AKERS v. IRVINE MARRIOTT CORPORATION (1987)

OPINION

Lonnie Akers appeals an order of dismissal entered for failure to amend his complaint after a demurrer was sustained with leave to amend.  (Former Code Civ.Proc. § 581, subd. (c), now § 581, subd. (f)(2).)   He contends the complaint states facts sufficient to constitute causes of action for negligence and intentional infliction of emotional distress.   He is correct.

I.

The complaint alleges ¹ that on a September evening in 1984, 18–year-old Lonnie Akers drove to the Irvine Marriott Hotel to attend a party given by his employer.   He parked his car in the hotel parking lot.   During the course of the evening the hotel's employees served him “an abundant number of alcoholic beverages” in violation of Business and Professions Code section 25658.   When Akers' coworkers observed he had become intoxicated, they rendered his car “inoperable so that [he] would be unable to operate [it] and avoid being a danger to himself and others.”

Later that evening security guards employed by the hotel “observed [Akers] in a state of intoxication” and engaged him and his coworkers in conversation.   The security guards were informed Akers' car had been disabled and that his coworkers were willing to assume the responsibility for either hiring a taxicab to return Akers to his home or obtaining a hotel room for him to stay overnight.   The guards “rejected these proposals and insisted [Akers'] coworkers repair the [car], which they reluctantly did.”   While the repairs were being made, the security guards called the Irvine Police Department.   After the car was repaired, the security guards “insisted that [Akers] enter [it] and operate it as the means by which [Akers] was to leave the defendants' premises.”   Akers “continued to act under the influence of the alcohol which had been illegally dispensed to him ․ and acting upon the instruction and the insistence of the [security guards], entered the [car] and operated it for a short distance.”   He was immediately apprehended in the hotel parking lot by an Irvine police officer and arrested for driving a motor vehicle under the influence of alcohol.  (Veh.Code, § 23152, subd. (a).)

Akers ultimately pleaded guilty.²  However, he was “required to and did hire an attorney and incur expense for that, as well as ․ suffer the cost of a fine, school fee, court costs, and the inconvenience of having his driver's license suspended and the detriment of having a prior conviction of drunk driving on his record, thereby increasing his automobile insurance costs․”  He also incurred general damages “in the form of loss of his liberty through the detention while he was arrested and the loss of driving privileges which were part of the conditions of probation, and a driving record which contains a guilty plea to a drunk driving charge․”

The complaint also alleges that the actions of the security guards were “intentional, deliberate, and done to satisfy [their] sadistic urges ․ at the financial, physical, and emotional expense of the plaintiff[, and] for the malicious purpose of causing [Akers] to suffer humiliation, mental anguish, and emotional and mental distress ․”  These same allegations were incorporated in a claim for punitive damages.

Marriott filed a general demurrer and also moved to strike Akers' claim for punitive damages.   The court sustained the demurrer with leave to amend and ruled the motion to strike was moot.   Akers elected to stand on his complaint.

II.

 Akers contends the security guards breached their duty to exercise reasonable care for his safety and well-being while on the hotel's premises by insisting he drive his car out of the parking lot in an intoxicated state.   Marriott argues “[i]n the absence of statutorily imposed liability” under Business and Professions Code section 25602.1 ³ and “in light of the sweeping abrogation of liability of those who furnish alcohol” under section 25602, subdivision (c),⁴ common law principles of premises liability are inapplicable.   It points out Akers failed to allege a violation of section 25602.1—the only basis for holding a purveyor of alcohol civilly liable for furnishing alcoholic beverages.

Marriott further argues even if this statutory exception could be inferred from the reference in the complaint to section 25658,⁵ Akers has still failed to plead sufficient facts for a cause of action.   It correctly asserts the complaint does not allege Marriott was a licensed seller of alcoholic beverages or that Akers was obviously intoxicated at the time the alcohol was furnished, as section 25602.1 requires.

