A pedestrian walking on a sidewalk in a shopping center is struck by a runaway vehicle attempting to park in the center’s parking lot. The driver mistakenly hit the gas pedal instead of the brake; and there were no protective devices (perhaps there was a minimal curb) to prevent the driver’s vehicle from jumping onto the sidewalk and striking the pedestrian, who was walking between shops.
This is an incident of “pedal error,” or “pedal misapplication:” there are over 20,000 such incidents annually in the United States resulting in storefront collisions or pedestrian injury. This phenomenon is well known to commercial property owners and managers; chain store merchants; and governmental entities, some of which have now enacted laws to protect pedestrians in front of stores, or in outdoor dining areas, by requiring commercial property owners to install protective devices such as bollards or wheel stops.
When such incidents occur in California, does a commercial property owner owe a legal duty to the victim of the incident, thereby putting at issue for trial the owner’s potential negligence in failing to provide protective devices, such as bollards or wheel stops, between the parking lot and the sidewalk?
While this hypothetical set of facts presents legal and factual issues subject to litigation uncertainty, there are at least two factual circumstances where, based on existing case law, a judicial finding of legal duty is more likely than it might be otherwise. They are circumstances where: (1) vehicles in the parking lot are pointed directly at the pedestrian victim; and (2) some sort of benefit or enticement was offered to the pedestrian victim by the property owner to be at the location where the incident occurred. Generally, the question arises by way of a motion for summary judgment filed by the shopping center’s property owner, alleging the absence of legal duty as a basis for negating the plaintiff victim’s cause of action for negligence.
A. Principles Of Legal Duty Applicable Here.
California law establishes the general duty of each person to exercise reasonable care for the safety of others. Civil Code § 1714 (a). A property owner’s duty of care is nondelegable. Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 726. Courts should be: “…making exceptions to Civil Code section 1714’s general duty of ordinary care only when foreseeability and policy considerations justify a categorical no-duty rule.” Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772. The defendant’s burden on such a motion is set out in Eriksson v. Nunnink, 191 Cal.App.4th at 849, fn. 16, which states that a party moving for summary judgment on the ground that it does not owe a duty of care must: “affirmatively negate the existence of duty.”
In Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1143, the Supreme Court reiterated the factors for the determination of duty, citing Rowland v. Christian (1968) 69 Cal.2d 108, 113: “In determining whether policy considerations weigh in favor of such an exception, we have said the most important factors are ‘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.’”
Generally, the “foreseeability of harm” factor presents the primary dispute. The Supreme Court’s decision in Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57–58 defines foreseeability, for purposes of duty analysis:
“In pursuing this inquiry, it is well to remember 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.” [Text citation omitted.] One may be held accountable for creating even ‘the risk of a slight possibility of injury if a reasonably prudent [person] would not do so.’ [Citation omitted.]”
Staats v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 838 cites this language from Bigbee as the test used: “[w]hen determining whether a particular category of harm is reasonably foreseeable.”
The courts have also recognized degrees of foreseeability: “…in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required.” Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 281. Here, plaintiff would argue that the reason for preventing harm is great (to decrease “runaway vehicle” incidents harming customers); and the means for preventing the harm are simple (install inexpensive protective devices, such as bollards and wheel stops).
Foreseeability analysis varies as well depending on to whom the potential duty is owed. Courts have found an affirmative duty to protect another from the conduct of third parties when there is a “special relationship” between the defendant and the plaintiff. There is such a special relationship here. See Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 (“Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers…and their… patrons, or invitees.”).
B. Authorities Applicable To “Runaway Vehicle/Pedal Error” Situations.
Given that backdrop, legal analysis in these cases generally centers around three reported decisions involving this factual scenario.
i. Robison v. Six Flags Theme Parks Inc. and Jefferson v. Qwik Korner Market, Inc.
The most recent authority addressing this category of conduct is Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294. In Robison, a car in the Magic Mountain parking lot failed to stop, and then it hit plaintiffs seated at a picnic table that was separated from the vehicle exit lane by a 40–foot grass strip. Id. at pp. 1297–1298. The court held a lack of prior similar incidents was not a basis for summary judgment. Id. at pp. 1296, 1305. The court found the incident foreseeable (id. p. at 1301) (emphasis added):
[I]t was open to simple observation that Magic Mountain has aimed a heavily traveled parking lane…directly at the picnic table with no separation other than 40 feet of flat grass, and that a car…would cover this distance in less than 2 seconds, too short a time to allow for reliable evasive action by an unsuspecting person...When such an observable danger ripens into an accident, the accident is foreseeable for purposes of duty analysis.
Robison distinguishes the earlier case of Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal.App.4th 990, frequently relied upon by defendants in these cases, stating: “In Qwik Korner, the issue…was: ‘May a convenience store…be held liable when a third party negligently drives his car over a concrete wheelstop and curb, onto the storefront sidewalk injuring a pedestrian?’” Robison, 64 Cal.App.4th at 1301-1302 (emphasis added). But in our hypothetical scenario, there were no concrete wheel stops (or other protective devices) to stop the vehicle; that leaves the question of whether the presence or absence of a curb might be dispositive, a question not resolved by either decision.
