Vasilenko v. Grace Family Church ( 2017 )

Filed 11/13/17
IN THE SUPREME COURT OF CALIFORNIA
ALEKSANDR VASILENKO et al., )
)
Plaintiffs and Appellants, ) S235412
)
v. ) Ct.App. 3 C074801
)
GRACE FAMILY CHURCH, ) Sacramento County
) Super. Ct. No. 34-2011-00097580
Defendant and Respondent. )
____________________________________)
Plaintiff Aleksandr Vasilenko was struck by a car as he crossed a public
street between the main premises of defendant Grace Family Church (the Church)
and the Church’s overflow parking area. Vasilenko contends that the Church
owed him a duty of care to assist him in safely crossing the public street and that
the Church was negligent in failing to do so. The Church argues that it had no
control over the public street and therefore did not owe Vasilenko a duty to
prevent his injury under the principle that landowners have no duty to protect
others from dangers on abutting streets unless the landowner created the dangers.
(See Sexton v. Brooks (1952) 39 Cal.2d 153, 157–158 (Sexton).)
The parties do not dispute that the Church did not control the public street
and did not create the dangers on the street. But the Church, by locating its
parking lot on the other side of the street and directing Vasilenko to park there,
foreseeably increased the likelihood that Vasilenko would cross the street at that
1
location and thereby encounter harm. Thus the circumstances here are different
from when a landowner merely owns property abutting a public street.
We conclude, however, that a landowner does not have a duty to assist
invitees in crossing a public street when the landowner does no more than site and
maintain a parking lot that requires invitees to cross the street to access the
landowner’s premises, so long as the street’s dangers are not obscured or
magnified by some condition of the landowner’s premises or by some action taken
by the landowner. Because Vasilenko does not allege that the Church did
anything other than maintain a parking lot on the other side of that street, we find
that the Church did not owe him a duty to prevent his injury.
I.
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 sought to attend a seminar at the Church on a rainy evening in
November 2010. When he arrived, a church member volunteering as a parking
attendant informed him that the main lot was full and told him to park at the swim
school lot across the street. The attendant did not tell him where to cross Marconi
Avenue to reach the Church and did not tell him that the Church had posted
crossing volunteers at the intersection of Marconi and Root Avenues. Vasilenko,
along with two others, attempted to cross in the middle of the block directly
opposite the Church. Midway across, he was hit and injured by an oncoming car.
2
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. The trial court granted
the Church summary judgment; a divided panel of the Court of Appeal reversed.
We granted review.
II.
A plaintiff in a negligence suit must demonstrate “ ‘a legal duty to use due
care, a breach of such legal duty, and the breach as the proximate or legal cause of
the resulting injury.’ ” (Beacon Residential Community Assn. v. Skidmore,
Owings & Merrill LLP (2014) 59 Cal.4th 568, 573 (Beacon).) In this case, we
decide only whether the Church had a legal duty to prevent the injuries Vasilenko
alleges. The existence of a duty is a question of law, which we review de novo.
(Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770 (Cabral).)
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.) “ ‘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 (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.’ ”
3
(Cabral, supra, 51 Cal.4th at p. 771, quoting Rowland v. Christian (1968) 69
Cal.2d 108, 112 (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.) 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; 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.) 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
4
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; 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
[“A defendant cannot be held liable for the defective or dangerous condition of
property which it did not own, possess, or control.”].)
Consistent with this rule, the Court of Appeal in Owens v. Kings
Supermarket (1988) 198 Cal.App.3d 379 (Owens) held that the defendant
supermarket did not owe a duty to a plaintiff who had been struck by a car on the
street outside the supermarket. (Id. at pp. 385–388.) The Court of Appeal in
Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481 (Seaber) similarly held
that the defendant hotel did not owe any duty to a patron who was struck and
killed in a marked crosswalk outside the hotel’s entrance. (Id. at pp. 492–493; see
also Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1589 [store owed
no duty to pedestrian who slipped on another’s detritus on the sidewalk outside the
store]; Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal.App.3d
1142, 1147 [business group hosting mixer owed no duty to guest who was stabbed
5
returning to vehicle parked in an off-premise lot the host did not control]; Nevarez
v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799, 805–806 (Nevarez) [supermarket
owed no duty to customer who was hit by a car in an adjacent public street while
crossing the street to get to the store’s grand opening].)
