TOOLE v. CARLSBAD SHELL SERVICE STATION

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Court of Appeal, Fourth District, Division 1, California.

Bridget Marie O'TOOLE, a Minor, etc. et al., Plaintiffs and Appellants, v. CARLSBAD SHELL SERVICE STATION et al., Defendants and Respondents.

No. D005891.

Decided: June 06, 1988

Thorsnes, Bartolotta, McGuire & Padilla and Michael D. Padilla and Brennan & Collins and David W. Brennan and Barry M. Vrevich, San Diego, for plaintiffs and appellants. Hollywood & Neil and Ronald B. Tollefson, San Diego, for defendants and respondents.

Carlsbad Shell Service Station employees sold Christine Eigsti gasoline in the early morning hours of July 24, 1983.   She had driven her car into the Shell Service Station in an obviously intoxicated condition.   An employee required Eigsti to drink four or five cups of coffee;  Shell employees talked to her for one and one-half hours and gave her money to call her mother to pick her up;  they encouraged her not to drive in her drunken condition.   The Shell employees, in selling Eigsti gasoline, violated a Shell company policy which forbade the sale of gasoline to intoxicated motorists.

After the purchase of the gasoline and receiving the advice and assistance, Eigsti drove southbound on Interstate 5 enroute home.   Before she reached her home Eigsti's car struck a motorcycle from behind.   As a result of the collision, both the motorcycle driver and the passenger died.   The plaintiffs (DeBolts and O'Toole) are the surviving children of the decedent Barbara Sue Kraus, the passenger on the motorcycle.1  The plaintiffs argued the deaths were the result of two proximate causes:  one, the negligent entrustment of the vehicle via the process of supplying gasoline (the motive power to drive the car) to an obviously drunken driver, thus making it possible for the driver to use the vehicle;  and two, Eigsti's consumption of intoxicating liquors.

The plaintiffs appeal the order granting defendants' Carlsbad Shell Service Station and Shell Oil Company (Shell) motion for summary judgment.

DISCUSSION

I

We approach and resolve this case in light of the pertinent rules set forth regarding summary judgment in Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35–36, 210 Cal.Rptr. 762, 694 P.2d 1134.

“The summary judgment procedure, inasmuch as it denies the right of the adverse party to a trial, is drastic and should be used with caution.   (Eagle Oil & Ref. Co. v. Prentice (1942) 19 Cal.2d 553, 556 [122 P.2d 264].)   Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried.   (Code Civ.Proc., § 437c;  Lipson v. Superior Court (1982) 31 Cal.3d 362, 374 [182 Cal.Rptr. 629, 644 P.2d 822].)

“ ‘The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.’  (Lipson v. Superior Court, supra, 31 Cal.3d at p. 374 [182 Cal.Rptr. 629, 644 P.2d 822].)  ‘The affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.’  (Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432, 436–439 [74 Cal.Rptr. 895, 450 P.2d 271].)  ‘․ [I]ssue finding rather than issue determination is the pivot upon which the summary judgment law turns.’  (Walsh v. Walsh (1941) 18 Cal.2d 439, 441 [116 P.2d 62].)”

II

Shell relies upon stare decisis, the decision in the case of Fuller v. Standard Stations, Inc. (1967) 250 Cal.App.2d 687, 58 Cal.Rptr. 792 and Civil Code section 1714, 2 subdivisions (b) and (c) to bar recovery.   Fuller holds the furnishing of gasoline by an automobile service station operator to a patently intoxicated motorist who then drives and injures a third person does not give rise to a cause of action for damages against the service station for negligent entrustment or upon any other theory.3

Fuller presents a most accurate summary of California law favorable to plaintiffs in stating:

“When the facts at hand are approached as a duty of care problem, there may be justification for a rule imposing liability on a service station operator who sells gasoline to a recognizably intoxicated motorist.   The operator is negligent as to persons beyond his vision when his conduct creates a recognizable risk of harm to them.  (See com. c., Restatement Second of Torts, § 281(b).)   The element of foreseeability offers no problem.   There is no ‘freak accident’ here, no extraordinary combination of events culminating in an unforeseeable injury.  (See Premo v. Grigg, [1965] 237 Cal.App.2d 192 [46 Cal.Rptr. 683];  Prosser, Selected Topics on the Law of Torts:  Palsgraf Revisited (1953) 191, 234–239.)   Supplying motive power to the drunk driver involves a recognizable, indeed obvious, danger to other motorists and pedestrians.   The assumption of foreseeability for pleading purposes does not prevent the defendant from presenting evidence that it did not know or have reason to believe that the customer was drunk and that it acted as a reasonably prudent person.   Given the foreseeability of harm to the injured plaintiff, the inquiry then centers on the array of policy factors which justify affirmation or denial of the duty. (See, e.g., Amaya v. Home Ice, Fuel & Supply Co., [1963], supra, 59 Cal.2d [295] at pp. 310–315 [29 Cal.Rptr. 33, 379 P.2d 513];  Raymond v. Paradise Unified School Dist. [1963], supra, 218 Cal.App.2d [1] at p. 8 [31 Cal.Rptr. 847];  Green, Judge and Jury (1930) p. 97 et seq.)”  (Id. at p. 692, 58 Cal.Rptr. 792, emphasis added.)

After this insightful analysis Fuller then turns to and relies for its decision on the rule of stare decisis:

“We would at this point turn to those factors were the question of liability an open one.   The question is not open.   Stare decisis requires us to adhere to the rule of Fleckner v. Dionne, supra [ (1949) 94 Cal.App.2d 246, 210 P.2d 530], ․” (Id. at pp. 692–693, 58 Cal.Rptr. 792;  Cole v. Rush (1955) 45 Cal.2d 345, 289 P.2d 450.)

Fuller then makes a remarkable parallel logic leap from a furnisher of alcohol to a known inebriate to the seller of gasoline to an obvious drunk:

“Fleckner v. Dionne denied liability of a tavernkeeper alleged to have sold liquor to a known inebriate who would foreseeably drive his car, thus exposing others to danger.   This case involves one who sells him gasoline.   There is no significant distinction of logic, social policy or law between these sellers.   Each purveys a different commodity, but these commodities play parallel roles in the combination of circumstances culminating in foreseeable injury.   The Supreme Court's approval (in Cole v. Rush ) of a rule exonerating the liquor seller as a matter of law impels us to the conclusion that the gasoline seller must also be exonerated as a matter of law.”  (Id. at pp. 693–694, 58 Cal.Rptr. 792, emphasis added, fn. omitted.)

III

The conclusion of Fuller must be examined in the light of the amendments to section 1714, subdivisions (b) and (c) and subsequent case analysis of those code subdivisions which in effect reinstated the rule in Fleckner v. Dionne (1949) 94 Cal.App.2d 246, 210 P.2d 530.

In Blake v. Moore (1984) 162 Cal.App.3d 700, 208 Cal.Rptr. 703, defendant Moore had provided plaintiff Blake with both liquor and a car.   The Blake court started from this unshakable premise:  section 1714, subdivision (c) clearly mandates that “no social host who furnishes alcoholic beverages to a person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages.”  (Id. at p. 703, 208 Cal.Rptr. 703.)   Further, the Blake decision was issued in the clear light of the express legislative intention of section 1714, subdivisions (b) and (c) to overrule Vesely v. Sager (1971) 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151 and Bernhard v. Harrah's Club (1976) 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719.

The Blake court reasoned:

“In its wisdom the Legislature separated the supplier of liquor from the consequences of excessive drinking.   This statutory shield interrupts simplistic ‘but for’ logic even when the person supplied is plainly drunk.   However, the statutory protection is a narrow ‘furnishing’ one which should not be construed in a fashion which would preclude liability based on other concurrent causes. (Cantor v. Anderson (1981) 126 Cal.App.3d 124 [178 Cal.Rptr. 540].)   There is no conclusive presumption that every contributing cause to such an action is united into a single intervening cause entitled ‘drinking.’   An obviously drunk friend does not become a sober one for purposes of being entrusted with a car.   Similar contentions have been rejected before.”  (Blake, supra, 162 Cal.App.3d at pp. 704–705, 208 Cal.Rptr. 703;  emphasis added.)

