BIGBEE v. PACIFIC TELEPHONE TELEGRAPH COMPANY (1982)

This is an appeal by Charles Bigbee from summary judgments granted by the trial court in favor of defendants Pacific Telephone & Telegraph Company (hereinafter Pacific Telephone), Western Industrial Services, Inc. (hereinafter Industrial), Western Electric Company, Inc. (hereinafter Western Electric) and D. C. Decker Company (hereinafter Decker) in this personal injury action.

FACTS

On October 9, 1975, Bigbee filed a complaint for personal injuries against Leola Roberts and others.   Bigbee in his second amended complaint which is the subject of this appeal alleges in substance that at 12:20 a.m. on November 2, 1974 he was standing in a public telephone booth situated on the premises of a liquor store which fronted Century Boulevard near the intersection of 2nd Avenue in Inglewood, California;  that Leola Roberts was operating her automobile driving along and upon Century Boulevard;  that she lost control of the vehicle she was operating;  that this caused her vehicle to veer off of Century Boulevard;  that the Roberts car jumped the curb, crossed the sidewalk, entered the parking lot and crashed into the telephone booth occupied by the plaintiff;  and that as a result of these events the plaintiff sustained serious physical injuries.

In his first and third causes of action plaintiff alleges negligence on the part of Roberts as driver of the car, and against Hollywood Turf Club, Inc., Araserv, Inc. and Western Harness Racing, Inc. on the grounds that these defendants had allegedly caused Leola Roberts to become intoxicated.   Roberts and the other named defendants settled prior to the motion for summary judgment which is the subject of this appeal.

We are concerned herein only with Bigbee's second cause of action in which he attempts to recover from the responding defendants on theories of products liability, negligent location and installation of the phone booth, and negligence in its care and maintenance.   Plaintiff further alleges therein, in substance, that Pacific Telephone and Western Electric are engaged in operating a telephone communications system in Los Angeles County;  that Decker engages in the business of maintaining, installing, fabricating and constructing telephone booths pursuant to a contract with Pacific Telephone;  and that Industrial engages in the business of maintaining, repairing and refurbishing telephone booths and facilities.   The complaint states, inter alia, that:  “[D]efendants and each of them, owned, designed, maintained, failed to maintain, controlled, repaired, failed to repair, and installed” the telephone booth in which he was injured;  that the defendants intended that the booth be constructed and maintained and serviced “for the purpose, among other reasons, of protecting individuals making telephone calls”;  that defendants “knew or in the exercise of reasonable care should have known that traffic on Century Boulevard traveling easterly generally and habitually speeded in excess of the posted speed limit, thereby increasing the risk of harm” to users of the telephone booth and that defendants nonetheless placed the booth “so closely to Century Boulevard and near at [sic] the path of traffic that the automobile driven by the defendant LEOLA NORTH ROBERTS struck said telephone booth ․”

The plaintiff alleges further that the telephone booth was at the time plaintiff used it “defective and unsafe for its intended purposes in that the door jamed [sic] and did not operate freely”;  that the defect caused the door of the telephone booth to stick and he was injured because although he saw the onrushing automobile he was trapped and could not escape;  that the defendants “knew and intended that their telephone booth would be used by members of the public without inspection for defects”;  that the telephone booth door “jammed and stuck trapping the plaintiff therein;”  that plaintiff saw that the vehicle driven by Roberts was out of control and would strike where he was standing;  that he was injured as a “proximate result” of the “defect and jammed door”;  and that as a further result of “said negligence of defendants” plaintiff would incur medical expenses and was prevented from working.

Western Electric and Pacific Telephone demurred to the second amended complaint on the ground that it failed to state any cause of action because the jamming of the door was not a proximate cause of the injuries suffered by the plaintiff.   They pointed out in their demurrer (a) that plaintiff had stated no cause of action for negligence or products liability in view of the unforeseeable intervening and superseding force (the careening drunk driver);  (b) that no products liability theory could be stated where the plaintiff had affirmatively alleged that Western Electric and Pacific Telephone provided a “service”;  and (c) that plaintiff had otherwise failed to plead the elements of a products liability cause of action.   The demurrers were heard by the trial court on October 24, 1978, and were sustained without leave to amend.

Following the sustaining of the demurrers, plaintiff petitioned for a writ of mandate.   The appellate court concluded that improper siting of a telephone booth and defects in the creation and maintenance of the booth may, under some circumstances, give rise to tort liability.  (Bigbee v. Superior Court (1979) 93 Cal.App.3d 451, 155 Cal.Rptr. 545.)   The court further noted:  “The proper classification of an intervening act as a concurrent cause or as a superseding cause presents a question of fact, which sometimes may be resolved on motion for summary judgment, but less often can be resolved on demurrer ․”  (Id., at p. 456, 155 Cal.Rptr. 545.)   It held only that the allegations of the Bigbee complaint passed the test of general demurrer.

After the peremptory writ issued, the parties returned to the trial court where extensive discovery was conducted.   A trial setting conference was held and eventually trial was scheduled for September 29, 1980.

On July 29, 1980, the four responding defendants filed a joint motion for summary judgment and hearing was originally scheduled for August 13, 1980.   At plaintiff's request that his counsel be given additional time to prepare, hearing on the motion was continued to August 27, 1980.

