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

Loris HUNTER, Plaintiff and Respondent, v. MOHAWK PETROLEUM CORPORATION, a corporation, Defendant and Appellant.*

Civ. 17565.

Decided: March 19, 1958

Bledsoe, Smith, Cathcart, Johnson & Phelps, San Francisco, for appellant. Leon A. Blum, Harold L. Levin, San Francisco, for respondent.

Plaintiff, Loris Hunter, was injured while she, as an invitee, was on the premises operated by the defendant Mohawk Petroleum Corporation. The injury was caused by the negligent act of another invitee. The plaintiff brought this action against Mohawk on the theory that as invitor it owed her a duty which had been violated. The jury brought in a $5,000 verdict against Mohawk. From the judgment entered on that verdict Mohawk appeals, its principal contention being that there is no evidence to support the judgment.

The accident occurred on the afternoon of July 7, 1953, on premises operated by Mohawk as a gasoline service station. Mrs. Hunter was a regular customer of this station. It was the custom at this station for the attendant in charge to fill the gasoline tanks of customers, but for the customers to serve themselves air and water. Gasoline was dispensed from pumps installed on cement islands located in the central portion of the lot. The air and water facilities, as well as self-help vacuum cleaning equipment and self-help battery charging units, were located along the eastern edge of the lot for the use of customers. Also on the eastern edge of the lot, in close proximity to the air and water outlets, a large blackboard was maintained by Mohawk to post the winning numbers of drawings made by Mohawk from tickets previously distributed to its customers as an advertising stunt.

The negligent invitee who directly caused the accident was Pete Paris, a regular customer of the station. About 10 a. m. of the day in question he drove into the station and purchased some gasoline. Then he discovered that he could not start the motor of his pick-up truck. He pushed it over to the portion of the lot where the water and air outlets and the battery charger were located. He tried to charge his battery, but burned it in the process. He then purchased a new battery from the station attendant, and installed it himself. The motor of his truck still would not start. Thereupon he started to work on the motor. He continued to work on the car ‘for six or seven hours,’ working both on the motor and the mechanism underneath the car. During this period the station attendant paid no attention to what he was doing and did not, in any way, assist or offer to assist him. He finally decided that the gasoline pipeline leading to the gasoline tank might be plugged up, and he decided to blow it out with the air hose. He testified that he then removed the gas cap on the gasoline tank. There is substantial evidence, however, that there was no gas cap, but simply a rag stuffed into the vent pipe to act as a gas cap, and that this was not removed. Paris then disconnected the main gasoline line from underneath the car and attached the air hose to it to blow out the line. He immediately heard Mrs. Hunter screaming. She was standing immediately back of his truck and very close to the gas tank.

Another customer of Mohawk—Jean Rozelle—testified that she was standing over by the blackboard, which placed her back of Paris' truck, checking to see if she had any winning numbers, when Mrs. Hunter approached and stood beside her, also checking the blackboard numbers. Suddenly a stream of gasoline from the tank of Paris' truck hit the witness in the back. Mrs. Hunter got the full impact of the stream of gasoline in her face.

Mrs. Hunter and her husband testified that they arrived at the gasoline station during the afternoon to get gasoline. They had about 100 tickets in the drawing operated by Mohawk. Mrs. Hunter went over to the blackboard to check her tickets with the winning numbers. She noticed Paris bending over the motor of his truck. No one warned her of any danger, and there were no warning signs. Suddenly the stream of gasoline hit her full in the face. The gasoline burned her face, chest, arms and neck. Her eyesight was materially impaired. No charge is made that, if liability exists, the damages are excessive. They are not.

The first contention of appellant is that the trial court should have given the following proffered instruction: ‘If you find that the sole, proximate cause of the injury to the plaintiff, if any, was the act of Pete Paris in blowing out his gas line, you will return a verdict in favor of defendant Mohawk Petroleum Co.’

Appellant also contends that the court erroneously struck out the first sentence of the following instruction: ‘Even if you should find that Pete Paris was negligent and that his negligence, if any, caused injury to the plaintiff (if any), such a finding will not support a verdict against the Mohawk Petroleum Co. In order to recover against the Mohawk Petroleum Co., the plaintiff must prove by a preponderance of the evidence that the defendant was negligent, and that such negligence, if any, was a proximate cause of injury to the plaintiff, if any.’