The Blake court held:

“We find the immunity for the supplier of alcoholic beverages protects only against the risks directly flowing from the supply of the liquor.   It does not provide immunity for the entrustment of the car.   Therefore, two concurrent causes were at work when plaintiff lost control of the vehicle.   Because comparative negligence principles apply, issues of fact were present, requiring trial on the merits.”  (Id. at p. 702, 208 Cal.Rptr. 703.)

Nault v. Smith (1961) 194 Cal.App.2d 257, 14 Cal.Rptr. 889, (citing the Supreme Court authorities) declared the common law principles of providing full redress for wrongfully inflicted injuries require a strict construction of statutes purporting to diminish recovery.

“Any such extension of nonliability for admitted tortious action contravenes the stated principle of the Supreme Court:  ‘ “The common law right of having redress for injuries wrongfully inflicted, being lessened by such statutes, necessitates strict construction, and also that cases be not held within the provisions of such statutes unless it clearly appears that it should be so determined.” ’  (Prager v. Isreal (1940) 15 Cal.2d 89, 93 [98 P.2d 729].)”  (Id. at p. 269, 14 Cal.Rptr. 889.)

In language having particular application here the Nault court said:

“In a day of increasing danger from automobile accident, and, indeed, at a time when many writers and jurists tell us that, to meet the problem, even the principle of liability for fault is inadequate and that we must invoke an absolute liability, we see no ‘considerations of policy’ for reducing liability for fault.   To broaden the absolution here in order to cover the mother would be to grant the statute a liberal construction, which violates the court's admonition, and to introduce new considerations of policy, which trespass upon the exclusive province of the Legislature.”  (Id. at pp. 296–270, 14 Cal.Rptr. 889;  see also Perez v. G & W Chevrolet, Inc. (1969) 274 Cal.App.2d 766, 768, 79 Cal.Rptr. 287;  Rest.2d Torts, § 390, com. c.)

After refusing to broadly interpret the guest statute, Nault v. Smith came to this conclusion:  “We see no valid distinction, however, between the dispatch of a car with defective brakes and its dispatch with a defective driver.”  (Id. at p. 270, 14 Cal.Rptr. 889.)

The most recent case of Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 235 Cal.Rptr. 641, interpreted section 1714, subdivisions (b) and (c) as not a bar to imposing liability on the employer on the theory of respondeat superior for the acts of a drunken employee.

The Childers court reasoned:

“We also find support for this conclusion in the legislative intent of section 25602 as set forth in its subdivision (c).   That subdivision says the immunity section is designed to abrogate the cited judicial decisions ‘in favor of prior judicial interpretation finding the consumption of alcoholic beverages rather than the serving of alcoholic beverages as the proximate cause of injuries inflicted upon another by an intoxicated person.’  (See fn. 3, ante.)  ‘Subdivision (b) of Civil Code section 1714 and subdivision (c) of section 25602 reinstate the judicial interpretation on the subject of alcoholic beverage provider liability which existed prior to the Vesely–Bernhard–Coulter decisions.  [Coulter v. Superior Court (1978) 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669].   The prior common law was typified by Cole v. Rush (1955) 45 Cal.2d 345 [289 P.2d 450, 54 A.L.R.2d 1137], which held the consumption, not the furnishing, of alcoholic beverages to be the proximate cause of injuries resulting from intoxication.  [Citations.]’ (Strang v. Cabrol, supra [1984] 37 Cal.3d [720] at p. 725 [209 Cal.Rptr. 347, 691 P.2d 1013].)

“Since the employer's respondeat superior liability derives from the employee's consumption of alcohol, and not from the employer's furnishing, liability is entirely consistent with the command of subdivision (c) of section 25602 that the consumption rather than the serving of alcoholic beverages is the proximate cause of injury to another.