Defendants submitted numerous declarations and documentary evidence in the form of maps and photographs of the scene to refute plaintiff's allegations that the location of the booth was intrinsically hazardous and that the risk of the booth being struck by a car was known to defendants.   Ronald Kosin, for 27 years a licensed land surveyor, prepared diagrams of the scene.  (See Appendix A.)   The diagram shows that the telephone booth was located 15 feet from the curb line of Century Boulevard;  that the booth struck was one of two booths situated close to the wall of the Fortune Liquor Store;  and that Century Boulevard was straight and level in the vicinity of the accident.   The allegations of Jack Delorey, claims representative for Pacific Telephone, corroborate the position of the booth and confirm the accuracy of the Kosin diagrams.   Ralph Engdahl, a professional engineer, alleged in his declaration that his analysis disclosed that the car was traveling an estimated 30 to 35 miles per hour on impact with the telephone booth.

Western Electric tendered documentary evidence and declarations to refute allegations that it was involved in the selection of the location or the maintenance of telephone booths which it sold to Pacific Telephone and to show that it did not participate in the selection of the location of the telephone booth involved in the accident.   Charles Bates, Jr., in his deposition alleges that he was a department chief at Western Electric where he was employed for 30 years, that he had for years supplied telephone booths to Pacific Telephone, but that he never made any recommendations as to location.   Richard Perez of the coin telephone department of Pacific Telephone alleges that he recommended the first telephone booth in that location October 1972 and a second booth in April 1973, but that Western Electric gave no advice with respect to location.

Excerpts from defendant Roberts' deposition disclose testimony that her car ran out of control as she attempted to avoid hitting a dog;  that she veered suddenly and sharply from the center eastbound lane of Century Boulevard, crossed 3 lanes, jumped the curb and crashed into the telephone booth;  and that Roberts' car was then traveling approximately 35 miles per hour.   Police Officer Craig Lawler in his deposition stated that Roberts had been drinking;  that he smelled alcohol on her breath;  that it appeared she was intoxicated at the time of the accident;  and that he requested a blood alcohol test on her at the hospital but could not obtain one because the medical team was too busy with the injured.

Defendants' points and authorities urge first that the undisputed facts establish as a matter of law that the telephone booth was not negligently located and second that any negligence in its location could not be the proximate cause of the plaintiff's injuries because the conduct of the drunk driver constituted an unforeseeable intervening cause and therefore a superseding cause of his injuries.   The defendants further assert that liability may not be predicated upon either negligence or strict liability theories as a result of the alleged “sticky door” because (a) defendants had no duty to prevent the type of occurrence which the plaintiff experienced, (b) the nature of the accident was not reasonably foreseeable, and (c) the alleged defect was not the proximate cause of the plaintiff's injuries.

Plaintiff Bigbee supported his opposition to the motion for summary judgment with his declaration, that of eyewitness Michael Zellis, and the points and authorities and declaration of his attorney.   Plaintiff in his declaration alleged that he had observed the erratically driven car several hundred yards away while he was in the telephone booth;  that he had perceived the danger to himself when the car turned toward him just prior to the impact;  that he attempted to flee from the telephone booth and he had several seconds to do so;  and that he was prevented from escaping when the door of the booth stuck.   Michael Zellis, a witness who was standing near the telephone booth, in his declaration alleged he saw the erratic car, perceived a risk to himself, and was able to run perhaps 6 or 7 feet away from the telephone booth prior to the impact.   In the excerpt from his deposition filed to counter the motion he stated that 5 to 7 seconds elapsed from the time he recognized the danger to the time of impact.

Plaintiff's attorney pointed to the answers made by defendants to interrogatories which disclosed that a telephone booth at the same location was damaged in a parking lot incident in February of 1973 (around 20 months before the accident);  that the booth was replaced with protective posts (which were standing at the time of the accident in front of both booths);  that Pacific Telephone stated that it attempted to locate telephone booths in places safe from foreseeable hazard;  and that Western Electric had produced documents setting forth standards for telephone booth cleaning and maintenance which were attached to the opposition documents.   His attorney further pointed to the fact that Richard Perez, the Pacific Telephone employee responsible for replacing the telephone booth following the February 1973 incident, stated in his deposition that he had not received any training from the company concerning the safe locations of telephone booths.

Counsel for Bigbee further states in his opposition papers filed prior to August 13, 1980, that he has scheduled for August 18, 1980, the deposition of Charles Bates, Jr., who in his declaration alleged that Western Electric only supplies and refurbishes telephone booths for the user, Pacific Telephone.   Plaintiff's counsel asks the court to take judicial notice of the scheduled deposition and the facts that may then be obtained.   He states that prior to Western Electric's answer to interrogatories, he did not know the identity of a person qualified to present this type of evidence and “Mr. Bates is the first person ever identified in California as being knowledgeable of the practices and procedures of Western Electric.”   He asserts that he will seek to examine Bates as to his knowledge concerning the reason for the need to refurbish or repair telephone booths.   Specifically he expresses the intent to determine whether the booth damaged in February 1973 was repaired by Western Electric, whether Bates knew both booths were smashed by automobiles, and whether he knew the location of these booths.   He alleges that Bates is in a position, which inferentially imposes on his employer a duty, “to promulgate and formulate guidelines and criteria for determining safe locations for telephone booths.”

Finally, Bigbee's counsel alleges that defendants failed to refute the plaintiff's allegations, inter alia, that the booth was defective, the door stuck, and he saw the car coming at him in time to escape but was prevented from doing so by the sticky door, that the defendants knew that the defective booth and door would create an unreasonable risk of harm to persons trapped inside, and that despite knowing the booth in that location had been struck before they failed to warn plaintiff.

The attached answers, presumably of Pacific Telephone, to interrogatories propounded by plaintiff disclose that during the night of February 13, 1973, the original booth at that location was struck by an unknown vehicle which backed into it, that it was a hit-and-run accident, and that bumper posts were thereafter placed in front of the booths to prevent such damage in the future.

