The late Professor Finz used to say that the first question in every tort case is this: "Was there a legal duty?" And that's the subject of today's discussion.
It was only a two weeks ago that CBL was blogging about Cabral v. 
Ralph's Grocery Company, S178799 and what it might augur for one of CBL's all time stupid cases, Bigbee v. Pacific Telephone and Telegraph Company (1983) 34 Cal.3d 49. Yes, Bigbee was the case about the phone booth in the parking lot fifteen feet from the street and the drunk who ran off the road and crashed into it.
Cabral wasn't quite as silly as Bigbee; rather it involved liability for Ralph's supermarkets after one of its drivers parked on a dirt shoulder off the freeway and the plainitff's decedent ineplicably drove his own vehicle off the freeway, slammed into the truck and died.
As CBL noted, the Supremes also issued a "grant and hold" for Gonzales v. Southern California Gas S188956, a case much more like Bigbee, in that it involved a claim of liability against a utility after the decedent jumped the curb in her car and slammed into a gas meter assembly more than eleven feet from the curb. Would this be the end of Bigby? mused CBL.
Nah. Unanimous decision in Cabral finding legal duty:
We conclude, contrary to the decision of the Court of Appeal, that Ralphs was not entitled to judgment notwithstanding the verdict on grounds either of lack of legal duty or insufficient proof of causation. The judgment of the Court of Appeal is therefore reversed.
More importantly is how they got there. The logic runs like this: Under Rowland v. Christian (1968) 69 Cal.2d 108 (our leading case on tort duty), the general rule is that everyone is responsible for the consequences of their own actions unless there is an exception based on public policy derived from the following factors:
. . . . 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.
(Rowland, 69 Cal.2nd at 113). Application of the Rowland factors is not case by case. Rather:
we have asked not whether they support an exception to the general duty of reasonable care on the facts of the particular case before us, but whether carving out an entire category of cases from that general duty rule is justified by clear considerations of policy.
(Slip op. at 7.) So unless the court is prepared to say that there will never be a duty owed by the guy who parks on the freeway shoulder to the driver who veers out of control, there will always be a duty.
Likewise, we may assume, the Supremes are not prepared to rule out liability for a utility in any case, under any circustances, where a vehicle veers off the road and flies into the utility's structure. So it seems like a pretty safe bet the same Supremes will send Gonzales back to the Court of Appeal with directions to reconsider it in light of the decision in Cabral. And it's also a pretty good bet that Bigbee continues as good law. Well, maybe not good law. But valid authority.
As the Supremes wrote years ago:
there are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages for that injury.
Thing v. La Chusa (1989) 48 Cal.3d 644, 668.
