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

Gregory GRUBER, Plaintiff and Respondent, v. STATE of California et al., Defendants and Appellants.

No. A041027.

Decided: September 21, 1989

Joseph A. Montoya, Chief Counsel, Robert J. DeFea, Kenneth G. Nellis, J. Dennis Sullivan, San Francisco, for defendants and appellants: Jay–Allen Eisen, A Professional Corp., Rex T. Kearney, Samuel G. Grader, Ingoglia, Marskey & Kearney, Sacramento, for plaintiff and respondent.

Does a bridge toll collector who tells a pedestrian to leave the relative safety of a toll booth island owe a legal duty to the pedestrian if he or she is struck by a third person's vehicle after following the toll collector's instruction?   A jury awarded pedestrian Gregory Gruber $965,000 on his complaint for personal injury damages from the State of California, the Department of Transportation (Caltrans), and toll collector Clarence Dominguez.   The state, Caltrans, and Dominguez appeal, contending that Dominguez owed no duty to respondent Gruber.   We affirm the judgment.


Appellants State of California and Caltrans own and maintain the San Francisco Bay Bridge's toll booths and the area near them.   On the morning of July 19, 1983, traffic on the bridge was moderate to heavy.   Respondent Gregory Gruber, a frequent bridge commuter, approached the bridge in his car.   Caltrans had recently changed the toll booth lane designated for car pool use only.   Gruber discovered this change as he approached toll booth number one in the new car pool lane.   He was unable to change lanes, but drove through this toll lane, left his car on the median, and walked to toll booth number two to pay his toll.

Appellant Clarence Dominguez, a toll collector employed by Caltrans, occupied toll booth number two.   Gruber knocked on the window of the booth and offered his money.   The uniformed Dominguez said, “ ‘No, forget it.   Get out of here’.”   Dominguez later testified that he could not have accepted Gruber's money because his car did not go through Dominguez's toll booth.   He turned away from Gruber, who knocked on the window again and said, “ ‘Hey, I missed my toll.   Here's my money’.”   Dominguez turned and said, “ ‘Get the hell out of here.   Go, go, go’.”   Interpreting this statement as an order, Gruber immediately left the relative safety of the toll booth island and was hit by Catherine Hilton's car as she drove through toll lane number one—the car pool lane.   The entire incident took 10 to 15 seconds.

Dominguez's supervisor, Toll Sergeant Ernest Rogers, was on duty at the time of the accident.   An intercom system connected his office to each toll booth.   When Rogers saw Gruber at Dominguez's toll booth, he yelled over his intercom to Dominguez, “ ‘Stop that guy.   Make him use the tunnel’.”   Dominguez later testified that he did not hear his sergeant call over the intercom.   Rogers testified that as he was speaking, Gruber took off toward his parked car.

After the accident, Gruber presented a timely claim for damages to the State Board of Control, which was denied.   In January 1984, Gruber filed a personal injury action against the state, Caltrans, and Hilton.1  Later, Dominguez was named as a defendant and Hilton settled her part of the case.   The second amended complaint alleged that Dominguez failed to warn Gruber of the traffic dangers around the toll booths, failed to help him leave the area safely, and instructed him to “ ‘get the hell out of here’.”   The state 2 demurred, alleging that the complaint failed to state a cause of action because Dominguez owed no duty to Gruber.  (See Code Civ.Proc., § 430.10, subd. (e).)  The trial court overruled this aspect of the demurrer.

The case went to trial on the fifth amended complaint's allegation of Dominguez's negligence.   This complaint's allegations were substantially similar to those of the second amended complaint, adding that Gruber followed Dominguez's instruction to leave the toll booth island.   The state again answered by alleging that the complaint failed to state a cause of action.   Its motion for judgment on the pleadings was denied.   The motion was renewed on the first day of trial, to no avail.