When the motion for continuance of the summary judgment hearing scheduled for August 13, 1980, was made, the court had not had the opportunity to review and consider Bigbee's opposition to the motion which was filed late.   The court on Bigbee's motion granted a continuance and set the matter for hearing on August 27, 1980, without requiring that plaintiff file an affidavit stating the reasons that expert evidence allegedly in his possession would not then be presented.   Counsel for plaintiff at that time told the court that he was asking for time not to obtain additional evidence but to file additional points and authorities.   Both parties thereafter filed additional documents.

The motion was finally heard on August 27, 1980.   Plaintiff at that time claimed that he had available expert(s) qualified and prepared to testify that the telephone booth occupied by Bigbee at the time of the accident was (1) in a hazardous location and (2) defective in design and maintenance.¹  However, in his supplemental opposition papers he provided the court with no additional facts and no information from the deposition of Bates which he allegedly scheduled for the intervening time.   Despite questioning by the court, Bigbee failed to produce such evidence to contradict the evidence introduced by defendants to show that the location was safe and maintenance adequate.

The trial court granted the motion for summary judgment in favor of defendants without leave to amend.   The court concluded that the plaintiff by his counterdeclaration and supporting documents was in fact alleging that he was attempting to discover and at some point in the future might have evidence with which he could effectively oppose the motion for summary judgment.   The court in granting the motion concluded that no triable issues of fact existed in the case.   Plaintiff has appealed.

ISSUES

Plaintiff Bigbee contends on appeal that the trial court erred in granting the motion for summary judgment without leave to amend because triable issues of fact exist as to the proximate cause of the accident and whether Leola Roberts' drunken driving was an intervening and a superseding cause of his injuries.

DISCUSSION

 The summary judgment procedure constitutes a means whereby the court may test the soundness of the pleadings to determine whether the triable issues apparently raised by the allegations have factual validity or whether they are merely the products of adept pleading.  (Coyne v. Krempels (1950) 36 Cal.2d 257, 262, 223 P.2d 244.)   A motion for summary judgment may properly be granted when “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ.Proc., § 437c.)   The purpose of this statute is to promote and protect the administration of justice and to expedite litigation by the elimination of needless trials since the court determines on the basis of affidavits of the parties whether triable factual issues are presented.  (Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 625, 157 Cal.Rptr. 248.)

 The indispensable precondition to liability founded upon negligence is the existence of a duty of care owed by the alleged wrongdoer to the plaintiff, or to a class of which plaintiff is a member.  (McEvoy v. American Pool Corp. (1948) 32 Cal.2d 295, 298–299, 195 P.2d 783.)  “[C]ivil Code section 1714 provides that a person is liable for injuries caused by his failure to exercise ordinary care under the circumstances.   However, the law requires more than a mere failure to exercise care and a resulting injury.   There must be a legal duty to exercise care under the circumstances, owed to the person injured, and a breach of that duty must be the proximate cause of the resulting injury.  (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 820, 131 Cal.Rptr. 854 [․];  ․) ․”  (Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 443, 165 Cal.Rptr. 741.)

We note that plaintiff's pleadings in the case at bench have previously been held impervious to attack by general demurrer.  (Bigbee v. Superior Court, supra, 93 Cal.App.3d 451, 155 Cal.Rptr. 545.)   The court therein concluded that it might be possible for a plaintiff injured by a car striking a phone booth to predicate liability on negligent location of the booth in a known area of high risk.   Nonetheless, some review of the elements giving rise to a duty of care is requisite to a determination of whether, under the facts presented on motion for summary judgment, it can be said that the pleadings raise triable issues with respect to negligence as to these defendants.

“[N]o rigid rule can be stated defining when a duty of care owed by a specific defendant to plaintiff does or does not exist.   Under modern law the following policy matters have been suggested as those the courts will consider and weigh;  foreseeability of harm to plaintiff, degree of certainty of harm to plaintiff, closeness of connection between defendant's conduct and injury suffered, defendant's moral blameworthiness, policy of preventing future harm, the burden of imposing liability upon a defendant versus the consequences to the community if liability for breach is withheld, the availability, cost and prevalence of insurance for the risk involved.  (See Rowland v. Christian (1968) 69 Cal.2d 108, 112–113, 117–118 [70 Cal.Rptr. 97, 443 P.2d 561] [․];  ․) ․”  (McGarvey v. Pacific Gas & Elec. Co. (1971) 18 Cal.App.3d 555, 561, 95 Cal.Rptr. 894.)

The primary issue is whether defendants can predicate duty on the location of the phone booth where, as here, the injury resulted when it was struck by a car not using the parking lot but careening 15 feet off the street.  “The threshold determination that a duty is owed the plaintiff is a question of law within the exclusive province of the court.  (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal.Rptr. 468, 539 P.2d 36] [․].)  A determination that as a matter of law no duty is owed to the plaintiff is particularly common in situations in which the defendant's responsibility for the activities of third persons is involved.  (Richards v. Stanley (1954) 43 Cal.2d 60, 67 [271 P.2d 23] [․].)  Among the various policy considerations whose aggregate effect comes to be stated in terms of the legal conclusion that there is a ‘duty,’ foreseeability of the risk actually encountered is of primary importance.   (Dillon v. Legg (1968) 68 Cal.2d 728, 739 [69 Cal.Rptr. 72, 441 P.2d 912] [․].)”  (Kane v. Hartford Accident & Indemnity Co. (1979) 98 Cal.App.3d 350, 355, 159 Cal.Rptr. 446;  see also Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799, 803, 87 Cal.Rptr. 50;  Hooks v. Southern Cal. Permanente Medical Group, supra, 107 Cal.App.3d 435, 443, 165 Cal.Rptr. 741.)

