Musgrave
v. Ambrose Properties (1978) 87 Cal.App.3d 44, 150 Cal.Rptr. 722
[Civ.
No. 52045. Second Dist. Div. One. Dec. 6, 1978.]
ELIZABETH
MUSGROVE, Plaintiff and Appellant, v. AMBROSE PROPERTIES, Defendant and Appellant; UNIGARD INSURANCE GROUP,
Intervener and Appellant.
(Opinion
by Lillie, Acting P. J., with Thompson, J., concurring. Separate concurring and dissenting opinion by Hanson,
J.)
COUNSEL
Wax
& Appell and Edward J. Mizrahi for Plaintiff and Appellant.
Morris
& Polich, John K. Morris and Robert S. Wolfe for Defendant and Appellant.
Grancell,
Kegel & Tobin and John Reiner for Intervener and Appellant. [87 Cal.App.3d 49]
OPINION
LILLIE,
Acting, P. J.
Plaintiff
sued for personal injuries sustained when she was struck by a bicycle ridden by defendant Sidney Farrington (a
14-year-old boy) fn.
1 on the premises of a shopping center owned by defendant Ambrose Properties. She was injured
in the course and scope of her employment, and Unigard Insurance Group, a workmen's compensation insurance
carrier, paid to her disability indemnity and medical benefits totaling $7,669.91 on behalf of her employer. By
leave of court, Unigard filed a complaint in intervention seeking judgment against defendants in the sum of
$7,669.91 on the theory that their negligence caused plaintiff's injuries. (See Lab. Code, § 3853; Gilford v.
State Compensation Ins. Fund (1974)
41 Cal.App.3d 828,
831 [116 Cal.Rptr. 615].)
Pursuant
to stipulation, trial of the action was bifurcated, and the issue of liability was tried first. The following
evidence was adduced on that issue. For more than a year prior to June 6, 1973, plaintiff, in the course of her
employment, drove to the Belmont Shopping Center once a week to deposit mail in a mailbox located there; there
on the afternoon of June 6, she double-parked her car in back of other cars in the parking lot of the shopping
center, leaving the engine running. The mailbox was located beside one of several pillars which supported a
canopy extending over a sidewalk. The sidewalk ran in front of a row of shops. At the outer edge of the
sidewalk, and parallel to it, was a passageway three or four feet wide, beyond which was the parking lot.
Plaintiff walked from her car to the mailbox and deposited mail; as she stepped from behind the pillar out into
the passageway, she was struck by a bicycle ridden by Sidney who was riding from east to west, and did not see
plaintiff in time to avoid striking her. Immediately before the accident, plaintiff looked north toward the
parking lot; she did not look down the passageway in either direction before entering it. Consequently, she did
not see Sidney approaching on his bicycle. Plaintiff was in a hurry to return to her car, but not to the point
of endangering her safety. As a result of the accident, plaintiff's left hip was broken and her left elbow was
skinned. Before June 6, 1973, plaintiff had seen bicycles ridden on the sidewalk, but not on the passageway. She
never registered a complaint either to Ambrose or to any of its tenants regarding the riding of bicycles at the
shopping center. Bicycle traffic there was at its heaviest from 2:30 to 5:30 p.m., after school was dismissed
for the day. [87 Cal.App.3d 50]
Ambrose
Properties, a corporation, has owned the Belmont Shopping Center since its completion in 1964. In 1973, Jay
Ambrose, a stockholder and officer of the corporation visited the Belmont Shopping Center once a week, usually
on Saturday. Mr. Ambrose knew that bicycles were ridden on the premises, but he never received a complaint from
any tenant regarding bicycle riding there. Ambrose Properties posted no signs at the shopping center prohibiting
the riding of bicycles on the sidewalk and the passageway. It employed no one to patrol or police the premises
in order to prevent bicycle riding in those areas. There was no evidence that a bicycle had struck a pedestrian
at the shopping center prior to plaintiff's being struck on June 6, 1973.
At
the conclusion of the liability phase of the trial, the jury made special findings. fn.
2 Following trial on the issue of damages, the jury returned a verdict of $40,000 in favor of
plaintiff and against Ambrose. Judgment was entered on the verdict. That judgment also directed a verdict in
favor of Unigard and against Ambrose on Unigard's complaint in intervention.