“Furthermore, respondeat superior liability is consistent with Cole v. Rush (1955) 45 Cal.2d 345 [289 P.2d 450, 54 A.L.R.2d 1137].   In Cantor v. Anderson (1981) 126 Cal.App.3d 124 [178 Cal.Rptr. 540] (approved in Strang v. Cabrol, supra, 37 Cal.3d at pp. 725–726 [209 Cal.Rptr. 347, 691 P.2d 1013] ) this court concluded a return to the rule of Cole also included a return to the limitations of the rule.  (Id. [126 Cal.App.3d] at p. 130 [178 Cal.Rptr. 540].)   In Cole, the Supreme Court held a widow and minor children could not maintain a wrongful death action against the owners of a bar that furnished alcohol to the decedent who became belligerent and was killed in a fight in which he was the attacker.  (45 Cal.2d at pp. 347–348, 352 [289 P.2d 450].)   However, the court took pains to distinguish the case from others that had allowed guests injured by patrons who had been served alcohol to recover from the salonkeepers who had served them.  (Id. at pp. 352–353 [289 P.2d 450].)   The Cole court noted that the liability of the saloonkeepers in the distinguished cases was based on the independent duty of providing a safe environment for patrons. (Ibid.)  Here, as we have noted, the employer's liability also exists for reasons wholly independent of any duty relating to the furnishing of alcohol to another.

“Moreover, as we have seen, the California common law prior to the Vesely–Berhard–Coulter decisions recognized an employer could be liable on a theory of respondeat superior to a third party injured by an employee's driving while intoxicated, where the employee had consumed the alcohol within the scope of his employment.  [Citations.]”  (Id. at pp. 808–809, 235 Cal.Rptr. 641;  emphasis added, fn. omitted.)

IV

Shell argues it is not liable to plaintiffs because the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.  (§ 1714, subd. (b).)  Without doubt Eigsti's consumption of this alcoholic beverage was a proximate cause of the deaths.   However a defendant's negligence is not required to be the sole cause of a plaintiff's injury;  it is sufficient that it be a cause of the injury.  “When the separate and distinct negligent acts of two persons are in substantially simultaneous operation, and contribute to cause the injury, ‘each is and both are the proximate cause,’ and the plaintiff may recover in full from either of the parties, or both.”  (4 Witkin, Summary of Cal.Law (8th ed. 1974) Torst, § 624, p. 2906.)

American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 586, 146 Cal.Rptr. 182, 578 P.2d 899 held:

“․ [A] plaintiff is not required to prove that a tortfeasor's conduct was the sole proximate cause of the injury, but only that such negligence was a proximate cause.”  (Emphasis in original.)

And as Fuller, supra, 250 Cal.App.2d at p. 691, 58 Cal.Rptr. 792 noted,

“A defendant may be liable if his negligence is a substantial factor in causing the injury, and the presence of intervening causal forces does not relieve him from liability if those forces were foreseeable.”

The Fuller court observed, “[s]upplying motive power to a drunk driver involves a recognizable, indeed obvious, danger to other motorists and pedestrians.”  (Fuller, supra, 250 Cal.App.2d at p. 692, 58 Cal.Rptr. 792.)   That it was admittedly a drunken Eigsti who collided with the motorcycle on which plaintiffs' decedent was riding does not relieve Shell from a “parallel” liability, where responsibility may arise from a different factual/legal base.   As the Fuller court stated:

“Each, [the tavernkeeper and the furnisher of gasoline] purveys a different commodity, but these commodities play parallel roles in the combination of circumstances culminating in foreseeable injury”  (Id. at p. 693, 58 Cal.Rptr. 792.)

Fuller thus perfectly describes joint tortfeasors.