However, Akers' failure to plead a violation of section 25602.1 is not fatal to his claim.   The proximate cause of his injury was not his consumption of alcohol but rather, the security guards' insistence he operate his vehicle.   Indeed, had he not been forced to get behind the wheel of his car, he would not have been arrested for driving under the influence.   The legislative mandate of section 25602, subdivision (c), and Civil Code section 1714, subdivision (b) (see fn. 4, supra ), has no application here.   Furthermore, unlike the plaintiff in Andre v. Ingram (1985) 164 Cal.App.3d 206, 210 Cal.Rptr. 150, Akers is not attempting to hold Marriott liable for its employees' failure to prevent him from driving.⁶

The issue presented is whether the security guards owed Akers a duty predicated on principles of general negligence, independent of any liability of the hotel for furnishing alcoholic beverages to a minor.   Whether a duty exists “is primarily a question of law.  [Citations].  It is the court's ‘expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’  [Citation.]  Any number of considerations may justify the imposition of duty in particular circumstances, including the guidance of history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall.  [Citation.]  While the question whether one owes a duty to another must be decided on a case-by-case basis, every case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct.  [Citation.]  However, foreseeability of the risk is a primary consideration in establishing the element of duty.  [Citation.]”  (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.)

Akers alleges he was visibly intoxicated.   It was foreseeable he would be arrested for driving under the influence, particularly since the guards apparently summoned the police for that specific purpose.   It was also foreseeable he would injure himself or others if forced to drive while intoxicated.   Moreover, while Akers was apprehended by the police before any physical injury occurred, the guards' conduct demonstrated an indifference to the possibility of such harm.

In DeBolt v. Kragen Auto Supply, Inc. (1986) 182 Cal.App.3d 269, 227 Cal.Rptr. 258, the trial court dismissed a wrongful death action against an employer who had furnished alcoholic beverages to a guest at an office party.   The guest, Christine Eigsti, a minor, was thereafter involved in an automobile accident which took the lives of two individuals.   The complaint alleged Kragen “supplied and served Eigsti alcoholic beverages to the point where she became so intoxicated and disorderly Kragen ordered her to leave the party.   Furthermore, Kragen knew Eigsti would drive her car since it was her only available transportation and it was obvious she could not safely do so.   Nevertheless, Kragen did not attempt to, nor did Kragen provide, any alternative or safer means of transportation such as a taxi, the police, a friend;  neither did they call her parents.”  (Id., at p. 271, 227 Cal.Rptr. 258.)

As does Akers, the appellants in DeBolt argued “their cause of action against Kragen sounding in general negligence [was] not based on Kragen serving Eigsti alcoholic beverages;  rather it [was] based on Kragen's conduct ordering and causing Eigsti to leave and to drive in an intoxicated state and is therefore not barred as a matter of law.”  (Id., at p. 272, 227 Cal.Rptr. 258.)   They urged the court “to apply ․ principles of common law negligence and to decide Kragen had a duty not to create an unreasonable risk and by implication thus is liable for the injuries [the appellants] sustained which they claim flowed reasonably foreseeably from Kragen forcing Eigsti out on the highway in her inebriated state․  They additionally argue[d] the action [was] grounded in Kragen's misfeasance, i.e., forcing Eigsti to leave, rather than Kragen's nonfeasance, i.e., doing nothing, and no special relationship need be established in order to incur liability.  [Citations.]”  (Id., at pp. 273–274, 227 Cal.Rptr. 258.)

The appellate court was not persuaded.   Relying on Andre v. Ingram, supra, 164 Cal.App.3d 206, 210 Cal.Rptr. 150, it concluded:  “[Appellants] attempt to characterize Kragen's ‘fault’ as ordering Eigsti to leave and as failing to provide alternative and safer means of transportation, and thereby hope to escape the statute's limitation.   However, ‘[t]he effect of the statute cannot be avoided by alleging the wrong, not as furnishing the alcohol,’ but as forcing a person to leave a party or failing to provide safe transportation․”  (DeBolt v. Kragen Auto Supply, Inc., supra, 182 Cal.App.3d at p. 274, 227 Cal.Rptr. 258.)  “While Kragen forced Eigsti to leave the party, knowing she was intoxicated and would drive her car, social host immunity shields Kragen from liability.”  (Id., at p. 276, 227 Cal.Rptr. 258.)

