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Sotomayor v. TAMA I7/12/2005
ed a distance of 17 feet past the parking lot before hitting and killing the child. It was not reasonably foreseeable that a person would drive her vehicle over a concrete curb, a sidewalk, and strike children playing on the grass 17 feet away.
A case on point is Feldman v. Whipkey's Drug Shop. There, the plaintiff was using a telephone booth on the sidewalk adjacent to the front of the defendant's drug store when a vehicle jumped the sidewalk and crashed into the booth, seriously injuring her. She alleged that the defendant was negligent in failing to install a guard rail between the sidewalk and the parking apron. We affirmed the trial court's dismissal of her action for the reason that a car suddenly jumping the curb and sidewalk and crushing the plaintiff against the brick wall was not reasonably foreseeable.
Similarly, in Eckerd-Walton v. Adams, the plaintiff was sitting on a counter stool at the defendant's drug store when a vehicle crashed through the plate glass window fronting the store and pinned her against the counter. To reach the plaintiff, the car crossed over a five-inch curb, six feet of sidewalk, a nearly eight-inch high brick foundation wall and through the plate glass window. The counter was located six feet inside the store. The plaintiff contended that Eckerd should have erected a barricade so as to make the incident physically impossible. The jury returned a verdict for the plaintiff, and we held that the trial court should have granted Eckerd's motion for a directed verdict because the defendant "did nothing which proximately caused the plaintiff to be injured" and could not be held liable for such a "remote and improbable" act that could "not reasonably to be anticipated by a merchant in the exercise of ordinary care."
The incidents that caused the plaintiffs' injuries in the two drug store cases were extraordinarily rare events. The same is true of the incident in the case at bar.
Cases relied on by the plaintiff do not warrant a different result. In Chatmon v. Church's Fried Chicken, the plaintiff was injured by an automobile which jumped the curb and struck him from the rear while he was standing in front of an outside ordering window. The area was configured such that the parking spaces were immediately adjacent to the concrete pad on which customers were required to stand. There was evidence that the curb was not of normal height, but was only three to four inches above the parking area and there were no "guard stops." We held that a three-inch curb "is undoubtedly less than half as safe from the danger of overshooting as a 6-inch curb," and that reasonable minds might differ as to whether the injury should have been anticipated and protection barriers installed. Accordingly, we reversed the grant of summary judgment to the defendant. The complete absence of a buffer zone between the ordering window and the parking area distinguishes Chatmon from the case at bar.
Similarly, in Church's Fried Chicken v. Lewis, the plaintiff was standing at Church's outside ordering window when a car suddenly lurched forward and pinned him to the wall of the restaurant, breaking his legs. An employee had directed the plaintiff to use the outside window, requiring him to stand on a concrete pad was 66 inches away from the adjacent parking area. An expert testified that the standard for curbing along walkways in front of buildings where cars park was six inches and that the curbing at issue was four inches high. In addition, Church's had installed six-inch high "precast concrete stop blocks" on the side of the restaurant but not at the front of the restaurant where patrons were required to stand when using the outside ordering window. Under those c
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