WEIRUM v. RKO GENERAL INC

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

Ronald A. WEIRUM et al., Plaintiffs, Respondents and Cross-Appellants, v. RKO GENERAL, INC., Defendant, Appellant and Cross-Respondent.

Civ. 41978.

Decided: January 31, 1975

Stearns & Nelson, Hollywood and Edward L. Lascher, Ventura, for defendant, appellant and cross-respondent RKO General, Inc. Hollister, Brace & Angle, Robert O. Angle and Richard C. Monk, Santa Barbara, for plaintiffs, respondents and cross-appellants Weirum. No appearance for other parties. Benton, Orr, Duval & Buckingham, Lascher & Rader, Edward L. Lascher and Wendy Cole Wilner, Ventura, for Marsha L. Baime, for RKO General, Inc. as respondent to cross-appeal.

On the morning of July 16, 1970, defendant and appellant RKO General Inc., the operator of radio station KHJ, was engaged in a promotional activity referred to as the ‘Super Summer Spectacular.’ The format of that operation was, in general, as follows: A station employee (in the case at bench, Don Steele), driven by O'Brien, another station employee, in a red Buick automobile, went to a location in the San Fernando Valley. He advised the station announcer then on duty of his location. The announcer then broadcast that information, together with the statement that Steele would give a small sum of money to the first person approaching him and answering a specified question. After that prize had been awarded, Steele was driven on a city street and on the Ventura Freeway to a second location, from which a similar procedure was followed. The questions to be answered were ones which easily could be answered by any regular listener to the KHJ programs. The purpose of the whole operation was to induce the radio audience to become and remain regular listeners of KHJ so that its members would be promptly advised of Steele's various locations and would know the expected answer to be given.

Defendants Marsha Baime and Robert Sentner (both minors; Baime would now be an adult under Civ.Code § 25) heard the original broadcast and, traveling in separate cars,2 drove to the first location but were too late to qualify for the prize. They elected to follow Steele with the hope that they would, thus, be the first arrivals at his next broadcasted location. In so following Steele's car, one, or both, of the drivers was responsible for forcing the car which plaintiffs' decedent was driving off the freeway and into a center divider, where it overturned, killing decedent.

Plaintiffs brought the instant wrongful death action, joining Baime,3 Sentner, KHJ and the manufacturer of decedent's car (Volkswagen).4 The case against Sentner was settled, prior to trial, for his policy limits.5 After a jury trial, plaintiffs recovered a judgment against Baime and KHJ for $300,000; Volkswagen recovered judgment against plaintiffs.

The present appeal is by KHJ from the judgment and from the denial of its motion for judgment notwithstanding the verdict. Baime has not appealed. Plaintiffs have not appealed from the judgment in favor of Volkswagen.

On this appeal it is conceded that Baime and Sentner were negligent in operating their respective vehicles. No issue is raised as to the amount of damages awarded. The sole issue is whether KHJ is also liable for the fatal accident. That liability is claimed to have arisen from the actions of KHJ in operating the promotional activity above described; it is not contended that the Steele car was negligently operated or that it was directly involved in the accident. Indeed, the Steele car concededly was operated no faster than the flow of traffic. There was no evidence that Steele or O'Brien, the driver of the car, were aware of the cars following behind them.

KHJ contends that it had no duty toward decedent and, thus, had no liability to plaintiffs. We agree. The case is controlled by our decision in Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799, 87 Cal.Rptr. 50, and by the authorities therein discussed. Taking the case for plaintiffs at its best, it shows only that KHJ and its employees knew, or should have known, that persons listening to its broadcasts and some, particularly teenage listeners, might act as did Baime and Sentner in following the Steele car in order to be first on the scene of his next give-away. KHJ and its employees had no control of, or right to control, the drivers of cars that elected to follow it. Unlike the defendant in Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 60 Cal.Rptr. 510, 430 P.2d 68, relied on by plaintiffs, it was not a ‘street vendor’; it had no control over the highway on which decedent, Baime and Sentner traveled. It was as free from any duty of care toward decedent as was the carnival operator in Nevarez. It was entitled to a judgment in its favor as a matter of law.

