Winn v. Holmes

Plaintiff appeals from a judgment based upon an order sustaining, without leave to amend, a demurrer of defendant Jerry Holmes to her second amended complaint, hereinafter referred to as the complaint. The facts alleged

Defendant’s demurrer to the complaint was sustained without leave to amend upon the ground that defendant owed no duty to plaintiff to protect her against an assault by a third person on the premises. We are of the view that this holding was erroneous, and that the complaint states a cause of action against defendant.

Although the owner of a place of business is not an insurer of the safety of his invitees, it is well settled that he is required to exercise reasonable care for their safety, and is liable for injuries resulting from a breach of this duty. (Tuttle v. Crawford, 8 Cal.2d 126 [ 63 P.2d 1128 ]; Hinds v. Wheadon, 19 Cal.2d 458 [ 121 P.2d 724 ] ; Vaughn v. Montgomery Ward & Co., 95 Cal.App.2d 553 [ 213 P.2d 417 ] ; Girvetz v. Boys’ Market, Inc., 91 Cal.App.2d 827 [ 206 P.2d 6 ]; 65 C.J.S. 521.) He is liable for harm caused by

Innumerable eases have applied these rules to situations where an invitee is injured due to some natural or artificial condition on the premises. But the owner’s duty to his invitees extends beyond protection against injuries due to the conditions of the premises. He must use reasonable .care to protect them against injury through the negligent or wrongful acts of other invitees on the premises where he has reasonable cause to anticipate such acts and the probability of injury resulting therefrom. (65 C.J.S. 533; 2 Rest., Torts, § 348.) As Prosser says (Prosser on Torts, 1941 ed., 643-644) “In particular, the possessor must exercise the power of control or expulsion which his occupation of the .premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands. He must act as a reasonable man to avoid harm from the negligence ..... of other persons. who may have entered it, or even from intentional attacks on the part of such third persons.' He is required to take action only when he has reason to-believe, from what he has observed or from past experience, that the conduct of the other will be dangerous to the visitor; and in the ordinary case a warning will be sufficient, unless it is apparent that, because of lack of time or the character of the conduct to be expected, it will not be

Although there is no direct authority in California upon this point, the principle has been inferentially recognized by the Supreme Court (Cole v. Rush, 45 Cal.2d 345 , 352-353 [ 289 P.2d 450 ]), and a number of cases from other jurisdictions have specifically so held. (See cases collected in 106 A.L.R. 1003 .) A person who enters a restaurant to eat a quiet meal has the right to assume that the management will use reasonable care to guard him against injury. A restaurant keeper may not sit idly by when he knows that one of his customers is likely to be assaulted by a third person on the premises, and leave it to the customer to extricate himself from danger. In many of the cases the negligence of the proprietor consisted of the failure to warn the customer of danger of which the proprietor had knowledge, which, of course, is not the basis of plaintiff’s claim of negligence. Defendant had no knowledge of threatened injury from third persons which was not also possessed by plaintiff. Under the rule we have stated the proprietor’s duty arises from his control over the premises and his power to restrain or expel offenders against the peace and safety of the premises.

In this connection, plaintiff relies strongly on two fairly recent California cases, Edwards v. Hollywood Canteen, 27 Cal.2d 802 [ 167 P.2d 729 ], and Thomas v. Studio Amusements, Inc., 50 Cal.App.2d 538 [ 123 P.2d 552 ], In the Edwards case, plaintiff, a volunteer hostess at the Hollywood Canteen, recovered damages against defendant on the ground that defendant was negligent in permitting her dancing partner to engage in boisterous dancing without her consent. In the Thomas case, plaintiff, who was roller skating on defendant’s rink, recovered damages on the ground of defendant’s negligence in failing to control reckless roller skating by another skater. In both situations, plaintiff was injured in the very type of activity for which the premises were held open to the public. This fact, however, was not given as a reason for the holding of liability. In Edwards v. Hollywood Canteen, supra, 27 Cal.2d 802 at page 810, the court cited the Restatement, Prosser, 35 Mich.L.Rev. 843 and 43 Yale L.J. 886 and stated “From the foregoing it is clear that the occupier is under a duty to protect visitors such as plaintiff by taking appropriate measures to restrain conduct by third

Defendant argues that in any event plaintiff’s injuries were not caused by any negligence on his part, but were due to the independent acts of the assailants. This contention is without merit. The assault was the very hazard which imposed upon defendant a duty to interfere on behalf of plaintiff. There are other questions suggested by the allegations of the complaint, namely, whether plaintiff was guilty of contributory negligence in failing to leave the premises when she was threatened, whether defendant was negligent in failing to interfere, and whether his interference would have prevented the assault. These are factual questions as to which the allegations of the complaint are sufficient and which can only be answered upon a trial of the issues.

The allegations of the complaint are, we think, sufficient to state a cause of action against defendant.

The judgment is reversed.

Wood (Parker), J., and Vallée, J., concurred.