Appellant's contention is that the jury must have held that it was vicariously responsible for the acts of Paris, and that the above instructions were necessary to clarify the issues. The trouble is that the refused instructions were misleading and incomplete. Certainly, if appellant knew or should have known that Paris was going to use the air hose to blow out the gas line, and failed either to stop him or to warn other customers of the danger, it would be liable. The proposed instructions omitted any reference to these possibilities. They were incomplete and properly refused. Moreover, the other instructions given clearly stated the nature of appellant's defense. The jury was told, in no uncertain language, that before appellant could be held liable the jury must find that appellant was negligent. It was instructed at length on the duty owed by a landowner to invitees, and on the necessity of foreseeability as an element of responsibility. The jury was told that there was no duty to warn of an obvious danger. These instructions adequately covered the field.

The basic contention of appellant is that the judgment is unsupported by the evidence. It is claimed that there is no evidence to support the implied finding that appellant knew or should have known that the conduct of Paris might injure other invitees.

The rules applicable to the liability of landowners, who use their premises for business purposes for torts committed by one invitee against another are reasonably well settled, but somewhat difficult of application. They are stated as follows in section 348 of the Restatement of Torts:

‘A public utility or other possessor of land who holds it out to the public for entry for his business purposes, is subject to liability to members of the public while upon the land for such a purpose for bodily harm caused to them by the accidental, negligent or intentionally harmful actions of third persons or animals if the possessor by the exercise of reasonable care could have

‘(a) discovered that such acts were being done or were about to be done, and

‘(b) protected the members of the public by

‘(i) controlling the conduct of the third persons, or

‘(ii) giving a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive from a public utility.’

The key question in determining whether or not liability exists is whether the landowner knows, or in the exercise of reasonable care should know, of the danger to his invitees. If so, a duty of protection arises. Stated another way, the landowner is required to exercise reasonable care to protect the invitee from those dangerous conditions or activities known to the landowner, and of which he should have known if reasonable care were exercised. The landowner, even one operating a business, is not an insurrer of the safety of his invitees or business guests. There is no liability for harm resulting from conditions from which danger is not to be anticipated. The real question in each case is whether the danger is of such a character, or of such duration, that the jury may reasonably conclude that due care would have discovered it. If so, it is a fact question for the jury. If not, then, as a matter of law, there is no liability.

There are several cases holding that the landowner did not know and could not reasonably have anticipated a particular injury, and, as a matter of law, was not liable for injury to an invitee. In Porter v. California Jockey Club, Inc., 134 Cal.App.2d 158, 285 P.2d 60, the plaintiff, a patron at a racetrack, was injured by another patron who ran into the plaintiff. A nonsuit was affirmed, the court finding no evidence that indicated that the operator knew or should have known that such an act would take place. See also Richards v. Stanley, 43 Cal.2d 60, 271 P.2d 23. Similarly, in Worcester v. Theatrical etc. Corp., 28 Cal.App.2d 116, 82 P.2d 68, a patron in a theatre was kicked by another apparently intoxicated patron who was asleep when the plaintiff was ushered to her seat. No similar occurrence had ever happened. A judgment notwithstanding the verdict was affirmed, the court stating (28 Cal.App.2d at page 119, 82 P.2d at page 69): ‘There is no doubt that the respondent owed to the appellant a reasonable degree of care to see that she was not injured on the premises. However, the respondent was not an insurer of appellant's safety and could be held liable only where it knew, or should have known, of existing danger. There is no evidence of any actual knowledge on the part of respondent of the sailor's condition prior to the accident. Appellant relies upon the theory of constructive notice, in that the sailor was asleep prior to the accident and found to be intoxicated subsequent to the accident. Nothing in the record shows that any employee of the theatre saw the sailor asleep, although he was seen by appellant and her husband; nor is there any evidence to warrant the conclusion that in the exercise of ordinary care, respondent should have discovered the intoxicated condition of the sailor. There must be more evidence than mere surmise or conjecture, from which an inference of negligence can be drawn. Curry v. Williams, 109 Cal.App. 649, 293 P. 623.’ See also Richter v. Adopbe Creek Lodge, 143 Cal.App.2d 514, 299 P.2d 941, reversing a judgment for plaintiff with directions to grant the defendant's motion for judgment notwithstanding the verdict.

On the other hand, there are several cases holding that it was a fact question as to whether the landowner knew or should have known of the danger. In Sample v. Eaton, 145 Cal.App.2d 312, 302 P.2d 431, a patron at a wrestling match was injured when hit by a bottle thrown by another patron. The proprietor of the wrestling club was held liable. The court pointed to evidence that before the plaintiff was hit spectators sitting opposite to him were fighting and throwing various articles. This went on for six or seven minutes without the ushers, private police, or police officers making any attempt to stop these activities. The court held that it was a question for the jury as to whether the proprietor used reasonable care to protect the plaintiff—that the jury could find that in the exercise of reasonable care the danger should have been anticipated.