 We recognize that duty is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.  (C. L. Smith Co. v. Roger Ducharme, Inc. (1977) 65 Cal.App.3d 735, 749, 135 Cal.Rptr. 483.)  “The principal policy considerations are:  ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’  [Citations.]”  (Derrick v. Ontario Community Hospital (1975) 47 Cal.App.3d 145, 153, 120 Cal.Rptr. 566.)

 The trial court properly granted the motion for summary judgment in the case at bench since plaintiff has made no threshhold showing that any one or more of the responding defendants owed him a duty of care.   The facts relative to this issue are essentially undisputed.   The declarations, maps and photographs filed by defendants show that the telephone booth was situated 15 feet from the curb on Century Boulevard close to the wall of a liquor store, and that Century Boulevard is straight and level in the vicinity of the accident.   These facts provide no basis for inferring more than a nominal degree of hazard to persons using the booth, no close connection between the conduct of defendants and the injury suffered, no moral blameworthiness on the part of the defendants, and no likelihood of preventing future harm by imposing liability.

 Although it might be that under some circumstances defendants could be held to a duty when phone booth location is involved, to hold that defendants had such a duty in the present case would be to make them virtually insurers of those using the telephone booths.  (See, e.g., Jamison v. Mark C. Bloome Co. (1980) 112 Cal.App.3d 570 [169 Cal.Rptr. 399].)   The character of duty, even where a general duty of care exists, is limited by the foreseeability of the risk and the injury.   In this case none of these defendants placed plaintiff in a particular position of peril.  (7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal.App.3d 901, 904 [172 Cal.Rptr. 528].)   It has been held that the fact that it is always possible a drunk driver may run off the road in the vicinity of a commercial business is not a sufficiently frequent event to give rise to a duty on the part of defendants.  “[W]here ․ it is the conduct of a third party on the premises which directly causes the injury, liability may attach only where the possessor of the premises has reasonable cause to anticipate such conduct and the probability of resulting injury, and fails to take affirmative steps to control the wrongful conduct.  (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121 [52 Cal.Rptr. 561, 416 P.2d 793] [․];  ․)”  (Nevarez v. Thriftimart, Inc., supra, 7 Cal.App.3d 799, 804, 87 Cal.Rptr. 50.)

 In the case at bench the character of the duty of careful phone booth location, assuming that such a general duty exists, is limited since neither the incident which occurred nor the type of injury sustained by plaintiff Bigbee was reasonably foreseeable.  “Existence of a dangerous condition is usually a question of fact for the jury (Bakity v. County of Riverside, 12 Cal.App.3d 24, 30 [90 Cal.Rptr. 541] [․] ).  But both statutory (Gov.Code, § 830.2) and decisional law (Callahan v. City and County of San Francisco, 15 Cal.App.3d 374, 378–379 [93 Cal.Rptr. 122] [․] ) recognize that the evidence may, as a matter of law show, ‘that the risk created by the condition was of such a minor, trivial or insignificant nature ․ that no reasonable person would conclude that the condition created a substantial risk of injury when such property ․ was used with due care in a manner in which it was reasonably foreseeable that it would be used.’  ․”  (McKray v. State of California (1977) 74 Cal.App.3d 59, 62, 141 Cal.Rptr. 280.)

“[A]mong the various policy considerations whose aggregate effect comes to be stated in terms of the legal conclusion that there is a ‘duty,’ foreseeability of the risk actually encountered is of primary importance.  [Citation.]”  (Kane v. Hartford Accident & Indemnity Co., supra, 98 Cal.App.3d 350, 355, 159 Cal.Rptr. 446.)   In Kane, a woman was raped on the grounds of a hospital by an employee of an independent contractor that provided services to the hospital.   Although the employee was bonded, the bonding company had failed to investigate his background and criminal record.   It was stipulated that had the company investigated the employee it would have denied the bond and he would not have been hired.   Plaintiff sought to recover for her injuries alleging the negligence of defendant bonding company.   The appellate court affirmed a judgment of nonsuit holding that no duty was owed by the bonding company to this unforeseeable plaintiff.

 The conduct of the drunk reckless driver in the case at bench rendered the nature of the risk and the harm suffered by plaintiff Bigbee just as unforeseeable.   Defendants by their moving papers and the evidence therein contained effectively refuted plaintiff's allegations of duty and negligence with respect to the location of the booth.   First, clearly duty may not be imposed where the risk is not foreseeable.   Second, even assuming the existence of duty, defendants made a factual showing that the location was not negligently selected and did not present any substantial risk to the phone booth user.

 Plaintiff in his brief makes the unsubstantial statements, inter alia, that defendants knew or should have known that Century Boulevard with a posted speed of 40 mph had drivers who operated their cars intoxicated at speeds about 50 mph;  that Century Boulevard was and is essentially a “freeway”;  that there are along Century Boulevard no barriers or dividers to protect persons using roadside services;  that the unguarded phone booth was “a mere 15 feet” from the street;  and that a phone booth on the same site was struck by a hit-and-run driver only 20 months earlier.   However, there is no duty on the part of the occupier of land, despite its alleged knowledge of street hazards, to take precautionary steps to prevent accidents resulting from street traffic.  (McGarvey v. Pacific Gas & Elec. Co., supra, 18 Cal.App.3d 555, 95 Cal.Rptr. 894.)

