Case Name: Wang v. Radin, et al.

Case No.: 18CV329181

According to the allegations of the first amended complaint (“FAC”), on the morning of September 8, 2017, Henryk Birecki (“Birecki”) was struck by a motorcycle while riding his bicycle on Page Mill Road in Palo Alto. (See FAC, attachment, p.7.) Birecki suffered multiple fractures, and a traumatic brain injury requiring 24-hour care. (See FAC, ¶ MV-1.)

On May 2, 2019, Plaintiff Qing Wang, guardian ad litem for Birecki, filed the FAC, asserting causes of action for motor vehicle negligence and negligence against the motorcycle rider, Andrew Alfred Radin and his employer, Twoxar, Inc., and a premises liability cause of action against Hewlett Packard, Inc. (“HP”).

HP demurs to the cause of action for premises liability, asserting that the FAC does not allege any duty owed by HP, any breach of that duty, or causation of Birecki’s injury.

The alleged duty

The FAC’s attachment alleges that Page Mill Road “is a busy, well-traveled thoroughfare, particularly during morning commute times… [and] consists of four lanes running east and west.” (FAC, attachment, p.7.) Additionally, the HP “Employee Parking Lot… is accessed by two entrance lanes and two exit lanes, intersecting eastbound Page Mill Road.” (Id.) “The intersection is not controlled by a traffic signal… [and t]here is a traffic sign for motorists exiting the parking lot prohibiting vehicles from turning left and crossing over the eastbound lanes of Page Mill Road.” The FAC’s attachment specifies that HP “owed a duty of care to Plaintiff to operate the premises in a safe and prudent manner… [and] breached their duty by negligently, carelessly and recklessly requiring motorists to cross two lanes of on-coming traffic at an uncontrolled intersection to enter the Employee Parking Lot.” (FAC, attachment, p.7 (also alleging that “the entrance into the HP Inc. Employee Parking Lot presented an unreasonable risk of harm to motorists like Plaintiff… because, inter alia, it required motorists to cross two lanes of on-coming traffic at an uncontrolled intersection”).)

Vasilenko and cases regarding accidents on public streets

In Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, a pedestrian was struck crossing a street between the main premises of a church and its overflow parking area. (Id. at p.1081.) The plaintiff, Vasilenko, sought to attend a seminar at the church, and when he arrived, a church member volunteering as a parking attendant informed him that the main lot was full and told him to park at the overflow parking lot across the street. (Id. at p.1082.) The attendant did not tell him that the church had posted crossing volunteers at an intersection 50-100 feet east, and intersection that did not have any traffic signals or crosswalks. (Id.) Vasilenko and two others attempted to cross in the middle of the block directly opposite the church and midway across, Vasilenko was struck by an oncoming car. (Id.) Vasilenko sued the church, alleging that it created a foreseeable risk of harm by maintaining an overflow parking lot in a location that required invitees to cross the street, and that the church was negligent in failing to protect against that risk. (Id.) The church argued that it did not have a duty to assist Vasilenko with crossing a public street it did not own, possess, or control. (Id.) The California Supreme Court analyzed the situation using the factors enunciated in Rowland v. Christian (1968) 69 Cal.2d 108—“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.” (Vasilenko, supra, 3 Cal.5th at pp. 1083, citing Rowland, supra, 69 Cal.2d at p. 113.) The Court first noted “the rule that ‘in the absence of a statute a landowner is under no duty to maintain in a safe condition a public street abutting upon’ the landowner’s property unless the landowner created the danger… [because] a landowner generally has no right to control another’s property, including streets owned and maintained by the government.” (Vasilenko, supra, 3 Cal.5th at p. 1084, citing Sexton v. Brooks (1952) 39 Cal.2d 153, 157 and Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.) The Vasilenko court then cited several examples consistent with this rule: Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, “held that the defendant supermarket did not owe a duty to a plaintiff who had been struck by a car on the street”; Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, “held that the defendant hotel did not owe any duty to a patron who was struck and killed in a marked crosswalk outside the hotel’s entrance”; and, Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799, found that a supermarket owed no duty to a customer who was hit by a car in an adjacent public street while crossing the street to get to the store’s grand opening. (See Vasilenko, supra, 3 Cal.5th at pp. 1084-1085.)