Ambrose
moved for judgment notwithstanding the verdict or for a new trial. The court granted the motion for judgment
notwithstanding the verdict and, of its own motion (Code Civ. Proc., § 629) granted as against Unigard, judgment
notwithstanding the directed verdict. On the grounds of insufficiency of the evidence to justify the verdict and
that the verdict is against law (Code Civ. Proc., § 657, subd. 6), the court conditionally granted Ambrose's
motion for new trial (as to plaintiff), such order to be effective only if the judgment notwithstanding the
verdict is reversed on appeal. (Code Civ. Proc., § 629.) The court also conditionally granted, on its own
motion, a new trial as to Unigard, on the same grounds. Judgment notwithstanding the verdict subsequently was
entered. [1, 2, 3,] Plaintiff and Unigard appeal from that judgment, and from order granting a new trial.
fn.
3 Ambrose cross-appeals from the judgment entered on the verdict. The cross-appeal is
dismissed for failure to file a brief in support thereof. (Cal. Rules of Court, rule 17(a); Redevelopment Agency
v. Penzner (1970)
8 Cal.App.3d 417,
426 [87 Cal.Rptr. 183].) [87 Cal.App.3d 51]
[4]
A judgment notwithstanding the verdict properly may be granted only when, disregarding conflicting evidence, and
giving plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate
inference which may be drawn therefrom, the result is a determination that there is no evidence of sufficient
substantiality to support a verdict in favor of plaintiff. (McFarland v. Voorheis-Trindle Co. (1959)
52 Cal.2d 698,
703 [343 P.2d 923].) The trial court granted judgment notwithstanding the verdict on the ground there was no
evidence that Ambrose violated any duty owed to plaintiff.
[5]
Everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management
of his property. (Civ. Code, § 1714.) Under this rule, the proper test to be applied to the liability of a
landowner "is whether in the management of his property he has acted as a reasonable man in view of the
probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may
in the light of the facts giving rise to such a status have some bearing on the question of liability, the
status is not determinative." (Rowland v. Christian (1968)
69 Cal.2d 108,
119 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].) [6] An owner of land held open to the public for business
purposes is under a duty to take affirmative action to control the wrongful acts of third persons which threaten
the safety of visitors to the premises where he has reasonable cause to anticipate such acts and the probability of
injury resulting therefrom. (Taylor v. Centennial Bowl, [87 Cal.App.3d 52] Inc. (1966)
65 Cal.2d 114,
121 [52 Cal.Rptr. 561, 416 P.2d 793].) As explained in Restatement Second of Torts, section 344, comment f: "Since
the [landowner] is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care
until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He
may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part
of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to
expect it on the part of any particular individual. If the place or character of his business, or his past
experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons,
either generally or at some particular time, he may be under a duty to take precautions against it."
[7]
The determination of duty is basically a question of law. (Weirum v. RKO General, Inc. (1975)
15 Cal.3d 40, 46
[123 Cal.Rptr. 468, 539 P.2d 36].) Foreseeability of the risk is of primary importance in establishing the element
of duty (Dillon v. Legg (1968)
68 Cal.2d 728,
739 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]), and foreseeability is a question of fact. (Weirum v. RKO
General, Inc., supra,
15 Cal.3d 40,
46.) Accordingly, a mixed question of law and fact may arise out of the relationship of foreseeability to the
creation of a duty. (Barker v. Wah Low (1971)
19 Cal.App.3d 710,
721-722 [97 Cal.Rptr. 85].) [8] "[C]ourts, on a case-to-case basis, analyzing all the circumstances, will decide
what the ordinary man under such circumstances should reasonably have foreseen. The courts thus mark out the areas
of liability, excluding the remote and unexpected." (Dillon v. Legg, supra,
68 Cal.2d 728,
741.) (Italics added.)