Finally it has been held, when there are concurring proximate causes of plaintiff's injury, even though one of the causes is by statute “immunized,” the one that is not immunized may form the basis for liability.   Said the Supreme Court in Cameron v. State of California (1972) 7 Cal.3d 318, 328, 102 Cal.Rptr. 305, 497 P.2d 777:

“ ‘The defense argues that the plan or design immunity of section 830.6 “prevails” over any liability for a dangerous condition of public property under section 835.   By force of its very terms the design immunity of section 830.6 is limited to a design-caused accident.  [Citation.]  It does not immunize from liability caused by negligence independent of design, even though the independent negligence is only a concurring, proximate cause of the accident.’  (Flournoy v. State of California, supra, [1969] 275 Cal.App.2d 806, 811, fn. omitted [80 Cal.Rptr. 485.] )”  (Emphasis added.)

V

Untouched also by section 1714, subdivisions (b) and (c) exemptions was the doctrine of “negligent entrustment.”   As the Fuller court described the rule:

“The negligent entrustment theory is frequently expressed in decisions imposing liability upon an automobile owner who permits its use by an incompetent or intoxicated driver who injures the plaintiff.  (Johnson v. Casetta (1961) 197 Cal.App.2d 272, 275 [17 Cal.Rptr. 81];  Knight v. Gosselin (1932) 124 Cal.App. 290, 294–295 [12 P.2d 454];  additional cases cited, Restatement Second of Torts, Appendix, § 390;  Fleckner v. Dionne (1949) 94 Cal.App.2d 246, 252–253 [210 P.2d 530] (dissent).)”  (Fuller, supra, 250 Cal.App.2d at p. 689, 58 Cal.Rptr. 792.)

The early case of Rocca v. Steinmetz (1923) 61 Cal.App. 102, 109, 214 P. 257, graphically explained the rule and the reasons for the rule.

“In its simplest form the question is whether the owner when he permits an incompetent or reckless person, whom he knows to be incompetent or reckless, to take and operate his car, acts as an ordinarily prudent person would be expected to act under the circumstances.   If he were to intrust his car to a person whom he knew to be insane or intoxicated or utterly incompetent to run a car, it would certainly shock the common understanding to hold that he was not chargeable with negligence.   There can be no difference in principle but only in degree where he knows the driver to be careless and reckless in the operation of the machine.   In any such case consideration for the safety of others requires him to withhold his consent and thereby refrain from participating in any ․ reckless driving of such a dangerous instrumentality.”

Rocca v. Steinmetz, supra, 61 Cal.App. 102, 214 P. 257, held a cause of action was stated where the complaint alleged defendant had allowed his son to drive, knowing the son to be a careless and reckless driver.

In Knight v. Gosselin (1932) 124 Cal.App. 290, 294, 12 P.2d 454, a judgment was upheld against defendant garage owners who delivered an automobile which they had for sale to an obviously intoxicated prospective purchaser.

The foregoing cases were “limitations” on the nonliability of furnishers' rule of Fleckner v. Dionne, supra, 94 Cal.App.2d 246, 210 P.2d 530 and Cole v. Rush, supra, 45 Cal.2d 345, 289 P.2d 450.   But as Childers, supra, 190 Cal.App.3d at p. 809, 235 Cal.Rptr. 641, explained “a return to the rule of Cole also included a return to the limitations on the rule.”

While the car here was not itself “supplied” or “entrusted” to Eigsti, yet another chattel, gasoline, the motive power for the car, was.   Gasoline may be the factual equivalent of the key to the car, or repairing of the car with a needed part to put the drunk back on the road.

Restatement of Torts Second, section 390 is on point:

“One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”  (See also com. c.)

This section imposing liability upon the theory of negligent supply of a chattel (while not negligence per se) has been followed and approved by a host of modern California authorities.  (See Blake v. Moore, supra, 162 Cal.App.3d at p. 706, 208 Cal.Rptr. 703;  Perez v. G & W Chevrolet, Inc., supra, 274 Cal.App.2d at p. 768, 79 Cal.Rptr. 287;  Hartford Accident & Indemnity Co. v. Abdullah (1979) 94 Cal.App.3d 81, 90–91, 156 Cal.Rptr. 254;  Allen v. Toledo (1980) 109 Cal.App.3d 415, 167 Cal.Rptr. 270.)

