Hunter v. Mohawk Petroleum Corporation

334 P.2d 193, 51 Cal. 2d 439, 1959 Cal. LEXIS 265

• Court: California Supreme Court
• Decided: January 23, 1959
• Docket: S. F. 19960
• Status: Published

Opinions

McCOMB, J.

Defendant appeals from a judgment in favor of plaintiff after trial before a jury in an action to recover damages for personal injuries received while plaintiff was a business visitor on defendant’s property.

Facts: Defendant owned a self-service gasoline station in San Francisco, on a lot approximately 100 feet square. Gasoline was dispensed from pumps located in the center of the lot. Air and water facilities were located along a side of the lot for use by customers desiring to service their own vehicles. On the same edge of the lot and near the air and water outlets, a large blackboard was maintained by defendant for posting winning numbers in drawings of tickets previously given purchasers of defendant’s gasoline.

On July 7,1953, Mr. Paris, a customer, bought some gasoline for his pick-up truck. Being unable to start the motor, he pushed his truck over to the area where the air and water fixtures were situated. He worked on the battery and motor for six or seven hours.

The station attendant paid no attention to Mr. Paris ’ activities, and did not offer to assist him or render any aid. Mr. Paris finally decided that the pipeline leading to the gasoline tank on his truck might be plugged. He then proceeded to blow it out with the air hose provided to inflate tires. Instead of the usual metal cap on the intake hole of the gasoline tank, there was simply a rag stuffed into the vent. Mr. Paris did not remove this rag, but disconnected the main gasoline line from underneath the ear and attached the air hose to it to blow out the line.

In the meantime, plaintiff and her husband drove into the station. While her husband was purchasing gasoline, plaintiff got out o£ the car and went to the blackboard to see whether she held any winning tickets in the drawing. She was standing immediately at the rear of Mr. Paris’ truck when suddenly a stream o£ gasoline from the truck’s tank hit her in the face, causing serious burns on her face, chest, arms and neck. Her eyesight was materially impaired.

The jury returned a verdict in favor of plaintiff in the sum of $5,000.

This is the sole question necessary for us to determine: Does the mere fact that a business visitor has for some time been working on his vehicle on property owned by defendant constitute substantial evidence in and of itself to put the defendant-owner on notice that other business visitors are thereby threatened with danger, and is such “possibility” sufficient to impose liability on the owner where an injury arises out of a momentary, isolated, negligent act by the business visitor working on his vehicle?

No. The rule is correctly stated thus in Restatement, Torts, section 348 :

“A . . . possessor of land who holds it out to the public for entry for his business purposes, is subject to liability to members of the public while upon the land for such purpose for bodily harm caused to them by the accidental, negligent or intentionally harmful acts of third persons or animals if the possessor by the exercise of reasonable care could have

(a) discovered that such acts were being done or were about to be done, and

(b) protected the members of the public by

(i) controlling the conduct of the third persons, or

(ii) giving a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive from [him].”

This rule presupposes that the owner of the land by reasonable care could have discovered that the act which caused the harm was being done or was about to be done.

In Porter v. California Jockey Club, Inc., 134 Cal. App.2d 158, 160 [2] [285 P.2d 60], the rule is stated thus: “It is axiomatic that in the absence of conduct to put him on notice to the contrary a person is entitled to assume that others will not act negligently or unlawfully. (Citation.) ” (See also Mawhiney v. Signal Trucking Co., 132 Cal.App.2d 809, 813 [3] [283 P.2d 27].)

Applying the foregoing rule to the facts of the present ease, there is no evidence in the record that Mr. Paris had been behaving negligently, nor is there any evidence of any fact which could possibly have put defendant on notice that he might act negligently. Under the circumstances and the authorities cited above, defendant was not liable for the injuries sustained by plaintiff. (See Guild v. Brown, 115 Cal. App. 374, 381 [1 P.2d 528].)

Raber v. Tumin, 36 Cal.2d 654 [226 P.2d 574] ; Edwards v. Hollywood Canteen, 27 Cal.2d 802 [167 P.2d 729]; Johnstone v. Panama Pacific I.E. Co., 187 Cal. 323 [202 P. 34]; Sample v. Eaton, 145 Cal.App.2d 312 [302 P.2d 431] [hearing denied by the Supreme Court] ; Goldsmith v. Mills, 130 Cal.App.2d 493 [279 P.2d 51]; Thomas v. Studio Amusements, Inc., 50 Cal.App.2d 538 [123 P.2d 552] ; Basye v. Craft’s Golden State Shows, 43 Cal.App.2d 782 [111 P.2d 746] [hearing denied by the Supreme Court] ; and Szasz v. Joyland Co., 84 Cal.App. 259 [257 P. 871] [hearing denied by the Supreme Court], relied on by plaintiff, are not in point, for the reason that in each of the cases there was either an allegation (as in the eases decided on demurrer), or proof (as in the cases decided after trial) of facts putting the owner of the property on notice of negligent conduct which threatened the safety of a business visitor.

As pointed out above, in the present case there was an absence of any such evidence; therefore, the cited cases are not authority for plaintiff’s position.

The judgment is reversed.

Gibson, C. J., Shenk, J., Traynor, J., Schauer, J., and Spence, J., concurred.