The Court found that it was foreseeable that an invitee directed to park in an overflow lot on the other side of a public street might be struck by oncoming traffic while crossing the street to or from the parking lot, and that it was certain that Vasilenko was injured when he was struck by a car and that his injury was compensable at law; thus, the first two Rowland factors—the foreseeability of the harm and the certainty that the plaintiff suffered an injury—supported the finding of a duty. (Id. at p.1085.) However, the Court noted that “[f]oreseeability alone is not sufficient to create an independent tort duty… [t]he existence [of a duty] depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.” (Id. at p.1086, citing Erlich v. Menezes (1999) 21 Cal.4th 543, 552.) In analyzing the closeness of the connection between the defendant’s conduct and the injury suffered, the Court stated that “the occurrence of injury results from the confluence of an invitee choosing to cross the street at a certain time and place and in a certain manner, and a driver approaching at that moment and failing to avoid a collision.” (Id.) “There is a foreseeable risk of collision whether or not the invitee or the driver is negligent.” (Id.) “But unless the landowner impaired the driver’s ability to see and react to crossing pedestrians, the driver’s conduct is independent of the landowner’s… [and s]imilarly, unless the landowner impaired the invitee’s ability to see and react to passing motorists, the invitee’s decision as to when, where, and how to cross is also independent of the landowner’s.” (Id.) The Court found that the closeness factor tipped against finding a duty. (Id.) The policy of preventing future harm also weighed against a finding of duty as “[t]he ability of landowners to reduce the risk of injury from crossing a public street is limited… [as “t]he power to control public streets and regulate traffic lies with the state which may delegate local authority to municipalities.’” (Vasilenko, supra, 3 Cal.5th at p. 1087, citing Nevarez, supra, 7 Cal.App.3d at p. 805.) The Court noted that although it was possible that a landowner could reduce the risk of harm by maintaining a parking lot in a location that did not require invitees to cross a public street, “it is likely difficult in many cases to reliably assess which of several parking options was the safest at the time the invitee was directed where to park… [t]he relevant considerations are multitudinous and vary by the hour, day of the week, and month, and many will be hard to establish with accuracy.” (Vasilenko, supra, 3 Cal.5th at p. 1088 (also stating that “[a]lthough the relative safety of one lot compared to others may sometimes be obvious, it is more typical that a landowner must choose among options with competing advantages and disadvantages, not all of which may be known to the landowner when deciding”).) Instead, the Court noted that “[d]rivers and invitees, for their part, are the ones most directly involved in any given collision; they can also take significant steps to reduce the risk of injury… [d]rivers can reduce their speed and improve their alertness, and invitees can exercise more care in choosing the precise location and moment they cross.” (Id. at p.1090.) In addressing the Rowland factor of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, the Court stated that “imposing a duty on landowners here could result in significant burdens… [as l]andowners that wished to provide or continue providing parking would have to make difficult and complex determinations of availability and relative safety… [and] would have to continuously monitor the dangerousness of the abutting street and other streets in the area to determine which ones become more or less safe, and they may have to relocate their parking lots as conditions change.” (Id.) The Court concluded that the burden factor weighed against the imposition of a duty. (Id.) The Court also did not find that the moral blame factor pointed towards the imposition of a duty and did not find that insurance factor weighed against or for the imposition of a duty. (Id. at p. 1091.) Ultimately, the Vasilenko court determined “that a landowner does not have a duty to assist invitees in crossing a public street when the landowner does no more than site and maintain a parking lot that requires invitees to cross the street to access the landowner’s premises, so long as the street’s dangers are not obscured or magnified by some condition of the landowner’s premises or by some action taken by the landowner.” (Vasilenko, supra, 3 Cal.5th at pp. 1081-1097, citing Rowland, supra, 69 Cal.2d at p. 113.)

The FAC does not allege facts supporting a duty

The FAC alleges that Plaintiff was struck by Radin’s motorcycle, crossing in front of oncoming traffic in the eastbound lanes of Page Mill Road, attempting to make a turn from the left turn pocket on the westbound side. The FAC additionally alleges that HP “presented an unreasonable risk of harm to motorists like Plaintiff… [because t]he entrance to the subject Parking Lot was unsafe and in a hazardous condition because, inter alia, it required motorists to cross two lanes of on-coming traffic at an uncontrolled intersection.” (FAC, attachment, p.7.) Plaintiff, in opposition, asserts that Vasilenko is not inapposite because “the dangerous condition was not the parking lot’s location, but rather its entrance.” (Opposition, p. 2:10-24.) However, “[w]hile the material facts stated in a complaint are taken as true for the purpose of ruling on a demurrer, that is not true as to legal conclusions stated therein such as the existence of a duty.” (Chase Chemical Co. v. Hartford Accident & Indemnity Co. (1984) 159 Cal.App.3d 229, 242; see also Kenneth Mebane Ranches v. Super. Ct. (Fresno Metropolitan Flood Control Dist.) (1992) 10 Cal.App.4th 276, 291-292 (stating that “allegations constituting legal conclusions are not provisionally admitted for the purposes of a demurrer… a demurrer “does not admit a conclusion of law, nor does it admit … facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge”).) Whether Plaintiff characterizes the duty as location of the parking lot’s entrance, it does not change the allegation that Plaintiff was struck crossing the eastbound lanes of Page Mill Road while trying to access HP’s parking lot. The FAC does not allege that the public street’s dangers were obscured or magnified by some condition of HP’s premises or by some action taken by HP. Plaintiff fails to distinguish the alleged facts in his FAC from the situation in Vasilenko which determined “that a landowner does not have a duty to assist invitees in crossing a public street when the landowner does no more than site and maintain a parking lot that requires invitees to cross the street to access the landowner’s premises.”

Although Plaintiff has failed to show how his FAC might be amended to allege a duty owed to Plaintiff by HP (see Goodman v. Kennedy (1976)18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”)), Plaintiff will be given one opportunity to amend his FAC so as to assert a viable claim against HP. The demurrer is SUSTAINED with 10 days leave to amend.