[43] COUNSEL

Hollister, Brace & Angle, Hollister & Brace, Robert O. Angle and Richard C. Monk for Plaintiffs and Appellants.

Stearns & Nelson, Stearns, Nelson & LeBerthon, Robert S. Stearns, Lascher & Radar, Edward L. Lascher and Wendy Cole Wilner for Defendant and Appellant.

Benton, Orr, Duval & Buckingham and James F. McGahan for Defendant and Respondent.

OPINION

MOSK, J.

A rock radio station with an extensive teenage audience conducted a contest which rewarded the first contestant to locate a peripatetic disc jockey. Two minors driving in separate automobiles attempted to follow the disc jockey's automobile to its next stop. In the course of their pursuit, one of the minors negligently forced a car off the highway, killing its sole occupant. In a suit filed by the surviving wife and children of the decedent, the jury rendered a verdict against the radio station. We now must determine whether the station owed decedent a duty of due care.

The facts are not disputed. Radio station KHJ is a successful Los Angeles broadcaster with a large teenage following. At the time of the accident, KHJ commanded a 48 percent plurality of the teenage audience in the Los Angeles area. In contrast, its nearest rival during the same period was able to capture only 13 percent of the teenage listeners. In order to attract an even larger portion of the available audience and thus increase advertising revenue, KHJ inaugurated in July of 1970 a [44] promotion entitled "The Super Summer Spectacular." The "spectacular," with a budget of approximately $40,000 for the month, was specifically designed to make the radio station "more exciting." Among the programs included in the "spectacular" was a contest broadcast on July 16, 1970, the date of the accident.

On that day, Donald Steele Revert, known professionally as "The Real Don Steele," a KHJ disc jockey and television personality, traveled in a conspicuous red automobile to a number of locations in the Los Angeles metropolitan area. Periodically, he apprised KHJ of his whereabouts and his intended destination, and the station broadcast the information to its listeners. The first person to physically locate Steele and fulfill a specified condition received a cash prize.^[1] In addition, the winning contestant participated in a brief interview on the air with "The Real Don Steele." The following excerpts from the July 16 broadcast illustrate the tenor of the contest announcements:

"9:30 and The Real Don Steele is back on his feet again with some money and he is headed for the Valley. Thought I would give you a warning so that you can get your kids out of the street."

"The Real Don Steele is out driving on — could be in your neighborhood at any time and he's got bread to spread, so be on the lookout for him."

"The Real Don Steele is moving into Canoga Park — so be on the lookout for him. I'll tell you what will happen if you get to The Real Don Steele. He's got twenty-five dollars to give away if you can get it ... and baby, all signed and sealed and delivered and wrapped up."

"10:54 — The Real Don Steele is in the Valley near the intersection of Topanga and Roscoe Boulevard, right by the Loew's Holiday Theater — you know where that is at, and he's standing there with a little money he would like to give away to the first person to arrive and tell him what type car I helped Robert W. Morgan give away yesterday morning at KHJ. What was the make of the car. If you know that, split. Intersection of Topanga and Roscoe Boulevard — right nearby the Loew's Holiday Theater — you will find The Real Don Steele. Tell him and pick up the bread."

[45] In Van Nuys, 17-year-old Robert Sentner was listening to KHJ in his car while searching for "The Real Don Steele." Upon hearing that "The Real Don Steele" was proceeding to Canoga Park, he immediately drove to that vicinity. Meanwhile, in Northridge, 19-year-old Marsha Baime heard and responded to the same information. Both of them arrived at the Holiday Theater in Canoga Park to find that someone had already claimed the prize. Without knowledge of the other, each decided to follow the Steele vehicle to its next stop and thus be the first to arrive when the next contest question or condition was announced.

For the next few miles the Sentner and Baime cars jockeyed for position closest to the Steele vehicle, reaching speeds up to 80 miles an hour.^[2] About a mile and a half from the Westlake offramp the two teenagers heard the following broadcast: "11:13 — The Real Don Steele with bread is heading for Thousand Oaks to give it away. Keep listening to KHJ.... The Real Don Steele out on the highway — with bread to give away — be on the lookout, he may stop in Thousand Oaks and may stop along the way.... Looks like it may be a good stop Steele — drop some bread to those folks."

The Steele vehicle left the freeway at the Westlake offramp. Either Baime or Sentner, in attempting to follow, forced decedent's car onto the center divider, where it overturned. Baime stopped to report the accident. Sentner, after pausing momentarily to relate the tragedy to a passing peace officer, continued to pursue Steele, successfully located him and collected a cash prize.

Decedent's wife and children brought an action for wrongful death against Sentner, Baime, RKO General, Inc. as owner of KHJ, and the maker of decedent's car. Sentner settled prior to the commencement of trial for the limits of his insurance policy. The jury returned a verdict against Baime and KHJ in the amount of $300,000 and found in favor of the manufacturer of decedent's car. KHJ appeals from the ensuing judgment and from an order denying its motion for judgment notwithstanding the verdict. Baime did not appeal.^[3]

The primary question for our determination is whether defendant owed a duty to decedent arising out of its broadcast of the giveaway [46] contest. (1) The determination of duty is primarily a question of law. (Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 307 [29 Cal. Rptr. 33, 379 P.2d 513] (overruled on other grounds in Dillon v. Legg (1968) 68 Cal.2d 728, 748 [69 Cal. Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]).) It is the court's "expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." (Prosser, Law of Torts (4th ed. 1971) pp. 325-326.) Any number of considerations may justify the imposition of duty in particular circumstances, including the guidance of history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall. (Prosser, Palsgraf Revisited (1953) 52 Mich.L.Rev. 1, 15.) While the question whether one owes a duty to another must be decided on a case-by-case basis,^[4] every case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct. (Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30, 36 [286 P.2d 21].) However, foreseeability of the risk is a primary consideration in establishing the element of duty. (Dillon v. Legg, supra, 68 Cal.2d 728, 739.) Defendant asserts that the record here does not support a conclusion that a risk of harm to decedent was foreseeable.

While duty is a question of law, foreseeability is a question of fact for the jury. (Wright v. Arcade School Dist. (1964) 230 Cal. App.2d 272, 277 [40 Cal. Rptr. 812].) (2) The verdict in plaintiffs' favor here necessarily embraced a finding that decedent was exposed to a foreseeable risk of harm. It is elementary that our review of this finding is limited to the determination whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury.

(3a) We conclude that the record amply supports the finding of foreseeability. These tragic events unfolded in the middle of a Los Angeles summer, a time when young people were free from the constraints of school and responsive to relief from vacation tedium. [47] Seeking to attract new listeners, KHJ devised an "exciting" promotion. Money and a small measure of momentary notoriety awaited the swiftest response. It was foreseeable that defendant's youthful listeners, finding the prize had eluded them at one location, would race to arrive first at the next site and in their haste would disregard the demands of highway safety.

Indeed, "The Real Don Steele" testified that he had in the past noticed vehicles following him from location to location. He was further aware that the same contestants sometimes appeared at consecutive stops. This knowledge is not rendered irrelevant, as defendant suggests, by the absence of any prior injury. Such an argument confuses foreseeability with hindsight, and amounts to a contention that the injuries of the first victim are not compensable. (4) "The mere fact that a particular kind of an accident has not happened before does not ... show that such accident is one which might not reasonably have been anticipated." (Ridley v. Grifall Trucking Co. (1955) 136 Cal. App.2d 682, 686 [289 P.2d 31].) Thus, the fortuitous absence of prior injury does not justify relieving defendant from responsibility for the foreseeable consequences of its acts.

It is of no consequence that the harm to decedent was inflicted by third parties acting negligently. (5) Defendant invokes the maxim that an actor is entitled to assume that others will not act negligently. (Porter v. California Jockey Club, Inc. (1955) 134 Cal. App.2d 158, 160 [285 P.2d 60].) This concept is valid, however, only to the extent the intervening conduct was not to be anticipated. (Premo v. Grigg (1965) 237 Cal. App.2d 192, 195 [46 Cal. Rptr. 683].) If the likelihood that a third person may react in a particular manner is a hazard which makes the actor negligent, such reaction whether innocent or negligent does not prevent the actor from being liable for the harm caused thereby. (Richardson v. Ham (1955) 44 Cal.2d 772, 777 [285 P.2d 269].) (3b) Here, reckless conduct by youthful contestants, stimulated by defendant's broadcast, constituted the hazard to which decedent was exposed.