The circumstances in DeBolt are similar to those presented here.   The cases are, however, factually distinguishable in one significant respect.   Although Kragen did not provide Eigsti with an alternative means of transportation, she did not ask for one.   Nor did any other person intervene on Eigsti's behalf to discourage the employer from forcing her to leave or to suggest another option.   Unlike Eigsti, Akers was compelled to get behind the wheel of his automobile despite the reasonable alternatives proposed by his coworkers.   Indeed, the security guards, with knowledge Akers' coworkers were willing to either hire a taxi or bear the expense of a hotel room, rejected these proposals and insisted Akers drive the car off the premises.   Akers is entitled to legal protection against this reprehensible conduct.

Section 327 of the Restatement Second of Torts is instructive.   It states:  “One who knows or has reason to know that a third person is giving or is ready to give to another aid necessary to prevent physical harm to him, and negligently prevents or disables the third person from giving such aid, is subject to liability for physical harm caused to the other by the absence of the aid which he has prevented the third person from giving.”  (See also Soldano v. O'Daniels (1983) 141 Cal.App.3d 443, 452–453, 190 Cal.Rptr. 310.)   The fact Akers does not seek to impose liability for physical harm should not alter this common sense approach.

Akers has stated a cause of action for negligence ⁷ under the unique facts alleged.   Ordinarily, ejection of an intoxicated person is not prohibited even where it is known the individual's operation of a motor vehicle is his or her only available means of transportation.   What is actionable in this case is conduct preventing a third person from rendering necessary assistance or providing a safe alternative.

It bears emphasizing the security guards would have owed Akers the same duty even if he was already intoxicated when he arrived at the hotel.   Moreover, the duty does not depend upon their status as security guards.   Akers' reliance on Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 208 Cal.Rptr. 384 is misplaced.   That case involved the obligation of security guards hired by a business establishment to act affirmatively to prevent injuries caused by the intentional tortious acts of third parties.   Here, liability is not predicated upon the security guards' failure to control the conduct of third persons.   It is the conduct of the guards themselves which is being challenged.

There is no question Akers' claim is an unusual one.   However, “ ‘[t]he law of torts is anything but static, and the limits of its development are never set.   When it becomes clear that the plaintiff's interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself operate as a bar to the remedy.’ ”   (Soldano v. O'Daniels, supra, 141 Cal.App.3d at pp. 454–455, 190 Cal.Rptr. 310, quoting from Prosser, Law of Torts (4th ed. 1971) pp. 3–4, fn. omitted.)

III.

 The complaint also states a cause of action for intentional infliction of emotional distress.   The elements of this tort are “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress;  (2) the plaintiff's suffering severe or extreme emotional distress;  and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.  [Citations.]  ‘Whether treated as an element of the prima facie case or as a matter of defense, it must also appear that the defendants' conduct was unprivileged.’ [Citations.]” (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593, 156 Cal.Rptr. 198, 595 P.2d 975.)

The complaint alleges “[t]he acts and conduct of the defendants ․ were done for the malicious purpose of causing [Akers] to suffer humiliation, mental anguish, and emotional and mental distress, which in fact [Akers] suffered to his damage in an amount to be proven at trial.”   This was sufficient.

 Marriott argues the conduct of the security guards was privileged.   It claims “[t]hese employees would have themselves been privileged to make the arrest for the criminal offense.   If, what Akers alleges is taken as true, i.e., that Marriott employees called the police to have Akers arrested, then they did nothing more than exercise a legal right in good faith.”   This argument is ridiculous.   A security guard's summoning of the police to arrest an intoxicated individual for driving under the influence is hardly privileged where the guard affirmatively places the driver in that position.