The dissent ignores the fact that KHJ had no control, or right to control, over the conduct of the drivers of other cars on the highway. (Nevarez, supra, 7 Cal.App.3d at 805, 87 Cal.Rptr. 50.) Conceding that KHJ induced and motivated persons to drive onto the road, it yet had no authority to control their conduct, once there. There is no evidence that KHJ's car was violating any law thus suggesting or requiring that teenage drivers also violate it.

The dissent emphasizes that Baime and Sentner were ‘teenagers' or ‘youngsters.’ However, the fact Baime was a ‘teenager’ or ‘youngster’ did not, alone, excuse her from obeying traffic regulations. (Prichard v. Veterans Cab Co., 63 Cal.2d 727, 732, 47 Cal.Rptr. 904, 408, P.2d 360 [1965]; Neudeck v. Bransten, 233 Cal.App.2d 17, 19–23, 43 Cal.Rptr. 250 [1965]; Evid.Code § 669; 4 Witkin, Summary of Cal.Law, 8th ed., pp. 2787–2788, ‘Torts' § 521; BAJI 3.45.)

PLAINTIFFS' CROSS-APPEAL

Prior to the trial, plaintiffs, pursuant to section 998 of the Code of Civil Procedure, served on the several defendants an offer to settle. That offer was to settle for the policy limits ($15,000) for Baime and for Sentner, $150,000 for KHJ and $150,000 for Volkswagen. As we have stated above, Sentner accepted the offer and was dismissed from the case; the other defendants did not accept the settlement offer. After trial and judgment, plaintiffs moved for the allowance of costs against Baime and KHJ; that motion was denied by a minute order, without citation of reasons.

Insofar as KHJ is concerned, our reversal of the judgment against it and our order that judgment be entered in its favor renders moot the appeal as to that defendant. By the terms of section 998, costs are assessable against an offeree only if it ‘fails to obtain a more favorable judgment’; KHJ has, by our decision here, obtained a more favorable judgment.

However, the situation as to Baime is different. Baime did not obtain a more favorable judgment and plaintiffs were entitled to the exercise of the trial court's discretion6 in awarding preparation costs as to that defendant. Baime has not elected to file a brief in this court.7 Under rule 17(b) of the California Rules of Court we may accept as correct the factual statements in plaintiffs' brief. That brief shows that costs were incurred in the case against Baime as to the amount of damages and, perhaps, as to the issue of contributory negligence. However, plaintiffs' motion was not supported by any factual statement of the services rendered or the basis of the charges. Counsel for Baime filed a declaration stating that the expert testimony of the witness, O'Shea, for whom $7,500 had been claimed, had related exclusively to the liability of the automobile manufacturer and had no value as part of the case against the other parties. The other experts referred to were Professors Johnson and Shapiro, economists, who gave an analysis of the economic loss sustained by plaintiffs, and Dr. Rosen, a pathologist, who had examined the decedent's liver to rebut a contention that he had been under the influence of alcohol. The court denied the motion by minute order without comment. Plaintiffs have appealed from that order which is appealable as a post-judgment order under Code Civ.Proc, § 904.1, subd. (b).

The present statute expressly gives the trial court discretion to award or refuse to award these extra costs. The former statute was so construed in Pomeroy v. Zion (1971) 19 Cal.App.3d 473, 477, 96 Cal.Rptr. 822. No case has been found which has discussed the standards by which the trial court should exercise this discretion. One guide to interpretation is that the statute must have been intended to encourage settlements. The power to award extra costs operates both as a financial disincentive for refusing settlement offers and as a means of equitable adjustment in favor of one who is put to extra and unjustified expense.

Turning to the facts at hand, it appears that the court was entitled to deny an award for the $7,500 O'Shea fee upon a finding that his services were not necessary for the case against the losing defendants. That reduced the amount recoverable to $1,496.18 for the other experts. Although the plaintiffs made no showing as to the reasonableness of the amounts requested, the court was aware that services had been performed, since the witnesses had testified. Hence some amount might have been awarder if the court had been so minded.

With respect to KHJ, the court was entitled to consider that liability was seriously in question, there never having been any factually similar case in any reported decision that the parties knew of, and the settlement demand was a large amount of money. The refusal of KHJ to settle for $150,000 may not have seemed unreasonable. Moreover, the court may have regarded the verdict as generous in amount, and concluded it would not be unfair to let plaintiffs pay the relatively small expert fees.

