146
Chapter 7
Negligence and
Strict Liability
Case 7.1
159 Cal.App.4th 784, 71 Cal.Rptr.3d 885, 08 Cal. Daily Op. Serv. 1565, 2008 Daily Journal
D.A.R. 1753
Court of Appeal, Second District, Division 4, California.
Kelly McCLAIN, Plaintiff and Appellant,
v.
OCTAGONPLAZA, LLC, Defendant and Respondent.
No. B194037.
Jan. 31, 2008.
2.1 states: “… Unless otherwise provided herein, any statement of size set forth in this Lease, or that may have been used in
calculating Rent, is an approximation which the Parties agree is reasonable and any payments based thereon are not subject
to revision whether or not the actual size is more or less.” Paragraph 2.4 further provides: “Lessee acknowledges that: (a) it
has been advised by Lessor … to satisfy itself with respect to the condition of the Premises …, and their suitability for
Lessee’s intended use, [and] (b) Lessee had made such investigation as its deems necessary with reference to such matters
expenses, she must pay the balance owing no later than 10 days after receiving the statement; if McClain overpays her
share, she is to receive a credit against her share of the common expenses for the forthcoming year.
After a dispute arose concerning McClain’s share of the common expenses, she filed an action in small claims court, which
was eventually transferred to superior court. The action was resolved by a settlement in November 2004.
*791 On June 17, 2005, McClain initiated the underlying action against Octagon. After the trial court sustained a demurrer
Charanians had not violated the CCRAA in obtaining McClain’s credit report, and that McClain had no right to an
accounting under the lease. Judgment in Octagon’s favor was entered on August 15, 2006.
DISCUSSION
McClain contends that the trial court erred in sustaining the demurrer without leave to amend and in denying her
remaining claims after trial.
A. Demurrer
1. Standard of Review
“Because a demurrer both tests the legal sufficiency of the complaint and involves the trial court’s discretion, an appellate
court employs two separate standards of review on appeal. [Citation.] … Appellate courts first review the complaint de novo
to determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory,
[citation], or in other words, to determine whether or not the trial court erroneously sustained the demurrer as a matter of
2. Misrepresentation
[1][2][3] McClain contends that the FAC adequately alleges a claim for fraud in the inducement, that is, misrepresentation
involving a contract in which “the promisor knows what he or she is signing but consent**892 is induced by fraud.” (1
FN1. Under California law, a defrauded party to a contract may elect to rescind the contract and seek restitution, or
stand on the contract and recover damages arising from the fraud. (5 Witkin, Summary of Cal. Law (10th ed. 2005)
Torts, §§ 827–829, pp. 1200-1202.) Here, the FAC seeks damages rather than rescission of the lease.
[4][5] Regarding the fraud claim, the FAC alleges the following facts: In January 2003, when McClain investigated leasing
space in the shopping center, Octagon informed her that the unit in which she was interested comprised exactly 2,624 square
The Charanians knew, or had reason to know, that the representations were materially inaccurate. In early 2005, McClain
obtained a copy of Octagon’s application for earthquake insurance, which disclosed that the correct size of the shopping
center was 12,800 square feet, rather than the 11,835 square feet the Charanians had used in calculating McClain’s share of
the common expenses. Upon investigation, she also discovered that her unit occupied approximately 2,438 square feet,
rather than the 2,624 square feet represented. Had she known the correct sizes, she would not have agreed to the base rent
true facts and since [the landlord] had superior knowledge, the allegations, if proved, would support a finding of justifiable
reliance.” (Id. at p. 805, 142 Cal.Rptr. 487.) We reach the same conclusion here.
[6][7] The key issue, therefore, is whether the terms of the lease rendered McClain’s fraud claim untenable.FN2Section 1668
of the Civil Code provides that “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from
responsibility for his own fraud, … whether willful or negligent, are against the policy of the law.” This provision
FN2. Because the lease constitutes the “foundation” of the fraud claim and is incorporated into the FAC, the trial
court properly examined the lease in assessing whether the claim is legally tenable. (4 Witkin, Cal. Procedure (4th
ed. 1997) Pleading, §§ 390–391, pp. 487-488.)
Under these principles, California courts have concluded that a variety of contract terms neither bar fraud claims nor
establish as a matter of law that reliance upon the defendant’s misrepresentations was unjustifiable. (See Hinesley v.