At the close of Gruber's case, the state moved for a nonsuit;  the motion was denied.  (See Code Civ.Proc., § 581c.)   The state's theory at trial was that Gruber was solely responsible for his injuries.   The jury was instructed that the state's liability was derivative—that it was liable if Dominguez had been negligent.  (See Gov.Code, § 815.2.) 3  Ultimately, the jury found both the state and Gruber to be negligent.   By special verdict, the jury found that 65 percent of the $1.5 million in damages Gruber suffered was attributable to the state's negligence.   A judgment for $965,000 was entered, consistent with the jury's verdict.4


 First, the state contends that the trial court erred by overruling its demurrer to the second amended complaint and denying its motion for judgment on the pleadings on the fifth amended complaint because, it urges, neither complaint alleged that Dominguez owed a legal duty to Gruber.   Orders overruling a demurrer and denying a motion for judgment on the pleadings are not appealable.   However, the state may challenge these adverse rulings, as it has in this case, on appeal from the judgment.  (Harmon v. De Turk (1917) 176 Cal. 758, 761, 169 P. 680 [demurrer];  State of California v. Superior Court (1984) 150 Cal.App.3d 848, 853, fn. 4, 197 Cal.Rptr. 914 [demurrer];  Fraser–Yamor Agency, Inc. v. County of Del Norte (1977) 68 Cal.App.3d 201, 207–208, 137 Cal.Rptr. 118 [judgment on pleadings];  see 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 82, pp. 104–105.)

Both a demurrer and a motion for judgment on the pleadings assume the facts alleged in the pleadings are true.   We construe the two versions of the complaint in Gruber's favor.  (See Board of Regents v. Davis (1975) 14 Cal.3d 33, 37, fn. 4, 120 Cal.Rptr. 407, 533 P.2d 1047;  Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 565, 176 Cal.Rptr. 704.)

 To constitute actionable negligence, there must exist a duty or obligation which the defendant is under to protect the plaintiff from injury.   (Coleman v. California Y. Meeting, etc. (1938) 27 Cal.App.2d 579, 582, 81 P.2d 469 [nonsuit improperly denied];  see Clarke v. Hoek (1985) 174 Cal.App.3d 208, 213, 219 Cal.Rptr. 845.)   A determination that a defendant did not owe a plaintiff a duty of care is a complete defense to a cause of action for negligence.  (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384–385, 243 Cal.Rptr. 627.)   The state contends that the complaints did not state a cause of action for negligence because Dominguez owed no legal duty to Gruber.   The question of whether one owes a duty to another must be decided on a case-by-case basis.  (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.)   Whether a legal duty of care exists in a given factual situation is a question of law to be determined by the court.   (Ibid.;  Stangle v. Fireman's Fund Ins. Co. (1988) 198 Cal.App.3d 971, 974, 244 Cal.Rptr. 103;  Clarke v. Hoek, supra, 174 Cal.App.3d at p. 213, 219 Cal.Rptr. 845.)   When presented with the motion for judgment on the pleadings, the trial court concluded that factual questions precluded it from determining the duty issue.   The trial court erred by not ruling on the merits of this question.  (See id., at p. 214, 219 Cal.Rptr. 845.)   Nevertheless, on appeal, we must decide the question of duty de novo.  (See Owens v. Kings Supermarket, supra, 198 Cal.App.3d at p. 385, 243 Cal.Rptr. 627.)

 All persons must use ordinary care to prevent others from being injured as a result of their conduct.  (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624;  Weirum v. RKO General, Inc., supra, 15 Cal.3d at p. 46, 123 Cal.Rptr. 468, 539 P.2d 36;  Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561.)   Each is responsible for injuries to another caused by a want of ordinary care or skill.  (Civ.Code, § 1714, subd. (a);  Rowland v. Christian, supra, at pp. 111–112, 70 Cal.Rptr. 97, 443 P.2d 561.)   When circumstances place a person in a position with regard to another that every thinking person of ordinary sense would recognize that if he or she did not use ordinary care and skill in his or her conduct, injury to another would result, a duty arises to use ordinary care and skill to avoid that danger.  (Id., at p. 112, 70 Cal.Rptr. 97, 443 P.2d 561.)

