Supreme Court ofCalifornia
15 Cal.3d 40 (1975)
RONALD A. WEIRUM et al., Plaintiffs and Appellants, v. RKOGENERAL, INC., Defendant and Appellant; MARSHA L. BAIME, Defendant andRespondent
(In Bank. Opinion by Mosk, J., expressing the unanimous viewof the court.) [15 Cal.3d 41]
COUNSEL
Hollister, Brace & Angle, Hollister & Brace, RobertO. Angle and Richard C. Monk for Plaintiffs and Appellants.
Stearns & Nelson, Stearns, Nelson & LeBerthon, RobertS. Stearns, Lascher & Radar, Edward L. Lascher and Wendy Cole Wilner forDefendant and Appellant.
Benton, Orr, Duval & Buckingham and James F. McGahan forDefendant and Respondent.
OPINION
MOSK, J.
A rock radio station with an extensive teenage audienceconducted a contest which rewarded the first contestant to locate a peripateticdisc jockey. Two minors driving in separate automobiles attempted to follow thedisc jockey's automobile to its next stop. In the course of their pursuit, oneof the minors negligently forced a car off the highway, killing its soleoccupant. 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 determinewhether the station owed decedent a duty of due care.
The facts are not disputed. Radio station KHJ is asuccessful Los Angeles broadcaster with a large teenage following. At the timeof the accident, KHJ commanded a 48 percent plurality of the teenage audiencein the Los Angeles area. In contrast, its nearest rival during the same periodwas able to capture only 13 percent of the teenage listeners. In order toattract an even larger portion of the available audience and thus increaseadvertising revenue, KHJ inaugurated in July of 1970 a [15 Cal.3d 44] promotionentitled "The Super Summer Spectacular." The "spectacular,"with a budget of approximately $40,000 for the month, was specifically designedto make the radio station "more exciting." Among the programs includedin the "spectacular" was a contest broadcast on July 16, 1970, thedate 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 LosAngeles metropolitan area. Periodically, he apprised KHJ of his whereabouts andhis intended destination, and the station broadcast the information to itslisteners. The first person to physically locate Steele and fulfill a specifiedcondition received a cash prize. fn. 1 In addition, the winning contestantparticipated in a brief interview on the air with "The Real DonSteele." The following excerpts from the July 16 broadcast illustrate thetenor of the contest announcements:
"9:30 and The Real Don Steele is back on his feet againwith some money and he is headed for the Valley. Thought I would give you awarning so that you can get your kids out of the street."
"The Real Don Steele is out driving on -- could be inyour neighborhood at any time and he's got bread to spread, so be on thelookout for him."
"The Real Don Steele is moving into Canoga Park -- sobe on the lookout for him. I'll tell you what will happen if you get to TheReal 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 theintersection of Topanga and Roscoe Boulevard, right by the Loew's HolidayTheater -- you know where that is at, and he's standing there with a littlemoney he would like to give away to the first person to arrive and tell himwhat 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 Topangaand Roscoe Boulevard -- right nearby the Loew's Holiday Theater -- you willfind The Real Don Steele. Tell him and pick up the bread." [15 Cal.3d 45]
In Van Nuys, 17-year-old Robert Sentner was listening to KHJin his car while searching for "The Real Don Steele." Upon hearingthat "The Real Don Steele" was proceeding to Canoga Park, heimmediately drove to that vicinity. Meanwhile, in Northridge, 19-year-oldMarsha Baime heard and responded to the same information. Both of them arrivedat the Holiday Theater in Canoga Park to find that someone had already claimedthe prize. Without knowledge of the other, each decided to follow the Steelevehicle to its next stop and thus be the first to arrive when the next contestquestion or condition was announced.
For the next few miles the Sentner and Baime cars jockeyedfor position closest to the Steele vehicle, reaching speeds up to 80 miles anhour. fn. 2 About a mile and a half from the Westlake offramp the two teenagersheard the following broadcast: "11:13 -- The Real Don Steele with bread isheading for Thousand Oaks to give it away. Keep listening to KHJ .... The RealDon 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 maybe 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 ontothe center divider, where it overturned. Baime stopped to report the accident.Sentner, after pausing momentarily to relate the tragedy to a passing peaceofficer, continued to pursue Steele, successfully located him and collected acash prize.