(6) It is true, of course, that virtually every act involves some conceivable danger. Liability is imposed only if the risk of harm resulting from the act is deemed unreasonable — i.e., if the gravity and likelihood of the danger outweigh the utility of the conduct involved. (See Prosser, Law of Torts (4th ed. 1971) pp. 146-149.)

[48] (3c) We need not belabor the grave danger inherent in the contest broadcast by defendant. The risk of a high speed automobile chase is the risk of death or serious injury. Obviously, neither the entertainment afforded by the contest nor its commercial rewards can justify the creation of such a grave risk. Defendant could have accomplished its objectives of entertaining its listeners and increasing advertising revenues by adopting a contest format which would have avoided danger to the motoring public.

Defendant's contention that the giveaway contest must be afforded the deference due society's interest in the First Amendment is clearly without merit. The issue here is civil accountability for the foreseeable results of a broadcast which created an undue risk of harm to decedent. (7) The First Amendment does not sanction the infliction of physical injury merely because achieved by word, rather than act.

We are not persuaded that the imposition of a duty here will lead to unwarranted extensions of liability. Defendant is fearful that entrepreneurs will henceforth be burdened with an avalanche of obligations: an athletic department will owe a duty to an ardent sports fan injured while hastening to purchase one of a limited number of tickets; a department store will be liable for injuries incurred in response to a "while-they-last" sale. This argument, however, suffers from a myopic view of the facts presented here. The giveaway contest was no commonplace invitation to an attraction available on a limited basis. It was a competitive scramble in which the thrill of the chase to be the one and only victor was intensified by the live broadcasts which accompanied the pursuit. In the assertedly analogous situations described by defendant, any haste involved in the purchase of the commodity is an incidental and unavoidable result of the scarcity of the commodity itself. In such situations there is no attempt, as here, to generate a competitive pursuit on public streets, accelerated by repeated importuning by radio to be the very first to arrive at a particular destination. Manifestly the "spectacular" bears little resemblance to daily commercial activities.

(8) Defendant, relying upon the rule stated in section 315 of the Restatement Second of Torts, urges that it owed no duty of care to decedent. The section provides that, absent a special relationship, an actor is under no duty to control the conduct of third parties. As explained hereinafter, this rule has no application if the plaintiff's complaint, as here, is grounded upon an affirmative act of defendant which created an undue risk of harm.

[49] The rule stated in section 315 is merely a refinement of the general principle embodied in section 314^[5] that one is not obligated to act as a "good samaritan." (Rest.2d Torts, § 314, com. (a); James, Scope of Duty in Negligence Cases (1953) 47 Nw.U.L.Rev. 778, 803.) This doctrine is rooted in the common law distinction between action and inaction, or misfeasance and nonfeasance. (9) Misfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention. As section 315 illustrates, liability for nonfeasance is largely limited to those circumstances in which some special relationship can be established. If, on the other hand, the act complained of is one of misfeasance, the question of duty is governed by the standards of ordinary care discussed above.

Here, there can be little doubt that we review an act of misfeasance to which section 315 is inapplicable. Liability is not predicated upon defendant's failure to intervene for the benefit of decedent but rather upon its creation of an unreasonable risk of harm to him. (See Shafer v. Keeley Ice Cream Co. (1925) 65 Utah 46 [234 P. 300, 38 A.L.R. 1523].)^[6] Defendant's reliance upon cases which involve the failure to prevent harm to another is therefore misplaced, e.g., Wright v. Arcade School Dist., supra, 230 Cal. App.2d 272 (school district held free of a duty of care to children injured on their way to and from school).

Finally, we address the propriety of an allegedly erroneous and prejudicial instruction. The challenged instruction, though approved by the trial judge after submission by plaintiffs, was inadvertently omitted from the charge to the jury. Although plaintiffs immediately called the oversight to the judge's attention, the absence of a court reporter [50] prevented verification of the omission until the morning of the jury's third day of deliberations. Thereupon, the judge recalled the jury, explained his inadvertent error, and read the instruction, which stated: "One who undertakes to direct the action of another has a duty to do so with due care."

Defendant contends that the instruction was argumentative in that it focused exclusively on KHJ and no other defendant. We need not examine the merit of this assertion for defendant itself requested and received an instruction to substantially the same effect. That instruction began, "Every person who engages in a business activity which directs or influences the conduct of others and who, while so engaged exercises ordinary care...."^[7] (10) It is well settled that a party cannot attack the substance of an instruction if he himself proposed similar instructions. (Smith v. Americania Motor Lodge (1974) 39 Cal. App.3d 1, 7 [113 Cal. Rptr. 771].) For the same reason, we reject defendant's contentions that there was no support in the record for the challenged instruction and that it was ambiguous.

(11a) Additionally, defendant claims that independent prejudice arose from the tardy and isolated manner in which the instruction was given. The jury, it is asserted, attached undue importance to the instruction because it was given by itself on the third day of deliberations. We do not agree.

(12) The trial court possesses the inherent right on its own motion to recall the jurors for further instructions. (People v. Wester (1965) 237 Cal. App.2d 232, 238 [46 Cal. Rptr. 699]; People v. Hewitt (1936) 11 Cal. App.2d 197, 199 [53 P.2d 365].) In Davis v. Erickson (1960) 53 Cal.2d 860 [3 Cal. Rptr. 567, 350 P.2d 535], we stated if a court recalls the jury for the purpose of reading unintentionally omitted instructions the danger that the instruction will be overemphasized may be avoided if the court admonishes the jury not to attach any particular emphasis to the fact that it is reading certain instructions which had been inadvertently omitted in its first reading or by rereading all the instructions. (11b) Here the prefatory remarks of the trial judge minimized any [51] tendency of the jury to be unduly impressed by the circumstances under which the instruction was given.

Moreover, defendant failed to request either additional cautionary instructions or a rereading of all related instructions. Under similar circumstances, it was held in Stoddard v. Rheem (1961) 192 Cal. App.2d 49 [13 Cal. Rptr. 496] that the defendant should not be permitted to stand silently by, giving the appearance of acquiescence in the manner in which an instruction was given and be later heard to complain, too late for curative measures to be taken.

The judgment and the orders appealed from are affirmed. Plaintiffs shall recover their costs on appeal. The parties shall bear their own costs on the cross-appeal.

Wright, C.J., McComb, J., Tobriner, J., Sullivan, J., Clark, J., and Richardson, J., concurred.

[1] The conditions varied from the giving of a correct response to a question to the possession of particular items of clothing.

[2] It is not contended that the Steele vehicle at any time exceeded the speed limit.

[3] Plaintiffs filed a cross-appeal from an order entered after judgment denying them certain costs against Baime and KHJ. They do not assert before this court that the order was erroneous, and we shall therefore affirm the order on the cross-appeal.

[4] Defendant urges that we apply the factors enumerated in Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850, 865 [73 Cal. Rptr. 369, 447 P.2d 609, 39 A.L.R.3d 224], in determining whether it owed a duty to decedent. In that case, however, the primary issue was whether a duty was to be imposed upon the defendant notwithstanding the absence of privity, and we therefore examined considerations appropriate to that contractual framework. For example, the first of the enumerated elements was the extent to which the transaction was intended to affect the plaintiff. Such a consideration manifestly fails to illuminate our inquiry in the present case. Generally speaking, standards relevant to the determination of duty in one particular situation may not be applied mechanically to other cases.

[5] Section 314, states: "The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."

[6] In Shaferdefendant entered a float in a commercial parade and as the float traveled down the street, employees threw candy to the crowd. Children running to collect the candy injured a spectator. The court distinguished cases in which the conduct of the person who immediately caused the accident was not set in motion by any act of the defendant on the ground that the defendant, in throwing the candy, induced the response of the children which resulted in the plaintiff's injuries.

Contrary to defendant's assertion, Shafer is not distinguishable because there the defendant had actual knowledge children were following the float and scrambling for candy. Such knowledge only obviated the need for a determination that the acts of the children were foreseeable. In the present case, as we have seen, the jury's determination that the accident was foreseeable is supported by the evidence.