In
the case at bench, the evidence and the reasonable inferences therefrom show that Ambrose knew bicycles were
ridden at the Belmont Shopping Center, and that pedestrians also were present on the premises. Under these
circumstances, it cannot be said, as a matter of law that the possibility of a bicyclist striking a pedestrian
was so "remote and unexpected" that an ordinary man should not reasonably have foreseen it. The foreseeability
of such an accident thus was a question of fact, and the evidence permits a finding that the chance of a
bicyclist striking a pedestrian, unless precautions were taken, was foreseeable. The fact that no similar
accident occurred before plaintiff was struck does not show that such an accident might not reasonably have been
anticipated. (Weirum v. RKO General, Inc., supra,
15 Cal.3d 40,
47; Ridley v. Grifall Trucking Co. (1955)
136 Cal.App.2d 682,
686 [289 P.2d 31].) [87 Cal.App.3d 53]
[9]
The elements of actionable negligence, in addition to a duty to use due care, include a breach of such duty, and
the breach as the proximate cause of the resulting injury. (United States Liab. Ins. Co. v. Haidinger-Hayes,
Inc. (1970)
1 Cal.3d 586,
594 [83 Cal.Rptr. 418, 463 P.2d 770].)
[10]
Breach of duty is usually a fact issue for the jury; if the circumstances permit a reasonable doubt whether the
defendant's conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of
fact rather than of law by the court. (Starr v. Mooslin (1971)
14 Cal.App.3d 988,
998 [92 Cal.Rptr. 583].) In determining whether defendant breached a duty of care owed to plaintiff, the magnitude
of the harm likely to result from defendant's conduct must be balanced against the social value of the interest
which he is seeking to advance, and the ease with which he may take precautions to avoid the risk of harm to
plaintiff. (Schwartz v. Helms Bakery Limited (1967)
67 Cal.2d 232,
237-238, fn. 3 [60 Cal.Rptr. 510, 430 P.2d 68].) [11a] Ambrose was the owner of a shopping center which furnished
goods and services to members of the public including bicyclists and pedestrians. The precautions Ambrose could
have taken to avoid or minimize the risk of a bicyclist striking a pedestrian included posting signs prohibiting
bicycle riding on sidewalks and passageways, or employing a guard to control bicycle riding in those areas. The
jury reasonably could find that the risk of harm to a pedestrian struck by a bicycle outweighed both the social
value of permitting bicyclists unrestricted access to all areas of the shopping center, and the burden imposed on
Ambrose in taking steps to prevent bicycle riding on sidewalks and passageways. Evidence that Ambrose did nothing
to control bicycle riding in these areas supports the jury's implied finding that Ambrose thereby breached its duty
of care to plaintiff.
[12]
Given a breach of duty by the defendant, the question whether that breach caused the damage is also a factual
issue. (Starr v. Mooslin, supra,
14 Cal.App.3d 988,
998; Klopfenstein v. Rentmaster Trailer Co. (1969)270 Cal.App.2d 811, 814 [76 Cal.Rptr. 126].) [11b] The evidence
herein supports a finding that Ambrose's failure to take any measures to control bicycle riding was the proximate
cause of plaintiff's injuries.
In
sum, if we give the evidence tending to establish negligence all the value to which it is legally entitled, that
evidence supports a verdict in favor of plaintiff. It follows that the trial court erred in granting the
judgment notwithstanding the verdict. [87 Cal.App.3d 54]
The
court granted a new trial on the grounds that the evidence is insufficient to justify the verdict, and that the
verdict is against law. In support of both grounds, the court specified the same reason it gave to support the
granting of the judgment notwithstanding the verdict, namely: Ambrose owed no duty to pedestrians at its
shopping center to control bicycle riding there. fn.
4 In the court's specification of reasons, the only references to the evidence were these:
"there was no way indicated in the evidence ... where the shopping center owner, as distinguished from the
public street store owner, can reasonably prevent [bicyclists] from riding bicycles in the presence of
pedestrian patrons of those shopping centers or even public street stores"; "There was no intimation in the
evidence, at least to the developer of this shopping center and the defendant-owner thereof, that accidents
between bicycle riders and pedestrians, any more than accidents between automobiles and pedestrians, would occur
by the very design and maintenance of the center"; "The evidence here does not show any knowledge, or
circumstances creating chargeable knowledge, attributable to the shopping center owner concerning any such
volume of bicycle riding as to make the premises, per se, dangerous to pedestrians or others any more than
automobiles would be deemed here, per se, dangerous to pedestrians or others"; "Before liability can be foisted
on a defendant he must have notice or be chargeable with notice of a dangerous condition or danger and injury
must be reasonably foreseeable. That notice is remarkably here absent"; "there is a complete absence of any
evidence that any other accident took place in all the years of the maintenance of this shopping center"; "the
evidence is uncontradicted that [Ambrose] had never received any complaint concerning bicycle riding.