Having exercised its discretion not to impose extra costs on KHJ, the court reasonably could have concluded that Baime should not bear this charge alone. Although the settlement offered Baime was a bargain, and her reasons for rejecting the offer are unexplained, it was obvious that her acceptance of the offer would not have prevented a trial or contributed materially towards an overall settlement. Plaintiffs would have been obliged to employ their expert witnesses no matter whether Baime had settled. Under the circumstances we will not overrule the trial court's exercise of its discretion.

The judgment in favor of plaintiffs and against defendant RKO General Inc., is reversed; the order denying the motion of that defendant for a judgment notwithstanding the verdict is reversed; the trial court is directed to enter a judgment in favor of that defendant and against plaintiffs. The order denying plaintiffs' motion for costs under section 998 of the Code of Civil Procedure is affirmed as to defendant RKO General Inc. and defendants Baime. Defendant RKO General Inc. shall recover its costs in this court as against plaintiffs; plaintiffs shall recover their costs as against defendants Baime.

I dissent from the majority opinion insofar as it reverses the judgment and the order denying the motion of KHJ for judgment notwithstanding the verdict. Reversal is not proper if there is any substantial evidence to support the verdict against KHJ. (Hunt v. United Bank & Trust Co. (1930) 210 Cal. 108, 120, 291 P. 184.) It is, therefore, necessary to point out the evidence and the inferences which support the verdict.

At the time of the accident, July 16, 1970, KHJ operated a radio station which had particular appeal to teen-age listeners.1 During that month it was conducting a promotional event called the ‘super summer spectacular,’ which involved giving away $40,000 in prizes offered under a variety of conditions. The purpose (in the words of its program director) was ‘to get more people to listen to our radio station, to make a radio station more exciting, attract sponsors.’ The evidence supports a reasonable inference that KHJ accomplished its avowed purpose of exciting at least some of its teen-age audience.

On the day of the accident the format employed was that a disc jockey, known professionally as ‘The Real Don Steele,’ would travel from place to place in a ‘fire-engine red’ Buick automobile driven by the station's program director, awarding prizes. Periodically Steele would telephone the disc jockey who was on the air at station KHJ, who would then broadcast the conditions of the next giveaway. A prize would be awarded to the first person who thereafter found Steele and met the specified condition. The broadcasts concerning the contest were interspersed with recordings of rock music.

At about 10:00 a. m. on July 16, 20-year-old Clive Wharton, in Van Nuys, listening to KHJ, heard that The Real Don Steele had arrived at a place just a half block away. Wharton drove his car to the place mentioned, answered the test question, and collected $25 as his prize. Seventeen-year old Robert Sentner also heard the broadcast, and arrived just after Wharton. Wharton and Sentner decided to follow the red Buick in Sentner's car to try to win some money for Sentner.

The KHJ broadcasts were also heard by 19-year-old Marsha Baime and her 15-year-old brother David at their home in Northridge. They set out in Marsha's car.

The succeeding broadcasts included the following: ‘The Real Don Steele is out driving on—could be in your neighborhood at any time and he's got bread to spread, so be on the lookout for him.’

‘KHJ's own Real Don Steele is heading for Canoga Park in the Valley. Be on the lookout and pick up some money.’

‘The Real Don Steele is moving into Canoga Park—so be on the lookout for him. I'll tell you what will happen if you get to The Real Don Steele. He's got twenty-five dollars to give away if you can get it.’

‘10:54—The Real Don Steele is in the Valley near the intersection of Topanga and Roscoe Boulevard, right by the Loew's Holiday Theater—you know where that is at, and he's standing there with a little money he would like to give away to the first person to arrive and tell him what type car I helped Robert W. Morgan give away yesterday morning at KHJ. What was the make of the car. If you know that, split. Intersection of Topanga and Roscoe Boulevard—right nearby the Loew's Holiday Theater—you will find The Real Don Steele. Tell him and pick up the bread.’

Both the Sentner and Baime teams arrived too late at the Holiday Theater location, for the prize had already been claimed. Each, independently of the other, set out to follow the red Buick to the next location. As the Buick proceeded west on the Ventura Freeway, it was necessary for the pursuing vehicles to weave in and out of traffic to keep up. The occupants of both the Sentner and the Baime cars became aware of the other's mission, and each acknowledged the competition with words and gestures directed towards the other. Both vehicles at times reached speeds of 80 mils per hour. As they approached the Westlake offramp these broadcasts were heard: ‘11:13—The Real Don Steele with bread is heading for Thousand Oaks to give it away. Keep listening to KHJ.’

