Superior Court of the City and County of San Francisco, No. 787257, Thomas J. Dandurand, Judge.
Opinion by Low, P. J., with King and Haning, JJ., concurring.
Plaintiff Donovan Stangle brought suit against defendant Fireman's Fund Insurance Company for plaintiff's loss of a sapphire ring,
claiming Fireman's Fund could have prevented the theft of the ring by making a telephone available to summon help. The trial court found defendant had no duty to prevent the theft. We affirm.
Plaintiff purchased a sapphire and diamond ring in Honolulu, Hawaii, in December 1979 in exchange for a $30,000 promissory note that was due and payable in six months. Plaintiff testified he bought the ring "to hold it for a short period of time and sell it for a profit." When efforts to market the ring in Seattle proved unsuccessful, plaintiff asked Barnabas Britt, a former girlfriend, to attempt to sell the ring in San Francisco and she would be entitled to any sale proceeds in excess of $45,000.
Ms. Britt placed an advertisement for the ring, priced at $60,000. She was contacted by a man who identified himself as Barry Richards. Ms. Britt arranged for a meeting with Mr. Richards at MacArthur Park restaurant. She showed him the ring, which she had carried in her purse, and a written appraisal that placed the ring's replacement value at $103,000. They discussed price, and Mr. Richards told her he would be in contact.
Later that day, Mr. Richards telephoned Ms. Britt and told her his principal wished to purchase the ring for $50,000. At Mr. Richards's direction, the sale was to take place the next day at defendant's offices on the 14th floor of One Market Plaza in San Francisco. He explained to Ms. Britt that "the person that he represented wanted the ring photographed and insured before he left the premises with it."
Ms. Britt arrived at One Market Plaza with a friend, Maria Antonidias. Mr. Richards proceeded to the 14th floor while Ms. Britt and Ms. Antonidias retrieved the ring from a nearby safety deposit box. When the women arrived on the 14th floor it was lunchtime and most of the employees were gone. They were greeted by an employee, later identified as Jeanne Hallbach, who was sitting in for the receptionist. Mr. Richards arrived, and the three sat down at an empty desk. While Ms. Britt wrote out a bill of sale, Mr. Richards asked for the ring to have it photographed. Mr. Richards left with the ring, and neither Mr. Richards nor the ring was ever seen again.
Plaintiff does not contend defendant or any of its employees were parties to the crime. The facts upon which plaintiff seeks to premise defendant's liability were set out by Ms. Britt at trial: Ms. Britt testified that her friend "was right behind" Mr. Richards when she went to the receptionist to call for assistance. She explained to the receptionist that her ring had just been stolen, but the receptionist put her hand down on the phone and said, "I'm sorry. This is for building use only." After this, Ms. Britt took the elevator
down to the lobby, reported the theft to security, and the police were called. However, it was too late to apprehend the thief.
The main issue presented by plaintiff's complaint was whether defendant's employees owed Ms. Britt a duty, predicated on principles of general negligence, to make a telephone available to Ms. Britt so that she could summon aid. At the conclusion of trial, the court determined "no special relationship was created between the Plaintiff and the Defendant that would impose any duty on the Defendant to prevent the alleged loss." The court further stated in its intended decision: (1) there was no negligent conduct on the part of defendant; (2) the refusal to allow Ms. Britt the use of the telephone after the theft was not the proximate cause of any damage to the plaintiff; and (3) the proximate cause of plaintiff's loss ...