PREMISES LIABILITY IN THE ERRANT VEHICLE CASE
By Miles B. Cooper and Cynthia McGuinn
I.
INTRODUCTION
Sometimes, there can be more than one cause for an accident.1 Premises
owners and operators, in an effort to optimize profits, frequently set up their businesses
without any regard to the vehicular traffic adjacent to the business. Evidence of this is
scattered throughout case law— Bigbee v. Pacific Tel. & Tel. Co.,2 Jefferson v. Qwik
Korner Market,3 Barker v. Wah Low,4 Robison v. Six Flags Theme Park,5 and Weiner v.
South Coast Childcare Centers, Inc.6 are some examples. While the errant vehicle or
vehicles may be a cause of the accident, the location of the business without any regard
for customer safety can be a secondary factor. The purpose here is to provide an
overview of the investigation, discovery, and case law that govern these actions so that
plaintiffs have what they need to overcome the summary judgment motion that is
virtually unavoidable to any curb-jumping case. The case law governing curb-jumping
cases have found the issue to be a mixed issue of duty and foreseeability. As a result,
summary judgments are routinely made—and if one is not careful granted—in these
cases.
II.
GATHERING THE FACTS
There are many ways to gather the information needed to prove your case.
1
CACI 431 Causation: Multiple Causes.
2
Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49.
3
Jefferson v. Qwik Korner Market (1994) 28 Cal.App.4th 990.
4
Barker v. Wah Low (1971) 19 Cal.App.3d 710.
5
Robison v. Six Flags Theme Park (1998) 64 Cal.App.4th 1294.
6
Weiner v. South Coast Childcare Centers, Inc. (2004) 32 Cal.4th 1138.
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Cheap, easy, pre-discovery methods exist that can cut down on costs. Ordering a StateWide Integrated Traffic Reporting System7 report for the area surrounding the incident is
a must.
III.
A.
CASE LAW
When a customer is forced to stand in a fixed location near vehicular
traffic to transact business, the foreseeability of that customer being
struck by an errant vehicle is a question of fact.
In Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, the plaintiff was injured
when an out-of-control car struck a telephone booth placed near a driveway in a parking
lot adjacent to a major thoroughfare.8
The Bigbee intersection. The pay telephones are the two squares by
Fortune Liquor in the lower right side of the page.
7
California Highway Patrol
Support Services Section, Information Service Unit, 860 Stillwater Road, West
Sacramento, CA 95605, fax no. (916) 375-2842.
8
Id. at p. 52.
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In Bigbee, the California Supreme Court, in finding that the trial court committed
reversible error in finding the accident unforeseeable as a matter of law, stated that the
issue was “a relatively simple one. Is there room for a reasonable difference of opinion
as to whether the risk that a car might crash into the phone booth and injure an
individual inside was reasonably foreseeable under the circumstances [of the case]?”9
The court determined that it could not conclude as a matter of law that injuries to
users of telephone booths adjacent to thoroughfares inflicted by negligent or reckless
drivers were unforeseeable. “‘[J]ust as we may not rely upon our private judgment on
this issue, so the trial court may not impose its private judgment upon a situation, such
as this, in which reasonable minds may differ.’”10 Accordingly, the summary judgment
entered for the telephone company—which was allegedly responsible for the design,
location, installation, and maintenance of the booth—was reversed because the
foreseeability of harm to the plaintiff remained a triable issue of fact.11
Any defendant will no doubt reference the existence of evidence in Bigbee that a
booth in the same location had previously been struck to support its contention that the
accident here was unforeseeable because of the lack of prior similar incidents. 12 This
contention is without merit. The prior similar accident in Bigbee only added to the weight
of plaintiff’s evidence—it did not turn the case. Other California cases, Barker and
Robinson, discussed below, have held that prior similar accidents are not required to
establish foreseeability in negligence actions involving cars unexpectedly leaving the
roadway when a customer must stand in a fixed location to use the business or
9
Id. at p. 57.