 The imposition of liability on Shell on the legal theory of a negligent supplier of a chattel to be used in a manner involving an unreasonable risk to the “user or others” does not approach the environs of the exemption from liability authorized in section 1714, subdivisions (b) and (c).   Shell was not a “furnisher” of an alcoholic beverage to Eigsti by any stretch of the facts.   Liability may thus legally be imposed on Shell because of its own “independent negligence.”  (Allen v. Toledo, supra, 109 Cal.App.3d at p. 420, 167 Cal.Rptr. 270.)

VI

On a separate and distinct legal theory plaintiffs contend Shell's sale of gasoline to the patently drunken Eigsti violated a “company” rule thereby constituting actionable negligence.

It is admitted Shell's company rules forbade sale of gasoline to an intoxicated motorist.   Gasoline was sold to Eigsti in violation of this policy.   Upon this factual basis plaintiff contends a duty of care existed dependent upon the foreseeability of harm to others occasioned by that act.   (Bloomberg v. Interinsurance Exchange (1984) 162 Cal.App.3d 571, 577, 207 Cal.Rptr. 853;  Fuller v. Standard Stations, Inc., supra, 250 Cal.App.2d at p. 692, 58 Cal.Rptr. 792.)

Shell's safety rules are admissible evidence that “due care” requires following the course of conduct prescribed by these rules.   If not followed, the rules are evidence of negligence.

The Supreme Court in Dillenbeck v. City of Los Angeles (1968) 69 Cal.2d 472, 72 Cal.Rptr. 321, 446 P.2d 129 stated:

“The safety rules in bulletins Nos. 51–56 are admissible, moreover, on a second, separate, non-hearsay theory ․ they may be introduced on the ground that an employee's failure to follow a safety rule promulgated by his employer regardless of its substance, serves as evidence of negligence.  [Citations.]  In short, the jury is entitled to conclude that the mere fact of violation of a safety rule promulgated by the employer is evidence that the employee conducted himself carelessly.”  (Id. at p. 481, 72 Cal.Rptr. 321, 446 P.2d 129;  emphasis added.)

Second, such rules are admissible “as hearsay on the standard of care.”   Beal v. Blumenfeld Theatres, Inc. (1960) 177 Cal.App.2d 192, 194, 2 Cal.Rptr. 110, explained:

“Here there is no evidence warranting any reasonable inference as to the length of time the hat which caused plaintiff's fall was on the stair.   Thus, argues defendant, there is no possible basis for liability, and the nonsuit was properly granted.

“This contention overlooks the significance of defendant's own rule requiring its employees to light the way of each patron to his seat.   Such a rule is properly admissible in evidence ‘as bearing on the standard of care ․ (defendant) thought appropriate’ to insure safety.  ‘While a violation of such rule would not constitute negligence per se, it would be a circumstance for the jury to consider on the issue of ․ (defendant's) negligence.’  (Powell v. Pacific Electric Railway Co. [1950], 35 Cal.2d 40, 46 [216 P.2d 448];  see also Sapp v. W.T. Grant Co., [1951], 172 Cal.App.2d 89, 93 [341 P.2d 826];  Simon v. City & County of San Francisco [1947], 79 Cal.App.2d 590, 597 [180 P.2d 393];  2 Wigmore on Evidence [3d ed.] 132.)   In the case at bar, the nonsuit deprived the jury of the opportunity to consider this circumstance.”   (Emphasis added.)

Dillenbeck agrees:

“The safety rules of an employer are thus admissible as evidence that due care requires the course of conduct prescribed in the rule.   Such rules implicitly represent an informed judgment as to the feasibility of certain precautions without undue frustration of the goals of the particular enterprise.

“Introduced for the purpose of particularizing the standard of care, such safety rules theoretically constitute hearsay:  an attempt to prove the truth of the matter implicitly asserted—that due care requires certain conduct.   (Evid.Code, § 1200);  [citations].   They are admissible, however, as an implied admission of a party opponent.  [Citations.]”  (Dillenbeck, supra, 69 Cal.2d at p. 478, 72 Cal.Rptr. 321, 446 P.2d 129, emphasis added.)

