Vasilenko v. Grace Family Church

         APPEAL from a judgment of the Superior Court of Sacramento County, No. 34-2011-00097580, David I. Brown, Judge.

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         COUNSEL

         Torrano Law, Frank J. Torrano; Jaramillo & Borcyckowski and Robert D. Borcyckowski for Plaintiffs and Appellants.

         Mason Thomas and Bradley S. Thomas for Defendant and Respondent.

         OPINION

         BLEASE, J.

         Plaintiff Aleksandr Vasilenko was hit by a car and injured while crossing Marconi Avenue in Sacramento. At the time, he was crossing a busy five-lane road on his way from an overflow parking lot controlled and staffed by defendant Grace Family Church (GFC or the church) to a function at the church. Vasilenko and his wife Larisa (collectively Vasilenko) sued GFC and others for, among other causes of action, negligence and loss of consortium, alleging that GFC acted negligently in locating its overflow parking lot in a place that required invitees like him to cross a busy street where they might be hit by a car and by failing to protect him from that risk. The trial court granted GFC’s motion for summary judgment on the ground that GFC owed no duty to Vasilenko because it did not own, possess, or control the public street where Vasilenko was injured.^[1] Vasilenko appeals from the judgment of dismissal entered in GFC’s favor following the grant of its motion for summary judgment, contending that the location of his injury is not dispositive, and that GFC failed to satisfy its burden of negating the general duty of ordinary care set forth in Civil Code section 1714.^[2] We shall conclude that the location of the overflow lot, which required GFC’s invitees who parked there to cross a busy thoroughfare in an area that lacked a marked crosswalk or traffic signal in order to reach the church, exposed those invitees to an unreasonable risk of injury offsite, thus giving rise to a duty on the part of GFC. Accordingly, we shall reverse the judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         The facts are viewed in the light most favorable to Vasilenko as the losing party on summary judgment. (Morris v. De La Torre (2005) 36 Cal.4th 260, 265 [30 Cal.Rptr.3d 173, 113 P.3d 1182].)

         GFC is located on Marconi Avenue across from the Debbie Meyer Swim School. The section of Marconi Avenue that separates GFC and the swim

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school consists of five lanes: two eastbound; two westbound; and a central universal left-turn lane. The nearest cross street is Root Avenue, which intersects Marconi Avenue about 50 to 100 feet east of the church and the swim school. There is no traffic signal or marked crosswalk at the intersection of Marconi and Root Avenues.

         GFC had an agreement with the swim school allowing it to use the swim school’s parking lot (swim school lot or overflow lot) when the church’s main lot, located adjacent to the church, was full. Church members served as volunteer parking attendants. Attendants assisted drivers with navigating through the church’s main parking lot and identifying alternate places to park when the main lot was full. Attendants provided some invitees with a printed map showing alternate places to park, including the swim school lot. Attendants also were stationed at the swim school lot.

         On the evening of November 19, 2010, Vasilenko went to GFC to attend a function being held at the church. When he arrived, the church’s main parking lot was full, and the attendant gave him a map and told him that he could park across the street at the swim school lot. The attendant did not instruct him to cross at the intersection of Marconi and Root Avenues when returning to the church.

         Sergey Skachkov and his girlfriend parked in the swim school lot at about the same time as Vasilenko. Two parking attendants were on duty at the swim school lot when Skachkov arrived; one waved drivers into the lot entrance and the other directed drivers where to park. Neither attendant provided any instruction or assistance on how to cross Marconi Avenue.

         Skachkov and his girlfriend took the most direct route to the church and crossed in the middle of the block. After looking both ways, they crossed the two eastbound lanes and waited in the universal turn lane. Once there, Skachkov noticed Vasilenko about 15 feet to his right. Vasilenko waited with Skachkov and his girlfriend in the center lane for the westbound traffic to clear. After about a minute, all three attempted to cross the two westbound lanes. After walking half way across the last two lanes, Skachkov saw the headlights of an upcoming car and he, his girlfriend, and Vasilenko started running. Vasilenko was hit by the car and injured.

         Vasilenko sued GFC for negligence (third & fourth causes of action) and loss of consortium (second cause of action).^[3] In his third cause of action for general negligence, Vasilenko alleged that GFC created a foreseeable risk of

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harm by maintaining an overflow parking lot in a location that required its invitees to cross Marconi Avenue, was negligent in failing to protect against that risk, and as a result, he was hit by a car while crossing the street. In his fourth cause of action for general negligence, Vasilenko alleged that GFC was negligent in failing to adequately train or supervise its parking lot attendants, and as a result of such inadequate training and supervision, he was hit by a car while crossing the street on his way to the church.

         GFC moved for summary judgment on the ground, among others, that it “did not have a duty to assist [Vasilenko] with or provide instruction about how to safely cross a public street” that it did not own, possess, or control. Vasilenko responded that GFC’s lack of ownership or control over the public street was not dispositive where, as here, GFC controlled the overflow parking lot, including its location. Specifically, Vasilenko asserted that GFC created a dangerous condition by “selecting and establishing a location for the overflow lot with a dangerous avenue of approach to the church.” The trial court granted GFC’s motion for summary judgment, finding that GFC “did not owe a duty of care to the plaintiff or other members of the public to assist them in safely crossing a public street, which it did not own or control.” Vasilenko appeals from the judgment of dismissal entered in GFC’s favor following the grant of its summary judgment motion.

         DISCUSSION

         Vasilenko challenges the trial court’s determination that GFC did not owe him a duty of reasonable care. He asserts that “[t]here is no public policy basis for exempting GFC from the fundamental principle that everyone is responsible for injury caused by his or her negligence, ” and our “Supreme Court rejects the view that a defendant cannot be liable for injury to a business invitee not physically present on land owned or possessed by defendant.” We agree that the trial court erred in determining that GFC did not owe Vasilenko a duty of care as a matter of law.

         The standard of review for an order granting a motion for summary judgment is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 [107 Cal.Rptr.2d 841, 24 P.3d 493].) We apply the same three-step process as the trial court. “Because summary judgment is defined by the material allegations in the pleadings, we first look to the pleadings to identify the elements of the causes of action for which relief is sought.... We then examine the moving party’s motion, including the evidence offered in support of the motion.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159 [49 Cal.Rptr.3d 153].) A defendant moving for ...