WILKINS v. SIPLIN (1992)

A jury found Lillie Siplin (appellant) negligent and liable for her husband's assault upon respondent.   Appellant contends the judgment must be reversed because:  (1) she had no duty of care toward respondent, (2) the trial court erred in refusing contributory negligence instructions, (3) the trial court erred in giving premises liability instructions and, (4) the trial court erred in admitting irrelevant evidence.   We find no error and affirm the judgment.

FACTUAL BACKGROUND

Except for what kind of person appellant knew her husband George Siplin ¹ to be, there was little dispute about the facts.

a. Undisputed facts

In 1985, Wesley Wilkins (respondent) was 41 years old, married with three children, and employed as a senior videotape editor with KTLA.   Lillie Siplin (appellant), a year older, was married with three children and also employed by KTLA.

In April 1985, during a KTLA employee strike, when appellant and respondent both walked the picket line, they became acquainted.   Appellant told respondent about the cabin in Big Bear she had recently bought and indicated other KTLA employees had also bought cabins there.   Respondent expressed interest.

Appellant invited respondent to her cabin on Thursday, May 16, 1985.   He accepted.   They met at a restaurant that morning and drove to the cabin in separate cars because respondent had to work the next day, Friday, and planned to return home Thursday afternoon or early evening.

They arrived about 1 p.m., stopped briefly at the cabin, and drove in appellant's car to a Big Bear market where they bought food and wine for dinner.   They returned to the cabin and appellant parked in the front yard near respondent's pickup truck.

About 4 p.m. appellant telephoned her husband, George Siplin, from whom she had recently separated.   George was babysitting their youngest child in appellant's Santa Monica apartment and appellant wanted to be sure all was well.

Appellant and respondent prepared dinner.   About 6 p.m. appellant again telephoned George to inquire about their child.

Appellant and respondent ate dinner and drank one and a third bottles of wine.

Around 8:30 p.m., when respondent said he was sleepy from the wine, appellant suggested he take a nap in the second bedroom.   Respondent removed his boots and shirt and went to sleep.

A short time later appellant turned off the cabin lights, changed into pajamas, and went to sleep in the master bedroom.

About 30 minutes later loud banging on the front door awakened both appellant and respondent.   Appellant went to the door, pulled aside a curtain, saw George, said “Honey, what is it?   What do you want[?],” and unlocked the door.   George kicked the door open and “blew by [appellant] like a whirlwind,” heading toward the second bedroom.

Respondent was standing by the bed, somewhat in a stupor from wine and sleep, when George, a stranger to respondent, “smashed the door open.”   George left the cabin.

Respondent noticed his “arm was slashed open” and he was bleeding.   He had been stabbed 17 times.

Appellant, once she heard sounds of fighting from the bedroom, ran to a neighbor's house and dialed 911.   She then started to return to the cabin but at the corner was attacked and knocked down by George.   He swung at her, she rolled, and his blow missed.   George left her and walked toward the cabin where he smashed the outside and ripped the inside of respondent's vehicle.   George then drove off.

Paramedics transported respondent to an emergency room where he was treated and, after about three hours, released.   Appellant drove respondent to his home.   During the drive she apologized and told respondent about George.

b. Disputed facts

According to appellant, George was “a very timid little guy ․ about 5′5″, 5′ 6″.   He is just a very quiet person.”   He was not jealous of her, never struck her, and was not violent.   His only fault was compulsive gambling, the reason she divorced him in 1972 and again in 1986 (after remarrying him in 1977).   She had known George since the seventh or eighth grade and first married him in 1957.   She never noticed any change in George's personality and was completely surprised by his May 16, 1985, violence.

Respondent presented a different view.   He testified that during the drive home from the emergency room appellant told him the following:  (1) on two separate occasions George had accosted and fought men because he thought they were interested in her, (2) George had repeatedly struck her and on more than one occasion she called the police to subdue him, (3) she obtained a temporary restraining order against George and forced him from the house because of his violence and jealousy, (4) George had very jealous tendencies and was obsessed with her, (5) on a cruise George punched a man he thought was talking to her, (6) George was fired from his job because he fought with a coworker, and (7) she divorced George because he beat her and because of his jealousy.

