California Court of Appeals, Third District, Sacramento
from a judgment of the Superior Court of Sacramento County,
No. 34-2011-00097580, David I. Brown, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Law, Frank J. Torrano; Jaramillo & Borcyckowski and
Robert D. Borcyckowski for Plaintiffs and Appellants.
Thomas and Bradley S. Thomas for Defendant and Respondent.
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. 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. 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.
AND PROCEDURAL BACKGROUND
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].)
located on Marconi Avenue across from the Debbie Meyer Swim
School. The section of Marconi Avenue that separates GFC and
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.
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.
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.
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.
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.
sued GFC for negligence (third & fourth causes of action)
and loss of consortium (second cause of
action). In his third cause of action for
general negligence, Vasilenko alleged that GFC created a
foreseeable risk of
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.
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
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.
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 ...