Furthermore, plaintiff was able to show only that a phone booth was struck at that location.   From defendants' responses to interrogatories it appears that there was a parking lot accident in which a driver perhaps backed into the booth and defendants took the precautions of adding bumper posts.   Plaintiff has failed, despite apparent attempts, to obtain the declarations of any expert(s) to establish that any extraordinary risk of harm to users of the booths at the site of the accident existed or was known to the defendants.   The trial court was lenient in granting a continuance of the hearing to provide plaintiff with the opportunity to file additional counterdeclarations and, despite plaintiff's assertions, none were forthcoming.

Defendants argue further that assuming that a duty on the part of one or more of the defendants is inferred from these facts because the drunken driver was a superseding intervening cause, the element of proximate cause is lacking.   The law with respect to the foreseeability of intervening causes has recently been set forth as follows:  “An intervening cause which breaks the chain of causation from the original negligent act is itself regarded as the proximate cause of the injury and relieves the original negligent actor of liability.   (65 C.J.S. Negligence § 111(1);  2 Rest.2d Torts, § 440.)  [¶]  “The general test of whether an independent intervening act, which operates to produce an injury, breaks the chain of causation is the foreseeability of that act.  (Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 [․].)  [¶]  “An act is not foreseeable and thus is a superseding cause of the injury ‘if the independent intervening act is highly unusual or extraordinary, not reasonably likely to happen ․’  (4 Witkin, Summary of Cal. Law (8th ed.) Torts, § 628, citing cases.)  [¶]  “Generally speaking the determination of whether the intervening act is foreseeable is a question of fact unless under the undisputed facts there is no room for a reasonable difference of opinion.   (2 Rest.2d Torts, § 453, com. b;  also see Prosser, Law of Torts (4th ed.) § 45;  Klopfenstein v. Rentmaster Trailer Co., 270 Cal.App.2d 811, 76 Cal.Rptr. 126 [․].)”  (Schrimscher v. Bryson (1976) 58 Cal.App.3d 660, 664, 130 Cal.Rptr. 125.)   It then becomes a question of law.  (Azcona v. Tibbs (1961) 190 Cal.App.2d 425, 428, 12 Cal.Rptr. 232.)

 Where the facts are known the test is reasonable foreseeability.²  An original act of negligence is not a proximate cause when the injury directly results from the intervening act of another, which act can not be reasonably anticipated by the first party as likely to occur or to follow from his own act.  (Stasulat v. Pacific Gas and Elec. Co. (1937) 8 Cal.2d 631, 637, 67 P.2d 678.)   The criminal act of another party is one of the foremost intervening superseding forces which will negate the original act of negligence.  “[P]resent California decisions establish that a criminal act will be deemed a superseding cause unless it involves a particular and foreseeable hazard inflicted upon a member of a foreseeable class.   (Vesely v. Sager (1971) 5 Cal.3d 153, 163–164 [95 Cal.Rptr. 623, 486 P.2d 151] [․];  Richardson v. Ham (1955) 44 Cal.2d 772, 777 [285 P.2d 269] [․].)”  (Kane v. Hartford Accident & Indemnity Co., supra, 98 Cal.App.3d 350, 360, 159 Cal.Rptr. 446.)

In the Schrimscher case a highway patrol officer investigating an accident was struck and injured by a drunken driver whose car struck the CHP vehicle which was parked off the shoulder of the road.   The appellate court found the drunk driver's act was an intervening cause which superseded the antecedent negligence of the defendant who originally caused the officer to be at that location.   This principle was applied in the subsequent case of Whitton v. State of California (1979) 98 Cal.App.3d 235, 159 Cal.Rptr. 405, where a motorist who had been stopped by CHP officers for speeding was injured when a drunken driver struck the rear of the patrol car.

“[A]s we explained in Schrimscher v. Bryson, supra, such conduct is not as a matter of law reasonably foreseeable.   The drunken driver's ‘conduct, which itself was criminal in nature, was not a natural or ordinary consequence of the situation created by defendant nor was the foreseeability of the likelihood of that conduct one of the factors contributing to the negligent character of defendant's conduct.’  (Schrimscher v. Bryson, supra, at pp. 664–665 [130 Cal.Rptr. 125].) ․”  (Whitton v. State of California (1979) 98 Cal.App.3d 235, 244, 159 Cal.Rptr. 405.)

 In the case at bench it is clear as a matter of law that defendants' negligence, if any, was not the proximate cause of plaintiff's injuries because the criminal conduct of the drunken driver who lost control and drove her car off the roadway at a high rate of speed crashing it into the telephone booth constituted an intervening and superseding cause.   Furthermore, the nature of the accident was so unusual that it was not reasonably foreseeable that this type of injury would be sustained by a person using a telephone booth.  “ ‘Liability cannot be predicated on a prior and remote cause which merely furnishes the condition or occasion for an injury resulting from an intervening unrelated and efficient cause, even though the injury would not have resulted but for such condition or occasion;  ․’  (65 C.J.S., Negligence, § 111(4).)”  (Schrimscher v. Bryson, supra, 58 Cal.App.3d 660, 664.)

 In the case at bench defendants supported their motion for summary judgment with supporting evidence to show that no inherently hazardous condition existed by virtue of location of the telephone booth or the fact that the door hinge was “sticky.”   Plaintiff Bigbee failed, despite his claims, to introduce any facts to refute the documentary evidence presented by defendants or to show affirmatively any feature of the location or circumstance of the design or maintenance of the booth from which it might be inferred that it posed a particular hazard to phone booth users.³  No risk of harm greater than minor inconvenience or trivial injury was shown to exist with respect to members of the public from normal use of the phone booth in that location with a sticky door.   In fact, the proximate cause and superseding cause of plaintiff's injury was the speeding automobile which swerved off the road and crashed into the booth as he occupied it.

