Soldano v. O’Daniels

141 Cal.App.3d 443, 190 Cal.Reptr. 310 Ct.App. 1983)



ANDREEN, Associate Justice.


         Does a business establishment incur liability for wrongful death if it denies use of its telephone to a good Samaritan who explains an emergency situation occurring without and wishes to call the



This appeal follows a judgment of dismissal of the second cause of action of a complaint for wrongful death upon a motion for summary judgment. The motion was supported only by a declaration of defense counsel. Both briefs on appeal adopt the defense



"This action arises out of a shooting death occurring on August 9, 1977. Plaintiff's father [Darrell Soldanol was shot and killed by one Rudolph Villanueva on that date at defendant's Happy Jack's Saloon. This defendant owns and operates the Circle Inn which

is an rating establishment located across the street from Happy Jack's. Plaintiff's second cause of action against this defendant is one for negligence.


"Plaintiff alleges that on the date of the shooting, a patron of Happy jack's Saloon came into the Circle Inn and informed a Circle Inn employee that a man had been threatened at Happy jack's. He requested the employee either call the police or allow him to use the Circle

Inn phone to call the police. That employee allegedly refused to call the police and allegedly refused to allow the patron to use the phone to make his own call. Plaintiff alleges that the actions of the

Circle Inn employee were a breach of the legal duty that the Circle Inn owed to the decedent."


We were advised at oral argument that the employee was the defendant's bartender. The state of the record is

unsatisfactory in that it does not disclose the physical location of the telephone-whether on the bar, in a private office behind a closed door or elsewhere. The only factual matter before the trial court was a verified statement of the defense attorney which set forth those acts quoted above. Following

normal rules applicable to motions for summary judgment, we strictly construe the defense affidavit. Accordingly, we assume the telephone was not in a

private office but in a position where it could be used by a patron without inconvenience to the defendant or its guests. We also assume the call was a local one and would not result in expense to defendant.


Defendant argues that the request that its employee call the police is a request that it do something. He points to the established rule that one who has not created a peril ordinarily does not have a duty to take affirmative action to assist an imperiled person. It is urged that the alternative request of the patron from Happy Jack's Saloon that he be allowed to use defendant's telephone so that he personally could make the call is again a request that the defendant do something-assist another to give aid. Defendant

points out that the Restatement sections which impose liability for negligent interference with a third person giving aid to another do not impose

the additional duty to aid the good Samaritan.


The refusal of the law to recognize the moral obligation of one to another when he is in peril and when such aid may be given without danger and at little cost in effort has been roundly criticized. . .

"Such decisions are revolting to any moral sense. They have been denounced with vigor by legal writers." A

similar rule has been termed "morally questionable" by our Supreme Court.


The consequences to the community of imposing a duty is termed "the administrative factor" by Professor

Green in his analysis of determining whether a duty exists in a given case. The administrative factor is simply the pragmatic concern of fashioning a workable rule and the impact of such a rule on the judicial machinery. It is the policy of major concern in this case.


Many citizens simply "don't want to get involved." No rule should be adopted which would require a citizen to open up his or her house to a stranger so that the latter may use the telephone call for emergency assistance. As Mrs. Alexander in Anthony Burgess' A Clockwork Orange learned to her horror, such an action may be fraught with danger. It does not follow, however, that use of a telephone in a public portion of a business should be refused for a legitimate emergency call. Imposing liability for such a refusal would not subject innocent citizens to possible attack by the "good Samaritan," for it would he limited to an establishment open to the public times when it is open to business, and to places within the establishment ordinarily accessible to the public. Nor would a stranger's mere assertion of an "emergency" situation occurring create the duty to utilize an accessible telephone because the duty would arise if and only if it were clearly conveyed that there exists an imminent danger of physical harm.


Such a holding would not involve difficulties in proof, overburden the courts or unduly hamper self-

determination or enterprise.


A business establishment such as the Circle Inn is open for profit. The owner encourages the public to enter, for his earnings depend on it. A telephone is a necessary adjunct to such a place. It is not unusual in such circumstances for patrons to use the telephone to call a taxicab or family member. We acknowledge that defendant contracted for the use of his telephone, and its use is a species of property. But if it exists in a public place as defined above, there is no privacy or ownership interest in it such that the owner should be permitted to interfere with a good faith attempt to use it by a third person to come to the aid of another.


We conclude that the bartender owed a duty to the plaintiff's decedent to permit the patron from Happy Jack's to place a call to the police or to place, the call himself.


It bears emphasizing that the duty in this case does not require that one must go to the aid of another. That is not the issue here. The employee was not the good Samaritan intent on aiding another. The patron was.


The courts have a special responsibility to reshape, refine and guide legal doctrine they have created. As our Supreme Court summarized in People v. Pierce (1964) 61 Cal-2d 879. 882, in response to an argument that any departure from common law precedent should be left to legislative action, "In effect the contention is a request that courts abdicate their responsibility for the upkeep of the common law. That upkeep it needs continuously, as this case demonstrates."


We conclude there are sufficient justiciable issues to permit the case to go to trial and therefore reverse.