Traynor) found special circumstances creating a duty. These were the leaving unattended and unlocked of a 26-ton bulldozer which was stolen for a 'joyride' by three inebriates, aged 17, 18 and 20, who boarded, started, and lost control of the equipment which thereafter traveled a horrendous course of destruction down a hill, across a highway, through houses, colliding with a housetrailer and an automobile. There, in addition to the carelessness in leaving the machine unlocked, defendant had known that its presence had aroused curiosity before; that curious persons had climbed on it; yet nothing had been done to render the bulldozer secure.
Separate concurring opinions were written by Justices Spence and Carter.
The opinion states (44 Cal.2d on p. 776, 285 P.2d on p. 271) that '[t]he risks arising from intermeddling with bulldozers * * * are entirely different from those arising from the driving of an automobile by a thief. Bulldozers are relatively uncommon, and curious children or others attracted by them ordinarily will not know how to operate them. An intermeddler who starts a bulldozer accidentally or otherwise may not be able to stop it, and the potentialities of harm from a 26 ton bulldozer in uncontrolled In a decision of this court (per Justice Peek) in Murray v. Wright, 166 Cal.App.2d 589, 333 P.2d 111, 'special circumstances' were also declared to distinguish the Richards case and a duty was held to exist where a used car dealer purposely left keys in the ingnition locks of cars parked on his lot so that prospective purchasers would be able to start and drive them.
A note in 91 American Law Reports 2d 1326 deals with the problem of the unlocked car, whether parked in driveways, on the street, or in used car lots, and of unlocked construction equipment, and it collects the cases thereon, stating (on p. 1328) that those dealing with unlocked cars parked on streets have 'tended to concentrate on the discussion of the proximate cause issue, liability frequently being denied on the ground that the affirmative act of the stranger amounted to an intervening cause insulating any negligence of the vehicle owner.' Disposition of a case of this type on this theory seems to us to be an illogical cartbefore-the-horse determination. Before we reach proximate cause, there must be negligence, and to reach legal negligence, there must be a duty violation.
The 'special circumstances' of Richardson and of Murray v. Wright, supra, are, of course, much different from the circumstances here. On the other hand, there are here circumstances, hereinafter to be discussed, not considered and perhaps not present in the Richards case. The question is, are these 'special circumstances' sufficient to create a legal duty?
Dean Prosser defines 'duty' as 'an obligation, recognized by the law, to conform to a particular standard of conduct toward another. The plaintiff must be within the class of persons to whom the duty is owed, and no action may be founded upon a duty only to others.' (Prosser, Torts (2d ed.), ch. 6, p. 166.) At this point it is customary to quote Pollock Law of Torts (13th ed. 1928) 468: 'Negligence in the air, so to speak, will not do.' Reference to the problem of fixing the standard of conduct which we call duty in terms of reasonability of risk of harm is well and good but meaningful definition of a 'reasonable risk' is likely to be as illusive as pigeonholing a 'reasonable man.' The test of defining liability in terms of the foreseeable risk adopted by Justice Cardozo in Palsgraf v. Long Island Railroad Company, 548 N.Y. 339, 162 N.E. 99, has a Cheshire cat evanescence when one tries to use it to peg down liability in the case of the unlocked parked car. Hindsight is so easily confused with foresight. As stated by Prosser: 'As a formula this is so vague as to have little meaning, and as a guide to decision it has had no value at all.' (Prosser, Torts (2d ed.), 168.)
In most cases the existence of a duty is obvious and is taken for granted. It cannot be in a case of this type and, as we see it, we give little aid to a trial court struggling to make the determination of a legal duty by instructing it to do so solely in terms of foreseeability of harm.
This court recently, speaking through Justice Friedman, in Raymond v. Paradise Unified School Dist., 218 A.C.A. 1, 31 Cal.Rptr. 847 dealt with the troublesome problem of duty of care determination (in a case involving liability of a school district for injuries to a student). There it was pointed out (218 A.C.A. on p. 6, 31 Cal.Rptr. on p. 850) that foreseeability of harm had been held a to-be-reckoned-with factor (1) 'in the delineation of duty' (which as we have shown is for judicial determination), and (2) 'in the exploration of proximate cause, especially where an intervening act plays a contributory role in the accident' (which is a question of fact for the jury).
But if courts are to say that the existence of a legal duty depends primarily upon a finding of foreseeability of harm, then, in any case involving conflicting evidence where reasonable minds may differ regarding foreseeability, either the Justice Traynor escaped this dilemma in Richards v. Stanley, supra, (43 Cal.2d on p. 66, 271 P.2d 23) by making the judicial determination not dependent upon, but on the contrary, granting the foreseeability of the risk.
Thoughtful consideration of the chimerical illusiveness of foreseeability as a test is written in the opinion of Justice Schauer speaking for the majority of the Supreme Court in Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, on page 308, 29 Cal.Rptr. 33, on page 40, 379 P.2d 513, on page 520, where e. g., he says: 'Much confusion has been engendered in this connection by a misplaced reliance on the 'foreseeability' formula.' And it is said (59 Cal.2d on page 309, 29 Cal.Rptr. on page 41, 379 P.2d on page 521): 'It has been accurately said that 'Foreseeability of risk * * * carries only an illusion of certainty in defining the consequences for which the defendant will be liable.' (Prosser, Palsgraf Revisited (1953) 52 Mich.L.Rev. 1, 19.)' 'And (59 Cal.2d on page 310, 29 Cal.Rptr. on page 42, 379 P.2d on page 522): 'It bears emphasis that 'foreseeability of harm' is but one of the half dozen relevant factors * * *. Nor is it the most important; indeed, in all save the most obvious of cases a harm is 'foreseeable' only if, in the final analysis, a court or jury says that it is.'
In Raymond v. Paradise Union School Dist., supra, 218 A.C.A. 1, on page 8, 31 Cal.Rptr. 847, on page 851, Justice Friedman states: 'An affirmative declaration of duty simply amounts to a statement that two parties stand in such relationship that the law will impose on one a responsibility for the exercise of care toward the other. Inherent in this simple description are various and sometimes delicate policy judgments.'
In the opinion in Raymond a list of factors is stated. These were a composite prepared following consultation of authority from Amaya v. Home Ice, Fuel & Supply Co., supra; Rest.Torts, secs. 288-293; Green, Judge and Jury, p. 97 et seq.; and Prosser, Torts. (2d ed.) 182.
It is not necessary in this opinion to repeat all the factors there enumerated. Most of them have more forceful application in fixing the duty of a school district to its students or in determination of vehicle operators' liability for injuries without impact than in reference to a case of this type.
Moreover, here we have as our guide the factors applied by our Supreme Court in Richards v. Stanley, supra, and in Richardson v. Ham, supra. These factors, as we analyze the two cases, may be given convenient appellation: (1) magnitude of the risk; (2) the moral blame attached to defendant's conduct; (3) workability of a rule of care; (4) the body of statutory and judicial precedents. In this characterization of factors there is inevitable overlapping. There is therefore no attempt at segregation in the discussion which follows.
This term, since it deals with the probabilities of the happening of the casualty also necessarily embraces, in a sense and in part, foreseeability.
How great and how grave were the probabilities that this vehicle would be stolen? First of all, measuring extent of risk in terms of percentages of chances, the ratio of stolen unlocked cars to unstolen locked cars cannot be great. Secondly, this was a two-ton truck and therefore certainly not the most usual vehicle a thief would be calculated to select to make a getaway; nor was it a likely vehicle to choose for a 'joyride.' Weighted against this is the character of the neighborhood in which the truck was left. Appellants, with persuasiveness, argue that the risk was aggravated here since the general area was one frequented by drunks and derelicts. A former mayor of Redding testified to the large number of arrests for drunkenness in the Moreover, the trial court, whose task it was to fix the legal duty of defendants on the evidence before it, made a 'Ruling on Motion for Judgment Notwithstanding the Verdict.'
Excerpts from this portion of the record in the judge's own statement of facts are:
A reading of the footnoted statements of the judge shows this characterization of the neighborhood in which the truck was left to be one not too appreciably different from that involved in Richards v. Stanley.
Factors which argue to minimize a quantum of risk must, of course, be balanced against the burden which the fixing of a duty upon defendant would impose. It is easy to remove a key from an ignition lock; also easy to remember to do so, once a habit is formed. From the evidence here, however, it appears that it may not have been so easy for these defendants to formulate such a habit. During the day and on the job, so the evidence showed, the key had to be left in the lock to permit frequent moving of the truck by other workmen. Also the trial court in its ruling stresses the point that defendants as strangers in Redding were less chargeable with knowledge of the character of the neighborhood than others might have been. These considerations seem to make the keyleaving by these defendants an act to which not very great fault or moral blame attaches; certainly they were far less censurable than defendants in Richardson and perhaps no more so than Mrs. Stanley.
We have mentioned above the discussion in Richards v. Stanley, supra, of reasons why court-made rules tightening standards of conduct in unlocked car cases would create anomalies in relation to standards fixed in imputed negligence and loaned car cases. These same anomalies would bother us were we to extend the rule of liability to apply here.
As the opinion in Richards v. Stanley, supra, points out liability for unlocked cars has been created by statute in some jurisdictions. Perhaps arguments urging the fixing of such liability would have greater Certainly, creation of an all-inclusive statutory liability for leaving unlocked vehicles would have greater impact to give notice to car owners to lock, insure or else suffer the consequences than could casemade rules which, as this opinion has illustrated, must be based upon tests (and expressed in terms) that are always subjective and perhaps sometimes ambivalent.
Five legislatures have met since Richards v. Stanley suggested a state policy might be legislated without any statutory broadening of the rule.
We agree with the trial court's conclusion that to impose liability on defendants in this case would be an extension of a legal duty unjustified by precedent.
The judgment is affirmed.
FRIEDMAN, J., and VAN DYKE, J. pro tem., concur.
'The interesction of Yuba and California Streets * * * is one of the busy intersections in the 'downtown' portion of that city [Redding]. At the southeasterly corner of that intersection is the Golden Eagle Hotel with shops, restaurant and bar; at the southwesterly corner is the Lorenz Hotel with the same general type of auxiliary businesses attached; at the northwesterly corner is an active and modern service station; while at the northeasterly corner is a restaurant, bar and card room.'
After a description of the surrounding area, the statement continues:
'A former mayor of Redding after a number of years of residence there and apparently after a careful study of arrest records and police statistics gave it as his opinion without particularization of area that 'California Street is a 'skid Row" (or is it 'Skid Road'?), whatever that expression may mean. Unless the presence of a retail liquor establishment or bar or saloon is an indication of 'Skid Row' it is not clear to me what indicia the ex-mayor (and counsel for plaintiff) employ to warrant the conclusion that California Street in the vicinity of Yuba Street was a part of 'Skid Row;' nor am I sure what is meant by 'skid Row.' The ruling of the Court is not influenced by long familiarity with the intersection of Yuba and California Streets, but an 'aside' from the Judge would be that if that intersection is in 'Skid Row' then a majority of intersections in the downtown business areas of towns like Redding, Chico, Marysville, Woodland, Willows or Red Bluff are also subject to the same characterization.'