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.
III.
“The Rowland factors fall into two categories. Three factors—
foreseeability, certainty, and the connection between the plaintiff and the
defendant—address the foreseeability of the relevan[t] injury, while the other
four—moral blame, preventing future harm, burden, and availability of
insurance—take into account public policy concerns that might support excluding
certain kinds of plaintiffs or injuries from relief.” (Kesner v. Superior Court
(2016) 1 Cal.5th 1132, 1145 (Kesner).)
6
A.
We start with the first group of Rowland factors, which assess the
foreseeability of the harm to the invitees. It is foreseeable that an invitee directed
to park in an overflow lot on the other side of a public street might be struck by
oncoming traffic while crossing the street to or from the parking lot, and the
Church does not contest that the general type of injury Vasilenko suffered was
foreseeable. It is similarly certain that Vasilenko was injured when he was struck
by a car and that his injury is compensable at law; this is not a case where the
“only claimed injury is an intangible harm.” (Bily, supra, 3 Cal.4th at p. 421.)
The first two Rowland factors therefore support finding a 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), is
“strongly related to the question of foreseeability itself” (Cabral, supra, 51 Cal.4th
at p. 779), but it also accounts for third-party or other intervening conduct. (See
Kesner, supra, 1 Cal.5th at p. 1148.) 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 and
citing Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58 (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.)
Here, by contrast, the occurrence of injury results from the confluence of an
invitee choosing to cross the street at a certain time and place and in a certain
manner, and a driver approaching at that moment and failing to avoid a collision.
7
(The parties dispute whether Vasilenko was jaywalking in violation of Sacramento
County Code section 10.20.040, but the analysis here does not depend on a
determination of that issue.) There is a foreseeable risk of collision whether or not
the invitee or the driver is negligent. But unless the landowner impaired the
driver’s ability to see and react to crossing pedestrians, the driver’s conduct is
independent of the landowner’s. Similarly, unless the landowner impaired the
invitee’s ability to see and react to passing motorists, the invitee’s decision as to
when, where, and how to cross is also independent of the landowner’s. Because
the landowner’s conduct bears only an attenuated relationship to the invitee’s
injury, we conclude that the closeness factor tips against finding a duty.
B.
“[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.) 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.) “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.) We
first address prevention of future harm, burden, and moral blame, and then discuss
the availability of insurance.
8
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.) “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.)
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; 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
9
roadway, crosswalk or parking lot; the plant itself was brightly lit, but the
testimony shows this most likely distracted drivers.”].)
Vasilenko contends that landowners could assist invitees in crossing the
street. But crossing volunteers are not authorized traffic officers and generally
have no authority to direct traffic or otherwise control public streets. (See Sac.
County Code, ch. 10.12, § 10.12.020 [“No persons other than traffic officers or
persons authorized by law, shall direct traffic by voice, hand/or other
signal . . . .”]; Veh. Code, § 21100, subd. (e) [permitting local authorities to
appoint traffic officers to regulate traffic].) Further, crossing volunteers may
inadvertently convey to invitees that they do possess authority to direct traffic and
thereby cause invitees to rely on such assistance to their detriment.
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.)
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
10
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 [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
11
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
12
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
13
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 [“[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.) 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”
precautions. In particular, he says landowners could inform invitees of a safer
alternative or warn invitees not to cross midblock or not use a dangerous lot. But,
as explained above, these proposed precautions are unlikely to be as
straightforward or beneficial as Vasilenko makes them out to be. We conclude
that the burden factor also weighs against imposing a duty.