While
the order granting a new trial purports to rest on two grounds -- that the verdict is against the law and
insufficiency of the evidence -- the trial court's specification of reasons reveals that only the former ground
is involved. The order, to the extent that it purports to grant a new trial for insufficient evidence, stands or
falls upon the factors stated in the specification of reasons. (Code Civ.Proc., § 657.) Those specifications
state in effect that the trial court deemed the evidence to be insufficient because as a matter of law the
evidence does not establish any duty of the defendant to the plaintiff because there was no actual notice of the
dangerous condition. Thus, it is clear from the statement that the [87 Cal.App.3d 55] trial court granted
a new trial not because it disbelieved any of the testimony presented by the plaintiff or because it drew
inferences from the total record unfavorable to the plaintiff. Rather, the statement establishes that the trial
court, after treating the plaintiff's case as entirely credible, concluded that as a matter of law no duty was
established.
Code
of Civil Procedure section 657 provides in part: "A new trial shall not be granted upon the ground of
insufficiency of the evidence to justify the verdict ... unless after weighing the evidence the court is
convinced from the entire record, including reasonable inferences therefrom, that the ... jury clearly should
have reached a different verdict ... " (Italics added.) [13] Thus, insufficiency of the evidence as ground for a
new trial means "the insufficiency that arises in the mind of the trial judge when he weighs the conflicting
evidence and finds that which supports the verdict and judgment weighs, in his opinion, less than that which is
opposed to it." (Bray v. Rosen (1959)
167 Cal.App.2d 680,
683 [335 P.2d 137].) The court's specification of reasons herein indicates merely that the court concluded there
was a total lack of evidence to support a finding that Ambrose owed pedestrians a duty to control bicycle riding.
fn. 5 Contrary to the mandate of section 657, the court did not weigh the evidence and reasonable
inferences therefrom in determining that no such duty existed. As stated in McCown v. Spencer (1970)
8 Cal.App.3d 216,
227 [87 Cal.Rptr. 213]: "It is apparent that the court granted a new trial on this ground [insufficiency of the
evidence] because it believed there was a total lack of any material evidence to support the verdict rather than
because the court, after weighing it, believed the evidence failed to preponderate and the jury should have reached
a different verdict.
Code
of Civil Procedure section 657 further provides that, on appeal from an order granting a new trial upon the
ground of insufficiency of the evidence to justify the verdict, "it shall be conclusively presumed that said
order as to such ground was made only for the reasons specified in said order or said specification of reasons,
and such order shall be reversed as to such ground only if there is no substantial basis in the record for any
of such reasons." (Italics added.) Here, the reasons specified by the court either find no support in the
record, or are irrelevant to a determination of the existence of a duty on the part of Ambrose. fn.
6. It [87 Cal.App.3d 56] follows that the granting of a new trial cannot be sustained
on the ground of insufficiency of the evidence to justify the verdict.
[14]
As to the second ground, that the verdict is against law, that too, cannot be sustained. The phrase "against
law" does not import a situation in which the court weighs the evidence and finds a balance against the verdict,
as it does in considering the ground of insufficiency of the evidence. The granting of a new trial on the ground
that the verdict is against law is authorized only where there is no substantial evidence to sustain the
verdict. (S. F. Bay Area Rapid Transit Dist. v. McKeegan (1968)
265 Cal.App.2d 263,
272-273 [71 Cal.Rptr. 204]; Thompson v. Guyer-Hays (1962)
207 Cal.App.2d 366,
375 [24 Cal.Rptr. 461].) Inasmuch as the evidence is sufficient to support a verdict in favor of plaintiff, a new
trial was improperly granted on the ground that the verdict is against law.
Ambrose
moved for a new trial on additional grounds (Code Civ. Proc., § 657, subds. 1, 3, 5, 7), but in its reply brief,
Ambrose does not argue that the order for a new trial is sustainable on any of these grounds. In accordance with
Code of Civil Procedure section 657, fn.
7 we have reviewed the entire record in an effort to determine whether the order should be
affirmed on any of the grounds stated in the motion but not specified in the order; our review compels the
conclusion that it cannot.
The
judgment notwithstanding the verdict is reversed. The order granting a new trial is reversed. The cross-appeal
from the judgment entered on the verdict is dismissed.