 Finally, no basis is alleged to support product liability against Western Electric or any other defendant because, once again, proximate cause is not established.   Moreover, plaintiff's sole claim is that the booth was unsafe when the user of the booth attempted a rapid exit from the bifold door on the verge of the anticipated impact of a speeding automobile.   However, “[s]trict liability should not be imposed upon a manufacturer when injury results from a use of its product that is not reasonably foreseeable.”   (Cronin v. J. B. E. Olson Corp. (1972) 8 Cal.3d 121, 126, 104 Cal.Rptr. 433, 501 P.2d 1153.)   Providers of telephone booths are not required to anticipate the need for quick escape by a user who seeks to flee from the path of a speeding automobile or drunken driver.  (See, e.g., Hatch v. Ford Motor Co. (1958) 163 Cal.App.2d 393, 397, 329 P.2d 605.)

 “[A] defendant moving for summary judgment must conclusively negate a necessary element of the plaintiff's case or establish a complete defense and thereby demonstrate that under no hypothesis is there a material factual issue which requires the process of a trial.  (Vanderbilt Growth Fund, Inc. v. Superior Court (1980) 105 Cal.App.3d 628, 633–634 [164 Cal.Rptr. 621] [․].)  ‘Under well established rules governing summary judgment motions, the affidavits of the moving party are to be strictly construed and those of the opponent liberally construed.  [Citations.]  Nevertheless, a party opposing a motion for summary judgment which is supported by affidavits or declarations sufficient to sustain the motion, has the burden of showing that triable issues of fact exist.’  (Chern v. Bank of America, supra, 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310.)   If he does not sustain that burden summary judgment is proper.  (See Terry v. Atlantic Richfield Co. (1977) 72 Cal.App.3d 962, 971 [140 Cal.Rptr. 510] [․];  Keene v. Wiggins (1977) 69 Cal.App.3d 308, 311 [138 Cal.Rptr. 3] [․].)”  (Saatzer v. Smith (1981) 122 Cal.App.3d 512, 517, 176 Cal.Rptr. 68.)

The dissent refers to two cases from other jurisdictions in support of its thesis that triable issues of fact are presented herein.   One is a two paragraph opinion without a detailed statement of facts which reversed a summary judgment on the basis of general principles of law acknowledged by our opinion.  (Brinkley v. Southern Bell Telephone & Telegraph Company (Fla.App.1978) 353 So.2d 593.)

In the second case of Noon v. Knavel (1975) 234 Pa.Super. 198 [339 A.2d 545] the telephone company defendant appealed after the trial court denied its motion for judgment notwithstanding the verdict of the jury in favor of plaintiff on the ground of failure to prove the causal connection.

The plaintiff was struck by a car while standing in a phone booth.   That booth was situated at a railway grade crossing at the end of a long downgrade of nine and one-half feet from the curb of the street and five feet from the railroad track.⁴  The appellate court concluded the jury had ample support in the evidence of neglect siting of the booth and that this was the cause in fact of plaintiff's injuries.   The driver of the car, whose brakes were faulty, and who had apparently been drinking, passed another car illegally at 2 a. m. and the police had given chase when he came careening down the grade to be struck by a train and hurled across the service station parking area, obliterating the phone booth.

 The court upheld on the basis of these circumstances the implied finding of the jury that the hazard of accidents of this type was foreseeable and thus proximate causation was established.   Jacobs, J. wrote a long and cogent dissent, joined in by two other judges, declaring that the plaintiff failed to satisfy the requirements of proximate cause because he did not establish that the siting of the phone booth was a substantial factor in producing his injury, or that the type of accident which occurred was reasonably foreseeable.  (Id., 339 A.2d at pp. 555–561).   As the dissent in the Knavel case correctly points out, reasonable foreseeability does not establish duty but it is utilized to define its limits.

Defendants in the case at bench, and each of them, have sustained the burden of showing that no triable issue of fact exists with respect to plaintiff's case, and that they are entitled to summary judgments.   The trial court properly granted the summary judgment motion since despite plaintiff's claim that he might later obtain evidence, he failed to come forward with declarations of experts to counter the evidence brought in by defendants and no triable issue of fact was demonstrated.  (Wiler v. Firestone Tire & Rubber Co., supra, 95 Cal.App.3d 621, 157 Cal.Rptr. 248.)

DISPOSITION

The separate summary judgments in favor of the respective defendants are, and each of them is, affirmed.

APPENDIX ‘A‘

I respectfully dissent, for two reasons.   First, all of the issues of this case which were dealt with and decided by the majority herein have heretofore been dealt with and decided differently by Division Two of this court in Bigbee v. Superior Court (1979) 93 Cal.App.3d 451, 155 Cal.Rptr. 545 (Bigbee I ).   Second, the decision of the majority cannot be supported in reason or law.

In Bigbee I, Justice Fleming in an opinion concurred in by Presiding Justice Roth held that the intervening agency need not necessarily be foreseeable to shield the prior or concurring actor from liability.   The court quoted with approval from Gibson v. Garcia (1950) 96 Cal.App.2d 681, 216 P.2d 119.  “It is well settled that proximate causation is not always arrested by the intervention of an independent force.   If the original negligence continues to the time of the injury and contributes substantially thereto in conjunction with the intervening act, each may be a proximate concurring cause for which full liability may be imposed.  [Citations.]”  (Id., at p. 684, 216 P.2d 119.)

The court in Bigbee I held that the proper classification of an intervening act as a concurrent cause or as a superseding cause presents a question of fact.  Bigbee I clearly held that the allegations of the second amended complaint which were dealt with therein and are dealt with herein are sufficient to pass the test of a general demurrer.