As to moral blame, we have noted that this factor “can be difficult to assess
in the absence of a factual record.” (Kesner, supra, 1 Cal.5th at p. 1151.) As this
case comes to us from a grant of summary judgment, the record is not complete.
But the record before us does not show the Church’s conduct to be particularly
14
blameworthy. We have said that if there were reasonable ameliorative steps the
defendant could have taken, there can be moral blame “attached to the defendants’
failure to take steps to avert the foreseeable harm.” (Peterson v. San Francisco
Community College Dist. (1984) 36 Cal.3d 799, 814.) As discussed, it is unclear
what effective and affordable ameliorative steps a landowner in the Church’s
position could have taken. We have also said we may assign moral blame “in
instances where the plaintiffs are particularly powerless or unsophisticated
compared to the defendants or where the defendants exercised greater control over
the risks at issue.” (Kesner, supra, 1 Cal.5th at p. 1151.) Here, the danger of
crossing public streets is one that almost all adults encounter every day, and
landowners have limited ability to reduce the danger and generally exercise no
greater control over the danger than the invitees who cross. On the whole, the
moral blame factor does not point toward imposition of a duty.
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
15
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.
We are not confronted here with an allegation that some condition of the
premises obscured or magnified the risk of harm posed by the street, or that the
landowner knows or should have known that its invitees include persons who may
not appreciate the danger of the public street, such as unaccompanied children.
We express no view on the existence of a duty in such scenarios.
C.
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 (1997) 71 Cal.App.4th 1473 (Barnes) and
Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32 (Annocki), as
well as our decision in Bonanno v. Central Contra Costa Transit Authority (2003)
30 Cal.4th 139 (Bonanno), which involved the placement of a public bus stop.
Vasilenko also cites Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 23216
(Schwartz), involving the placement of a street vendor’s bakery truck; Bigbee,
supra, 34 Cal.3d 49, involving the placement of a phone booth; and Johnston v.
De La Guerra Properties (1946) 28 Cal.2d 394 (Johnston), involving a dangerous
means of ingress to a landowner’s premises.
But Barnes, Annocki, and Johnston all involved dangerous conditions on
the defendant landowners’ premises that the landowners controlled. In Barnes, the
dangerous condition was a steep driveway in the defendant landlord’s apartment
complex that let out onto a public street. (Barnes, supra, 71 Cal.App.4th at
p. 1476.) The plaintiffs’ child was riding his tricycle on the sidewalk when he lost
control and veered into the driveway; the driveway then “ejected” the child and
the tricycle into the street, and the child was struck by a car and killed. (Id. at
pp. 1476, 1479.) In Annocki, the dangerous condition was the design and
configuration of the defendant restaurant’s parking lot, which obscured the fact
that exiting drivers could only turn right onto the abutting street. (Annocki, supra,
232 Cal.App.4th at pp. 34–35.) An exiting patron attempted to turn left and, in
doing so, collided with the plaintiffs’ son, who died. (Id. at p. 34.) And in
Johnston, the dangerous condition was a walkway the defendant landlord
encouraged invitees to use as a means of ingress and egress onto the property from
an adjoining parking lot. (Johnston, supra, 28 Cal.3d at p. 397.) The walkway
abutted a low wall on the adjoining lot; the vertical distance between the walkway
and the top of the wall varied from six inches to over two feet. (Ibid.) The
plaintiff parked in the adjoining lot one night and in the dark misjudged the
distance between the wall and the walkway, fell, and suffered injury. (Id. at
p. 398.)
The defendants in Barnes, Annocki, and Johnston were liable because of
some defect on the premises they controlled; they violated their duty to keep
premises they possessed or controlled in a reasonably safe condition. (See Alvarez
17
v. Vece (1997) 14 Cal.4th 1149, 1156.) It was immaterial that the collisions in
Barnes and Annocki occurred in a public street; the landowner’s duty in Barnes
would have been no different if the complex’s driveway, instead of leading to a
street, ended in a brick wall within the property line. None of the three cases
involved merely the siting of a landowner’s premises in relation to a public street.