Robison added that, unlike in Qwik Corner: “Magic Mountain…placed its tables in direct line with the traffic lanes without any barriers or other safety features separating the two.” Robison, 64 Cal.App.4th at 1305 (emphasis added). Robison concluded (64 Cal.App.4th at 1305):
The general danger of a car hitting unsuspecting picnickers in the picnic area Magic Mountain placed in its parking lot was foreseeable…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. (Citation omitted.) Thus, the lack of prior similar incidents was not a proper basis for summary judgment.
ii. Barker v. Wah Low
In Barker v. Wah Low (1971) 19 Cal.App.3d 710, parking spaces were provided so patrons could park their cars facing and near the restaurant’s building. Barker was standing at an outside service window. Running parallel to the service window was a wide sidewalk bordered by raised wooden “bumper stops” at the front of the parking stalls. As Barker was waiting to be served, a car in one of the stalls moved forward over the wooden “bumper stops,” pinning plaintiff against the wall. Id. at 712. The court concluded the risk was foreseeable: “The chance that a vehicle would strike a patron at the service counter, unless precautions were taken, was foreseeable.” Id. at 723.
While a defendant is likely to focus on the “service window” language in Barker to attempt to limit the case’s application, there is nothing in Barker to suggest its logic is applicable only to businesses that happen to have service windows. Instead, Barker focused on the service window because of: “…the risk of harm to patrons assembled [there].” Barker, 19 Cal.App.3d at 721.
The court in Barker concluded (19 Cal.App.3d at 721):
Reasonable men could believe that the possibility of a car jumping, lurching, or bolting forward…although remote, was foreseeable, and that in balancing this possibility against the risk of harm to patrons assembled at the serving window, it would have been no inordinate burden on the owners or operators, or to the patrons, have installed a more substantial barrier protecting that particular area of the premises.
Cf., Qwik Korner,Cal.App.4th at 995 (noting out-of-state cases that found a duty where: “…there was a high likelihood that a pedestrian would be at the location.”). Thus, a significant factual variant in these cases is whether the defendant property owner presented some reason or enticement for passersby like the plaintiff to stop, gather, and linger (such as a “service window,” seating placed by the defendant to permit outdoor dining or picnicking, sidewalk shopping, or perhaps some ongoing special event, like a festival or celebration).
iii. Recent Non-Precedential Cases
Absent either of these factors (vehicle pointed at plaintiff; and/or an enticement to be at the location of the incident), plaintiff’s assertion of legal duty might be at risk. There is at least one unpublished, non-citable case suggesting that there may be no legal duty, absent such facts. See, Simon v. Cerritos Towne Center, LLC (Cal. Ct. App., Mar. 28, 2012, No. B228597) 2012 WL 1022387, finding no legal duty where a vehicle had “jumped the curb,” and “the parking lot design is typical of most businesses.” But see also, the finding of legal duty, given the physical configuration, where a pedestrian in an access walkway was struck in Martinez v. Costco Wholesale Corp. (C.D. Cal., Sept. 19, 2019, No. SACV181296JVSKESX) 2019 WL 6655272, at *7 (but note that this is not a “runaway vehicle” case).
C. Absence Of Prior Similar Incidents
Where applicable, defendant property owners will focus on the argument that the foreseeability essential to find legal duty is lacking because “there had never been a similar incident…” But note again that the court in Robison refused to apply a “prior incident” requirement where, as in that case, there was “an observable danger.” Robison, 64 Cal.App.4th at 1301. Separately, plaintiff can argue that the confluence of design and implementation shortcomings described in the evidence was created by the property owner or lessee. That renders such a defendant responsible, irrespective of a lack of prior incidents. Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806; see also, CACI 1012.
Factual variants in the proposed hypothetical may alter the likelihood of a plaintiff’s prevailing against a motion for summary judgment by a commercial property owner in a “runaway vehicle” situation. Critical inquiries for plaintiff’s counsel include, among other things: (1) have there been prior similar incidents that might have given notice, and increased foreseeability; (2) were vehicles in the parking lot, including the “runaway vehicle” at issue, pointed directly at the plaintiff and other pedestrians; (3) to what extent, if at all, were protective devices such as bollards or wheel stops present; (4) to what extent, if at all, was any existing curb protective, given the facts of the incident; and (5) did the property owner or a lessee offer enticement for the plaintiff, and other pedestrians or customers, to gather and linger at the location where the incident occurred? Unless and until case law is more definitive as to the existence of legal duty in “pedal error” or “runaway vehicle” situations, the answers to these queries may go a long way to determining the outcome of a dispositive motion on the issue of legal duty.
 The Qwik Korner court found no duty: “…where the business provided both a curb and wheelstops…and nothing required customers to remain in a fixed location adjacent to the parking area.” 28 Cal.App.4th at 995–996.
 See, Robison,64 Cal.App.4th at 1302: “In Qwik Korner, the landowner did provide “a concrete wheelstop and curb” as safety features, while in the instant case Magic Mountain arguably provided no such safety features.” Neither case involves the presence of a curb alone, so likely judicial disposition of a duty issue on that ground remains uncertain.