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Soldano v. O'Daniels - 141 Cal. App. 3d 443, 190 Cal. Rptr. 310 (1983)


New and nameless torts are being recognized constantly, and the progress of the common law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action, where none had been recognized before. The law of torts is anything but static, and the limits of its development are never set. When it becomes clear that the plaintiff's interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself operate as a bar to the remedy. 


Appellant's father was shot and killed in a bar. Before the fatal shot was fired, a patron ran to another bar and asked the bartender to use the bar's phone to call the police or to let him call. The bartender refused. Appellant brought a wrongful death claim against respondent bar. The Superior Court of San Luis Obispo County (California) entered summary judgment to respondent bar, the bartender's employer, relying on the established common law rule that one who has not created a peril ordinarily does not have a duty to take affirmative action to assist an imperiled person. 


Was there a duty to permit the use of a telephone in a public portion of a business for a legitimate emergency call during the times when the business is open?




The appellate court reversed and remanded appellant's claim for trial. The court decided that it was time to modify the traditional rule pursuant to the court's obligation to keep the common law current with prevailing social mores. The court held that use of a telephone in a public portion of a business should not be refused for a legitimate emergency call. The court reasoned that imposing liability for such a refusal would not subject innocent citizens to possible attack by a criminal posing as a good samaritan, for it would be limited to an establishment open to the public during times when it was open to business, and to places within the establishment ordinarily accessible to the public. Even though respondent's employee may have been under no obligation to render assistance himself, he was at least required to take reasonable care that he did not prevent others from giving it. The court held that under the circumstances the employee owed a duty to plaintiff's decedent, that the harm to the patron was abundantly foreseeable and was imminent, that there was arguably a close connection between the employee's conduct and the injury, that the employee's conduct displayed a callous indifference and disregard for human life, and that the burden to the employee was minimal and exposed him to no risk.

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