10
Id. at p. 59, quoting Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232,
11
Id. at pp. 55-56, 60.
12
Id. at p. 58.
244.
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service.13
B.
Jefferson v. Qwik Korner Market determined that foreseeability was a
jury question in car-on-sidewalk cases when the nature of the
business required customers to await service by standing adjacent
to vehicle traffic areas.
In Jefferson v. Qwik Korner Market (1994) 28 Cal.App.4th 990, a convenience
store customer was standing on a sidewalk adjacent to the store when he was struck by
a car. Qwik Korner created the typical design parking lot and installed both a concrete
wheelstop and a curb. The car went over both of the barriers. Nothing about Qwik
Korner’s business required a customer to await service in a fixed location—such as a
walk-up window adjacent to the parking lot.14
The Court of Appeal sustained an entry of summary judgment in favor of the
defendant after determining that the nature of the convenience store’s business did not
require customers to await service by standing in a fixed location adjacent to vehicle
traffic areas. The convenience store customer was not required to stand in a fixed
location, unlike the pay telephone user in Bigbee or the patron using the walk-up
restaurant service window adjacent to the parking lot in Barker .
In making its determination, the Jefferson court reviewed 28 cases from other
states in addition to California law. The court found that there were three types of cases
where foreseeability was a fact question to be determined by the jury: 15

The business had provided no barrier to protect customers from errant traffic.

The location had a barrier but the business knew of similar incidents.
13
Barker v. Wah Low (1971) 19 Cal.App.3d 710, Robison v. Six Flags Theme
Park (1998) 64 Cal.App.4th 1294.
14
Jefferson, supra, at pp. 995-996.
15
Id. at pp. 994-995; c.f. Barker, supra, at p. 712.
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
Barrier or no, the nature of the business required customers to await service
by standing adjacent to vehicle traffic areas.
As to this third category, the court noted: “In effect, if a car jumped the curb, there
was a high likelihood that a pedestrian would be at the location.”16 Here, there was not
only a high likelihood but a virtual certainty that an ATM patron would be engaged in a
transaction, his back to traffic, regardless of when a car left the roadway.
C.
No prior similar incidents are required to establish liability in a
negligence case where a car inadvertently leaves the roadway and
strikes a customer.
1.
No prior similar incidents occurred in Barker v. Wah Low.
Barker was a California case in Jefferson’s third category and was pivotal in the
Bigbee Court’s determination.17 No prior similar accidents had occurred in Barker. In
Barker, a customer standing at a drive-in restaurant’s walk-up window was awaiting
service when he was hit by a car that jumped a wooden bumper stop. 18 The Court of
Appeals reversed the trial court’s entry of summary judgment for the restaurant, stating
that the accident was foreseeable.
The plaintiffs contended that restaurant had “invited customers to stand awaiting
service at a fixed location adjacent to space provided for the operation and parking of
motor vehicles, without providing adequate protection from what is generally
acknowledged to be a recognized, although seldom occurring, risk.” 19 The court agreed
with the plaintiffs, concluding that “[t]he chance that a vehicle would strike a patron at
the service counter, unless precautions were taken, was foreseeable. Whether the
16
Id. at p. 995.
17
Bigbee, supra, at p. 58.
18
Barker, supra, at p. 712.
19
Id. at 718.
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precautions taken were adequate, and the extent of the hazards from which it was
reasonable to require the possessors of the land to furnish protection, are questions of
fact.”20
2.
No prior similar incidents occurred in Robinson v. Six Flags
Theme Park.
Robison, a case decided after Jefferson, also falls into the third category of curbjumping cases articulated by the Jefferson court. No prior similar accidents had
occurred in Robinson. In Robnison, business invitees using a picnic table at Magic
Mountain, sitting with their backs to the parking lot, were injured when a negligently
driven car failed to stop or turn at the parking lot intersection, and, instead, continued
across 40 feet of grass and into the table. The Court of Appeal reversed the trial court’s
entry of summary judgment for Magic Mountain.