(1970) 2 Cal.3d 1, 14, 84 Cal.Rptr. 173, 465 P.2d 61 [term in construction agreement requiring contractor to examine project
site does not preclude fraud claim or establish unjustified reliance]; Simmons v. Ratterree Land Co. (1932) 217 Cal. 201, 203-
204, 17 P.2d 727 [provision in real estate contract that buyer had investigated property and relied only on representations in
contract did not protect seller from liability for fraud]; Crawford v. Nastos (1960) 182 Cal.App.2d 659, 665-666, 6 Cal.Rptr.
425 [provision in real estate contract that buyer had inspected well and accepted it “ ‘as is’ ” did not insulate seller for
551.)
Here, the Charanians’ alleged pre-contractual figures for the unit’s size and McClain’s share of the common expenses–
respectively, 2,624 square feet and 23 percent-were repeated (with qualifying**895 language) in the lease. In view of the
similarity between the lease and the agreement in E.H. Morrill Co., we conclude that the terms of the lease-including the
exculpatory provisions in Paragraph 2.1-do not bar McClain from asserting her fraud claim or showing that the
rescission. (Id. at p. 1072, 76 Cal.Rptr.2d 911.) The trial court granted summary judgment in favor of the owner and his
brokers, reasoning, inter alia, that the owner could not establish reasonable reliance on the defendants’ representations.
(Ibid.)
On appeal, the owner and brokers did not assert that paragraph 18F operated as an exculpatory clause, but contended that
it established that the buyer’s reliance on the pre-sale representations of size was unreasonable because he was on notice
Here, McClain alleges that the Charanians exaggerated the size of her unit by 186 square feet, or 7.6 percent of its actual
size, and increased her share of the common expenses by 4 percent through a calculation that understated the size of the
shopping center by 965 square feet, or 8.1 percent of its actual size. Although these discrepancies are smaller than those at
issue in Furla, they cannot be regarded as de minimis or necessarily “near to” the actual sizes as a matter of law. As alleged
in the complaint, they operated to increase the rental payments incurred by McClain’s retail business by more than $90,000
over the term of the lease. In view of Furla, the fact that Paragraph 2.1 put McClain on notice that the Charanians’
representations of size were approximations does not preclude her from showing that they were, **896 in fact, materially
and unreasonably inaccurate.FN3
FN3. During oral argument, Octagon‘s counsel suggested that the term “approximation” in Paragraph 2.1 gave any
prospective lessee notice that no firm or actionable representations about size were made in the lease. However, the
question is not whether the term puts a prospective lessee on notice that the stated size may not be precisely
accurate. It does. The question is whether it necessarily renders any deviation from the stated size immaterial. It
does not. Where, as here, the deviations cannot be said to be immaterial as a matter of law, the use of the term
but states (1) that the parties agreed the approximations were “reasonable” and (2) that McClain’s rent was not subject to
revision regardless of the actual sizes. These clauses do not aid Octagon. As to element (1), a stipulation intended to bar a
party’s *798 fraud claims does not bind the party, and thus the insertion of language agreeing that a material
misrepresentation is reasonable is of no effect. (1 Witkin, Summary of Cal. Law, supra, Contracts, § 303, p. 330.) If, as
McClain asserts, the Charanians assured her that the square footage represented was accurate and dissuaded her from
3. Breach of the Implied Covenant of Good Faith and Fair Dealing
[9][10] We reach the contrary conclusion regarding McClain’s related claim for breach of the implied covenant. Generally,
every contract, including commercial leases, “ ‘ “imposes upon each party a duty of good faith and fair dealing in its
performance and its enforcement.” [Citation.]’ ”(Carma Developers (Cal.), Inc. v. Marathon Development California, Inc.
(1992) 2 Cal.4th 342, 371-372, 6 Cal.Rptr.2d 467, 826 P.2d 710, quoting Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654,
683-684, 254 Cal.Rptr. 211, 765 P.2d 373.)
Regarding this claim, the FAC alleges that Octagon breached the implied covenant**897 “by negotiating with McClain for
the rental of the Premises on a per-square foot basis and then intentionally, or negligently, overstating the true size of the
Premises. The net result of the foregoing was that Octagon pulled a ‘bait & switch’ on McClain in that Octagon negotiated a
per-square foot price for the Premises and then inserted only its fraudulently derived amount for the base rent as the
fail to state a claim. As the court explained in Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11
Cal.App.4th 1026, 1031-1035, 14 Cal.Rptr.2d 335, the implied covenant is a supplement to an existing contract, and thus it
does not require parties to negotiate in good faith prior to any agreement.