 We conclude the existence of the company policy is evidence of a standard of care thought by Shell as appropriate to insure safety to drivers on the road;  a violation of a rule of care established by a party to litigation is evidence of negligence.  (Hartford Acc. & Indem. Co. v. Bank of America (1963) 220 Cal.App.2d 545, 561, 34 Cal.Rptr. 23;  Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 588, 86 Cal.Rptr. 465, 468 P.2d 825;  Gett v. Pacific G. & E. Co. (1923) 192 Cal. 621, 625, 221 P. 376;  MacColl v. L.A. Met. Transit Auth. (1966) 239 Cal.App.2d 302, 308, 48 Cal.Rptr. 662 [rules regarding assisting of handicapped, elderly];  Salgo v. Leland Stanford etc. Bd Trustee (1957) 154 Cal.App.2d 560, 576–577, 317 P.2d 170 [instruction sheet from drug mfg.];  Pepper v. Underwood (1975) 48 Cal.App.3d 698, 714, 122 Cal.Rptr. 343 [Canons of Ethics on NAREA establish standard of care];  see also Koninklijke Luchtvaart Maatschappij–N.V. KLM v. Tuller (1961) 292 F.2d 775, cert. den. 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136;  Marks v. Mobile Oil Corp. (1983) 562 F.Supp. 759;  Anno 58 ALR 3d 148, 182—and 1987 Supp. pp. 12–45;  2 Wigmore, Evidence (Chadbourn rev. 1979) § 282, p. 146.)

CONCLUSION

The application of the reasoning and rules of Blake, Nault, Childers, Cameron, and Dillenbeck to the instant case leads to these conclusions:  Shell's liability derives from an independent source—its furnishing a chattel—gasoline—the motive force to put a known drunken driver in a position where she foreseeably would endanger another.   Shell's liability does not flow from the furnishing of a beverage by Kragen or its consumption by Eigsti.   As in Childers, supra, Shell's liability is entirely consistent with the commands of section 1714, subdivisions (b) and (c).   Rules of statutory construction as well as the strong public policy against drunken driving compel these conclusions.   The same societal forces operating at the legislative level to produce the 1978 amendments to section 1714, subdivisions (b) and (c) did not expressly or by implication broaden that exemption to encompass the furnisher of gasoline-motive-power to a drunken driver.   Neither section 1714, subdivisions (b) and (c) nor Fuller v. Standard Stations, Inc., supra, prevents the accrual of a cause of action against Shell.

Finally, the application of these rules to the facts alleged here depends on the resolution of a host of factual issues.   Such issues are not to be determined on a motion for summary judgment.   The granting of the motion for summary judgment deprived a jury of the opportunity to determine a multitude of factual issues.

DISPOSITION

Judgment reversed.

I respectfully dissent.   I would affirm for the reasons stated by Justice Friedman in Fuller v. Standard Stations, Inc. (1967) 250 Cal.App.2d 687.

FOOTNOTES

FOOTNOTE.  

1.   Plaintiffs (in their original suit) also sued Kragen Auto Supply, Inc. (See DeBolt v. Kragen Auto Supply, Inc. (1986) 182 Cal.App.3d 269, 227 Cal.Rptr. 258.)   Kragen sponsored the party which the drunken Eigsti was attending.   In DeBolt it was argued it was the fault of Kragen not in serving alcohol to Eigsti but rather in ordering the minor to leave the party.   The appellate court rejected the attempt in DeBolt to impose liability upon Kragen Auto Supply on general negligence theories.   The DeBolt court found the consumption of alcohol—by legislative mandate—was the proximate cause of the resulting injuries.   (Id. at p. 274, 227 Cal.Rptr. 258.)

2.   All statutory references are to the Civil Code.

3.   Fuller has been cited with approval by the California Supreme Court in Strang v. Cabrol (1984) 37 Cal.3d 720, 209 Cal.Rptr. 347, 691 P.2d 1013 but not for any rule applicable to this case.

STANIFORTH, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

TODD, J., concurs.