The oft-cited case of Edwards v. Hollywood Canteen, 27 Cal.2d 802, 167 P.2d 729, is also in point. There the Canteen was held liable to a volunteer hostess for injuries received while dancing with an impetuous member of the armed forces. The court emphasized evidence that indicated that some of the guests had engaged in conduct that should have indicated to the Canteen that a danger existed, and held that the proprietor should have taken steps to restrain conduct that was potentially dangerous. See also Raber v. Tumin, 36 Cal.2d 654, 226 P.2d 574. In Thomas v. Studio Amusements, Inc., 50 Cal.App.2d 538, 123 P.2d 552, the proprietor of a skating rink was held liable to a customer of the rink who was injured by the reckless skating of another patron because there was evidence to support the inference that the proprietor knew or should have known that reckless skating endangered patrons. See also Goldsmith v. Mills, 130 Cal.App.2d 493, 279 P.2d 51.

In Johnstone v. Panama Pacific I. E. Co., 187 Cal. 323, 202 P. 34, the court considered the question as to whether a complaint stated a cause of action. The plaintiff in that case was injured by an electric carriage driven by another visitor to the exposition and rented from a concessionaire. The court stated (187 Cal. at page 329, 202 P. at page 36): ‘In this case it was alleged that the bailor was under the duty to use ordinary care to protect appellant from injury. It may well have been, and it was so alleged in the complaint, that the mere fact of giving the machine to the bailee for operation among pedestrians was an act of negligence and a breach of the duty.’

In Newman v. Clinton Cafeteria Co., 153 Cal.App.2d 646, 315 P.2d 64, a customer of the restaurant was injured when another customer turned around suddenly, causing the plaintiff to step back hitting a protective chain, which broke, causing the plaintiff to fall. At page 650 of 153 Cal.App.2d, at page 66 of 315 P.2d, the court stated: ‘As Mr. Newman was a business invitee, the respondent was obliged to exercise ordinary care to keep the premises in a reasonably safe condition or to warn him of danger. This duty was not limited to conditions actually known by the owner to be dangerous, but extended also to conditions which might have been found dangerous by the exercise of reasonable care.’

How do these rules apply to the instant case? We think that there is enough evidence to make the question involved a fact question that was properly submitted to the jury. When a landowner invites customers to his place of business he is under a duty of reasonable care to protect those customers. He is responsible not only for those dangers he actually knows exist, but also of those dangers which, in the exercise of reasonable care, he should know might exist. There is no evidence that appellant had actual knowledge that Paris was engaging in negligent activities. But appellant furnished a place for customers to work on their cars. Appellant knew, or should have known, that persons using the facilities furnished by it might include amateurs, hot-rodders, and other do-it-yourselfers. It is certainly a reasonable possibility that such persons working on an instrumentality such as an automobile might create a dangerous situation. Yet appellant made no effort at all to discover what Paris was doing or how he might be doing it. He invited other customers to come to the area by maintaining the blackboard in the immediate vicinity of the area where Paris was working. No warning signs were posted to warn invitees of the possible danger. Appellant knew, or should have known, that Paris was working on his car for many hours. Appellant knew that the trouble was not battery trouble because appellant's employee had sold Paris a new battery and the employee knew that this did not start Paris' car. Certainly the attendant knew, or should have known, that Paris was having great difficulty in starting his car. The attendant knew, or should have known, that Paris might be engaged in any one of several activities that could create a danger to those nearby. He knew, or should have known, that among these possibilities was that if the person working on his car believed the gasoline line was stopped up he might use the air pressure to blow it out. He knew, or should have known, that the gasoline tank was capped with a rag stuffed in the vent. Paris was working on his car where the air hose was located. The possibility that the air hose might be used for this purpose was not so unlikely that it was unforeseeable as a matter of law. The duty of reasonable care that appellant owed its customers charged it with anticipating this danger, or at least of warning its invitees of the possible danger. Instead of giving such a warning appellant invited others to the area of possible danger by maintaining the blackboard. We think that, under these circumstances, it was a fact question as to whether appellant had notice of facts which required it to take steps to protect respondent from the acts of Paris. This being so, the judgment is adequately supported by the evidence.

The judgment appealed from is affirmed.

