June 2014 - Why Does Anybody Bother to Write Fiction?

by Justice William W. Bedsworth

“A strip club owner was not liable to a man landed upon in an alley by an apparent employee of the theater who jumped from a second story window, the Court of Appeal held yesterday.”

That’s what it said in the Los Angeles Metropolitan News. Honest. This was a case that other Court of Appeal justices got to handle. Probably because they knew they didn’t dare give it to me.

Actually, the reason it didn’t come to me is that it arose 400 miles away in San Francisco. But tell the truth—if this case had come up in my jurisdiction would you have had the nerve to allow me to write the opinion?

I mean, the guy was injured when someone jumped out of the second story window of an adult theater and landed on him. To me, this has “act of God” written all over it. Especially since the adult theater was called “Heaven.” So I’m probably not the right choice as the opinion’s author.

But even I have to acknowledge that the contrary position is based on solid precedent. Ever since Byrne v. Boadle in 18631 we’ve known there are some things that just don’t happen without negligence. People falling out of the sky and landing on you certainly seems like one of those things.

And if Abel Boadle was responsible for the injuries suffered by Joseph Byrne when a barrel of flour dropped on him from the second story of his grocery, why wouldn’t the owners of Heaven be responsible for injuries suffered by Bruce Cearlock when Richard Lund fell on him from the second story of Heaven?

See how difficult this Court of Appeal gig can be? Here are two completely irrefutable arguments that seem diametrically opposed. And yet ... and yet ... a court of appeal, made up of three people wiser than I,2 was able to sort this one out.

The facts that became Cearlock v. Lambertson arose when police went to the Heaven Mini Theater to talk to a doorman who was alleged to have pepper-sprayed patrons.3 The manager, who was talking to his lawyer on the phone when the police arrived ...

Wait a minute ... hold the phone ... let’s dwell on that for a moment.

The manager of the adult theater was on the phone with the establishment’s lawyer when the police arrived? Now that’s some first-rate lawyering. “For your retainer fee, you get to maintain an open phone line to our office twenty-four hours a day. When the police do show up, and let’s face it, they will show up, we’ll be ready!” Impressive. I’d hire those guys in a heartbeat.

So anyway, the manager says, “The police are here,” and the lawyer tells him, “Don’t let them go into any of the rooms without a warrant.” Mr. Lambertson and the other owners of Heaven are clearly getting their money’s worth at this point.

But moments after the manager tells police he’s the only man on the premises, they see a man in one of the rooms and ask permission to enter to talk to him. This is pretty exciting to those of us who love criminal jurisprudence. This is going just the way the Founders of the Republic envisioned when they drew up the Fourth Amendment to protect lap dancing.

Unfortunately, getting permission from someone who actually has his lawyer on the phone at that moment takes more time than getting permission from someone not similarly encumbered. So by the time police get to the room, it’s empty and the window is open. The window is open because Richard Lund—who may or may not have been the doorman in question—has just jumped from it.4

Onto Bruce Cearlock.

Let’s look at the case for a moment from Mr. Cearlock’s point of view.5 He’s standing outside the bar his wife owns. Honest, his wife owns the bar next door to Heaven. Talk about marrying well.

Anyway, he’s just standing there when, according to plaintiff’s opening statement, “he was slammed to the sidewalk when a man (Lund) jumped out the window of the Theater and landed on him.”

Man, that’s gotta hurt.

I’ve watched enough television wrestling to know that having someone jump on you from a turnbuckle pretty much takes you out of championship belt contention, and those things are only about five feet off the ground. Having a guy jump on you from the second story ... well, let’s just say that probably makes it unnecessary for the referee to start the count.6

So that’s the case. Mr. Cearlock argued the bar and its owners were liable under respondeat superior and because they helped Mr. Lund try to evade arrest; ultrahazardous activity called for strict liability. The trial judge listened to those facts as set out in the opening statement and granted a nonsuit in favor of Heaven and Heaven’s owners, including Peter Lambertson.

My colleagues on the court of appeal agreed. The trial judge nailed this one. Which was remarkable because the case gods seem to have decided it was too easy, so they tossed a couple of astonishingly perplexing facts into the opening statement—just to try to throw the trial judge off his game.

First, Mr. Cearlock’s lawyer had to admit he had no proof Mr. Lund was an employee of Heaven. They thought he was; he had been seen hanging around there a lot; but “there were no records showing who was working at the theater that night because the theater did not keep such records,” so counsel did have a slight proof problem in that respect.

After all, respondeat superior generally requires that the superior be respondeating for something done by one of his agents. Cearlock’s proof about Lund’s agency at the theater was less than crystal regarding who—if anyone—was responsible for his actions other than him.

To fill this lacuna, Cearlock offered to prove that Lund was a doorman by trade—presumably to make it more likely he was the doorman at Heaven. How? By proving that his wife had hired him as a doorman for her bar after he fell on her husband.7

Mrs. Cearlock fired Lund as soon as she found out he was that Richard Lund. And how do you suppose she found out? I like to think her husband identified him. “Excuse me, I have to get down here on the floor and look up at you to see if I recognize your butt. Yep, that’s him; fire him, Honey.”

I suspect other employees have been fired for jumping on the owner’s spouse, but Mr. Lund has to be the first fired for doing so from a second-story window. Not sure what FEHA would have to say about that.

But I am sure what my colleagues at the First District Court of Appeal said about this case. They said respondeat superior only applies to torts committed by employees in the scope of their employment. I read that to mean they did not believe jumping out of windows onto passersby was within the scope of employment of anyone employed by the theater. So whether Lund was the doorman or not is irrelevant, and the mystery of Heaven’s employment records will—like the Trinity and transubstantiation—remain unsolved.

They also said that even if the theater could somehow have been viewed as having aided Mr. Lund’s attempted escape from the police, “Assisting another in evading the police is an activity that can take many forms, many of which will pose no general risk to the public at all, and all of which can be adequately handled, for purposes of liability, under a negligence rubric.”

They talk prettier than me in the First District.

Kudos to Henry Needham, Barbara Jones, Mark Simons—and trial judge Wallace Douglass—for not only getting this one right, but keeping a straight face. With truth like this, I can’t figure out why anybody writes fiction.

(1) Citation? For crying out loud, it’s an 1863 case and I’m a 1947 judge. You’re lucky I remember the name, much less the citation.
(2) I know, hard for regular readers of this column to imagine, but they were able to find three people wiser than I.
(3) The MetNews says Heaven was a place where lap dancing and prostitution took place. But I can’t find either of those facts in the opinion, so I’m just going to congratulate the MetNews on the quality of its journalism and applaud my court of appeal colleagues for not getting sidetracked by those things.
(4) If you’ve ever tried to close a window after jumping from it, you know that Mr. Lund was not responsible for not closing it behind him, and neither party made such an assertion. My mother would have—she was death on failing to close windows and doors—but neither party here seems to have been concerned about my mother’s approval.
(5) This is one of the things they teach us at justice school: Consider both sides.
(6) Apparently didn’t do much for Mr. Lund, either. Police caught him a couple blocks away, despite what must have been a significant head start. I’m betting he was not making good time.
(7) Can you imagine the poor trial court judge trying to keep his eye on the nonsuit ball through that plot twist?

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov.