Metropolitan News-Enterprise


Thursday, October 26, 2023


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Wiley Urges Following the Approach Fostered by Traynor in Deciding Tort Cases


By a MetNews Staff Writer



Court of Appeal justice


23rd chief justice

The City of Inglewood cannot be held liable for the death of a man in a public park caused by an unknown shooter, the Court of Appeal for this district declared yesterday, rejecting that contention that the lack of security cameras constituted a “dangerous” condition—a contention which, Justice John Shepard Wiley Jr. said in a concurring opinion, points to the need for the sort of analysis espoused by Chief Justice Roger Traynor.

Wiley joined in the opinion for Div. Eight by Presiding Justice Maria E. Stratton who said that the wrongful-death complaint “does not allege sufficient facts that the City’s failure to provide ‘adequate precautions’ can form the basis of a dangerous condition of public property claim” pursuant to Government Code section 815.6. In his separate opinion, Wiley drew attention to Traynor’s 1944 concurring opinion in Escola v. Coca Cola Bottling Co.

Traynor, who headed the court from 1964-70, was an associate justice at the time he penned that opinion. In it, Wiley said, Traynor “told us how to decide this type of case: public policy demands judges in tort suits fix responsibility where it will most effectively reduce hazards,” saying:

“The Traynor approach imposes tort duties on defendants when the expected safety benefit outweighs the burden, but refrains when the burden exceeds the expected benefits. A leading tort scholar aptly summarizes Traynor’s approach as ‘the torts lodestar: the irresistible simplicity of preventing harm.’ ”

The author of that law review article, which appeared this year, is Catherine Sharkey, a professor at New York University School of Law.

Beaudet’s Ruling

Agreeing that Los Angeles Superior Court Judge Teresa A. Beaudet correctly sustained a demurrer without leave to amend to the first amended complaint filed by Dwight and Patricia Summerfield and by the estate of their slain son, Andrew Summerfield, Wiley wrote:

“The Traynor approach resolves this case.

“The Summerfields seek to impose a tort duty that is unprecedented: they cite no law requiring a city to post cameras in parks.

“Justice Traynor certainly was willing to recognize novel tort duties. He was famous for doing so. (See White, The American Judicial Tradition (3d ed. 2007) pp. 243-266.) But he imposed only duties that were cost-justified from a social viewpoint. His approach puts demands on plaintiffs aiming to create new law.”

Benefits Versus Burden

He continued:

“We must ask whether the Summerfields give us a reliable basis for thinking the expected benefits of their proposed safety measures would outweigh the expected burdens.

“What exactly are the Summerfields proposing?

“To start, they urge us to mandate a duty for every municipality (and, logically, every public entity) in California to install, maintain, and monitor security cameras at every park (and, logically, every public facility) where there has been criminal violence. The duty would seem to include hiring trained personnel to respond rapidly and visibly to brewing violence, for the streetwise would be unimpressed by mere Potemkin cameras.

“Where do the Summerfields propose the cameras go? How many locales experience criminal violence? Thirty-five years ago, the California Legislature counted nearly 600 criminal street gangs in California and hundreds of yearly gang-related murders in Los Angeles alone….

“Our county’s murder problem is widespread….

“This proposed new duty would require many mandatory locations for the Summerfields’ cameras.

“Although the Summerfields ask us to use the power of tort incentives to impose a sizeable public works program on public entities, they offer no reason to think the expenditure would be rational. Their proposal gives no confidence the safety benefits would outweigh the burden.”

Traynor’s Opinion

In Escola, it was held that the manufacturer was liable for the injury to a waitress from an exploding bottle of Coca-Cola even though the bottle was not under its control at the time of the mishap. Traynor wrote:

“[P]ublic policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for it reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.”

The case decided yesterday is Summerfield v. City of Inglewood, B324117.

The Summerfields were represented on appeal by Century City attorney Christie E. Webb and Studio City practitioner Judith K. Williams. Lawyers for the city were Thomas M. Madruga and Tania Ochoa of the Studio City firm of Olivarez Madruga Law Organization.


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