Hunter v. Mohawk Petroleum Corporation

CARTER, J.—I dissent.

Plaintiff was a business invitee of defendant, the operator of a self-service gasoline station. Plaintiff left her automobile to check a large blackboard maintained by defendant to notify customers of the winning numbers of tickets previously distributed to them. The blackboard was located near the air hose. While checking the numbers, she was injured by a stream of gasoline which was produced by the negligent acts of another invitee, Mr. Paris, who was blowing out the gas line of his truck. Mr. Paris was repairing his truck on the station premises with the permission of defendant and had been doing so for several hours. He was permitted by defendant to use the facilities made available by defendant for motorists.

Plaintiff contended that defendant did not exercise reason *443 able care in protecting her from the danger created by Mr. Paris in the use of said facilities, and that this negligence proximately caused her injuries. A jury rendered a verdict in favor of plaintiff, thus determining defendant’s liability for the injury suffered by her.

There is no dispute as to the applicable rules of law. A landowner is under a duty of reasonable care to protect business invitees from harmful acts of third persons where he actually knows of a danger, or where, in the exercise of reasonable care, he should know a danger might exist. It is also conceded that there is no evidence that defendant had actual knowledge that Paris was engaging in negligent activities. Thus, the sole issue is whether there is any evidence from which a jury could infer that defendant, in the exercise of reasonable care, should have known that Mr. Paris might create an unreasonable risk of harm to other invitees by the negligent use of the available facilities. In other words, was there a fact question for the jury to determine?

An important factor in this case, which is entirely ignored by the majority of this court, is that Paris was using facilities provided by defendant when he inflicted the injury upon plaintiff and that he was using these facilities in a careless and negligent manner. In other words, it was the negligent "use of defendant’s facilities which was the proximate cause of the injury suffered by plaintiff. Of course, defendant knew that Paris was using its facilities, and it obviously owed a duty to plaintiff, and all others similarly situated, to see that such facilities were not so used as to cause them injury. If the injury had resulted from conduct by Paris without the negligent use of defendant’s facilities, a different question would be presented, as such conduct would be beyond the control of defendant. Here it may be said that defendant knowingly permitted Paris to negligently use defendant’s facilities and thus cause injury to plaintiff. There should be no question of liability in such a case, as it falls clearly within the rule stated in section 348 of the Restatement of Torts quoted in the majority opinion.

The evidence on this point was clearly and succinctly summarized by Mr. Presiding Justice Peters, who wrote the opinion when this case was before the District Court of Appeal, which affirmed the judgment. It is as follows: . . . appellant [defendant] furnished a place for customers to work on their cars. Appellant knew, or should have known, that persons using the facilities furnished by it might include *444 amateurs, hot-rodders, and other do-it-yourselfers. It is certainly a reasonable possibility that such persons working on an instrumentality such as an automobile might create a dangerous situation. Yet appellant made no effort at all to discover what Paris was doing or how he might be doing it. He invited other customers to come to the area by maintaining the blackboard in the immediate vicinity of the area where Paris was working. No warning signs were posted to warn invitees of the possible danger. Appellant knew, or should have known, that Paris was working on his ear for many hours. Appellant knew that the trouble was not battery trouble because appellant’s employee had sold Paris a new battery and the employee knew that this did not start Paris’ ear. Certainly the attendant knew, or should have known, that Paris might be engaged in any one of several activities that could create a danger to those nearby. He knew, or should have known, that among these possibilities was that if the person working on his car believed the gasoline line was stopped up he might use the air pressure to blow it out. He knew, or should have known, that the gasoline tank was capped with a rag stuffed in the vent. Paris was working on his ear where the air hose was located. The possibility that the air hose might be used for this purpose was not so unlikely that it was unforeseeable as a matter of law. ’ ’ (Hunter v. Mohawk Petroleum Corp. (Cal.App.), 332 P.2d 551 .)

From this evidence the District Court of Appeal concluded that the jury could infer that defendant had notice of the possible danger to customers in the area of the blackboard. I wholeheartedly agree with this conclusion and can see no escape from the fact that the inferences to be drawn from this evidence were within the province of the jury. Therefore, the jury verdict cannot be disturbed by this court unless it again usurps the function of the jury and takes another excursion into the fact finding field.

For the foregoing reasons I would affirm the judgment.