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.) Although we
looked to Seaber, supra, 1 Cal. App.4th 481, and Schwartz, supra, 67 Cal.2d 232,
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.) 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.)
Even if Bonanno can inform the duty question here, our discussion of
Seaber and Schwartz in that case makes clear that the key consideration in
Bonanno — the mobile nature of the bus stop — is not present in this case. We
explained that the bus stop in Bonanno easily could have been moved to a less
dangerous location, an option not available to the hotel in Seaber. (Bonanno,
supra, 30 Cal.4th at p. 152.) We found that the bus stop was more like the bakery
truck belonging to the defendant street vendor in Schwartz, who owed a duty to a
child patron injured while crossing the street to reach the truck. Because the
vendor could choose where it did business, we reasoned, it could choose the
18
avenues of approach to the truck. (See Schwartz, supra, 67 Cal.2d at pp. 242–243
& fn. 10.) In this regard, the bus stop in Bonanno was also like the phone booth at
issue in Bigbee, where we said in dicta that a telephone company likely owed a
duty to patrons to exercise reasonable care in deciding where to place its phone
booths on a public street. (Bigbee, supra, 34 Cal.3d at p. 55, fn. 8.) But we did
not examine the point in any depth; the primary question in Bigbee was whether
the plaintiff’s injuries in that case were unforeseeable as a matter of law. (Id. at
p. 56.)
Vasilenko argues that Bonanno, Schwartz, and Bigbee are applicable
because the Church could effectively “move” the swim school lot by directing
invitees to the business plaza lot. But that is not how we understood the mobility
of the bus stop in Bonanno, the bakery truck in Schwartz, or the phone booth in
Bigbee. The bus stop, bakery truck, and phone booth could have been relocated to
any number of unequivocally safer locations with little burden on the defendant.
(See Bonanno, supra, 30 Cal.4th at p. 152 [moving the bus stop one block to a
location next to a controlled crosswalk “imposed no undue burden” on the public
agency]; Schwartz, supra, 67 Cal.2d at p. 243 [the bakery truck could have legally
parked on the other side of the street, where the plaintiff came from]; Noon v.
Knavel (Pa.Super.Ct. 1975) 339 A.2d 545, 550–551 [phone booths can be moved
to other, safer locations], cited in Bigbee, supra, 34 Cal.3d at p. 59.) Because the
defendants could readily control which parts of the public streets were adjacent to
their premises, we found they had a duty to exercise reasonable care in exercising
that control. (See Seaber, supra, 1 Cal.App.4th at pp. 489–490 [discussing the
“elastic concept of business premises” of mobile street vendors].) Parking lots, by
contrast, cannot be moved so easily, and the burden of identifying alternatives and
assessing the multitude of variables affecting their relative safety is not
insubstantial. Bonanno, Schwartz, and Bigbee are thus distinguishable from cases
19
involving premises with fixed locations and landowners with no control over the
relevant part of the public street.
D.
The parties have cited cases from other jurisdictions that have considered
the issue before us, and we find that our holding is consistent with the weight of
those authorities. In Davis v. Westwood Group (Mass. 1995) 652 N.E.2d 567(Davis), for instance, the Supreme Judicial Court of Massachusetts held that the
defendant racetrack had no duty to protect invitees crossing a public street
between its parking lot and the racetrack. (Id. at p. 570.) The court reasoned that
imposing a duty would “significantly expand the scope of a landowner or
possessor’s duties with respect to adjacent public roads, and would make the line
which cuts off landowner liability ‘nearly impossible to draw.’ [Citation.]” (Id. at
p. 570.) Courts in Illinois, North Carolina, and New York have similarly declined
to impose a duty on landowners to protect or warn invitees when the configuration
of the landowner’s premises requires invitees to cross a public street. (See Swett v.
Village of Algonquin (Ill.App.3d 1988) 523 N.E.2d 594, 600–602; Laufenberg v.