[7] The entire instruction read: "Every person who engages in a business activity which directs or influences the conduct of others and who, while so engaged, exercises ordinary care (in the manner in which said activity is conducted) has a right to assume that every other person will perform his duty and obey the law, and in the absence of reasonable cause for thinking otherwise or actual notice to the contrary, it is not negligence for such person to fail to anticipate an accident which can be occasioned only by a violation of law or duty by another person (or persons)."

Page 310

Page 311

        [141 Cal.App.3d 445] Bostwick & Rowe and Everett P. Rowe, San Jose, for plaintiff and appellant.

        Hoge, Fenton, Jones & Appel and Wayne H. Maire, San Luis Obispo, for defendant and respondent.

        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 police?

        This appeal follows a judgment of dismissal of the second cause of action ¹ 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 averments:

        "This action arises out of a shooting death occurring on August 9, 1977. Plaintiff's father [ ²] [Darrell Soldano] was as shot and killed by one Rudolph Villanueva

Page 312

        "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. ³ 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 facts quoted above. Following normal rules applicable to motions for summary judgment, we strictly construe the defense affidavit. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.) 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 his guests. We also assume the call was a local one and would not result in expense to defendant.

        There is a distinction, well rooted in the common law, between action and nonaction. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49, 123 Cal.Rptr. 468, 539 P.2d 36.) It has found its way into the prestigious Restatement Second of Torts (hereafter cited as "Restatement"), which provides in section 314:

"The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."

        Comment c of section 314 is instructive on the basis and limits of the rule and is set forth in the footnote. ⁴ The distinction between[141 Cal.App.3d 447] malfeasance and nonfeasance, between active misconduct working positive injury and failure to act to prevent mischief not brought on by the defendant, is founded on "that attitude of extreme individualism so typical of anglo-saxon legal thought." (Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability, part I, (1908) 56 U.Pa.L.Rev. 217, 219-220.)

Page 313

        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. (Winkelman v. City of Sunnyvale (1976) 59 Cal.App.3d 509, 511-512, 130 Cal.Rptr. 690.) 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. ⁵

        The refusal of the law to recognize the moral obligation of one to aid 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. Prosser describes the case law sanctioning such inaction as a "refus[al] to recognize the moral obligation of common decency and common humanity" and characterizes some of these decisions as "shocking in the extreme.... [p] Such decisions are revolting to any moral sense. They have been denounced with vigor by legal writers." (Prosser, Law of Torts (4th ed. 1971) § 56, pp. 340-341, fn. omitted.) A similar rule has been termed "morally questionable" by our Supreme Court. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435, fn. 5, 131 Cal.Rptr. 14, 551 P.2d 334.)

        Francis H. Bohlen, in his article The Moral Duty to Aid Others as a Basis of Tort Liability, commented:

        "Nor does it follow that because the law has not as yet recognized the duty to repair harm innocently wrought, that it will continue indefinitely to refuse it recognition. While it is true that the common law does not attempt to enforce all moral, ethical, or humanitarian duties, it is, it is submitted,[141 Cal.App.3d 448] equally true that all ethical and moral conceptions, which are not the mere temporary manifestations of a passing wave of sentimentalism or puritanism, but on the contrary, find a real and permanent place in the settled convictions of a race and become part of the normal habit of thought thereof, of necessity do in time color the judicial conception of legal obligation....

        "...

        "While courts of law should not yield to every passing current of popular thought, nonetheless, it appears inevitable that unless they adopt as legal those popular standards which they themselves, as men, regard as just and socially practicable, but which, as judges, they refuse to recognize solely because they are not the standards of the past of Brian, of Rolle, of Fineux, and of Coke; they will more and more lose their distinctive common law character as part of the machinery whereby free men do justice among themselves." (Bohlen, op. cit. supra, pt. II, 56 U.Pa.L.Rev. 316, 334-337.)

        As noted in Tarasoff v. Regents of University of California, supra, 17 Cal.3d at page 435, footnote 5, 131 Cal.Rptr. 14, 551 P.2d 334, the courts have increased the instances in which affirmative duties are imposed not by direct rejection of the common law rule, but by expanding the list of special relationships which will justify departure from that rule. For instance, California courts have found special relationships in Ellis v. D'Angelo (1953) 116 Cal.App.2d 310, 253 P.2d 675 (upholding a cause of action against parents who failed to warn a babysitter of the violent proclivities of their child), Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (upholding suit against the state for failure to warn foster parents of the dangerous tendencies of their ward), Morgan v. County

Page 314

        And in Tarasoff, a therapist was told by his patient that he intended to kill Tatiana Tarasoff. The therapist and his supervisors predicted the patient presented a serious danger of violence. In fact he did, for he carried out his threat. The court held the patient-therapist relationship was enough to create a duty to exercise reasonable care to protect others from the foreseeable result of the patient's illness.

        Section 314A of the Restatement lists other special relationships which create a duty to render aid, such as that of a common carrier to its passengers, an innkeeper to his guest, possessors of land who hold it open to the public, or one who has a custodial relationship to another. A duty may be created by an undertaking to give assistance. (See Rest.2d Torts, supra, § 321 et seq.)

        [141 Cal.App.3d 449] Here there was no special relationship between the defendant and the deceased. It would be stretching the concept beyond recognition to assert there was a relationship between the defendant and the patron from Happy Jack's Saloon who wished to summon aid. But this does not end the matter.

        It is time to re-examine the common law rule of nonliability for nonfeasance in the special circumstances of the instant case.

        Besides well-publicized actions taken to increase the severity of punishments for criminal offenses, ⁶ the Legislature has expressed a societal imperative to diminish criminal activity. Thus, in 1965, it enacted a provision for indemnification of citizens for injuries or damages sustained in crime suppression efforts. (Former Pen.Code, § 13600, added by Stats.1965, ch. 1395, § 1, p. 3315.) In that section the Legislature declared that "[d]irect action on the part of private citizens in preventing the commission of crimes against the person or property of others, or in apprehending criminals, benefits the entire public." The section does not require direct action by a private citizen; it merely recognizes the societal benefit if one does so. It was designed to stimulate active public involvement in crime control. ⁷ (Note, California Enacts Legislation To Aid Victims of Criminal Violence (1965) 18 Stan.L.Rev. 266.)

        Crime is a blight on our society and a matter of great citizen concern. The President's Commission on Law Enforcement and the Administration of Justice, Task Force Report: The Police (1967) recognized the importance of citizen involvement in crime prevention: "[C]rime is not the business of the police alone.... The police need help from citizens, ..." (Op. cit. supra, The Community's Role in Law Enforcement, ch. 9, p. 221, fn. omitted.) The commission identified citizen crime reporting programs in some cities. These have proliferated in recent years. (Id., at p. 223.)

        The National Advisory Commission on Criminal Justice Standards and Goals, Report on Community Crime Prevention (1973) stated: "Criminal justice professionals readily and repeatedly admit that, in the absence of citizen assistance, neither more manpower, nor improved technology, nor additional money will enable law enforcement to shoulder the monumental burden

Page 315

        The Legislature has recognized the importance of the telephone system in reporting crime and in summoning emergency aid. Penal Code section 384 makes it a misdemeanor to refuse to relinquish a party line when informed that it is needed to call a police department or obtain other specified emergency services. This requirement, which the Legislature has mandated to be printed in virtually every telephone book in this state, ⁸ may have wider printed distribution in this state than even the Ten Commandments. It creates an affirmative duty to do something--to clear the line for another user of the party line--in certain circumstances.

        In 1972 the Legislature enacted the Warren-911-Emergency Assistance Act. This act expressly recognizes the importance of the telephone system in procuring emergency aid. "The Legislature further finds and declares that the establishment of a uniform, statewide emergency [telephone] number is a matter of statewide concern and interest to all inhabitants and citizens of this state." (Gov.Code, § 53100, subd. (b).) The act also impliedly recognizes that "police, fire, medical, rescue, and other emergency services" are frequently sought by use of the telephone. (Ibid.) Further acknowledgment of the importance of the telephone system for summoning emergency aid is found in the act's provision that, by a specified date, all pay telephones "shall ... enable a caller to dial '911' for emergency services, and to reach an operator by dialing '0', without the necessity of inserting a coin." (Gov.Code, § 53112.) Moreover, Pacific Telephone, the largest telephone company in California, recognizing that the telephone can at times be a lifeline, has provided since 1968 a basic minimum rate "designed for the customer needing inexpensive low-usage residential telephone service for essential calls (Lifeline Service)." (Cal.P.U.C. Tariff 4-T (RATE PRACTICE 4-T, 1st Revised Sheet 12).)