[12] In an apparent effort to avoid the operation of this principle, McClain contends that the FAC alleges-or can be amended
to allege-that before the parties executed the lease, they entered into another agreement with materially different terms
4. Declaratory Relief
[14][15] Because the FAC adequately alleges a fraud claim based on misrepresentations about her proper base rent and
share of the common expenses under the lease (see pt. A.2., ante ), the trial court erred in sustaining the demurrer to
McClain’s claim for declaratory relief. As the court explained in **898*800Ludgate Ins. Co. v. Lockheed Martin Corp. (2000)
(2003) 111 Cal.App.4th 1, 8, 3 Cal.Rptr.3d 301.)Under Civil Code section 1785.3, subdivision (c), a “[c]onsumer credit report”
152 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
is defined as “any written, oral, or other communication of any information by a consumer credit reporting agency bearing on
FN4. All further statutory citations are to the Civil Code.
Section 1785.11 authorizes consumer credit reporting agencies to provide a consumer credit report without the consumer’s
prior written consent only in enumerated circumstances. Pertinent here is subdivision (a)(3)(F), which permits an agency to
provide a consumer credit report to a person it has reason to believe “has a legitimate business need for the information in
connection with a business transaction involving the consumer.” Also of importance here are subdivisions (a)(1) and (a)(2) of
account with Citi Credit Bureau (Citi), and that in March 2005, he obtained a credit report on McClain from Citi. McClain
testified that she never authorized the Charanians to gain access to her personal credit information. In addition, she
submitted testimony from Jimmy Yu, a Citi employee, and records from Citi, indicating that Ted Charanian had stated that
his purpose in opening the Citi account was “Tenant screening, management for self.”
Ted Charanian testified as follows: When McClain sought to lease her unit, she submitted a personal financial statement
1785.19, subds.(a)(1), (a)(2)), and that Octagon is subject to a civil penalty under the CCRAA. The crux of this contention is
that because the credit report was indisputably obtained in connection with a commercial transaction, it is not a “consumer
credit report,” as defined in section 1785.3, subdivision (c), and thus falls outside the scope of section 1785.11.
FN5. We accorded the parties an opportunity to present supplemental briefs on the provisions in question.
In view of the trial court’s findings and the undisputed facts, the credit report that Ted Charanian obtained falls within the
definition of a “[c]ommercial credit report” in section 1785.42. The record establishes that the tenant on the lease was a
FN6. Although section 1785.42 does not provide a definition of “commercial enterprise,” courts have generally
concluded that the designation “d.b.a.” in connection with an individual indicates that the individual operates a
business and is liable for its obligations. (See Providence Washington Ins. Co. v. Valley Forge Ins. Co. (1996) 42
Cal.App.4th 1194, 1200, 50 Cal.Rptr.2d 192);Pinkerton’s, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348-
1349, 57 Cal.Rptr.2d 356 and the cases cited therein.) Accordingly, the term “commercial enterprise,” as commonly
understood, encompasses such individuals.
FN7. In view of the trial court’s findings, we note that the CCRAA claim also fails even if the report constitutes a
consumer credit report.
Pointing to Bakker v. McKinnon (8th Cir.1998) 152 F.3d 1007(Bakker ), McClain argues that the report obtained by Ted
Charanian is not a commercial credit report because Citi does not characterize or identify itself as a commercial credit
reporting agency. We disagree. In construing a statute, we look first to “the words of the statute, giving effect to their plain
defendant to enter into a settlement. (Bakker, supra, 152 F.3d at pp. 1009-1011.) When the defendant and his daughters
sued the attorney under the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) (FCRA), the trial court found that the
reports were consumer credit reports protected by the FCRA, and that the attorney had not obtained them for a legitimate
business purpose. On appeal, the Eighth Circuit affirmed these determinations, and rejected the attorney’s contention that
the reports were not consumer credit reports because they had been obtained for what she characterized**901 as a
consent prior to obtaining her credit report, and that Ted Charanian conceded that he never acquired this consent.