The court determined that although no prior similar incident had occurred, the
danger was apparent in view of the parking lot and picnic area configuration.21 Magic
Mountain had a duty to take reasonable measures to protect patrons even though there
had been no prior incidents. “The record could support a finding that Magic Mountain
failed to take reasonable protective measures.”22
In reaching its determination, the Robison court conducted a detailed review of
Ann M., a case that held that a landowner’s duty of care to protect invitee’s from the
deliberate criminal acts of third persons does not extend to providing security guards,
absent prior similar incidents.23 As the Robison court explained, “crime can occur
20
Id. at p. 723.
21
Id. at 1269.
22
Ibid.
23
Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666.
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anywhere” and therefore “the common law instead looks for a higher level of
foreseeability of crime in a particular location, such as might be provided by prior similar
incidents at that location.”24 In contrast, cars cannot crash into picnic tables just
anywhere—the tables must be placed in harm’s way first. Where an observable hazard
ripens into an accident, the accident is foreseeable.25
A defendant’s contention that an accident was unforeseeable as a matter of law
due to a lack of prior similar incidents thus lacks merit. “When an unreasonable risk of
danger exists, the landowner bears a duty to protect against the first occurrence, and
cannot withhold precautionary measures until after the danger has come to fruition in an
injury-causing accident.”26
3.
Weiner v. South Coast Childcare Centers, Inc.27, following Ann
M., held that a prior similar incident was necessary where the
accident happened as a result of deliberate criminal conduct.
In Weiner, a man deliberately drove his car through a chain link fence, striking
and killing children at the childcare center. The parents of two children brought a civil
action against the center, alleging premises liability. The Court held that the Ann M.
standard applied, given the criminal nature of the driver’s intentional conduct.28 The
Court further stated that the precise details of a third party’s actions are not overly
significant in ordinary negligence actions.29
Defendants have on occasion cited Weiner for the proposition that curb-jumping
24
Robison, supra, 64 Cal.App.4th at p. 1301.
25
Ibid.
26
Robison, supra, 64 Cal.App.4th at p. 1305.
27
Weiner v. South Coast Childcare Centers, Inc. (2004) 32 Cal.4th 1138
28
Robison, supra, 64 Cal.App.4th at p. 1301.
29
Ibid.
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incident are not foreseeable unless there have been prior similar accidents or unless the
property owners have designed their properties so that traffic lanes are pointed directly
at the places where the injuries occurred. Defendants who do this fail to draw the
fundamental distinction between the intentional criminal conduct in Weiner and
negligent curb-jumping cases. The Weiner Supreme Court criticized the underlying
appellate court for failing to make this same distinction.30
D.
Defendants retreat to public policy—an argument refuted by Bigbee
and Robinson.
The comments of the Bigbee court on public policy are the best analysis for
plaintiffs. Bigbee determined that there were no policy considerations that weighed
against the imposition of liability.31
An affirmative finding on foreseeability by the jury would obviously
establish not only “the foreseeability of harm to plaintiff” but also a
sufficiently “close connection between the defendant[s’] conduct and the
injury suffered.” As to the remaining factors, although defendants’ conduct
may have been without “moral blame,” imposition of liability would further
the policy of “preventing future harm.” Finally, imposition of liability would
not be unduly burdensome to defendants given the probable availability of
insurance for these types of accidents which defendants themselves
maintain do not recur with great frequency.
Equally instructive is the Robinson court’s statement that a landowner must
protect against the first injury, not await a second, when an unreasonable risk of danger
30
Weiner, supra at pp. 1149-1150.
31
Bigbee, supra, at pp. 59-60, fn. 14 (citation omitted).
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exists.32
IV.
CONCLUSION
California law holds that the foreseeability of harm from errant traffic is a fact
question for a jury when a defendant failed to provide barrier protection and the nature
of the defendant’s business required customers to stand in a fixed location adjacent to
traffic.
32
Robison, supra, 64 Cal.App.4th at p. 1305.
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