        The above statutes are cited without the suggestion that the defendant violated a statute which would result in a presumption of a failure to use due care under Evidence Code section 669. Instead, they, and the quotations from the prestigious national commissions, demonstrate that "that attitude of extreme individualism so typical of anglo-saxon legal thought" may need limited re-examination in the light of current societal conditions and the facts of this case to determine whether the defendant owed a duty to the deceased to permit the use of the telephone.

        We turn now to the concept of duty in a tort case. The Supreme Court has identified certain factors to be considered in determining whether a duty is [141 Cal.App.3d 451] owed to third persons. These factors include:

"the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561; cf. Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 8-9, 31 Cal.Rptr. 847.)

        We examine those factors in reference to this case. (1) The harm to the decedent was abundantly foreseeable; it was imminent. The employee was expressly told that a man had been threatened. The employee was a bartender. As such he knew it is foreseeable that some people who drink alcohol in the milieu of a bar setting are prone to violence. (2) The certainty of decedent's injury is undisputed. (3) There is arguably a close connection between the employee's conduct and the injury: the patron

Page 316

⁹

        The consequences to the community of imposing a duty, the remaining factor mentioned in Rowland v. Christian, supra, is termed "the administrative [141 Cal.App.3d 452] factor" by Professor Green in his analysis of determining whether a duty exists in a given case. (Green, The Duty Problem in Negligence Cases, I (1929) 28 Colum.L.Rev. 1014, 1035-1045; reprinted in Green, The Litigation Process in Tort Law; No Place to Stop in the Development of Tort Law (2d ed. 1977) pp. 174-184.) 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.

        As the Supreme Court has noted, the reluctance of the law to impose liability for nonfeasance, as distinguished from misfeasance, is in part due to the difficulties in setting standards and of making rules workable. (Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 435, fn. 5, 131 Cal.Rptr. 14, 551 P.2d 334.)

        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 to 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 be limited to an establishment open to the public during 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 that an "emergency" situation is 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. (See Rest.2d Torts, supra, § 327.)

        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

Page 317

        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.

        The facts of this case come very nearly within section 327 of the Restatement (see fn. 5, ante ) which provides that if one knows that a third person is ready to [141 Cal.App.3d 453] give aid to another and negligently prevents the third person from doing so, he is subject to liability for harm caused by the absence of the aid. Section 327 is contained in topic 8 of the Restatement, "Prevention of Assistance by Third Persons." The scope note for this topic provides that the "actor can prevent a third person from rendering aid to another in many ways including the following: ... second, by interfering with his efforts to give aid; third, by injuring or destroying the usefulness of a thing which the third person is using to give aid or by otherwise preventing him from using it ...." ¹⁰ (Rest.2d Torts, supra, scope note, p. 145, emphasis added.)

        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.

        It would not be appropriate to await legislative action in this area. The rule was fashioned in the common law tradition, as were the exceptions to the rule. (See Prosser, op. cit. supra, at pp. 340-343.) To the extent this opinion expands the reach of section 327 of the Restatement, it represents logical and needed growth, the hallmark of the common law. It does not involve the sacrifice of other respectable interests.

        The courts have a special responsibility to reshape, refine and guide legal doctrine they have created. (People v. Drew (1978) 22 Cal.3d 333, 347, 149 Cal.Rptr. 275, 583 P.2d 1318.) As our Supreme Court summarized in People v. Pierce (1964) 61 Cal.2d 879, 882, 40 Cal.Rptr. 845, 395 P.2d 893, 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."

        The words of the Supreme Court on the role of the courts in a common law system are well suited to our obligation here:

        " 'The inherent capacity of the common law for growth and change is its most significant feature. Its development has been determined by the social needs of the community which it serves. It is constantly expanding and developing in keeping with advancing civilization and the new conditions and progress of society, and adapting itself to the gradual change of trade, commerce, arts, inventions, and the needs of the country.' ...

[141 Cal.App.3d 454] "In short, as the United States Supreme Court has aptly said, 'This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law.' (Hurtado v. California (1884) 110 U.S. 516, 530 [4 S.Ct. 111, 118, 28 L.Ed. 232] ....) But that vitality can flourish only so long as the courts remain alert to their obligation and opportunity to change the common law when reason and equity demand it: 'The nature of the common law requires that each time a

Page 318

        Examples of the growth of the common law in recent California cases are abundant. ¹¹

        The creative and regenerative power of the law has been strong enough to break chains imposed by outmoded former decisions. What the courts have power to create, they also have power to modify, reject and re-create in response to the needs of a dynamic society. The exercise of this power is an imperative function of the courts and is the strength of the common law. It cannot be surrendered to legislative inaction.

        Prosser puts it this way:

"New and nameless torts are being recognized constantly, and the progress of the common law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action, where none had been recognized before.... The law of torts is anything but static, and the limits of its development are never set. When it becomes clear that the plaintiff's interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself [141 Cal.App.3d 455] operate as a bar to the remedy." (Prosser, op. cit. supra, at pp. 3-4, fns. omitted.)

        The possible imposition of liability on the defendant in this case is not a global change in the law. It is but a slight departure from the "morally questionable" rule of nonliability for inaction absent a special relationship. It is one of the predicted "inroads upon the older rule." (Rest.2d Torts, supra, § 314, com. c.) It is a logical extension of Restatement section 327 which imposes liability for negligent interference with a third person who the defendant knows is attempting to render necessary aid. However small it may be, it is a step which should be taken.

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

        FRANSON, Acting P.J., and STANTON, ^* J., concur.

---------------

1 This was the only cause of action against defendant Howard O'Daniels. The judgment is therefore an appealable order. (Justus v. Atchison (1977) 19 Cal.3d 564, 568, 139 Cal.Rptr. 97, 565 P.2d 122.)

2 Any right of the plaintiff to recover would, of course, be derivative.

3 The defendant's liability would be affixed, if at all, by the concept of respondeat superior.

4 "The rule stated in this Section is applicable irrespective of the gravity of the danger to which the other is subjected and the insignificance of the trouble, effort, or expense of giving him aid or protection.

"The origin of the rule lay in the early common law distinction between action and inaction, or 'misfeasance' and 'non-feasance.' In the early law one who injured another by a positive affirmative act was held liable without any great regard even for his fault. But the courts were far too much occupied with the more flagrant forms of misbehavior to be greatly concerned with one who merely did nothing, even though another might suffer serious harm because of his omission to act. Hence liability for non-feasance was slow to receive any recognition in the law. It appeared first in, and is still largely confined to, situations in which there was some special relation between the parties, on the basis of which the defendant was found to have a duty to take action for the aid or protection of the plaintiff.

"The result of the rule has been a series of older decisions to the effect that one human being, seeing a fellow man in dire peril, is under no legal obligation to aid him, but may sit on the dock, smoke his cigar, and watch the other drown. Such decisions have been condemned by legal writers as revolting to any moral sense, but thus far they remain the law. It appears inevitable that, sooner or later, such extreme cases of morally outrageous and indefensible conduct will arise that there will be further inroads upon the older rule." (Rest.2d Torts, supra, § 314, com. c.)

5 "One who knows or has reason to know that a third person is giving or is ready to give to another aid necessary to prevent physical harm to him, and negligently prevents or disables the third person from giving such aid, is subject to liability for physical harm caused to the other by the absence of the aid which he has prevented the third person from giving." (Rest.2d Torts, § 327.)

6 See, e.g., Penal Code sections 667 (enhancement of sentence for habitual criminals, added by initiative measure, approved by the people, June 8, 1982), 667.5 (additional sentence enhancement for prior violent felonies), 667.7 (life term for certain habitual criminals), 667.6, subdivisions (c), (d) (full, separate, and consecutive sentences for multiple sex crimes), 1170.1 et seq. (Uniform Determinate Sentencing Act), 12022 et seq. (additional penalties for firearm use during a felony).