IV.

 Finally, Akers contends the complaint states sufficient facts to support a claim for punitive damages.   Marriott does not address this issue in its brief, apparently because the trial court ruled its motion to strike Akers' claim was moot.

Marriott argued below that the complaint “failed to allege any acts by corporate officials sufficient to suggest ratification or approval by the corporation.”   It also claimed the allegations of malice, fraud and oppression were merely legal conclusions and not supported by facts.   Neither contention has merit.

The complaint alleges the security guards in doing the acts complained of were acting within the course and scope of their employment and that “[t]he acts and conduct of these employee defendants were ratified and approved by [their] co-defendants․”  It may be presumed that the corporate defendant authorized and approved acts and conduct of the guards which were performed within the course and scope of their employment.  (See Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal.App.3d 222, 235, 192 Cal.Rptr. 492;  O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 806, 142 Cal.Rptr. 487.)

Furthermore, “[w]hen the plaintiff alleges an intentional wrong, a prayer for exemplary damages may be supported by pleading that the wrong was committed willfully or with a design to injure.  [Citation.]”  (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29, 122 Cal.Rptr. 218.)   Here, in pleading his claim for punitive damages, Akers incorporated the allegations of his cause of action for intentional infliction of emotional distress.   And he there stated the “acts were done for the malicious purpose of causing plaintiff to suffer humiliation, mental anguish, and emotional distress․”  These factual allegations, if proved, are sufficient to justify an award of punitive damages against Marriott for the conduct of its employees.

The order is reversed.   The matter is remanded to the trial court with directions to vacate its order sustaining the demurrer, and to enter a new order overruling the demurrer and denying the motion to strike.   Appellant is entitled to costs on appeal.

I dissent.   The complaint in this case boils down to the following:  Lonnie Akers, who was represented by counsel, pleaded guilty to the crime of drunk driving.   He now seeks damages for the consequences of the conviction, including the emotional distress the incident caused him, from Marriott, whose security guards allegedly advised and encouraged him to commit the offense.

In this state persons who advise and encourage the commission of a crime share equal culpability with the perpetrator.  (Pen.Code, § 31.)   Thus, we review the sufficiency of a pleading in which an admitted criminal offender seeks to recover for the inconvenience of his conviction from those alleged to have aided and abetted him.   It should be rather obvious that no such cause of action will lie.   Taken to its logical conclusion, the majority's disposition of this case would validate a lawsuit by the members of the “family” against Charles Manson.   The notion is absurd.

What differentiates this case from the ordinary traffic collision where comparative negligence principles are applied between two motorists, each of whom may have violated the Vehicle Code, is this:  Those litigants may recover for personal injuries and property damage, but they may not obtain an award for the consequences of any related prosecution brought against them from anyone.   In other words, while certain damages may be recoverable in a tort action where the plaintiff has violated a statute, the law simply does not permit one admittedly guilty offender to shift the direct consequences of a criminal conviction to alleged confederates.   Nor may the offender recover emotional distress damages from those who may have advised and encouraged the criminal conduct.

The careful reader will note that none of these fulminations is accompanied by citation to authority.   The reason is simple:  My research has not disclosed any precisely on point, probably because few, if any, such ill-advised lawsuits have been filed before.   To rectify this scholarly deficiency, however, I close with a passage from Dean Prosser concerning a related subject, contribution among joint tortfeasors.   It ought to suffice as a legal basis for the virtually self-evident propositions set forth above:  “Compare the celebrated Highwayman's Case, Everet v. Williams, Ex. 1725, reported in 1893, 9 L.Q.Rev. 197, and Costigan's Cases on Legal Ethics, 1917, 399.   This was a suit by one highwayman against another for an accounting of their plunder.   The bill was dismissed with costs to be paid by the defendant;  the plaintiff's soliciters were attached and fined fifty pounds each for contempt.   Both plaintiff and defendant were subsequently hanged.   In short contribution was not allowed.”  (Prosser, Law of Torts (4th ed. 1971) § 50, pp. 305–306, fn. 40.)   These highwaymen (and their counsel) are doing considerably better.