The record does not support this contention.FN8 Yu, Citi’s custodian of records, testified that Citi had purged all its personal
documents regarding Ted Charanian’s account, that none of the documents from Citi’s records admitted into evidence
defined the terms of “tenant screening” that Ted Charanian had accepted, and that he did not know whether Ted Charanian
had filled out the standard Citi agreement. He nonetheless testified that the standard Citi agreement required landlords “to
get a consent or some kind of rental application” before Citi would run a report. In addition, Yu stated that after Ted
Charanian obtained McClain’s report, Citi repeatedly asked him to provide a consent form from McClain, and it terminated
his account when he failed to provide it.
154 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
account only because McClain and her husband had been “harassing” Citi.
FN9. For the first time on appeal, McClain argued during oral argument that the credit report at issue constituted a
consumer credit report under the CCRAA, and that the trial court erroneously determined that Ted Charanian had
a legitimate business purpose (within the meaning of the CCRAA) in obtaining it. McClain has forfeited this
contention. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6, 76 Cal.Rptr.2d 457.)
**902 C. Accounting
raised in the letter. Octagon did not agree to the request. The trial court determined that neither the express language of the
lease nor the implied covenant of good faith and fair dealing accorded McClain the right to such an audit.
For the reasons explained below, we conclude that McClain is not entitled to dispute the need for expenses or to audit
Octagon’s records. Rather, she is entitled only to disclosure of the documents supporting the Charanians’ “reasonably
detailed statement” of her share of the common expenses, for the limited purpose of verifying that the listed expenses were
contract impossible by any act of his own, but also the duty to do everything that the contract presupposes that he will do to
accomplish its purpose.’ ”(Pasadena Live v. City of Pasadena (2004) 114 Cal.App.4th 1089, 1093, 8 Cal.Rptr.3d 233, quoting
Harm v. Frasher (1960) 181 Cal.App.2d 405, 417, 5 Cal.Rptr. 367.) Nonetheless, because it protects only the **903 express
terms of the agreement, [i]t cannot impose substantive duties or limits on the contracting parties beyond those incorporated
in the specific terms of their agreement. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350, 100 Cal.Rptr.2d 352, 8
488.)
California courts have long recognized that when two parties enter into an agreement for the sharing of profits that accords
one party exclusive access and control over financial records bearing on the profits, the implied covenant accords the other
party the right to an accounting of the profits. In Nelson v. Abraham (1947) 29 Cal.2d 745, 747, 177 P.2d 931(Nelson ), the
defendant, who manufactured ice, entered into a profit-sharing agreement with the plaintiff. Under the terms of the
may be permitted to take an unfair advantage or enjoy greater rights than called for by the terms of the agreement. One may
not obtain a secret profit or undue benefit. The one who is entrusted with the rights of another is charged with the duty of
guarding those rights with the utmost good faith. [Citations.]” (Id. at p. 751, 177 P.2d 931.)
In a later case, Waverly Productions, Inc. v. RKO General, Inc. (1963) 217 Cal.App.2d 721, 724-725, 32 Cal.Rptr. 73(Waverly
), two corporations entered into a motion picture distribution agreement that obliged them to share profits, but granted one
(Id. at p. 29, 130 Cal.Rptr.2d 860.)
In rejecting the author’s contention that the parties’ agreements created a fiduciary relationship, the court in Wolf
acknowledged the continuing vitality of Nelson: “The duty to provide an accounting of profits under the profit-sharing
agreement in Waverly is appropriately premised on the principle, also expressed in Nelson, that a party to a profit-sharing
agreement may have a right to an accounting, even absent a fiduciary relationship, when such a right is inherent in the
obliges the parties to share the common expenses of the shopping mall, as enumerated in the lease, but accords Octagon
exclusive management and control over those expenses while requiring it to provide McClain with a reasonably detailed
statement of the expenses. Because McClain’s share of the common expenses under the lease is determined by the actual
expenses incurred by Octagon, she is entitled to verify that such expenses were, in fact, incurred and that the listed amounts
are accurate. Accordingly, if requested, Octagon must provide McClain with the documents it used in preparing the
FN10. McClain’s requested audit, as described in the letter dated April 7, 2007, far exceeds the access to Octagon’s
documents authorized by the principles we have articulated. Under our holding, McClain is entitled to have Octagon
produce the records to confirm the figures in the statement it provided her regarding her share of the common
expenses; she is not entitled to demand explanations of Octagon’s decisions to incur common expenses or to
Case 7.2
162 N.E. 99
248 N.Y. 339
PALSGRAF
v.
LONG ISLAND R. CO.*
* Reargument denied 164 N. E. 564.
Court of Appeals of New York.
May 29, 1928.
CARDOZO, C. J.
Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the
station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap,
though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about
to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed
him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches
long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its
contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the
platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.
(1-3) The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to
the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling
package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a
legally protected interest, the violation of a right. “Proof of negligence in the air, so to speak, will not do.’ Pollock, Torts (11th Ed.) p.
455; Martin v. Herzog, 228 N. Y. 164, 170, 126 N. E. 814. Cf. Salmond, Torts (6th Ed.) p. 24. “Negligence is the absence of care,
according to the circumstances.’ Willes, J., in Vaughan v. Taff Vale Ry. Co., 5 H. & N. 679, 688; 1 Beven, Negligence (4th Ed.) 7;
Paul v. Consol. Fireworks Co., 212 N. Y. 117, 105 N. E. 795; Adams v. Bullock, 227 N. Y. 208, 211, 125 N. E. 93; Parrott v. Wells–
Fargo Co., 15 Wall. (U. S.) 524, 21 L. Ed. 206. The plaintiff, as she stood upon the platform of the station, might claim to be
CHAPTER 7: NEGLIGENCE AND STRICT LIABILITY 157
940; 1 Shearman & Redifield on Negligence, section 8, and cases cited; Cooley on Torts (3d Ed.) p. 1411; Jaggard on Torts, vol. 2,
p. 826; Wharton, Negligence, section 24; Bohlen, Studies in the Law of Torts, p. 601. “The ideas of negligence and duty are strictly
correlative.’ Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694. The plaintiff sues in her own right for a wrong personal
to her, and not as the vicarious beneficiary of a breach of duty to another.
1 83 P. 817.
A different conclusion will involve us, and swiftly too, in a maze of contradictions. A guard stumbles over a package which has
been left upon a platform. It seems to be a bundle of newspapers. It turns out to be a can of dynamite. To the eye of ordinary
vigilance, the bundle is abandoned waste, which may be kicked or trod on with impunity. Is a passenger at the other end of the
platform protected by the law against the unsuspected hazard concealed beneath the waste? If not, is the result to be any different,
so far as the distant passenger is concerned, when the guard stumbles over a valise which a truckman or a porter has left upon the
walk? The passenger far away, if the victim of a wrong at all, has a cause of action, not derivative, but original and primary. His
claim to be protected against invasion of his bodily security is neither greater nor less because the act resulting in the invasion is a
wrong to another far removed. In this case, the rights that are said to have been invaded, are not even ests said to have been
invaded, are not even of the same order. The man was not injured in his person nor even put in danger. The purpose of the act, as
well as its effect, was to make his person safe. It there was a wrong to him at all, which may very well be doubted it was a wrong to
a property interest only, the safety of his package. Out of this wrong to property, which threatened injury to nothing else, there has
passed, we are told, to the plaintiff by derivation or succession a right of action for the invasion of an interest of another order, the
right to bodily security. The diversity of interests emphasizes the futility of the effort to build the plaintiff‘s right upon the basis of a
wrong to some one else. The gain is one of emphasis, for a like result would follow if the interests were the same. Even then, the
orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who jostles one’s neighbor in
a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the
ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger.
Life will have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the norm of
conduct, the customary standard to which behavior must conform.
(4) Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed
it is understandable at all. Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694. Negligence is not a tort unless it results
in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to
be protected against interference with one’s bodily security. But bodily security is protected, not against all forms of interference or
aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more
Holdsworth, op. cit. p. 449; cf. Scott v. Shepard, 2 Wm. Black. 892; Green, Rationale of Proximate Cause, p. 19. The victim does
not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another. Thus to view his cause of
action is to ignore the fundamental difference between tort and crime. Holland, Jurisprudence (12th Ed.) p. 328. He sues for breach
of a duty owing to himself.
The law of causation, remote or proximate, is thus foreign to the case before us. The question of liability is always anterior to the
Case 7.3
Ind.App.,2010.
Pfenning v. Lineman
922 N.E.2d 45
FN1. Pfenning’s mother, Jeri Greene, originally filed the complaint on behalf of Pfenning, as Pfenning’s parent and natural
guardian. The trial court subsequently granted the motion to substitute Pfenning as the plaintiff after she turned eighteen
years old. Pfenning, by her mother, originally filed the complaint against Jerry Jones. Upon his death, the trial court
substituted his Estate’s personal representative as a defendant.
We affirm.
ISSUE
Whether the trial court erred in granting summary judgment to the Defendants.
FACTS
The facts most favorable to Pfenning as the non-moving party indicate that Whitey’s, a bar, sponsored a golf scramble at the Elks’
golf course in Marion on August 19, 2006. Whitey’s enlisted golfers by posting sign-up sheets in the bar. It also provided sign-up
sheets for volunteers to serve beverages from golf carts. The forty-five dollar entrance fee covered the costs of green fees, prizes,
golf carts, and beverages. The Elks did not sponsor the event but merely supplied the golf carts and beverages, including beer, for
the event. Jerry Jones, Pfenning’s grandfather, signed up to drive a beverage cart.
The morning of the scramble, Jones invited the then-sixteen-year-old Pfenning to ride in a beverage cart with him during the
tournament. With her mother’s permission, Pfenning agreed to join Jones.
Approximately three hours into the tournament, Lineman, a participant in the scramble, hit a drive from the 16th hole’s tee. The ball
traveled straight for approximately sixty to seventy yards before “turn[ing] directly left.” (App. 69).FN2 As Lineman followed the ball’s
trajectory, he observed the roof of a golf cart, belonging to another foursome, in the ball’s path. Pfenning, who was driving the
beverage cart on a cart path near the 18th hole, did not hear any warning regarding the ball’s approach. After traveling more than
two hundred feet, the ball struck Pfenning in the mouth, causing injuries to her mouth, jaw, and teeth.
FN2. Unless otherwise specified, all citations to the Appendix refer to the appendix filed by Pfenning.
On February 7, 2007, Pfenning filed a complaint against the Defendants. She alleged as follows:
22. The Defendants failed to exercise reasonable care for the safety of [Pfenning] by failing to provide her with a beverage cart
23. The Defendants failed to exercise reasonable care for the safety of [Pfenning] by failing to provide her with any warnings,
any information or any safety instructions prior to sending her onto a golf course that was full of golfers (most of which were
drinking alcohol) to dispense beverages.
25. As a direct and proximate result of the Defendants’ negligent conduct, [Pfenning] suffered painful and permanent injuries and
26. As a direct and proximate result of the Defendants’ negligent conduct, [Pfenning] suffered mental and emotional pain and
anguish.
27. As a direct and proximate result of the Defendants’ negligent conduct, [Pfenning]’s ability to function as a whole person has
been impaired. The quality of [her] life has been significantly diminished as a result of the Defendants’ negligent conduct.
(App. 54-55).
The Elks, Lineman, and Jones filed motions for summary judgment and memoranda in support thereof on February 4, 2009.
Whitey’s filed a motion for summary judgment on February 10, 2009.
whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law.
Landmark Health Care Assocs., L.P. v. Bradbury,
671 N.E.2d 113, 116 (Ind. 1996). Summary judgment should be granted only if
the evidence sanctioned by Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party
deserves judgment as a matter of law. Ind. T.R. 56(C);
Blake v. Calumet Const. Corp.,
674 N.E.2d 167, 169 (Ind. 1996). “A
genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where
1.
Duty
[1] Pfenning asserts that the trial court erred in granting summary judgment in favor of the Defendants. She argues that the
Defendants owed her a duty to prevent her from being injured and were negligent in breaching that duty.
To recover on a theory of negligence, a plaintiff must establish three elements: (1) defendant’s duty to conform his conduct to
2001). In
Geiersbach,
a panel of this court extended “participant” to include “any person who is part of the sporting event or
practice involved.” 807 N.E.2d at 120. “By participant,” the
Geiersbach
–court included “players, coaches, and players who are
14. Thus, she argues that the Defendants owed her a duty to prevent her injury. We disagree.
Pfenning’s presence on the golf course was due to the fact there was a golf scramble; she had agreed to function as a driver or
rider in a beverage cart provided for the golf scramble; and she performed this function and assisted in providing beverages to
players in the golf scramble. If not for the golf scramble, Pfenning would not have been on the golf course the day of the incident.
Although not a player herself, she clearly was “part of the sporting event … involved,” and we hereby expand the language in
FN3. Pfenning does not assert that being struck with a golf ball while driving a golf cart is not an inherent risk of golf.
Nonetheless, we note that “[c]onsideration of whether the injury-causing event was an inherent or reasonably foreseeable
part of the game is a correct evaluation, under an objective standard as a question of law for courts to decide.”
Parsons,
874 N.E.2d at 998. We believe that being struck by an errant golf ball while operating a golf cart on a golf course’s cart
2.
Recklessness
[7][8] Pfenning asserts that the trial court erred in granting summary judgment in favor of Lineman. Specifically, she contends that
FN4. “If a player plays a ball in a direction where there is a danger of hitting someone, he should immediately shout a
warning. The traditional word of warning in such a situation is ‘fore.’ ”
http:// www. usga. org/ etiquette/ tips/ Golf–
Etiquette- 101/
(last visited Nov. 30, 2009).
[P]recluding liability for negligent conduct but allowing recovery for reckless or more serious conduct in the context of sporting
Id.
at 995.
At the time of the incident, Pfenning was operating a cart on the cart path near the 18th hole. Lineman was at the 16th hole’s tee
box. He hit the ball, which initially traveled straight for approximately sixty to seventy yards. Apparently, Lineman hooked the ball,
causing it to shift direction to the left. After traveling over 200 feet, the golf ball struck Pfenning. At no time did Lineman see
FN5. Pfenning does not assert that Jones, Whitey’s, or the Elks were reckless or intentionally caused her injury.
3.
Negligent Supervision
[11][12][13][14][15][16][17] Pfenning asserts that the trial court erred in granting summary judgment on the issue of negligent
supervision. She argues that “Jones, Whitey’s and [the] Elks all had a duty of reasonable care as to [her] because her care had
been entrusted in them.” FN6 Pfenning’s Br. at 9.
FN6. Whitey’s and Jones assert that Pfenning has waived this issue for failure to raise the claim in her memorandum in
opposition to the Defendants’ motions for summary judgment. Generally, “matters not designated as genuine issues of
material fact cannot be relied upon on appeal.”
Poulard v. Lauth,
793 N.E.2d 1120, 1123 (Ind.Ct.App. 2003). Any waiver
notwithstanding, we choose to address this issue on the merits.
[T] here is a well-recognized duty in tort law that persons entrusted with children have a duty to supervise their charges. The
In
Johnson,
thirteen-year old Johnson went to the Pettigrew’s farm to visit with their son, Joel. The Pettigrews asked Johnson, Joel,
CHAPTER 7: NEGLIGENCE AND STRICT LIABILITY 163
and Joel’s cousin to burn some debris. At some point, the Pettigrews left the farm to run some errands, leaving Joel’s eighteen-
year-old brother, Jason, and their hired hand, Derrick, in charge of the younger boys.
At first, the younger boys continued to burn the debris as directed, but they soon tired of the routine and decided to “mess
assumed the supervision
of Jeff Johnson, left the three boys in the custody of their employee and their son, who were instructed to
change the tires on a truck in addition to watching over the boys as they burned debris.”
Id.
at 753 (emphasis added).
In
Davis,
sixteen-year-old Benton went to the home of his friend, Doug, and Doug’s mother and step-father, the Stones. Doug’s
mother gave the boys permission to take the Stones’ jet skis out on Geist Reservoir. Doug’s stepfather observed the boys putting
the jet skis in the water. Neither adult instructed Benton on how to operate a jet ski, “but he did not consider such instruction
necessary” as he had operated jet skis in the past; had a driver’s license; and had completed a boating safety course. 849 N.E.2d
at 751.
At some point, Doug and Benton started spraying each other with water by accelerating and sharply turning the jet skis. When
Benton made a turn directly in Doug’s path, Doug’s jet ski collided with Benton’s jet ski, causing a serious injury to Benton.
Benton’s parents filed a complaint against the Stones, asserting that they negligently instructed and supervised both Doug and
Benton on the use and operation of the jet skis. The trial court denied the Stones’ motion for summary judgment. Finding the
4.
Premises Liability
1999),
trans. denied,
she contends that “the trial court should have looked to the totality of the circumstances and should have
determined that questions exist for jury determination.” Pfenning’s Br. at 11.
In
Hayden,
William and Letitia Hayden were attending a football game on the Notre Dame campus. They sat in their assigned
1999)). Under this test, “ ‘a court considers all of the circumstances surrounding an event, including the nature, condition, and
location of the land, as well as prior similar incidents, to determine whether a criminal act was foreseeable.’ ” 716 N.E.2d at 605-06
(quoting 712 N.E.2d at 972).
Applying the totality of the circumstances test, the
Hayden
-court found that the totality of the circumstances established that Notre