Golab (Ill.App.3d 1982) 438 N.E.2d 1238, 1240–1241; Laumann v. Plakakis
(N.C.App. 1987) 351 S.E.2d 765, 766–767; Obiechina v. Colleges of the Seneca
(N.Y.Sup.Ct 1996) 171 Misc.2d 56, 60–62.)
Vasilenko observes that some courts in other states have found a duty in
somewhat similar circumstances, but we find many of the cases he cites
distinguishable. In Lutheran Hosp. of Indiana v. Blaser (Ind.Ct.App. 1994) 634
N.E.2d 864, for instance, the defendant hospital was aware of the dangerous
condition — the configuration of the hospital’s parking lot made it appear as
though the lot’s driveway was the entrance when in fact it was the exit — and
exercised control over the driveway, where the plaintiff’s injuries occurred. (Id. at
pp. 869–870.) Stephens v. Bashas’ Inc. (Ariz.Ct.App. 1996) 924 P.2d 117, for its
20
part, involved a configuration of the defendant’s premises that required drivers to
stop in the middle of the street, walk around their trucks, open their doors, walk
back around to the cab, then drive across the street in reverse to back into the
premises. (Id. at p. 119.) These circumstances differ from the situation here,
which only involves crossing a public street.
Vasilenko also cites Donavan, supra, 658 So.2d 755, in which a Louisiana
appellate court found that the landowner owed a duty to a construction worker
who was struck by a truck while crossing a five-lane highway separating the
landowner’s construction site from its parking lot in the early morning. (Id. at
pp. 759–760, 766.) Although at the landowner’s request the state had installed a
crosswalk, reaching the crosswalk in the dark required “walking over [an]
unfamiliar and hazardous . . . unlit, pothole-filled parking lot” and then doubling
back once across to reach the construction site entrance. (Id. at p. 767.) To the
extent that Donavan found a duty because the lighting conditions of the parking
lot obscured the existence of the crosswalk and where the dangerous condition of
the parking lot made it unattractive for invitees to reach the crosswalk, its holding
is not inconsistent with the rule proposed here. But we are not persuaded by
Donavan’s broader conclusion that the defendant owed the plaintiff a duty to
provide “reasonably safe access” to the premises (id. at p. 766), although the fact
that the defendant in Donavan was the plaintiff’s employer may entail
considerations not present here.
Finally, Vasilenko cites Warrington v. Bird (N.J.Super.Ct.App.Div. 1985)
499 A.2d 1026 (Warrington), but that case relies on law inconsistent with
California’s. Warrington found that the defendant restaurant “had the obligation
to exercise reasonable care for the safety of its patrons in passing over the County
highway from and to its parking lot,” reasoning that “[c]ommercial entrepreneurs
know in providing the parking facility that their customers will travel a definite
21
route to reach their premises. The benefiting proprietor should not be permitted to
cause or ignore an unsafe condition in that route which it might reasonably
remedy, whether the path leads along a sidewalk or across a roadway.” (Id. at
pp. 1029–1030.) The court noted that “[t]estimony . . . that lighting placed upon
the premises of the restaurant or parking lot might reasonably have illuminated the
area and have made motorists more aware of pedestrians crossing the roadway to
and from the restaurant and its parking lot. In addition, if the dangers reasonably
required, a sign or flashing signal might have been erected on defendant’s
premises to alert both motorists and patrons of the dangers.” (Id. at p. 1030.)
In California, landowners may not place signs that seek to direct the flow of
traffic on a public highway, even on their own property, nor may they install lights
that distract passing motorists. (Veh. Code, §§ 21465, 21466.5.) Warrington’s
reference to dangers “along a sidewalk” also suggests that in New Jersey
landowners are liable for dangers on public streets abutting their premises
generally. (Warrington, supra, 499 A.2d at p. 1030.) Indeed, the court in
Mulraney v. Auletto’s Catering (N.J. Super.Ct.App.Div. 1996) 680 A.2d 793(Mulraney) relied on Warrington to hold that the defendant landowner had a duty
to protect patrons crossing the street from a parking lot the landowner did not
control. (Mulraney, at p. 796.) This result is directly at odds with the holding in
Seaber, supra, 1 Cal.App.4th 481, which found no duty in analogous
circumstances, and it is inconsistent with our general rule that “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.)
