Vasilenko v. Grace Family Church

Attorneys

• Torrano Law, Frank J. Torrano ; Jaramillo & Borcyckowski and Robert D. Borcyckowski for Plaintiffs and Appellants.
• C. Athena Roussos ; Law Office of Louinda V. Lacey and Louinda V. Lacey for California Walks as Amicus Curiae on behalf of Plaintiffs and Appellants.
• McKay, de Lorimier & Acain, Paul A. de Lorimier, Janet S. Yoon ; The Thomas Law Firm, Mason Thomas, Bradley S. Thomas and Kelly Thomas for Defendant and Respondent.
• Horvitz & Levy, Mitchell C. Tilner, Eric S. Boorstin, Lacey L. Estudillo ; Gorden & Rees and Don Willenburg for Association of Southern California Defense Counsel and Association of Defense Counsel of Northern California and Nevada as Amici Curiae on behalf of Defendant and Respondent.
• The Grace Family Church was located on Marconi Avenue across from the Debbie Meyer Swim School in an unincorporated area of Sacramento County. Marconi Avenue was five lanes wide, with two lanes in each direction separated by a universal left turn lane. The nearest intersection to the Church was at Root Avenue, about 50 to 100 feet east; there were no traffic signals or crosswalks at the intersection. The Church had an agreement to use the swim school lot for overflow parking when the Church's main lot was full.
• Vasilenko and his wife sued the Church for negligence and loss of consortium. He alleged that the Church created a foreseeable risk of harm by maintaining an overflow parking lot in a location that required invitees to cross Marconi Avenue, and that the Church was negligent in failing to protect against that risk. He also alleged that the Church was negligent in failing to adequately train or supervise its parking attendants. The Church moved for summary judgment on the ground that it did not have a duty to assist Vasilenko with crossing a public street it did not own, possess, or control.
• Civil Code section 1714, subdivision (a)"establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others." ( Cabral , supra , 51 Cal.4th at p. 768, 122 Cal.Rptr.3d 313, 248 P.3d 1170.) " 'Courts ... invoke[ ] the concept of duty to limit generally "the otherwise potentially infinite liability which would follow from every negligent act...." ' " ( Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397, 11 Cal.Rptr.2d 51, 834 P.2d 745 ( Bily ).) We have said that "in the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where 'clearly supported by public policy.' " ( Cabral , supra , 51 Cal.4th at p. 771, 122 Cal.Rptr.3d 313, 248 P.3d 1170, quoting Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561 ( Rowland ).)
• In determining whether policy considerations weigh in favor of such an exception, we have looked to "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." ( Rowland , supra , 69 Cal.2d at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561.) We do not ask whether these factors (the Rowland factors) "support an exception to the general duty of reasonable care on the facts of the particular case before us, but whether carving out an entire category of cases from that general duty rule is justified by clear considerations of policy." ( Cabral , supra , 51 Cal.4th at p. 772, 122 Cal.Rptr.3d 313, 248 P.3d 1170 ; see Rest.3d Torts, Liability for Physical and Emotional Harm, § 7, com. a, p. 78 ["No-duty rules are appropriate only when a court can promulgate relatively clear, categorical, bright-line rules of law applicable to a general class of cases."].) In this respect, duty differs from the other elements of a tort. Breach, injury, and causation must be demonstrated on the basis of facts adduced at trial, and a jury's determination of each must take into account the particular context in which any act or injury occurred. Analysis of duty occurs at a higher level of generality. (See Cabral , supra , 51 Cal.4th at p. 774, 122 Cal.Rptr.3d 313, 248 P.3d 1170.) Here, because "the general duty to take ordinary care in the conduct of one's activities" applies to choosing the location of a parking lot for one's invitees and to training one's employees, "the issue is ... properly stated as whether a categorical exception to that general rule should be made" exempting those who own, possess, or control premises abutting a public street from liability to invitees for placing a parking lot in a location that requires invitees to cross the public street. ( Ibid. ) For conciseness, we refer to those who "own, possess, or control" such premises as "landowners," regardless of their legal title over the property.