Decedent's wife and children brought an action for wrongfuldeath against Sentner, Baime, RKO General, Inc. as owner of KHJ, and the makerof decedent's car. Sentner settled prior to the commencement of trial for thelimits of his insurance policy. The jury returned a verdict against Baime andKHJ in the amount of $300,000 and found in favor of the manufacturer ofdecedent's car. KHJ appeals from the ensuing judgment and from an order denyingits motion for judgment notwithstanding the verdict. Baime did not appeal. fn.3
The primary question for our determination is whetherdefendant owed a duty to decedent arising out of its broadcast of the giveaway[15 Cal.3d 46] contest. [1] The determination of duty is primarily a questionof law. (Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 307 [29Cal.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 ofpolicy which lead the law to say that the particular plaintiff is entitled toprotection." (Prosser, Law of Torts (4th ed. 1971) pp. 325-326.) Anynumber of considerations may justify the imposition of duty in particularcircumstances, including the guidance of history, our continually refinedconcepts of morals and justice, the convenience of the rule, and socialjudgment 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 anothermust be decided on a case-by-case basis, fn. 4 every case is governed by therule of general application that all persons are required to use ordinary careto 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, foreseeabilityof 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 recordhere does not support a conclusion that a risk of harm to decedent wasforeseeable.
While duty is a question of law, foreseeability is aquestion of fact for the jury. (Wright v. Arcade School Dist. (1964) 230Cal.App.2d 272, 277 [40 Cal.Rptr. 812].) [2] The verdict in plaintiffs' favorhere necessarily embraced a finding that decedent was exposed to a foreseeablerisk of harm. It is elementary that our review of this finding is limited tothe determination whether there is any substantial evidence, contradicted oruncontradicted, which will support the conclusion reached by the jury.
[3a] We conclude that the record amply supports the findingof foreseeability. These tragic events unfolded in the middle of a Los Angelessummer, a time when young people were free from the constraints of school andresponsive to relief from vacation tedium. [15 Cal.3d 47] Seeking to attractnew listeners, KHJ devised an "exciting" promotion. Money and a smallmeasure of momentary notoriety awaited the swiftest response. It wasforeseeable that defendant's youthful listeners, finding the prize had eludedthem at one location, would race to arrive first at the next site and in theirhaste would disregard the demands of highway safety.
Indeed, "The Real Don Steele" testified that hehad in the past noticed vehicles following him from location to location. Hewas further aware that the same contestants sometimes appeared at consecutivestops. This knowledge is not rendered irrelevant, as defendant suggests, by theabsence of any prior injury. Such an argument confuses foreseeability withhindsight, and amounts to a contention that the injuries of the first victimare not compensable. [4] "The mere fact that a particular kind of anaccident has not happened before does not ... show that such accident is onewhich might not reasonably have been anticipated." (Ridley v. GrifallTrucking Co. (1955) 136 Cal.App.2d 682, 686 [289 P.2d 31].) Thus, thefortuitous absence of prior injury does not justify relieving defendant fromresponsibility for the foreseeable consequences of its acts.
It is of no consequence that the harm to decedent wasinflicted by third parties acting negligently. [5] Defendant invokes the maximthat 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 [285P.2d 60].) This concept is valid, however, only to the extent the interveningconduct 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 particularmanner is a hazard which makes the actor negligent, such reaction whetherinnocent or negligent does not prevent the actor from being liable for the harmcaused thereby. (Richardson v. Ham (1955) 44 Cal.2d 772, 777 [285 P.2d 269].)[3b] Here, reckless conduct by youthful contestants, stimulated by defendant'sbroadcast, constituted the hazard to which decedent was exposed.
[6] It is true, of course, that virtually every act involvessome conceivable danger. Liability is imposed only if the risk of harmresulting from the act is deemed unreasonable -- i.e., if the gravity andlikelihood of the danger outweigh the utility of the conduct involved. (SeeProsser, Law of Torts (4th ed. 1971) pp. 146-149.) [15 Cal.3d 48]
[3c] We need not belabor the grave danger inherent in thecontest broadcast by defendant. The risk of a high speed automobile chase isthe risk of death or serious injury. Obviously, neither the entertainmentafforded by the contest nor its commercial rewards can justify the creation of sucha grave risk. Defendant could have accomplished its objectives of entertainingits listeners and increasing advertising revenues by adopting a contest formatwhich would have avoided danger to the motoring public.
Defendant's contention that the giveaway contest must beafforded the deference due society's interest in the First Amendment is clearlywithout merit. The issue here is civil accountability for the foreseeableresults of a broadcast which created an undue risk of harm to decedent. [7] TheFirst Amendment does not sanction the infliction of physical injury merelybecause achieved by word, rather than act.