After remand to the trial court, the respondents filed a motion for summary judgment, and the trial court, without setting forth its reasoning, found that there was no triable issue of fact.   The majority herein upholds that finding, based not on a review of the facts, but in my opinion, by conducting a reexamination and redetermination of the applicable law, concluding that the appellant may not by his second amended complaint maintain his cause of action against these respondents or any of them.   Stated differently, the majority has adopted the view of Justice Beach, who dissented in Bigbee I, and now overrules the decision of Justices Fleming and Roth.   In my view, this is so because the declarations appended to respondents' motion for summary judgment do not add any significant facts to those set forth by appellant in his second cause of action, the sufficiency of which was finally decided in Bigbee I.

The only arguably relevant facts raised by the declarations appended to the motions for summary judgment which are not included in allegations of the second amended complaint are:

1.  The distance between the telephone booth and the heavily traveled intersection is 15 feet.

2. The roadway at the location in question is straight and level.

3. Defendant Western Electric did not participate in siting the booth.

4. In the opinion of a professional engineer, the car which struck the telephone booth was traveling an estimated 30 to 35 miles per hour upon impact.

This evidence makes no substantive change in the fact situation presented to our sister division in Bigbee I.   Whether the distance from the curb is six, nine, or fifteen feet is not critical in view of the fact that the booth is in a parking lot adjacent to the sidewalk and near a driveway.   The court in Bigbee I had no reason to believe that the terrain of the situs was other than straight and level.   The speed of the automobile which struck the phone booth is of no real pertinence to the problem.   My colleagues, although mentioning the additional facts set forth above, in no way employ them or explicate how they lead them to the conclusions of law they reach.   The majority ignores what I consider as the only really significant fact which has been added to those before the court in Bigbee I, namely, that the accident herein question was not the first such accident which occurred involving a phone booth at this precise location.   The respondent telephone company rather engagingly informs us via answers to interrogatories that the former accident was of a “minor nature,” and that it was a “parking lot accident” which occurred when a car “backed into” the telephone booth in question.   These conclusions of respondent interestingly enough, however, are reported by a person who also states that that accident occurred in the middle of the night and was caused by a “hit-and-run driver.”   If the prior accident was a “hit-and-run,” the conclusions of respondent telephone company concerning its genesis must be disregarded.   Although the prior accident is characterized by respondent as a minor collision, the record discloses that it necessitated the replacement of the booth.

The majority hold, based on Schrimscher v. Bryson (1976) 58 Cal.App.3d 660, 130 Cal.Rptr. 125, that as a matter of law defendants' negligence, if any, was not the proximate cause of plaintiff's injury.   The Bigbee I court reviewed both Schrimscher and Gibson v. Garcia, supra, 96 Cal.App.2d 681, which reached opposite conclusions on the legal effect upon antecedent negligence of intervening causes.  Bigbee I decided that the facts and the reasoning of Gibson rather than those of Schrimscher applied to the facts of this case.   In that decision the Bigbee I court either directly or impliedly reached conclusions concerning all of the matters which are diametrically opposed to those reached by the majority herein.

In redeciding this case without any genuine difference in facts, the majority is departing from the doctrine of “the law of the case.”  (See 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 633, p. 4552.)   In Puritan Leasing Co. v. Superior Court (1977) 76 Cal.App.3d 140, 142 Cal.Rptr. 676, we said, “ ‘The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial ․’  [Citation.] ․ [¶] ․  ‘[T]he doctrine is also held applicable to questions not expressly decided but implicitly decided because they were essential to the decision on the prior appeal.’  [Citation.]”  (Id., at pp. 146–147, 142 Cal.Rptr. 676.)

Even if the meager “facts” that have been added to those assumed as true by the Bigbee I court on demurrer were sufficient to allow the trial court or this court to redetermine the law of this case, such facts do not warrant summary judgment.   After setting forth the kind of evidence to be considered on a summary judgment motion, Code of Civil Procedure section 437c in pertinent part provides, “․ summary judgment shall not be granted by the court based on inferences reasonably deducible from such evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.”   The summary judgment procedure, inasmuch as it denies the right of the adverse party to a trial, is drastic;  the movant's affidavits and declarations are strictly construed, and doubts as to the propriety of granting the motion are resolved against the moving party.  (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

The majority seems to argue that the diagram and photographs of the scene demonstrate that the phone booth was safely located.   Such a conclusion is unwarranted as that evidence is, at best, ambiguous.   Moreover, other conflicting facts exist, namely, the occurrence of the very accident in question and the evidence that another automobile struck a phone booth at the very same location less than two years prior to the accident in question.

Another factual issue not addressed in the motion for summary judgment is the effect of the undisputed malfunctioning of the door of the telephone booth coupled with the evidence that plaintiff could have escaped except therefor.   The respondents, the trial court, and the majority assert that as a matter of law it was unforeseeable that a sticking door of a phone booth could cause injury to a person using the booth.   They argue that in order for a person to be able to recover for any damage that occurs to him as the result of a sticking door, the persons responsible for the design and maintenance of the booth must be able to foresee with particularity the specific injury that could befall him, as well as the specific source which could act upon the condition to bring about the injury.   Such is simply not the law.  (Taylor v. Oakland Scavenger Co. (1941) 17 Cal.2d 594, 602, 110 P.2d 1044;  Rest., 2d Torts, § 435.)