Respondent also presented documentary evidence that:  (1) on February 18, 1974, when appellant was in her car about to drive from a parking area, George jumped in the car, grabbed her, and attempted to scratch her eyes and face, (2) on March 7, 1974, under penalty of perjury, appellant stated that, unless restrained, George would continue to engage in violent conduct toward her and that she feared for her safety, (3) George had “committed various and other acts of assault and battery upon her person”, (4) George had taken her mail, without permission, and photocopied it, (5) on February 18, 1974, appellant called the police because George wouldn't leave her apartment, (6) George threatened to take appellant's car so she couldn't go to work, (7) appellant stated in 1986 that George had a propensity for violence, and (8) in an October 6, 1987, letter appellant stated “ ․ George has always followed me, broken into my home, sneaked around, had makes run on people's cars, is sociopathic and I consider him extremely dangerous because he is a monumental liar.”

DISCUSSION

1. Appellant contends “Lillie Siplin had no duty to prevent the unforeseeable attempted murder which resulted in the plaintiff's injuries.”

Distilled, appellant's argument is this:  because she had no knowledge George had been violent before May 16, 1985, she could not have foreseen he would be violent on May 16, 1985;  and even if she could have foreseen his violence, she had no duty of care toward respondent because a requisite special relationship was not present.

 Appellant is mistaken on both accounts.   Foreseeability turns on knowledge.   Appellant claimed none:  neither of George's violence nor of his jealousy.   But there was substantial contrary evidence, as we have described, which the jury was entitled to believe.   We cannot reweigh that evidence.   (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183.)   Given that substantial contrary evidence, the jury could reasonably have concluded George's violence was foreseeable.

 As to the absence of a special relationship and therefore no duty of care, appellant relies on two cases:  Wise v. Superior Court (1990) 222 Cal.App.3d 1008, 272 Cal.Rptr. 222 and Megeff v. Doland (1981) 123 Cal.App.3d 251, 176 Cal.Rptr. 467.   Both are distinguishable.

In Wise, petitioner's husband had a history of violence and emotional instability.   He was characterized as a human “time bomb.”   Because of his dangerousness petitioner left him and moved out of their house.   A week later her husband launched a sniper attack from the roof of their home, killing several people.   Relatives of a deceased sued petitioner.   Her demurrer to the complaint was overruled and she petitioned for a writ of mandate.   The Court of Appeal issued the writ because non-action by petitioner was not tortious, absent a special relationship with the deceased.

Wise is distinguishable because it involved only non-action, non-feasance.   In the instant case, respondent relied upon Lillie Siplin's conduct, her misfeasance, to prove negligence.

Megeff involved foreseeability, not special relationships.   An 87–year–old man, Charles Stevens (the husband of one defendant and the father of another), without provocation, stabbed plaintiffs.   A short time before the stabbings defendants had obtained the release of Mr. Stevens from the psychiatric wing of a hospital.   While in the hospital, after hospital staff refused to release him, Mr. Stevens became aggressive.   The Court of Appeal held that based upon that one incident, it was not foreseeable that Mr. Stevens, frail and senile, would be violent toward people who were not seeking to restrain him.

As we have explained, George's violence on May 16, 1985, was foreseeable.

Similar to the instant case is Pamela L. v. Farmer (1980) 112 Cal.App.3d 206, 169 Cal.Rptr. 282.   Mrs. Farmer, knowing her husband had molested women and children in the past, invited plaintiffs, minors, to swim in her pool knowing they would be alone with her husband.   Her husband molested them.

In rejecting Mrs. Farmer's argument, identical to appellant's, that “a person has no duty to control the conduct of a third person, nor to warn those endangered by such conduct, in the absence of a ‘special relationship’ either to the third person or to the victim” (id. at p. 209, 169 Cal.Rptr. 282) the court stated:  “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 has no application where the defendant, through his or her own action (misfeasance) has made the plaintiff's position worse and has created a foreseeable risk of harm from the third person.   In such cases the question of duty is governed by the standards of ordinary care.”  (Ibid.)

The jury was entitled to believe appellant made respondent's “position worse” and “created a foreseeable risk of harm” to respondent from George.   Appellant invited respondent to her remote cabin;  she told George she was going to that cabin (but did not tell George about respondent);  she knew her car and respondent's truck were both parked in plain view in the cabin's front yard;  when, without notice, George appeared at the cabin banging the door at 9 p.m.—appellant, without warning respondent or first determining George's purpose, unlocked the door and let him in.

Appellant's contention is without merit.