IV.
We now apply our holding to the circumstances here. The available
evidence indicates that the section of Marconi Avenue at issue was a regular
22
public street in a metropolitan area. Indeed, after conducting a traffic study, the
county declined to install a crosswalk across Marconi Avenue near the Church.
California Walks, supporting Vasilenko, observes that within unincorporated
Sacramento County, Marconi Avenue had a relatively high number of pedestrian-
vehicle collisions per mile between 1996 and 2001. But the data amici cite do not
indicate that Marconi Avenue was particularly dangerous even by the standards of
Sacramento County. Nor did the county identify the intersection of Marconi
Avenue and Root Avenue as one with a high number of collisions during that time
period.
Vasilenko also does not contend there were any dangerous conditions
within the parking lot that magnified or obscured the danger posed by Marconi
Avenue. He does not allege, for instance, that the swim school lot or the main
Church premises were inadequately lit. Unlike in Barnes, there was nothing that
caused Vasilenko to be “ejected” uncontrollably into the middle of Marconi
Avenue. (Barnes, supra, 71 Cal.App.4th at p. 1479.) Nor does Vasilenko allege
that the Church or its parking attendants represented to him that Marconi Avenue
was safer than it actually was or safer than crossing at the intersection with Root
Avenue. The record indicates that the street was lit only at the intersection, which
was at most 100 feet away. Although Vasilenko claims he “required assistance
and instruction” from the Church’s parking attendants, he does not explain how
such assistance or instruction would have served any purpose beyond warning him
of the obvious danger of crossing Marconi Avenue midblock. Finally, Vasilenko
does not allege that the Church’s invitees routinely include unaccompanied
persons who are incapable of appreciating the obvious danger of the public street;
Vasilenko certainly does not claim to be such a person.
In sum, Vasilenko does not allege that the Church has done anything more
than site and maintain a parking lot that requires its invitees to cross a public
23
street. We thus conclude that the Church owed Vasilenko no duty to protect him
from the obvious dangers of crossing Marconi Avenue.
V.
Vasilenko argues that the Court of Appeal’s decision should be affirmed on
the alternative ground that the Church voluntarily assumed a duty to assist him in
crossing Marconi Avenue. This argument was not presented to the trial court, and
although the parties briefed it before the Court of Appeal, that court found the
Church owed Vasilenko a duty under Civil Code section 1714 and did not reach
the alternative argument. We granted review only on the issue of a landowner’s
duty to its invitees when it directs those invitees to use its parking lot across the
street. We decline to address whether the Church, by its alleged actions,
voluntarily assumed a duty. The Court of Appeal on remand may consider this
argument if Vasilenko elects to pursue it.
24
CONCLUSION
We reverse the decision of the Court of Appeal and remand to that court for
further proceedings consistent with this opinion.
LIU, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
JONES, J.*
* Presiding Justice of the Court of Appeal, First Appellate District, Division
Five, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution
25
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Vasilenko v. Grace Family Church
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 248 Cal.App.4th 146Rehearing Granted
__________________________________________________________________________________
Opinion No. S235412
Date Filed: November 13, 2017
__________________________________________________________________________________
Court: Superior
County: Sacramento
Judge: David I. Brown
__________________________________________________________________________________
Counsel:
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.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Frank J. Torrano
Torrano Law
8801 Folsom Boulevard, Suite 230
Sacramento, CA 95826
(916) 801-5577
Paul A. de Lorimier
McKay, de Lorimier & Acain
3250 Wilshire Boulevard, Suite 603
Los Angeles, CA 90010-1578
(213) 386-8900
Eric S. Boorstin
Horvitz & Levy
3601 West Olive Avenue, 8th Floor
Burbank, CA 91505-4681
(818) 995-0800