Caseflicks

California Court of Appeal • 1983

Soldano v. O'DANIELS

141 Cal. App. 3d 443 | 190 Cal. Rptr. 310 | 37 A.L.R. 4th 1183 | 1983 Cal. App. LEXIS 1539

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Takeaway

In short, this case recognizes a narrow duty for a public business not to block a good-faith attempt to use an accessible telephone to summon police for an imminent threat of physical harm.

Background

Darrell Soldano was shot and killed by Rudolph Villanueva at Happy Jack’s Saloon. Across the street, Howard O’Daniels operated the Circle Inn, an eating establishment. A Happy Jack’s patron allegedly entered the Circle Inn, told its bartender that a man had been threatened at Happy Jack’s, and asked the bartender either to call the police or to permit use of the Circle Inn telephone to do so. The bartender allegedly refused both requests.

Soldano’s child brought a wrongful-death negligence claim against O’Daniels, alleging that the refusal prevented a call for police intervention. The trial court granted summary judgment and dismissed the sole cause of action against O’Daniels. On appeal, the court strictly construed the sparse defense affidavit against the moving defendant and assumed the telephone was publicly accessible, could have been used without inconvenience, and could have been used for a free local call.

Issues

Issue #1

Whether a business open to the public owes a duty to permit use of an accessible telephone when a person in good faith seeks to summon police assistance for an imminent threat of physical harm to another.

Holding

Yes. Under the limited circumstances alleged, the Circle Inn bartender owed Soldano a duty either to allow the patron to call police using the accessible telephone or to make the call himself.

Reasoning

The traditional common-law rule distinguishes misfeasance from nonfeasance: ordinarily, a person who did not create the danger has no affirmative duty to rescue another absent a special relationship or an undertaking. The court acknowledged that neither the Circle Inn nor its bartender had a conventional special relationship with Soldano or with the Happy Jack’s patron who sought to call police.

The case was not simply about compelling the bartender to become a rescuer. The patron from Happy Jack’s had chosen to render aid by contacting police, and the bartender allegedly obstructed that effort by refusing access to a telephone. This placed the case close to Restatement Second of Torts section 327, which imposes liability on one who negligently prevents a third person from providing aid necessary to avert physical harm.

The Rowland v. Christian duty factors supported recognizing a narrow duty. The threatened harm was foreseeable and imminent because the bartender was told a man had been threatened; Soldano’s injury and death were certain; and a factfinder could find a close causal connection if a timely police call could have led to intervention before the shooting.

The bartender’s alleged refusal could be regarded as morally blameworthy because it required no personal risk, effort, or expense to permit an emergency call that might save a life. Recognizing the duty would also further the policy of preventing violence by allowing willing citizens to summon police assistance rather than obstructing them.

The burden of the rule was deliberately limited. It applies to a business open to the public, during business hours, and to a telephone in an area ordinarily accessible to the public. It does not require private citizens to admit strangers into their homes, does not require anyone personally to rescue another, and arises only when an imminent danger of physical harm is clearly conveyed rather than merely asserted as a vague emergency.

California statutes and public policy also reflected the social importance of citizen involvement in crime prevention and of telephone access for emergency services. Although those statutes did not themselves establish negligence per se, they supported a modest common-law expansion beyond the general no-duty-to-rescue rule.

Issue #2

Whether summary judgment was proper on the wrongful-death negligence claim.

Holding

No. Material, justiciable issues remained concerning breach and causation, so the dismissal had to be reversed.

Reasoning

On summary judgment, the court was required to strictly construe the defendant’s supporting declaration. Because the record did not show that the telephone was private, inaccessible, costly to use, or inconvenient to make available, the court assumed it was publicly accessible and available for a local call at no expense.

The evidence, viewed under those assumptions, permitted a finding that the bartender breached the newly recognized limited duty by refusing both to call police and to allow the patron to call. It also left a triable causal question: the plaintiff might prove that police would probably have responded before Villanueva fired the fatal shot had the call been allowed.