2. Appellant contends the trial court erred in refusing to instruct on contributory negligence.

 Although appellant virtually conceded ² to the trial court that contributory negligence instructions were inappropriate, we shall, nevertheless, consider appellant's contention.

“ ‘Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff's harm.’ ”  (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 500, 102 Cal.Rptr. 795, 498 P.2d 1043.)

The claimed contributorily negligent conduct is respondent's presence in appellant's cabin at night.   Appellant argues such conduct involved an “inherent risk of harm.”   We disagree.

It is undisputed that prior to the May 16, 1985, attack, respondent had no information about George Siplin, except that appellant was separated from him.   It is also undisputed that there was only a “work relationship” between appellant and respondent and that respondent intended to return home that evening.

The trial court properly omitted contributory negligence instructions because there was no evidence of contributory negligence.

3. Appellant contends the trial court erred in giving premises liability instructions.

Appellant argues the trial court erred in giving premises liability instructions (BAJI Nos. 8.00 and 3.13.1) for two reasons:  they were inapplicable;  they unduly repeated appellant's duty of care.   We disagree.

 As appellant acknowledges, “[p]remises liability is [simply] a form of negligence․”  (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619, 264 Cal.Rptr. 756.)   As such, and since respondent was injured on appellant's ³ premises to which he was expressly invited by appellant, they were applicable.

 Although the premises liability instructions did repeat the general duty of care standard contained in the negligence instructions (BAJI Nos. 3.00, 3.10, 3.11, 3.12 and 3.13.1) they also appropriately addressed that duty with respect to risk of harm from the criminal conduct of third persons.  (BAJI No. 8.00.)   The trial court did not err in giving premises liability instructions.   Error, if any, in repeating appellant's duty of care was harmless.  (Code Civ.Proc., § 475.)

4. Appellant contends the trial court erred by admitting irrelevant evidence.

Appellant argues that excerpts from three admitted documents were irrelevant because each was written or signed by her after May 16, 1985.   We consider each.

 The first is a multi-page order to show cause document signed by appellant on April 2, 1986, trial court exhibit 4.   This document was discussed by the court and counsel during respondent's case in chief.   The trial court stated he would reserve ruling until after appellant testified.   It was during her testimony, on cross-examination, that respondent's trial counsel introduced the subject excerpts.   Appellant failed to object then and may not object now.  (Evid.Code, § 353;  People v. Green (1980) 27 Cal.3d 1, 27–28, 164 Cal.Rptr. 1, 609 P.2d 468.)

 The second, exhibit 6, is a September 20, 1987, letter appellant wrote to her husband, George.   Although marked for identification earlier, it was not referred to until 28 reporter's transcript pages later.   Then, on cross-examination, appellant was asked about these two sentences:  “I have repeatedly told you of your dementia.   You are dangerously insane and no religion can help you.”   Because the sentences arguably refer to appellant's pre-May 16, 1985, view of George, they were relevant.   In any event, appellant failed to timely object and may not do so now.  (Evid.Code, § 353;  People v. Green, supra, 27 Cal.3d 1, 27–28, 164 Cal.Rptr. 1, 609 P.2d 468.)

 The third, exhibit 5, is an October 6, 1987, letter appellant wrote to George's probation officer.   The complained of excerpt is this:  “The story is long, but to make the point, George has always followed me, broken into my home, sneaked around, had makes run on people's cars, is sociopathic and I consider him extremely dangerous because he is a monumental liar.”  (Emphasis added.)

Although written after May 16, 1985, the letter, reasonably interpreted, describes George before May 16, 1985.   Because the letter description contradicts appellant's trial description of George, it was relevant and properly admitted.

There was no trial court error.

DISPOSITION

The judgment is affirmed.   Costs on appeal are awarded to respondent.

FOOTNOTES

1.   George Siplin, although a codefendant, failed to appear at trial.   Respondent obtained a default judgment against him.

2.   During a chambers discussion about instructions, the trial court stated, “we came across BAJI 3.50, contributory negligence, and I indicated to Mr. Williams [appellant's trial counsel] that I am having a difficult time finding contributory negligence on the part of the plaintiff under the evidence that's been received.   I will listen.”   Mr. Williams responded, “I will withdraw.”   But when the trial court asked whether he preferred to withdraw it or have the court refuse it, he said “I just as soon have you refuse it.”

3.   Appellant testified title to the cabin was solely in her name.

FRED WOODS, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.