We are not persuaded that the imposition of a duty here willlead to unwarranted extensions of liability. Defendant is fearful that entrepreneurswill henceforth be burdened with an avalanche of obligations: an athleticdepartment will owe a duty to an ardent sports fan injured while hastening topurchase one of a limited number of tickets; a department store will be liablefor injuries incurred in response to a "while-they-last" sale. Thisargument, however, suffers from a myopic view of the facts presented here. Thegiveaway contest was no commonplace invitation to an attraction available on alimited basis. It was a competitive scramble in which the thrill of the chaseto be the one and only victor was intensified by the live broadcasts whichaccompanied the pursuit. In the assertedly analogous situations described bydefendant, any haste involved in the purchase of the commodity is an incidentaland unavoidable result of the scarcity of the commodity itself. In suchsituations there is no attempt, as here, to generate a competitive pursuit onpublic streets, accelerated by repeated importuning by radio to be the veryfirst to arrive at a particular destination. Manifestly the"spectacular" bears little resemblance to daily commercialactivities.
[8] Defendant, relying upon the rule stated in section 315of the Restatement Second of Torts, urges that it owed no duty of care todecedent. The section provides that, absent a special relationship, an actor isunder no duty to control the conduct of third parties. As explainedhereinafter, this rule has no application if the plaintiff's complaint, ashere, is grounded upon an affirmative act of defendant which created an unduerisk of harm. [15 Cal.3d 49]
The rule stated in section 315 is merely a refinement of thegeneral principle embodied in section 314 fn. 5 that one is not obligated toact 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.) Thisdoctrine is rooted in the common law distinction between action and inaction,or misfeasance and nonfeasance. [9] Misfeasance exists when the defendant isresponsible for making the plaintiff's position worse, i.e., defendant hascreated a risk. Conversely, nonfeasance is found when the defendant has failedto aid plaintiff through beneficial intervention. As section 315 illustrates,liability for nonfeasance is largely limited to those circumstances in whichsome special relationship can be established. If, on the other hand, the actcomplained of is one of misfeasance, the question of duty is governed by thestandards of ordinary care discussed above.
Here, there can be little doubt that we review an act ofmisfeasance to which section 315 is inapplicable. Liability is not predicatedupon defendant's failure to intervene for the benefit of decedent but ratherupon its creation of an unreasonable risk of harm to him. (See Shafer v. KeeleyIce Cream Co. (1925) 65 Utah 46 [234 P. 300, 38 A.L.R. 1523].) fn. 6Defendant's reliance upon cases which involve the failure to prevent harm toanother is therefore misplaced, e.g., Wright v. Arcade School Dist., supra, 230Cal.App.2d 272 (school district held free of a duty of care to children injuredon their way to and from school).
* * *
The judgment and the orders appealed from are affirmed.Plaintiffs shall recover their costs on appeal. The parties shall bear theirown costs on the cross-appeal.
Wright, C. J., McComb, J., Tobriner, J., Sullivan, J.,Clark, J., and Richardson, J., concurred.
FN 1. The conditions varied from the giving of acorrect response to a question to the possession of particular items ofclothing.
FN 2. It is not contended that the Steele vehicle atany time exceeded the speed limit.
FN 3. Plaintiffs filed a cross-appeal from an orderentered after judgment denying them certain costs against Baime and KHJ. Theydo not assert before this court that the order was erroneous, and we shalltherefore affirm the order on the cross-appeal.
FN 4. Defendant urges that we apply the factorsenumerated in Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d850, 865 [73 Cal.Rptr. 369, 447 P.2d 609, 39 A.L.R.3d 224], in determiningwhether it owed a duty to decedent. In that case, however, the primary issuewas whether a duty was to be imposed upon the defendant notwithstanding theabsence of privity, and we therefore examined considerations appropriate tothat contractual framework. For example, the first of the enumerated elementswas the extent to which the transaction was intended to affect the plaintiff.Such a consideration manifestly fails to illuminate our inquiry in the presentcase. Generally speaking, standards relevant to the determination of duty inone particular situation may not be applied mechanically to other cases.
FN 5. Section 314, states: "The fact that theactor realizes or should realize that action on his part is necessary foranother's aid or protection does not of itself impose upon him a duty to takesuch action."
FN 6. In Shafer defendant entered a float in acommercial parade and as the float traveled down the street, employees threwcandy to the crowd. Children running to collect the candy injured a spectator.The court distinguished cases in which the conduct of the person whoimmediately caused the accident was not set in motion by any act of thedefendant on the ground that the defendant, in throwing the candy, induced theresponse of the children which resulted in the plaintiff's injuries.
Contrary to defendant's assertion, Shafer is notdistinguishable because there the defendant had actual knowledge children werefollowing the float and scrambling for candy. Such knowledge only obviated theneed for a determination that the acts of the children were foreseeable. In thepresent case, as we have seen, the jury's determination that the accident wasforeseeable is supported by the evidence.