I dissent. I find no evidence of negligence of appellant. The majority opinion holds that under the circumstances of this case, foreseeability of danger from allowing a patron to work on his car was a question of fact. It seems to me that this is carrying the doctrine of foreseeableness as a fact question too far. It does not seem reasonable to me to hold that any reasonable person would assume: (1) That a service station patron would use an air hose to blow out a gasoline line. There was no evidence that anyone had ever done this before. (2) That a person would do this with a gasoline tank capped only with a rag. Even assuming that the station operator should have known that the patron might have used the air hose to blow out the line, the operator had a right to assume that it would be done in the ordinary and customary manner. (3) That he would use the air house with utter disregard of another persons standing near. The opinion would require the operator to inspect the work being done on the car. How often should he have done this? Unless he happened to make his inspection in the exact few minutes it took the patron to attach the air hose, an inspection would not have revealed the patron's intention.

The majority rule makes the operator practically an insurer of anyone injured by an air house used by a patron. It requires an operator to foresee that anyone using an air hose might use it in a careless manner and injure another, so that the operator would have to provide enough attendants to supervise every patron using the air hose. For example, it is possible that a patron negligently might inflate a tire causing it to blow out and injure another patron waiting to use the air hose. In self-service stations, the rule would require an attendant to watch every patron serving himself gas because, perchance, the patron might negligently light a cigarette, and cause an explosion injuring another patron. To hold foreseeable the unusual circumstances in this case is holding, in effect, that there can be no lack of foreseeability as a matter of law, and that in every ‘but for’ case, no matter how fantastic the circumstances, foreseeability is fact question, because the accident would not have happened if the actor sought to be charged had not taken his car out of the garage, or as here, provided an air hose for his patrons.

In Porter v. California Jockey Club, Inc., 134 Cal.App.2d 158, 285 P.2d 60, the court pointed out that in the absence of conduct to put him on notice to the contrary, a race track owner is entitled to assume that others will not act negligently. Why did defendant in our case not have that right? Moreover, foreseeability that persons are going to rush to make last minute bets at a race track and are likely to bump into one another, is just as warranted as foreseeability here, and yet the court in the Porter case held in effect that as a matter of law the danger was not reasonably foreseeable.

The rule would required the theatre owner in Worcester v. Theatrical etc. Corp., 28 Cal.App.2d 116, 82 P.2d 68, to make sure that no intoxicated persons came into his theatre, as it is more foreseeable that intoxicated people will go into a theatre and cause trouble than that a service station patron would negligently use an air hose.

In Sample v. Eaton, 145 Cal.App.2d 312, 302 P.2d 431, there was evidence that the patrons were fighting and throwing objects. This put the proprietor on notice of the possible danger to other spectators. No such notice appears in our case. In Edwards v. Hollywood Canteen, 27 Cal.2d 802, 167 P.2d 729, there was evidence, as the majority opinion states, ‘that indicated that some of the guests had engaged in conduct that should have indicated to the Canteen that a danger existed * * *’. No such evidence here. In Thomas v. Studio Amusements, Inc., 50 Cal.App.2d 538, 123 P.2d 552, as the majority opinion states, there was ‘evidence to support the inference that the proprietor knew or should have known that reckless skating endangered patrons.’ Johnstone v. Panama Pacific I. E. Co., 187 Cal. 323, 202 P. 34, was based upon the reasonable proposition that one renting an electric carriage to be driven among pedestrians in crowded thoroughfares, could reasonably foresee danger to those pedestrians. Newman v. Clinton Cafeteria Co., 153 Cal.App.2d 646, 315 P.2d 64, was based upon the reasonable foreseeability of patrons striking forcibly the protective chain which broke.

The opinion states that the operator should have known that amateurs and hotrodders might want to repair cars on his premises. Whether that be true or not, there is no evidence that Paris was either an amateur or hot-rodder. Obviously he was a do-it-yourselfer. But amateur, hotrodder or do-it-yourselfer, whichever he might be, defendant had the right to assume that he would use ordinary care in working on his car. To hold that a car needing repair is a dangerous instrumentality is applying to it the doctrine of absolute liability which does not apply even to automobiles in operation on highways. It is a matter of common knowledge that anyone tinkering on the engine of an automobile on the street or in a driveway will cause spectators to gather around to watch the operation. It could hardly be held that in so doing the spectators were guilty of contributory negligence because they should foresee, in the absence of any notice to that effect, that the mechanic was going to do some foolish and negligent thing such as blowing the gasoline line with an air hose while using a rag for a tank cover. Yet the operator of a service station is to be held negligent where the spectator would not be. If such claimed foreseeability is to be the test, plaintiff herself, on seeing Paris working on the automobile, was put on the same notice of danger which it is claimed applied to defendant.

I would reverse the judgment.

PETERS, Presiding Justice.

FRED B. WOOD, J., concurs.

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