• This question is related to, but not squarely governed by, the rule that "in the absence of a statute a landowner is under no duty to maintain in a safe condition a public street abutting upon" the landowner's property unless the landowner created the danger. ( Sexton , supra , 39 Cal.2d at p. 157, 245 P.2d 496 ; see Rest.3d Torts, Liability for Physical and Emotional Harm, § 54, com. d, p. 354 ["[N]o one would think that a land possessor [had] a duty of care to others for conditions not caused by the possessor on public highways and streets adjacent to the possessor's land."].) The reason for this rule is that a landowner generally has no right to control another's property, including streets owned and maintained by the government. ( Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653 ["A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control."].)
• The Church and its amici argue that under this line of authorities, the Church did not owe Vasilenko a duty here, as Vasilenko does not allege that the Church controlled the portion of Marconi Avenue where he was injured. But this case differs from Owens and Seaber . It is one thing for the owner of an establishment open to the public to have an entrance on a public street. All pedestrians on a public street face some risk of injury, which the landowner has done nothing to increase. It is another matter when the landowner sites and maintains a parking lot on the other side of a public street, so that the landowner's invitees must cross the street in order to reach its premises. In such cases, while the public street itself is no more dangerous, the landowner has increased its invitees' exposure to the specific dangers of that particular street crossing and has thereby increased the likelihood that the invitee will encounter harm at that crossing. The question is whether subjecting an invitee to this exposure should be exempt from the general duty.
• The third factor, "the closeness of the connection between the defendant's conduct and the injury suffered" ( Rowland , supra , 69 Cal.2d at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561 ), is "strongly related to the question of foreseeability itself" ( Cabral , supra , 51 Cal.4th at p. 779, 122 Cal.Rptr.3d 313, 248 P.3d 1170 ), but it also accounts for third-party or other intervening conduct. (See Kesner , supra , 1 Cal.5th at p. 1148, 210 Cal.Rptr.3d 283, 384 P.3d 283.) Where the third party's intervening conduct is foreseeable or derivative of the defendant's, then that conduct does not " 'diminish the closeness of the connection between defendant's conduct and plaintiff's injury....' " ( Ibid. , quoting Beacon , supra , 59 Cal.4th at p. 583, 173 Cal.Rptr.3d 752, 327 P.3d 850 and citing Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58, 192 Cal.Rptr. 857, 665 P.2d 947 ( Bigbee ).) In Kesner , we found that the defendant's conduct was closely tied to the injuries alleged despite the intervening conduct of the defendant's employees, since the employees' conduct-taking home asbestos fibers in their clothing-was both foreseeable and derivative of the defendant's alleged negligence in failing to control or limit asbestos fibers in the workplace. ( Kesner , at p. 1148, 210 Cal.Rptr.3d 283, 384 P.3d 283.)
• "[F]oreseeability alone is not sufficient to create an independent tort duty. ' "... [The] existence [of a duty] depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability." ' " ( Erlich v. Menezes (1999) 21 Cal.4th 543, 552, 87 Cal.Rptr.2d 886, 981 P.2d 978.) These policy considerations include " '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' [citation]." ( Cabral , supra , 51 Cal.4th at p. 781, 122 Cal.Rptr.3d 313, 248 P.3d 1170.) "A duty of care will not be held to exist even as to foreseeable injuries ... where the social utility of the activity concerned is so great, and avoidance of the injuries so burdensome to society, as to outweigh the compensatory and cost-internalization values of negligence liability." ( Merrill v. Navegar, Inc . (2001) 26 Cal.4th 465, 502, 110 Cal.Rptr.2d 370, 28 P.3d 116.) We first address prevention of future harm, burden, and moral blame, and then discuss the availability of insurance.
• The policy of preventing future harm is ordinarily served by allocating costs to those responsible for the injury and thus best suited to prevent it. (See Cabral , supra , 51 Cal.4th at p. 781, 122 Cal.Rptr.3d 313, 248 P.3d 1170.) "In general, internalizing the cost of injuries caused by a particular behavior will induce changes in that behavior to make it safer. That consideration may be 'outweighed, for a category of negligent conduct, by laws or mores indicating approval of the conduct or by the undesirable consequences of allowing potential liability.' [Citation.]" ( Kesner , supra , 1 Cal.5th at p. 1150, 210 Cal.Rptr.3d 283, 384 P.3d 283.)