The questions concerning the duty to safely locate the telephone booth and the duty to design, manufacture, and maintain the telephone booth so that the door will operate properly are inextricably bound together in this case.   Although I believe that a car crashing into the telephone booth, whether from the street or from the parking lot, is patently foreseeable, even if it were not, such lack of foreseeability would not as a matter of law foreclose liability.  “If an injury is produced by the concurrent effect of two separate wrongful acts, each is a proximate cause of the injury, and neither can operate as an efficient intervening cause with regard to the other.  [Citations.]  The fact that neither party could reasonably anticipate the occurrence of the other concurrent cause will not shield him from liability so long as his own negligence was one of the causes of the injury.  [Citations.]”  (Taylor v. Oakland Scavenger Co., supra, 17 Cal.2d 594, 602, 110 P.2d 1044.)   It appears to me that the location of the telephone booth, the malfunctioning door, and the negligent driver could properly be found by a trier of fact to all have been concurring proximate causes of the injury to the appellant.   The court in Bigbee I held that the proper classification of an intervening act as a concurrent or a superseding cause presents a question of fact.   The court went on to note that such question can sometimes be resolved on summary judgment.   That statement, while undoubtedly correct, does not, as the majority seems to believe, provide by the mere addition of insubstantial factual differences a basis to readjudicate a case which has already been decided.

Courts in other jurisdictions reviewing cases presenting strikingly similar factual situations have reached the opposite conclusion from that reached by the majority herein.   In Noon v. Knavel (1975) 234 Pa.Super. 198 [339 A.2d 545] a car crashed into a telephone booth occupied by the plaintiff.   Plaintiff claimed the telephone company was negligent in siting the booth.   Appealing a judgment for plaintiff, the defendant contended its conduct was not the cause of plaintiff's injuries and that the automobile driver's negligence was a superseding cause.   The court rejected both the defendant's arguments.   In that case the booth was nine and one-half feet from the curb.

In Brinkley v. Southern Bell Telephone & Telegraph Company (Fla.App.1978) 353 So.2d 593 the District Court of Appeal in Florida reversed a summary judgment in favor of the telephone company.   In that case the telephone booth in which plaintiff was standing was located in a parking lot.   A vehicle driven by a third party, who was allegedly drunk, struck the booth, injuring plaintiff.   There the court held that the question of foreseeability was an issue of fact.

Finally, the majority opinion is predicated upon a fallacious syllogism.   It reasons that duty is derived from foreseeability and that as a matter of law “neither the incident which occurred nor the type of injury sustained by plaintiff Bigbee was reasonably foreseeable,” (majority opn., ante, p. 543) and thus there is no duty.

Such reasoning ignores the facts that the crucial question under review is foreseeability and that foreseeability is a question of fact for the trier of fact.  (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.)   Although “[t]he determination of duty is primarily a question of law, [citation]” (ibid.) “foreseeability of the risk is a primary consideration in establishing the element of duty.  [Citation.]”  (Ibid.)

I recognize that foreseeability can be decided a question of law if “there is no room for a reasonable difference of opinion.  [Citations.]”  (Schrimscher v. Bryson, supra, 58 Cal.App.3d 660, 664, 130 Cal.Rptr. 125 [emphasis supplied];  Rest., 2d Torts, § 453, com. (b).)  Where, however, as under the circumstances of this case, a defectively manufactured, designed, or maintained phone booth from which it is difficult to exit is located in a parking lot 15 feet from the curb, at a busy intersection, and where there is a prior record of the booth at that location being struck by a motor vehicle, I cannot conceive of there being no room for a reasonable difference of opinion as to whether the booth there located might again be struck while occupied by a user of the facility.

The judgment should be reversed.

FOOTNOTES

1.   In his appellate brief plaintiff makes the following assertions:  “Appellant's motion for leave to amend, at p. iii, 11. 4–9, states that appellant had a Traffic Engineer who would testify that phone booths are struck with some frequency and that basic standards of safety practice would dictate consideration of this problem in the siting [sic] of phone booths.”These claims the plaintiff failed to substantiate by declarations in the trial court.

2.   The issue of proximate cause “[i]s concerned with whether or not, assuming that a defendant was negligent and that his negligence was an actual cause of the plaintiff's injury, the defendant should be held responsible for the plaintiff's injury where the injury was brought about by a later cause of independent origin.   This question, in turn, revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable.   If either of these questions is answered in the affirmative, then the defendant is not relieved from liability towards the plaintiff;  if, however, it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable, then the intervening cause becomes a supervening cause and the defendant is relieved from liability for the plaintiff's injuries.  [Citations.] ․”  (Akins v. County of Sonoma (1967) 67 Cal.2d 185, 199, 60 Cal.Rptr. 499, 430 P.2d 57.)

3.   Plaintiff has asserted liability on the additional theory that Western Electric, which made a showing that it has no involvement in site location, had a duty to establish criteria for safe phone booth siting and to warn Pacific Telephone.   This theory which was not raised by the pleadings is not appropriately before the court on appeal from the summary judgment.  (Saatzer v. Smith (1981) 122 Cal.App.3d 512, 520, 176 Cal.Rptr. 68.)

4.   The court 339 A.2d at pages 547–548 described the scene as follows:  “The telephone booth was located approximately 9 1/212 feet from the curb of Bedford Street, and only five feet from the railroad track, so close that it was actually located on the railroad's right-of-way.   The railroad tracks run approximately north and south.   The approach to the grade crossing from the east, down Bedford Street, includes a long downgrade.   Immediately before the grade crossing, and beginning approximately at the intersection of Adams Street, vehicles must traverse an S-curve while still proceeding downhill, and be prepared to brake at the railroad crossing, which is marked by flashing lights, but not protected by crossing gates.   The telephone booth was located in such a position that an automobile coming downhill which failed to negotiate the second half of the S-curve could easily strike the booth.   Despite this fact, no special safety precautions were taken in the construction of the booth.”

L. THAXTON HANSON, Associate Justice.

LILLIE, Acting P. J., concurs.