‘The Real Don Steele out on the highway—with bread to give away. Be on the lookout. He may stop in Thousand Oaks and may stop along the way.’

‘Looks like it may be a good stop, Steele. Drop some bread to those folks.’

‘Be on the lookout for Don Steele in your area—Westlake and Thousand Oaks. He's on the way.’

As the Baime and Sentner vehicles maneuvered for position at the Westlake offramp, they forced the Weirum car into the center divider with fatal consequences. The Baimes then went to a telephone to report the accident. Sentner drove into the Westlake shopping center, found The Real Don Steele, and won five dollars.

Steele testified that he knew contestants sometimes followed him from one giveaway location to another.

It is one of the basics of the law of negligence that under some circumstances a person is under a duty to anticipate and guard against the wrongful conduct of others. (See discussion in Prosser, Law of Torts (4th ed., 1971) § 33, p. 170; 2 Harper & James, The Law of Torts (1956) § 16.12, p. 940.)

The Restatement Second of Torts states:

‘§ 302 A. An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the negligent or reckless conduct of the other or a third person.’

‘§ 303. An act is negligent if the actor intends it to affect, or realizes or should realize that it is likely to affect, the conduct of another, a third person, or an animal in such a manner as to create an unreasonable risk of harm to the other.’

Illustration 1 under section 303 is as follows:

‘An industrial parade is being held in the city of X. The A Candy Company has entered a float from which an employee from time to time throws candy into the crowd. Members of the crowd rush to gather up the candy. In so doing they trample down and cause harm to B, a small boy who is taking no part in the rush to obtain the candy. A is negligent toward B.’

That illustration is a simplified statement of the facts and decision in Shafer v. Keeley Ice Cream Co. (1925) 65 Utah 46, 234 P. 300.

An application of the principle is found in Richardson v. Ham (1955) 44 Cal.2d 772, 285 P.2d 269, where the negligent act of the defendants consisted of leaving a large bulldozer parked on a hilltop over a weekend without locking it. The defendants were aware that the machine had aroused curiosity and had attracted spectators. On a Saturday some young men, after drinking wine, undertook to drive the bulldozer, and allowed it to run down the hill, injuring the plaintiffs. The Supreme Court held the evidence sufficient to establish liability based upon the duty of the defendants to anticipate and guard against the acts of intermeddlers.

In Hergenrether v. East (1964) 61 Cal.2d 440, 39 Cal.Rptr. 4, 393 P.2d 164, the Supreme Court applied the same principle as a basis for the liability of a truck owner whose agent had left his vehicle unlocked in a neighborhood frequented by ‘drunks, derelicts and vagrants.’

In another context, our Supreme Court recently explained a defendant's liability in these words: ‘The defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’ (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399, 115 Cal.Rptr. 765.)

In the case at bench the foreseeability of a race on the Ventura Freeway can hardly be questioned. KHJ broadcast that a cash prize would be given only to the first person who arrived and qualified at a specified location. Nothing could be more normal than that enthusiastic youngsters, who had missed the prize at one location, would race to be first at the next. The youths following the red Buick became performers in a show being broadcast live for an audience which included the participants. The messages which came to them over the air reinforced the excitement of the chase and the suspense of the contest.

One of the tests for determining the unreasonableness of the risk is to weigh the social utility of the act against the risk of harm. (See Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 237, fn. 3, 60 Cal.Rptr. 510, 430 P.2d 68; Rest.2d, Torts, § 302A comment d.) Here the ‘super summer spectacular’ was useful only to provide some exicting entertainment for vacationing listeners and to enhance the economic prospects of the broadcaster, objectives which should weigh little against the lives of travelers in the streets and freeways.