• The ability of landowners to reduce the risk of injury from crossing a public street is limited. "The power to control public streets and regulate traffic lies with the state which may delegate local authority to municipalities...." ( Nevarez , supra , 7 Cal.App.3d at p. 805, 87 Cal.Rptr. 50 ; see Veh. Code, §§ 21100, 21102.) Only state or local authorities may install traffic control devices on public streets, such as signs, pedestrian crosswalks, or traffic signals. (See Veh. Code, § 21350 et seq. ) A landowner can petition the relevant authority to install a traffic control device-indeed, the Church did so here-but the ultimate decision is up to that authority. Nor can a landowner erect signs on its property "which attempt[ ] to direct the movement of traffic." ( Veh. Code, § 21465.) A landowner can place lights on its own premises to improve visibility for pedestrians and drivers. But assuming such lighting is not unlawful (see Veh. Code, § 21466 [prohibiting lighting in view of a public highway that prevents drivers from recognizing official traffic control devices]; id . § 21466.5 [prohibiting lighting in view of a public highway that impairs drivers' vision] ), it is debatable whether illuminating a landowner's premises would serve to distract drivers more than it would alert them to crossing pedestrians. (See Donavan v. Jones (La.Ct.App. 1995) 658 So.2d 755, 759 ( Donavan ) ["The evidence is undisputed that there was no lighting on the roadway, crosswalk or parking lot; the plant itself was brightly lit, but the testimony shows this most likely distracted drivers."].)
• Vasilenko also contends that landowners can warn of the danger of crossing the street, perhaps by posting a sign. But the danger posed by crossing a public street midblock is obvious, and there is ordinarily no duty to warn of obvious dangers. (See Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 119, 273 Cal.Rptr. 457.) Although some fraction of people may fail to appreciate an obvious danger, "to require warnings for the sake of such persons would produce such a profusion of warnings as to devalue those warnings serving a more important function." (Rest.3d Torts, Liability for Physical and Emotional Harm, § 18, com. f, p. 208.)
• It is possible that a landowner can reduce the risk of harm by maintaining a parking lot in a location that does not require invitees to cross a public street. We note that landowners already have incentives to provide parking that is safe and convenient for their invitees. Doing so increases the likelihood that invitees will visit the landowners' premises and can help create a positive experience for invitees, increasing the likelihood of repeat visits. Conversely, a landowner's reputation will be damaged if parking is unsafe or inconvenient. But there may be instances where another parking option that did not require crossing a public street was available and would not have been cost prohibitive. Finding a duty here may encourage landowners to choose safer parking options. This approach would be socially desirable if it reduces collisions on the public street, and it is fair to place the costs on landowners to the extent they seek to attract invitees.
• But it is likely difficult in many cases to reliably assess which of several parking options was the safest at the time the invitee was directed where to park. The relevant considerations are multitudinous and vary by the hour, day of the week, and month, and many will be hard to establish with accuracy. These considerations include the volume and speed of traffic along the streets in the area, the volume of traffic to and from the landowners' premises and neighboring properties, crime rates and perceptions of safety on the sidewalks, and the location of crosswalks and traffic control devices. The inquiry is further complicated by the natural tendency to think that a lot was unsafe after a collision has occurred. (See Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 987, 104 Cal.Rptr.3d 710, 224 P.3d 41 [defining hindsight bias as the "recognized tendency for individuals to overestimate or exaggerate the predictability of events after they have occurred"].) Although the relative safety of one lot compared to others may sometimes be obvious, it is more typical that a landowner must choose among options with competing advantages and disadvantages, not all of which may be known to the landowner when deciding. In this case, for example, Vasilenko notes that the Church sometimes directed visitors to park at a business plaza further east along Marconi Avenue on the same side of the street as the Church building. That lot, he says, would have been safer than the swim school lot. But the business plaza lot, though located on the same side of Marconi Avenue as the Church, was on the other side of Root Avenue across which there was no crosswalk or other marked crossing. Even if it could be established that crossing Root Avenue was safer than crossing Marconi Avenue, the business plaza lot was farther away from the Church than the swim school lot. Directing invitees to the business plaza lot may have increased invitees' exposure to other dangers of the public street as well as the November rain. If, for example, an invitee had been mugged between the business plaza lot and the Church, or had slipped on a puddle on the sidewalk, that invitee might reasonably argue that the swim school lot would have been safer. Yet another consideration is that cars parked at a business plaza at night, away from the Church, may have been more at risk of break-ins or carjackings.