7 Former Penal Code section 13600 was reenacted in 1969 as Government Code section 13970 and, among other changes, the Legislature added that "rescuing a person in immediate danger of injury or death as a result of fire, drowning, or other catastrophe" also benefits the entire public. (Stats.1969, ch. 1111, § 3, p. 2168.)

8 Penal Code section 384, subdivision (c).

9 The moral right of plaintiff's decedent to have the defendant's bartender permit the telephone call is so apparent that legal philosophers treat such rights as given and requiring no supporting argument. (See Dworkin, Taking Rights Seriously (Harv.U.Press 1978) p. 99.) The concept flows from the principle that each member of a community has a right to have each other member treat him with the minimal respect due a fellow human being. (Id., at p. 98.)

10 Prosser states: "Even though the defendant may be under no obligation to render assistance himself, he is at least required to take reasonable care that he does not prevent others from giving it." (Prosser, op. cit. supra, at p. 348.)

11 See, e.g., Turpin v. Sortini (1982) 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954--creating "wrongful life" cause of action for special damages; Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226--adoption of rule of comparative negligence; Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669--permitting spousal action for loss of consortium; Rowland v. Christian, supra, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561--termination of distinctions between trespassers, licensees and invitees to determine liability of possessor of land; Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897--introduction of strict products liability; Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457--abrogation of governmental immunity; Silva v. Providence Hospital of Oakland (1939) 14 Cal.2d 762, 97 P.2d 798--overruling the doctrine of charitable immunity; Scott v. McPheeters (1939) 33 Cal.App.2d 629, 92 P.2d 678--establishing that child may sue for prenatal injury.

* Assigned by the Chairperson of the Judicial Council.

Page 103

        [198 Cal.App.3d 972] Andrew H. Lange, Lange & Lange, San Francisco, for plaintiff and appellant.

        Paul C. Glusman, Corporate Litigation Section, Fireman's Fund Ins. Co., Novato, for defendant and respondent.

        LOW, Presiding Justice.

        Plaintiff Donovan Stangle brought suit against defendant Fireman's Fund Insurance Company for plaintiff's loss of a sapphire ring, [198 Cal.App.3d 973] claiming Fireman's Fund could have prevented the theft of the ring by making a telephone available to summon help. The trial court found defendant had no duty to prevent the theft. We affirm.

        Plaintiff purchased a sapphire and diamond ring in Honolulu, Hawaii, in December 1979 in exchange for a $30,000 promissory note that was due and payable in six months. Plaintiff testified he bought the ring "to hold it for a short period of time and sell it for a profit." When efforts to market the ring in Seattle proved unsuccessful, plaintiff asked Barnabas Britt, a former girlfriend, to attempt to sell the ring in San Francisco and she would be entitled to any sale proceeds in excess of $45,000.

        Ms. Britt placed an advertisement for the ring, priced at $60,000. She was contacted by a man who identified himself as Barry Richards. Ms. Britt arranged for a meeting with Mr. Richards at McArthur Park restaurant. She showed him the ring, which she had carried in her purse, and a written appraisal that placed the ring's replacement value at $103,000. They discussed price, and Mr. Richards told her he would be in contact.

        Later that day, Mr. Richards telephoned Ms. Britt and told her his principal wished to purchase the ring for $50,000. At Mr. Richards's direction, the sale was to take place the next day at defendant's offices on the 14th floor of One Market Plaza in San Francisco. He explained to Ms. Britt that "the person that he represented wanted the ring photographed and insured before he left the premises with it."

        Ms. Britt arrived at One Market Plaza with a friend, Maria Antonidias. Mr. Richards proceeded to the 14th floor while Ms. Britt and Ms. Antonidias retrieved the ring

Page 104

        Plaintiff does not contend defendant or any of its employees were parties to the crime. The facts upon which plaintiff seeks to premise defendant's liability were set out by Ms. Britt at trial: Ms. Britt testified that her friend "was right behind" Mr. Richards when she went to the receptionist to call for assistance. She explained to the receptionist that her ring had just been stolen, but the receptionist put her hand down on the phone and said, "I'm sorry. This is for building use only." After this, Ms. Britt took the elevator [198 Cal.App.3d 974] down to the lobby, reported the theft to security, and the police were called. However, it was too late to apprehend the thief.

        The main issue presented by plaintiff's complaint was whether defendant's employees owed Ms. Britt a duty, predicated on principles of general negligence, to make a telephone available to Ms. Britt so that she could summon aid. At the conclusion of trial, the court determined "no special relationship was created between the Plaintiff and the Defendant that would impose any duty on the Defendant to prevent the alleged loss." The court further stated in its intended decision: (1) there was no negligent conduct on the part of defendant; (2) the refusal to allow Ms. Britt the use of the telephone after the theft was not the proximate cause of any damage to the plaintiff; and (3) the proximate cause of plaintiff's loss was the negligent conduct of Ms. Britt in the manner she handled the sale and the plaintiff's negligence in entrusting the ring to an inexperienced agent without security or insurance.

        Whether a duty to plaintiff exists is primarily a question of law. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) As a rule, "[a]bsent a special relationship giving rise to a duty to act, a person is under no duty to take affirmative action to assist or protect another, no matter how great the danger in which the other is placed, or how easily he could be rescued. [Citations.]" (Clarke v. Hoek (1985) 174 Cal.App.3d 208, 215, 219 Cal.Rptr. 845; Williams v. State of California (1983) 34 Cal.3d 18, 23, 192 Cal.Rptr. 233, 664 P.2d 137.)

        A narrow exception to this often harsh rule has been forged by the court when physical violence is threatened. (Soldano v. O'Daniels (1983) 141 Cal.App.3d 443, 190 Cal.Rptr. 310.) In Soldano, it was held that a restaurant owner owed a murder victim a duty to permit a third person the use of a telephone to call police when a death threat was made. In reversing summary judgment, the court rejected the restauranteur's argument that common law never imposed a duty to rescue one in peril. The court held there was a duty to permit use of the telephone to summon emergency aid, but underlined the narrow scope of the new rule: "[T]he duty would arise if and only if it were clearly conveyed that there exists an imminent danger of physical harm. " ( Id., at p. 452, 190 Cal.Rptr. 310, emphasis added.) The plaintiff herein argues by analogy that the rule announced in Soldano should be extended to "emergencies arising from all criminal conduct." Such a ruling would be a vast departure from the rule of nonliability for inaction, and we believe it would be ill advised and unwarranted. (See Clarke v. Hoek, supra, 174 Cal.App.3d at pp. 218-219, 219 Cal.Rptr. 845.)

        Plaintiff next urges this court to find that a "special relationship" existed between plaintiff's agent, Ms. Britt, and defendant which would [198 Cal.App.3d 975] impose an affirmative duty on defendant to aid Ms. Britt in summoning help. Special relationships, which remove bystander status and invoke a duty to rescue or protect, are often based on economic considerations--for instance, a common carrier to its passengers, an innkeeper to his guest, possessors of land who hold it open to the public, or one who has a

Page 105

        Plaintiff would also bear the burden of showing defendant's negligence was the proximate cause of the injury. (Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 765, 91 Cal.Rptr. 745, 478 P.2d 465.) Proximate cause has generally been held to be a question of fact. (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 55-56, 192 Cal.Rptr. 857, 665 P.2d 947; Fagerquist v. Western Sun Aviation, Inc. (1987) 191 Cal.App.3d 709, 719, 236 Cal.Rptr. 633.) In this case, substantial evidence supported the judge's decision that plaintiff's loss was not caused by anything done or not done by defendant. The court heard the testimony of Walter Cracke, director of security for One Market Plaza at the time of the theft. Mr. Cracke testified that even if he had received a telephone call from someone in the building reporting a theft and describing the thief, he would not have detained anyone on that basis. His practice would dictate "[w]e send somebody up to you, or you come down to us." In light of this testimony, Ms. Britt's inability to gain immediate access to a telephone becomes inconsequential--she would have been required to personally report the incident in any event. Thus, the court's finding that defendant's conduct was not the proximate cause of plaintiff's loss is fully supported by the record and supplies one more reason to affirm this judgment.