 In both the second and fifth amended complaints, Gruber alleged that Dominguez told him to “ ‘get the hell out of here’.” 5  The fifth amended complaint added that Gruber followed Dominguez's instructions and was hit by Hilton's car.   By this conduct, Gruber urges, Dominguez made his situation worse, thus creating a risk on which a duty may be found.  (Weirum v. RKO General, Inc., supra, 15 Cal.3d at p. 49, 123 Cal.Rptr. 468, 539 P.2d 36;  Clarke v. Hoek, supra, 174 Cal.App.3d at pp. 215–216, 219 Cal.Rptr. 845.)   We agree.

Tort liability exists when a defendant urges a plaintiff to specific conduct that exposes him or her to an increased risk of harm from third persons.  (See, e.g., Weirum v. RKO General, Inc., supra, 15 Cal.3d at pp. 46–49, 123 Cal.Rptr. 468, 539 P.2d 36 [radio station's announcement of prize for first listener reaching specific location encourages unsafe driving and constitutes misfeasance];  Michael R. v. Jeffrey B. (1984) 158 Cal.App.3d 1059, 1063–1068, 205 Cal.Rptr. 312 [child's verbal encouragement to shoot marble at third person constitutes misfeasance;  unjustified violation of statute prohibiting assault with a deadly weapon];  see also Pamela L. v. Farmer (1980) 112 Cal.App.3d 206, 209, 169 Cal.Rptr. 282 [woman who told parents their children were safe at her home was liable when her husband molested the children;  her conduct constituted misfeasance].)  In such a case, liability is not predicated on defendant's failure to intervene, but on its creation of an unreasonable risk of harm to plaintiff.  (Weirum v. RKO General, Inc., supra, 15 Cal.3d at p. 49, 123 Cal.Rptr. 468, 539 P.2d 36.)

 The state cites the principle that, generally, one has no duty to control the conduct of a third person or to warn those endangered by such conduct, absent a special relationship either to the third person or the victim.   However, this rule is based on the concept that a person should not be liable for nonfeasance in failing to act as a good Samaritan.   It does not apply when the defendant, through his or her misfeasance, has made the plaintiff's position worse and has created a foreseeable risk of harm from a third person.   In such cases, the question of duty is governed by the standards of ordinary care.  (Michael R. v. Jeffrey B., supra, 158 Cal.App.3d at pp. 1067–1068, 205 Cal.Rptr. 312;  Pamela L. v. Farmer, supra, 112 Cal.App.3d at p. 209, 169 Cal.Rptr. 282.)   Dominguez did not merely fail to prevent harm to Gruber from bridge drivers;  by giving the instructions that he did, he increased the risk of harm to Gruber, making it more likely that Gruber would cross into the toll lane without pausing to look first for oncoming traffic.  (See Pamela L. v. Farmer, supra, at p. 210, 169 Cal.Rptr. 282.)   This was misfeasance.

 However, the state argues that this imposition of tort liability violates Dominguez's constitutional right to free speech.  (See U.S. Const., Amend. I;  Cal. Const., art. I, § 2.)   This argument is meritless.   To paraphrase the California Supreme Court in a similar case, the issue here is civil accountability for the foreseeable results of an instruction which created an undue risk of harm to Gruber.  “The First Amendment does not sanction the infliction of physical injury merely because achieved by word, rather than act.”  (Weirum v. RKO General, Inc., supra, 15 Cal.3d at p. 48, 123 Cal.Rptr. 468, 539 P.2d 36.)   By his words, Dominguez urged Gruber to act in an inherently dangerous manner.  (See Olivia N. v. National Broadcasting Co. (1981) 126 Cal.App.3d 488, 496, 178 Cal.Rptr. 888.)   As the two amended complaints alleged a legal duty based on Dominguez's misfeasance, the result of the trial court's rulings—overruling the demurrer and denying the motion for judgment on the pleadings—was correct.


 The state also contends that the trial court erred when it denied its motion for nonsuit.   The state argues that Gruber did not prove that it owed any legal duty to him and that, for this reason, the trial court should not have submitted the case to the jury.   An order denying a motion for nonsuit is not an appealable order, but the ruling may be challenged on appeal from the judgment.  (McKee v. Lynch (1940) 40 Cal.App.2d 216, 228, 104 P.2d 675.)