• In addition to the difficulties in determining the relative safety of alternative parking lots, it is not obvious how to determine whether a safer lot was available. In this case, Vasilenko contends that the business plaza lot had ample parking the night he was injured. But unlike with the swim school lot, the Church did not have an agreement for use of the business plaza lot. Directing invitees to park at a private lot in violation of the lot's restrictions may put them at risk of having their cars towed (see Veh. Code, § 22953 ) and may even amount to encouraging them to commit trespass (see Pen. Code, § 602, subd. (n) ). Further, if the business plaza lot was not available in this sense, should the Church have tried to obtain a formal agreement with the business plaza? More generally, what is the relevant marketplace for parking lots that the landowner must assess? And what is the proper timeframe for assessing that marketplace? If a purportedly safer lot becomes available after a landowner has entered into an agreement to use another, does the landowner have a duty to cancel the agreement and move to the new lot? Further, if a safer lot is more expensive, what level of cost is it reasonable to expect the landowner to incur?
• We do not mean to suggest that the business plaza lot was actually not available as an alternative or was actually less safe than the swim school lot. Those questions are not before us. We discuss the relevant considerations only to illustrate the likely difficulties involved in determining whether a safer alternative was available. In many cases, these complexities will make it difficult for a landowner to reliably predict which parking lot might be considered a safer available alternative.
• We must also account for the possibility that finding a duty in this case will cause some or perhaps many landowners to stop providing parking. Indeed, Vasilenko argues that the Church should not have used the swim school for evening events when it was raining. It is not clear that this would result in a net benefit to invitees or to the public at large. Although landowners are not required to provide parking for their invitees, it is often socially desirable for landowners to do so. Providing parking reduces traffic and its associated dangers. Drivers looking for parking may pay less attention to other hazards than they otherwise would. They may also disrupt the flow of traffic by driving more slowly than other drivers, by stopping periodically to wait for parking spaces to free up, or by speeding up suddenly to capture an available space. By providing parking, a landowner may decrease its invitees' risk of injury from other dangers of the road as compared to invitees finding their own parking on the streets.
• In contrast to landowners, who generally have limited ability to reduce the risk of injury to invitees crossing a public street, other entities such as the government, drivers, and invitees themselves have much greater and more direct ability to reduce that risk. The public entity that maintains the street can take a wide array of measures to prevent future harm. For instance, it can install crosswalks, traffic lights, street lights, warning signs, traffic circles, or stop signs. It can also provide temporary crossing guards authorized to control the flow of traffic. Drivers and invitees, for their part, are the ones most directly involved in any given collision; they can also take significant steps to reduce the risk of injury. Drivers can reduce their speed and improve their alertness, and invitees can exercise more care in choosing the precise location and moment they cross. In view of these considerations, we conclude that the policy of preventing future harm weighs against imposing a duty on landowners here. (See Kesner , supra , 1 Cal.5th at p. 1153, 210 Cal.Rptr.3d 283, 384 P.3d 283 ["[T]he tort system contemplates that the cost of an injury ... [is] allocat[ed] ... to ensure that those 'best situated' to prevent such injuries are incentivized to do so."].)
• We turn next to "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." ( Rowland , supra , 69 Cal.2d at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561.) The foregoing discussion on preventing future harms suggests that imposing a duty on landowners here could result in significant burdens. Landowners that wished to provide or continue providing parking would have to make difficult and complex determinations of availability and relative safety. They would have to continuously monitor the dangerousness of the abutting street and other streets in the area to determine which ones become more or less safe, and they may have to relocate their parking lots as conditions change. They may also need to hire employees to assist invitees with crossing the street.