Criminal defendants take note.   What is lost in the battle with the prosecutor may, according to the majority, be recouped in a tort action against those who put you up to it.   Now that's equal protection of the law.   I would affirm.

FOOTNOTES

1.   In determining the sufficiency of the complaint, all of its material factual allegations are accepted as true (Strang v. Cabrol (1984) 37 Cal.3d 720, 722, 209 Cal.Rptr. 347, 691 P.2d 1013), without regard to Akers' “ability to prove [them], or the possible difficulty in making such proof․”  (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.)

2.   Our dissenting colleague makes much of this fact.   And in so doing he confuses the case with the legend of the two highwaymen arguing over division of the loot.Akers' decision to plead guilty to driving under the influence could have been motivated by a number of considerations, none of which would necessarily excuse Marriott from civil liability for placing him in that predicament in the first place.

3.   Prior to its 1986 amendment (Stats.1986, c. 289, § 1), Business and Professions Code section 25602.1 provided:  “Notwithstanding subdivision (b) of Section 25602, a cause of action may be brought by or on behalf of any person who has suffered injury or death against any person licensed pursuant to Section 23300 who sells, furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage to any obviously intoxicated minor where the furnishing, sale or giving of such beverage to the minor is the proximate cause of the personal injury or death sustained by such person.”Section 25602, subdivision (b), provides:  “No person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage ․ shall be civilly liable to any injured person ․ for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage.”All further statutory references are to the Business and Professions Code unless otherwise indicated.

4.   Pursuant to this subdivision, “the consumption of alcoholic beverages rather than the serving of alcoholic beverages [is] the proximate cause of injuries inflicted upon another by an intoxicated person.”Similar language is codified in Civil Code section 1714, subdivision (b).

5.   Akers alleged the alcoholic beverages were served to him in violation of section 25658 which provides:  “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverages to any person under the age of 21 years is guilty of a misdemeanor.”  (§ 25658, subd. (a).)

6.   In Andre, the appellant sought to impose liability on her boyfriend's mother for allowing her boyfriend to drive a vehicle while intoxicated.   The appellant, who had herself furnished the alcohol, claimed “the ‘special relationship’ of host-guest between respondent and appellant imposed a legal duty on respondent to control the conduct of her adult son for the protection of appellant.”  (Andre v. Ingram, supra, 164 Cal.App.3d at p. 210, 210 Cal.Rptr. 150.)The court concluded the plaintiff's position was untenable, stating:  “The effect of the statute cannot be avoided by alleging the wrong, not as furnishing the alcohol, but as failing to warn the passenger or stop the driver.”  (Id., at p. 208, 210 Cal.Rptr. 150.)  “The Legislature has established that consumption, not furnishing, alcoholic beverages is the proximate cause of resulting injuries.   It would be unreasonable to conclude that a person, who did not prevent another person from driving while intoxicated, would not be liable if he furnished the alcohol which caused the intoxication, but would be liable if he did not furnish it.”   (Id., at p. 211, 210 Cal.Rptr. 150.)

7.   It is of no moment the alleged conduct may be more akin to wanton or wilful misconduct, or even intentional misconduct.  (See American Employer's Ins. Co. v. Smith (1980) 105 Cal.App.3d 94, 100, 163 Cal.Rptr. 649.)  “[T]he rules which determine the actor's liability to another for reckless disregard of the other's safety are the same as those which determine his liability for negligent misconduct․”  (Rest.2d Torts, § 501.)

WALLIN, Associate Justice.

SONENSHINE, J., concurs.