        The judgment is affirmed.

        KING and HANING, JJ., concur.

[133] COUNSEL

O'Dorisio, Wedell & Wade and Jeffrey P. Wade for Plaintiff and Appellant.

[134] Stutz, Rentto, Gallagher & Artiano, Robert E. Gallagher, Jr., Maureen L. Shellove, Post, Kirby, Noonan & Sweat, R. Bruce Wayne and Sandra L. Lackey for Defendants and Respondents.

OPINION

STANIFORTH, Acting P.J.

Plaintiff Richard Lee Cohen questions by this appeal the correctness of a summary judgment entered in favor of store owner Southland Corporation, its Linda Vista Road 7-Eleven store franchisee, James R. Simmons and its employee, Timothy G. Wolfe, all defendants in this personal injury action. The dispositive issues are (1) whether under the evidence offered in the motion, foreseeability remained a question of fact for a jury; and (2) whether defendants established as a matter of law they have fulfilled any duty of care owed. (Bigbee v. Pacific Tel & Tel. Co. (1983) 34 Cal.3d 49, 52 [192 Cal. Rptr. 857, 665 P.2d 947].)

FACTS

In the early morning hours of May 14, 1978, Cohen drove into the parking lot of the Linda Vista Road 7-Eleven store. He intended to buy a sandwich. While still in his car, Cohen was approached by a man displaying a revolver. He stated he intended to rob the store, take Cohen hostage and use Cohen's car as the getaway vehicle. The man proceeded into the store, with Cohen following. The clerk on duty that night was defendant Wolfe. Once inside, the robber approached Wolfe at the counter and displayed the gun. Cohen then seized the robber from behind. In the ensuing struggle the man shot Cohen in the stomach. Wolfe, observing the struggle, retreated to the back office, barricaded its door and did not emerge until the police arrived. The assailant escaped and remains at large.

TRIAL COURT PROCEEDINGS

Cohen filed a negligence action against Southland, Simmons and Wolfe. Southland's demurrer to Cohen's complaint was sustained with leave to amend. The amended complaint alleged defendants negligently failed to protect store patrons from assault or other threatening behavior of would-be robbers. The complaint also charged Wolfe negligently and carelessly failed to aid Cohen after Cohen was shot.

Defendants moved for summary judgment. In support of the motion, Southland offered the declaration of Edward Perkins, assistant director of 7-Eleven store security. Perkins asserted — based on his review of Southland's files of all criminal incidents in franchise stores — there was a single [135] criminal incident at the Linda Vista Road store between February 1, 1972, and May 14, 1978. This was a noninjury armed robbery which occurred December 3, 1976. Perkins also detailed Southland's policy of offering an extensive security program to franchisees, including continuing education in robbery prevention technique and methods for dealing with in-progress robberies. He suggested 7-Eleven stores regularly use security devices such as strong boxes for excess cash, warning labels on store windows advising of minimal cash on hand, and a balanced lighting system allowing store clerks to observe outside activities and persons outside to view activities within. Additionally, the stores customarily stack merchandise to a level of not more than four and one-half feet to allow unobstructed vision of the store's interior and parking lot.

Perkins mentioned Simmons had installed a video camera and recording device to monitor cash register sales; he did not suggest Simmons had participated in Southland's extensive security training program, nor did he state the Linda Vista Road 7-Eleven store used the customary security devices he detailed.

Declarations of defendants Simmons and Wolfe also were the basis for the motion. Simmons claimed from the date of his ownership of the Linda Vista Road store franchise, July 1976 to May 14, 1978, there had been a single noninjury criminal incident — "a situation where a man demanded and received the money from the cash register" — not involving a weapon. He stated at the time of the incident the interior of the store and the parking lot were equipped with lights, the store had a video-surveillance system and a window sign indicating a limited amount of cash was kept on hand at night. He also noted a police substation is located one-half mile from the store. During the late night hours the store is visited by police on an average of once an hour on an irregularly timed basis.

Wolfe stated the video-surveillance system was in operation the night of the incident and the interior of the store and the parking lot were illuminated. He also stated he did not notice the robber had a gun until the robber stepped to the store counter. At the same moment Cohen grabbed the robber from behind. Wolfe then related what happened next: "The plaintiff and the suspect struggled, knocking the cash register to the ground. At that point, I stepped back to get out of the way of the cash register and after taking two or three steps backward, I heard a shot. I did not see the gun go off. After hearing the shot, I ran to the back room of the store and locked the door. The back room had a television monitor that was linked to the camera device which was in the area of the cash register. On the television monitor, I could see the cash register area and a portion of the aisles of the store. I feared that the gunman was going to come into the back room so I barricaded [136] the door with a filing cabinet. After barricading the door, I looked back on the television monitor and I did not see the suspect. I did not know whether or not the suspect was still in the store because the camera did not view all of the interior of the store, but rather only the area around the cash register and front door. I therefore did not use the telephone that was in the back room for fear the suspect would hear me. I continued to look at the television monitor and saw the plaintiff get up, walk behind the counter, and then walk toward the front door. A car drove up and then drove away. I then observed another customer walk into the store, and walk behind the counter and use the telephone. Approximately three to five minutes after the shooting, I observed on the television monitor that the police arrived. I picked up the telephone extension in the back room and talked with the police dispatcher who then informed the investigating police officer that I was in the back room. At that point I opened up the door and talked with the police. During the entire incident, up to the point where I saw the police arrive, I did not know where the suspect was and I feared for my safety." According to Wolfe, throughout the incident the robber said nothing.

In opposition to defendants' summary judgment motion Cohen charged in his declaration the Linda Vista Road store was customarily "not very well lit" and "the only light there was on May 14, 1978 at night emanated from the inside of the store." Cohen recalled the inside lights lit only the walk in front of the store; the 7-Eleven sign on the store's roof and the 7-Eleven sign by the street were both turned off. Additionally, there were "no lights on the side of the building that were lit, nor was there any light coming from the Exxon station (which was closed) to the east or the Mexican Restaurant (which was closed) to the west." Cohen also said the store's manager had informed him prior to the shooting — during an interview for a graveyard shift opening for which Cohen had applied — the store was periodically robbed.

Cohen's counsel's investigator by declaration related in 1975 Southland experienced in excess of one robbery per store per year nationwide; in its Pacific Division (which includes San Diego), the number of robberies exceeded the corporate average. Clerk Wolfe's deposition admitted he received no training in robbery or violence prevention techniques upon being hired as the sole clerk for the 10:30 p.m. to 6:30 a.m. shift, beyond the admonition to give a robber anything he or she wanted. Jerry Lowery, Southland's head security officer, stated corporate store employees are required to participate in Southland's security training program but franchise store employees are not; Southland had no means of monitoring franchisee participation.

Finally, Cohen relied on a 1975 study funded in part by Southland which demonstrated 7-Eleven store robberies could be significantly reduced (a 30 [137] percent reduction was achieved under the study's controlled conditions) by prevention procedures such as the strategic placement of signs announcing a low amount of cash-on-hand in the store, improved lighting in the parking lot and the training of store owners, managers and clerks in a series of robbery prevention procedures and violence prevention techniques.

The trial court granted summary judgment for defendants. Cohen appeals.

DISCUSSION

I

(1) On a summary judgment motion, "[t]he moving party bears the burden of furnishing supporting documents that establish the claims of the adverse party are entirely without merit on any legal theory." (Lipson v. Superior Court (1982) 31 Cal.3d 362, 374 [182 Cal. Rptr. 629, 644 P.2d 822].) Summary judgment should be granted only where "there is no triable issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) (2) "`The affidavits of the moving party are strictly construed and those of his [or her] opponent liberally construed, and doubts as to propriety of granting the motion should be resolved in favor of the party opposing the motion.' And, conflicts in affidavits are to be resolved in favor of the nonmoving party." (Albertini v. Schaefer (1979) 97 Cal. App.3d 822, 831 [159 Cal. Rptr. 98], citations omitted. See also Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432, 436-439 [74 Cal. Rptr. 895, 450 P.2d 271].) With these standards for granting a summary judgment in mind, we review the trial court's implicit determination in granting defendant's summary judgment motion that, under all the circumstances, there was no legal duty owed to Cohen to protect him from criminal activity on the 7-Eleven premises.