 A motion for nonsuit is tantamount to a demurrer to the evidence.   It concedes the truth of the facts proved but contends that, as a matter of law, they do not establish the plaintiff's alleged cause of action.  (See Lucchesi v. Giannini & Uniack (1984) 158 Cal.App.3d 777, 787, 205 Cal.Rptr. 62;  Harris v. Smith (1984) 157 Cal.App.3d 100, 104, 203 Cal.Rptr. 541.)   The granting of a motion for nonsuit is warranted only when—disregarding conflicting evidence, giving the plaintiff's evidence all value to which it is legally entitled, and indulging in every legitimate inference that may be drawn from the evidence—there is no substantial evidence that could support a verdict in the plaintiff's favor.  (Campbell v. Security Pac. Nat. Bank (1976) 62 Cal.App.3d 379, 384, 133 Cal.Rptr. 77;  Rufo v. N.B.C. Nat. Broadcasting Co. (1959) 166 Cal.App.2d 714, 719, 334 P.2d 16 [no proof of negligence, proximate cause].)

 At trial, Gruber testified that when he tried to pay his toll, Dominguez told him “ ‘Get the hell out of here.   Go, go, go’.”   This statement is even stronger than that which Gruber alleged in his complaint.   The evidence of misfeasance presented at trial is even more compelling than the misfeasance alleged in the pleadings.  (See pt. II, ante.)   Gruber also offered testimony at trial about a toll collector's manual which stated the normal procedure to be followed when a pedestrian walked onto a toll booth island.6  Although this manual did not establish a duty on Dominguez's part, the state's safety rules were admissible as evidence that due care requires the course of conduct described in the rules.  (Dillenbeck v. City of Los Angeles (1968) 69 Cal.2d 472, 478, 72 Cal.Rptr. 321, 446 P.2d 129;  Posey v. State of California (1986) 180 Cal.App.3d 836, 848–849, 225 Cal.Rptr. 830.) 7  The jury was so instructed.   The manual provided that the proper course of conduct was for the toll collector to instruct a pedestrian to use a subterranean tunnel leading to an administration building on the median rather than to cross lanes of traffic.   This evidence also tends to establish that Dominguez's statements were misfeasance.   As the pleadings alleged a legal duty and Gruber's evidence could support a breach of that duty, the trial court properly denied the state's motion for nonsuit and allowed the case to go to the jury.

The judgment is affirmed.


1.   Gruber's spouse Sheryl Gruber was also a plaintiff at one time.   Her cause of action for loss of consortium was settled against Hilton.   Her cause of action against the state appears to have been precluded because she failed to file a timely claim with the State Board of Control.   The loss of consortium claim did not go to the jury.

2.   For convenience, all subsequent references to the State of California, Caltrans, and Dominguez will be referred to collectively as “the state.”

3.   Government Code section 815.2, subdivision (a) provides:  “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee․”

4.   This sum reflects a deduction of $10,000 Gruber accepted from Hilton in settlement of his claim against her.

5.   Gruber also states that Dominguez added the phrase:  “ ‘Go, go, go’.”   While evidence of this addition was presented at trial, it was not pleaded in either the second amended complaint to which the state demurred or the fifth amended complaint to which the motion for judgment on the pleadings was addressed.   When considering the motions that challenge the pleadings, we do not consider this statement, although it is evidence for purposes of determining the propriety of the ruling on the motion for nonsuit.

6.   The trial court excluded the manual itself from evidence.

7.   State law now specifically provides that a state government manual setting forth employee guidelines does not automatically constitute a statute for purposes of creating a presumption of negligence when violation of a statutory duty has occurred.   Only if the manual is formally adopted as a statute does this legal effect occur.  (Evid.Code, § 669.1;  see Evid.Code, § 669.)   However, this statute applies only to actions arising on or after January 1, 1988.  (Stats.1987, ch. 1207, § 4.)

CHANNELL, Associate Justice.

ANDERSON, P.J., and POCHÉ, J., concur.