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Koepke v. Loo9/22/1993
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT DISTRICT, DIVISION ONE
No. D015560.
1993.CA.42256 ; 18 Cal. App. 4th 1444; 23 Cal. Rptr. 2d 34
Decided: September 22, 1993.
CAROL KOEPKE, PLAINTIFF AND APPELLANT,
v.
LISA LOO, DEFENDANT AND RESPONDENT.
Superior Court of San Diego County, No. 621884, Lawrence Kapiloff, Judge.
Marian H. Tully for Plaintiff and Appellant.
Virginia R. Gilson, McInnis, Fitzgerald, Rees, Sharkey & McIntyre, William M. Low, Earl H. Maas III and Michael A. Leone for Defendant and Respondent.
Opinion by Froehlich, J., with Kremer, P. J., and Work, J., Concurring.
Froehlich
This is an appeal from a summary judgment in favor of the defendant in a personal injury lawsuit. The facts of the case are not in dispute, and we state them as reflected in the moving papers in the summary judgment motion, and as set forth in the appellate briefs of both appellant and respondent. The issue is whether the negligent failure of defendant, Lisa Loo (Loo), to warn plaintiff, Carol Koepke (Koepke), of a probable assault from a third party can result in liability The case raises classic issues of duty and proximate cause. We conclude that under the circumstances of this case the defendant had no duty to take any action for the benefit of plaintiff, and therefore even though her lack of action may be deemed careless, it is not actionable negligence.
FACTS
Loo was the owner of a typesetting business. Norman Logan (Logan) was employed as a typesetter in the business. Commencing sometime in 1979 and continuing for approximately two years Loo and Logan lived together and were involved in a personal and sexual relationship. During this period Loo became aware of the fact that Logan had a drinking problem. Logan continued to work for Loo after the termination of their personal relationship.
Koepke became romantically involved with Logan in 1987. They did not live together, but maintained an affinity in that their boats were docked together in the same anchorage. Their relationship, though serious, was somewhat on and off, finally terminating in February 1989 after a vacation they shared in Lake Tahoe.
Shortly following this breakup Logan called Loo and told her that he was going to kill Koepke. Loo knew that Logan possessed a small handgun, which she had seen in his car sometime between 1981 and 1984. Loo called Peter Logan, the brother of Logan, and told him that Logan was going to attack Koepke. Peter Logan called Koepke and relayed this message.
Koepke attempted to leave her apartment to avoid any confrontation with Logan, but was unsuccessful. Logan confronted her as she was exiting and held a gun to her head. Koepke's screams and attempts to escape roused the neighbors. Logan, then fearing the police had been called, departed. This all occurred on February 23, 1989.
Loo learned of the assault and on the day thereafter, February 24, discussed the matter at length with Logan. Logan did not remember the incident, claiming he had "blacked out" in a drunken state. Loo convinced Logan to join Alcoholics Anonymous and to commence psychiatric treatment. Logan volunteered to give up his gun, and Loo accepted it with its ammunition, putting the items in her locked desk drawer. Loo was the only person with access to the drawer.
After the February assault Koepke
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