II

(3) It is settled law in California that an owner or occupier of land held open for business purposes has a duty to protect visitors from the wrongful acts of third persons which threaten the safety of visitors to the premises when he or she has reasonable cause to anticipate such acts and the probability [138] of resulting injury. (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121 [52 Cal. Rptr. 561, 416 P.2d 793].)^[1]

A legal duty to use due care is an essential element of a negligence action. (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, 53, fn. 3.) (4) The existence of a legal duty of care is a question of law (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750 [167 Cal. Rptr. 70, 614 P.2d 728, 12 A.L.R.4th 701]), "to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court." (Prosser, Torts (4th ed. 1971) p. 206, fn. omitted.)

Defendants contend it was not foreseeable Cohen would be injured as a result of third party criminal activity at the Linda Vista Road 7-Eleven store and therefore owed Cohen no duty of care. (5) Foreseeability of the harm is of primary importance in establishing the element of duty (Gomez v. Ticor (1983) 145 Cal. App.3d 622, 628 [193 Cal. Rptr. 600]; Musgrove v. Ambrose Properties (1978) 87 Cal. App.3d 44, 52 [150 Cal. Rptr. 722]). It is ordinarily a question of fact for the jury, and "decided as a question of law only if, `under the undisputed facts there is no room for a reasonable difference of opinion.'" (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 56.)

(6) Foreseeability is not coterminous with duty. It is one of several factors to be balanced in determining whether a duty exists in a particular case. The other factors, articulated in Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496], are: "the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to [139] the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved."

We examine these factors in IV infra.

The Restatement Second of Torts, section 344, comment (f) details the factual circumstances under which a duty of care arises: "Since the [owner or occupier of land] is not an insurer of the visitor's safety, he [or she] is ordinarily under no duty to exercise any care until he [or she] knows or has reason to know that the acts of the third person are occurring, or are about to occur. He [or she] may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor even though he [or she] has no reason to expect it on the part of any particular individual. If the place or character of his [or her] business, or his [or her] past experience, is such that he [or she] should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he [or she] may be under a duty to take precautions against it. ..." (Italics added.)

III

(7a) It is Southland's position Cohen's injury was unforeseeable because no prior injury-producing armed robbery occurred at the Linda Vista Road store in the preceding six years. Cohen responds by pointing to the conflict in the facts as to the frequency of prior robberies at Simmons' store. Cohen swore Simmons told him the store was periodically robbed; Simmons reported only one previous unarmed, noninjury robbery; Perkins, assistant director of 7-Eleven store security, reported a single prior armed robbery occurred. Such conflicts must be resolved in favor of Cohen, the nonmoving party. We presume for the purpose of determining foreseeability that several prior robberies occurred.

Even if defendants established, without question, but a single prior robbery occurred, the fact of a prior incident at that particular store coupled with the uncontroverted statistic on 7-Eleven robberies generally made foreseeability of a robbery of Simmons' 7-Eleven store a triable issue of fact. It is unclear whether the one robbery or more per store per year statistic represents armed robberies. However, the robbery prevention study commissioned by Southland (relied on by Cohen) notes 80 percent of the 97 7-Eleven store robberies which were the subject of the study were armed robberies. An armed robbery of the 7-Eleven store therefore appears to have been statistically foreseeable. It may also have been foreseeable that a customer, [140] present in the store during an armed robbery, would be injured by the robber.^[2] (8) As the Supreme Court reminded in Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, 57-58: "[W]hat is required to be foreseeable is the general character of the event or harm ... not its precise nature or manner of occurrence." (7b) The Cohen shooting fell within the scope of foreseeable harm, i.e., injury of a store customer present during a criminal act. (See Gomez v. Ticor, supra, 145 Cal. App.3d 622, 628, fn. 1.)

In Gomez v. Ticor, supra, the appeal court found a patron's injury by a third party on business premises arguably foreseeable by the premises owner. Gomez involved the fatal shooting of a patron of an office building's commercial parking structure. The decedent had entered the garage as an armed robbery was in progress and was shot by one of the robbers. On the basis of evidence of the general unsafe character of the neighborhood and of numerous thefts and other crimes which had occurred in the building (not in the garage) in the three years before the attack, the Gomez court ruled the plaintiff had raised a triable issue of fact as to foreseeability of the injury. Cohen has an even stronger argument for foreseeability than the Gomez plaintiff, because the self-same criminal activity at issue in the instant case which led to Cohen's injury had occurred before in the Linda Vista Road store.

The California Supreme Court in Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, evidenced a reluctance to remove foreseeability questions from the jury. The Bigbee court reversed a grant of summary judgment, ruling a triable issue of fact existed as to the foreseeability of the risk an automobile might crash into a telephone booth and injure its occupant, where the defendant's evidence placed the booth in a parking lot 15 feet from the side of a major thoroughfare and near a driveway. (34 Cal.3d at p. 58.) The court concluded: "Considering the case law and the circumstances of this case, this court cannot conclude as a matter of law that injury to plaintiff, inflicted by negligent or reckless third party drivers, was unforeseeable. `[J]ust as we may not rely upon our private judgment on this [141] issue, so the trial court may not impose its private judgment upon a situation, such as this, in which reasonable minds may differ.'" (Id., at p. 59, citation omitted and italics added.)

Added to the allegation of previous robberies of Simmons' store and the statistic demonstrating the alarming frequency of robberies in 7-Eleven stores generally, and a general reluctance to remove foreseeability questions from the jury, is a further reason for finding a triable issue of fact as to the foreseeability of injury here. In the very operation of an allnight convenience store, defendants may be said to have created "an especial temptation and opportunity for criminal misconduct," thus increasing the foreseeability of injury resulting from third party misconduct in the early morning hours. (Prosser, Torts (4th ed. 1971) p. 174.)

Cohen makes an unsupported assertion a robbery is five times more likely to occur at night than in the daylight hours. However, common experience and reason support the conclusion more robberies occur at night; fewer people are around to interfere with or witness the crime. Darkness conceals the robber's getaway. A 24-hour convenience store makes an attractive target for night time criminal activity. Gomez v. Ticor, supra, 145 Cal. App.3d at page 629, held temptation to and opportunity for crime was created by operation of a parking structure thus increasing foreseeability of criminal attack within such structure.

Finally, as the Gomez court so aptly stated: "The California Supreme Court has recently reiterated that `"foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct."' [Citations.] Parking structures are relatively new fixtures in `the setting of modern life.' Accordingly, we are not bound by any specific precedent in determining whether attacks on patrons of these structures are foreseeable. Rather, this determination must come as the result of a realistic appraisal of the foreseeability of crime in any such structure; such an appraisal is the jury's task." (Ibid.) Convenience stores are also "relatively new fixtures `in the setting of modern life.'" (Ibid.) As in Gomez, a jury must in light of all the facts, realistically appraise whether customer injury during the course of a Linda Vista Road 7-Eleven store robbery was foreseeable.

IV

Defendants contend, assuming arguendo Cohen's injury was foreseeable, the other factors in the duty analysis weigh adversely to him and dictate a no duty finding. Defendants' summation of the relevant case law is correct. [142] (9) Whenever the duty sought to be imposed upon the defendant would place an extremely onerous burden on both the defendant and the community, and where the defendant is not morally culpable, and where the proposed duty and the measures to be applied in discharge of the duty defy exact delineation and suffer from inherent vagueness, courts have declined to impose a duty when prior similar events did not make the harm highly foreseeable. (See Gomez v. Ticor, supra, 145 Cal. App.3d at pp. 631-632; Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal. App.3d 538, 545 [134 Cal. Rptr. 29]; Rogers v. Jones (1976) 56 Cal. App.3d 346, 352 [128 Cal. Rptr. 404].)