• Recognizing these burdens, Vasilenko argues that he is advocating only for a duty that could be satisfied by "simple, inexpensive, and reasonable"
• The final Rowland factor is the availability and cost of insurance. Vasilenko contends that general commercial liability insurance is readily available to landowners such as the Church, and there is no reason to believe that imposing a duty here would lead to unmanageable increases in premiums. The Church challenges this premise, contending that it is unclear whether insurance would be available to landowners or whether such insurance would be reasonably affordable. Moreover, other forms of readily available insurance may already cover this type of injury; for example, all drivers in California are required to carry personal injury insurance. ( Veh. Code, § 16020 et seq. ; Ins. Code, § 11580.1, subd. (b).) Insurance is also available to cover injuries resulting from collisions with uninsured or underinsured drivers ( Ins. Code, § 11580.2 ), although these forms of insurance may not cover a pedestrian's injuries if the pedestrian was at fault. Neither party has provided sufficient information to settle the question of insurance one way or the other; we can conclude only that insurance could be available to the landlord, the invitee, and the driver. We find that the insurance factor weighs neither for nor against imposing a duty here.
• In sum, two of the Rowland factors-foreseeability and certainty-weigh in favor of finding a duty, while four-closeness, preventing future harm, burden, and moral blame-weigh against duty, with the insurance factor weighing in neither direction. In assessing duty, however, we do not merely count up the factors on either side. In this case, the policy of preventing future harm looms particularly large. In light of the limited steps the landowner can take to reduce the risk to its invitees, especially when compared to the ability of invitees and drivers to prevent injury, and in light of the possibility that imposing a duty will discourage the landowner from designating options for parking, we hold that a landowner who does no more than site and maintain a parking lot that requires invitees to cross a public street to reach the landowner's premises does not owe a duty to protect those invitees from the obvious dangers of the public street.
• Like the Court of Appeal, Vasilenko relies on two appellate decisions holding that a landowner can be liable for injury occurring off-premises on an abutting public street, Barnes v. Black (1999) 71 Cal.App.4th 1473, 84 Cal.Rptr.2d 634 ( Barnes ) and Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 180 Cal.Rptr.3d 474 ( Annocki ), as well as our decision in Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 132 Cal.Rptr.2d 341, 65 P.3d 807 ( Bonanno ), which involved the placement of a public bus stop. Vasilenko also cites Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 60 Cal.Rptr. 510, 430 P.2d 68 ( Schwartz ), involving the placement of a street vendor's bakery truck; Bigbee , supra , 34 Cal.3d 49, 192 Cal.Rptr. 857, 665 P.2d 947, involving the placement of a phone booth; and Johnston v. De La Guerra Properties (1946) 28 Cal.2d 394, 170 P.2d 5 ( Johnston ), involving a dangerous means of ingress to a landowner's premises.
• By contrast, Bonanno , Schwartz , and Bigbee did involve liability for the defendants' selection of the location of the relevant premises. Bonanno did not involve a question of duty under Civil Code section 1714, but rather whether a bus stop accessible only across a dangerous uncontrolled crosswalk constituted a " 'dangerous condition' " of public property within the meaning of Government Code sections 830 and 835. ( Bonanno , supra , 30 Cal.4th at p. 144, 132 Cal.Rptr.2d 341, 65 P.3d 807.) Although we looked to Seaber , supra , 1 Cal. App.4th 481, 2 Cal.Rptr.2d 405, and Schwartz , supra , 67 Cal.2d 232, 60 Cal.Rptr. 510, 430 P.2d 68, for guidance, those cases involved the duty of private parties, and we declined to hold that "public entity liability under [Government code] section 835 is coextensive with private liability for maintaining property in an unsafe condition." ( Bonanno , supra , 30 Cal.4th at p. 152, 132 Cal.Rptr.2d 341, 65 P.3d 807.) Rather, Bonanno only assessed public entity liability as "set by statute, not common law," and did not apply the Rowland factors in question here. ( Bonanno , at p. 156, 132 Cal.Rptr.2d 341, 65 P.3d 807.)