Functionally, the plaintiffs' case against KHJ is closely analogous to the street-racing cases, in which the courts have uniformly held that each participant incites the others to drive dangerously, and so all are civilly liable for injuries which any of the racers inflicts upon a non-participant. Although in many states the duty to abstain from such races or exhibitions of speed is established by penal statute (see e. g., Cal.Veh.Code, § 23109) courts have recognized that liability of one who invites or incites the contest is also based upon common law principles. (See Tischoff v. Wolfchief (1971) 16 Cal.App.3d 703, 706–709, 94 Cal.Rptr. 299; Sena v. Turner (1961) 195 Cal.App.2d 487, 15 Cal.Rptr. 857; Carney v. De Wees (1949) 136 Conn. 256, 70 A.2d 142, 146; Landers v. French's Ice Cream Company (1958) 98 Ga.App. 317, 106 S.E.2d 325, 329; United Rys. & Electric Co. v. Perkins (1927) 152 Md. 105, 136 A. 50, 53; Gay v. Samples (1933) 227 Mo. App. 771, 57 S.W.2d 768, 769; Jones v. Northwestern Auto Supply Co. (1932) 93 Mont. 224, 18 P.2d 305, 307; Note 13 A.L.R.3d 431.)

Under the principles established by the foregoing authorities, the record here adequately establishes the existence of a duty owed by KHJ towards those persons such as Ronald Weirum who were exposed to the hazards of the Sentner-Baime race to win a super summer spectacular prize.

The evidence also establishes that the conduct of KHJ was a proximate cause of the accident. The governing principle is stated in section 449 of Restatement Second of Torts, quoted and applied by our Supreme Court in Vesely v. Sager (1971) 5 Cal.3d 153, 164, 95 Cal.Rptr. 623, 630, 486 P.2d 151, 158:

“If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally torious or criminal does not prevent the actor from being liable for harm caused thereby.”

Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799, 87 Cal.Rptr. 50, relied upon by the majority opinion, presented a substantially different situation. There the defendant, a food market, was providing a number of carnival rides for children on its parking lot. The plaintiff, a three year old boy, slipped out of his home unnoticed and, in crossing the street to visit defendant's premises, was struck by a passing motorist. The Court of Appeal held that as a matter of law the food market had no duty of care to prevent the accident, and directed a judgment for defendant notwithstanding a verdict for the plaintiff.

In Nevarez, although the defendant had invited the plaintiff and the public generally to visit its premises, it did not invite or encourage them to approach in a particular manner or by a particular route, nor did it influence the manner in which plaintiff crossed the street. In the case at bench, KHJ, by the conditions of its contest, and by the exhortations of its announcer, invited and encouraged youthful contestants to race through the public streets, and rewarded the swiftest with cash prizes. The distinction is noted in comment d under section 303 of the Restatement Second Torts:

‘Where, as in the situations dealt with in this Section, the third person's act is done in response to the stimulus of the situation created by the defendant's conduct, there is a tendency to require the actor to realize the tendency of human beings to act improperly to a greater extent than where he creates a situation the danger of which lies in the chance of impropriety on the part of a third person in dong an act which is not so influenced by the situation created by the actor.’

The fact that KHJ had no control over the conduct of the individual contestants is of no moment. It was the duty of KHJ to anticipate that its won conduct would create an unreasonable risk of negligent behavior by persons over whom it had no control.

It was reasonable for the jury to conclude from this evidence that KHJ should have anticipated that its contest, as conducted on the freeway and over the air, would stimulate some listener-participants to forget their driving-school precepts in the race to ‘pick up the bread’ from the Real Don Steele. In its tawdry attempt to create excitement for its listeners, KHJ caused the hazard which took the life of the late Ronald Weirum. I would, therefore, affirm the judgment and the order denying the motion for judgment notwithstanding the verdict.

FOOTNOTES

2.  Except for their involvement in the ultimate accident, there was no connection between Baime and Sentner.

3.  The action joined as defendants the parents of Marsha Baime and Robert Sentner under their derivative liability as parents, signers of the minors' license applications, etc. For convenience, we refer in the opinion only to the actual drivers.

4.  The action against Volkswagen was based on the theory that the VW driven by decedent was defectively designed and constructed.

5.  That settlement is discussed in the portion of this opinion dealing with plaintiffs' cross-appeal.

6.  Present Code Civ.Proc. § 998, so far as material, states: ‘(d) If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment, the court in its discretion may require . . ..’

7.  The motion in the trial court was directed to KHJ and to Baime; the notice of appeal was cast in general terms; it follows that Baime was a respondent on the plaintiffs' appeal.

1.  According to a reliable survey, 48 percent of the teen-agers who were listening to radio in the Los Angeles area during July and August, 1970, were listening to KHJ.

DUNN, Associate Justice.

JEFFERSON, J., concurs.

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