This case, for the following reasons, does not fall within the factual boundaries of cases such as Rogers v. Jones, supra, and 7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal. App.3d 901 [172 Cal. Rptr. 528], which require repeated, prior similar incidents — i.e., harm that is highly forseeable — before a duty may be imposed. First, imposition of a duty to take reasonable precautions against early morning robberies of the Linda Vista Road store would not place an extremely onerous burden on both the defendant and the community, as defendants suggest. Defendants characterize Cohen's insistence on such a duty as tantamount to a requirement they hire full-time armed security guards in the hope of deterring nighttime crime. They argue imposing such a duty would result in 7-Eleven franchises' economic ruin, for "[i]t takes no elaborate economic analysis to conclude that small, independently-owned stores run on thin profit margins."

Defendants misapprehend the ramifications of a duty finding here. Imposition of a duty to make Simmons' store reasonably safe against criminal activity is not coincident with requiring the hiring of armed guards. Rather, a jury could determine the duty was more than adequately fulfilled by the less onerous, relatively inexpensive robbery and/or violence deterrence measures described in the Southland-commissioned study, e.g., making sure the store itself and its parking lot were well illuminated, and training store employees in methods for dealing with in-progress robberies. Such measures contributed to a 30 percent reduction in store robberies over the course of the Southland-commissioned study.

The community, in fact, would benefit by imposition of a duty here. As Cohen suggests, keeping a store open in the late evening and early morning hours invites criminal activity. (10) It is only fair and equitable the reasonable costs of protecting store patrons from criminal activity be borne by the owners, the operators and indirectly the patrons of convenience stores and not by the community at large. It is also not unfair that patrons pay a few cents more for items they purchase from such a store and gain the [143] assurance of reasonable protection against criminal activity while shopping there, rather than allow the emotional and physical burden of a criminal attack to fall on the store patron who inadvertently finds himself or herself in the middle of a robbery invited by the store's failure to employ minimal crime deterrence measures. (See Butler v. Acme Markets, Inc. (1982) 89 N.J. 270 [445 A.2d 1141].)

Second, implicit in the foregoing discussion is disagreement with defendants' position the measures to be applied in discharge of the proposed duty defy exact delineation and suffer from inherent vagueness. True, the duty may be fulfilled by various means, and the sufficiency of these means may often be decided by "a lay jury, after the fact." (7735 Hollywood Blvd. Venture v. Superior Court, supra, 116 Cal. App.3d at p. 905.) There is no reason, however, to doubt the capability of the jury to carry out instructions — if such defense is tendered — and limit its inquiry to deciding whether the requisite minimal duty has been satisfied. (Gomez v. Ticor, supra, 145 Cal. App.3d at p. 633.)

(11) Cohen does not contend the injury of a patron in the course of an armed robbery of the Linda Vista Road 7-Eleven was highly foreseeable. He has alleged — and we have taken as true for the purpose of this appeal — at least several prior robberies occurred at Simmons' store. Thus, the degree of foreseeability here is greater than was present in Gomez, where the plaintiff did not allege a single instance of prior assault on the premises. Gomez held the foreseeability there alleged, if confirmed by a jury, would support a minimal duty only to provide the "first line of defense" against a criminal attack, not vague and onerous duties directed at preventing an attack. In the case at bench, providing the "first line of defense" is all that is at issue. We therefore hold if Cohen proves, as he has alleged, his injury was foreseeable, defendants owed him a minimal duty of care.

Cohen has defined the duty he proposes and shown the effectiveness of means to discharge it. The Southland-commissioned study demonstrates if defendants take certain measures defendants will reduce the incidence of robberies and thereby afford store patrons reasonable protection.

V

(12) Defendants have not conclusively (as a matter of law) demonstrated they have fulfilled a minimal duty of care and are therefore entitled to a judgment as a matter of law. From the moving papers it appears Southland has instituted an extensive security training program and 7-Eleven stores regularly use security devices designed to deter robberies. Cohen introduced evidence, however, that Wolfe, the on-duty clerk the night of the incident, [144] received no security training. Additionally, defendants have not alleged the Linda Vista Road store implemented the customary 7-Eleven store security measures, such as a balanced lighting system allowing store clerks to observe outside activities and persons outside to view activities within. The Southland-commissioned study showed improved parking lot lighting contributed to a decline in 7-Eleven store robberies. Yet, there was directly conflicting evidence regarding store lighting on the night of the incident. Cohen recalled the store was "not very well lit" and on the night in question the parking lot was dark, the 7-Eleven roof and street signs were turned off, and the only light in the general vicinity emanated from inside the store. Wolfe insisted the parking lot was illuminated but did not detail the source(s) of the illumination.

The adequacy of defendants' measures to protect store patrons from assault or other threatening behavior of would-be robbers is therefore also a factual issue to be resolved by a jury.

VI

Lastly, Cohen contends defendants have not established, as a matter of law, Wolfe had no duty to rescue Cohen after the shooting. (13) The general rule declares a person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to such a duty. (Rest.2d Torts, § 314, p. 116; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 554, p. 2821.) There was no claim of a special relationship between Wolfe and Cohen which gave rise to the duty to rescue. Wolfe stated in his declaration he feared for his life when the robber displayed the weapon and Cohen grabbed the robber from behind. After retreating to the rear office to avoid being shot, Wolfe continued to fear for his life. He thought the robber was still in the store. In light of Wolfe's patently reasonable fear for his own safety we decline to depart from the general no-duty rule. The trial court properly entered summary judgment on Cohen's fourth cause of action for Wolfe's charged negligent failure to rescue.

DISPOSITION

The summary judgment is reversed as to all but Cohen's fourth cause of action upon which the summary judgment is affirmed.

Wiener, J., and Work, J., concurred.

[1] Appellate decisions of federal and other state courts are virtually unanimous in holding possessors of business premises owe a duty of care to customers to take affirmative steps to control a third party's foreseeable wrongful conduct. (See, e.g., Kenny v. Southeastern Pennsylvania Transp. (3d Cir.1978) 581 F.2d 351, cert. den. 439 U.S. 1073 [59 L.Ed.2d 35, 99 S.Ct. 845]; Hart v. Pennsylvania Turnpike Com'n (W.D. Pa. 1977) 438 F. Supp. 573; Morgan v. Bucks Assoc. (E.D. Pa. 1977) 428 F. Supp. 546; Foster v. Winston-Salem Joint Venture (1981) 303 N.C. 636 [281 S.E.2d 36]; Nallan v. Helmsley-Spear, Inc. (1980) 50 N.J.2d 507 [407 N.E.2d 451]; Alonge v. Rodriquez (Wis. 1979) 279 N.W.2d 207; Whelchel v. Strangways (1976) 275 Ore. 297 [550 P.2d 1228]; Jones v. Oberg (1981) 52 Ore.App.601 [628 P.2d 773]; Murphy v. Penn Fruit Co. (1980) 274 Pa. Super. 427 [418 A.2d 480]; Walkoviak v. Hilton Hotels Corp. (Tex.Civ.App. 1979) 580 S.W.2d 623; Carswell v. Southeastern Pa. Transp. Authority (1978) 259 Pa.Super 167 [393 A.2d 770]; Parslow v. Pilgrim Parking, Inc. (1977) 5 Mass. App. 822 [362 N.E.2d 933]; Morris v. Barnette (Tex.Civ.App. 1977) 553 S.W.2d 648; Atamian v. Supermarkets General Corp. (1976) 146 N.J. Super. 149 [369 A.2d 38]; and Stalzer v. European American Bank (1982) 113 Misc.2d 77 [448 N.Y.S.2d 631].)

[2] Defendants are in error in arguing an armed robbery resulting in injury was necessarily unforeseeable because the prior robbery they admit occurred was a noninjury incident. To state this argument is to refute it. In making this point, defendants rely on cases which rule against foreseeability where prior criminal activity was wholly dissimilar to that which resulted in plaintiffs' injury. These cases actually support Cohen's position. Wingard v. Safeway Stores, Inc. (1981) 123 Cal. App.3d 37 [176 Cal. Rptr. 320], for example, involved a rape at defendant's warehouse. The court noted the dissimilarity of the crime of rape to the crime of theft; the only evidence of prior third party criminal acts relied upon was of prior thefts. The court specifically determined defendant owed no duty to protect against rape where there had been no previous assaults, and the existence of previous thefts did not give reasonable cause to anticipate an assault. Under the Wingard analysis, the defendants owed a duty to protect against an injury-producing armed robbery where there had been a previous armed robbery but not where there had only been previous acts of vandalism.