Thompson,
J., concurred. [87 Cal.App.3d 57]
HANSON,
J., Concurring and Dissenting.
I
concur with the portions of the majority opinion that hold the trial court erred in granting the judgment
notwithstanding the verdict and the dismissal of the cross-appeal from the judgment entered on the verdict for
the reasons stated.
I
respectfully dissent only as to that portion of the majority opinion reversing the conditional order granting a
new trial.
In
my opinion the fact that the court below specified the same reasons for granting a new trial that it gave to
support the granting of the judgment notwithstanding the verdict, standing alone, does not compel reversal of
the conditional order granting a new trial. Nor is the affirmance of the order granting a new trial inconsistent
with the conclusion that the trial court erred in granting the judgment notwithstanding the verdict. The
applicable standards of review of the two motions are different.
As
pointed out in the majority opinion, in the case of a judgment notwithstanding the verdict a determination must
be made that "'"[there] is no evidence of sufficient substantiality to support a verdict in favor of the
plaintiff." [Citation.]'" (McFarland v. Voorheis-Trindle Co. (1959)
52 Cal.2d 698,
703 [343 P.2d 923].) On the other hand the granting of a motion for a new trial is left to the sound discretion of
the trial court and "[O]on appeal, all presumptions are in favor of the order as against the verdict, and the
reviewing court will not disturb the ruling unless a manifest and unmistakable abuse of discretion is made to
appear. [Citations.]" (Mercer v. Perez (1968)
68 Cal.2d 104,
112 [65 Cal.Rptr. 315, 436 P.2d 315].)
In
Mercer the court said at pages 112-113:
"[T]wo
purposes are served by the present requirement of specification of reasons, and both are related to the
traditionally broad powers exercised by the trial judge in passing on a motion for new trial. ...
"[O]ne
of the functions of the requirement of specification of reasons is to promote judicial deliberation before
judicial action, and thereby 'discourage hasty or ill-considered orders for new trial.' (Review of Selected 1965
Code Legislation (Cont.Ed.Bar), p. 81.) ...
"The
second purpose of this requirement is to make the right to appeal from the order more meaningful. While the
rarity of reversals is doubtless [87 Cal.App.3d 58] due to the circumstance that discretion is not often
abused, it must be recognized that under the prior law an appellant challenging an order granting a new trial
tended to have great difficulty in presenting his case. It often occurred, for example, that the notice of
motion was predicated on all or most of the statutory grounds, and the subsequent order specified neither the
ground or grounds found applicable nor the reasons therefor; in that event, the appellant was left in the dark
as to which aspect of the trial to defend, and quite understandably struck out blindly in several directions at
once. This process, however, was not likely to illuminate the reviewing court, which remained equally uninformed
of the basis on which the trial judge acted. ..."
In
Scala v. Jerry Witt & Sons, Inc. (1970)
3 Cal.3d 359,
370 [90 Cal.Rptr. 592, 475 P.2d 864], quoted from Mercer v. Perez, supra,
68 Cal.2d 104,
where that court said at page 115: "No hard and fast rule can be laid down as to the content of such a
specification [reasons for granting a new trial], and it will necessarily vary according to the facts and
circumstances of each case."
In
my view the legislative intent of Code of Civil Procedure section 657 and the twofold purposes underlying the
requirement of a specification of reasons as described in Mercer (68 Cal.2d at pp. 112-113) are satisfied.
Here,
as I construe the reasons specified (as set forth in the majority opinion) the trial judge reviewed and weighed
all the evidence relating to the factual issue of notice to defendant landowner Ambrose Properties and concluded
that there was insufficient evidence to charge Ambrose with prior knowledge of the existence of a dangerous
condition which was created by bicycles being ridden in the area where the accident happened.
I
conclude the record reflects the trial judge gave mature and careful reflection in the instant case and
adequately specified his reasons within the spirit of Scala and Mercer for granting a new trial on the ground
that the evidence is insufficient to justify the verdict. I cannot say he manifestly and unmistakenly abused his
discretion in granting a new trial.
FN 1. Jannie
Farrington, mother of Sidney, also was named as a defendant. Judgments were entered in favor of Sidney and Jannie,
and against plaintiff. No appeal was taken from either of those judgments.
FN 2. "'Question
No. 1. Was there negligence on the part of the plaintiff which contributed as a proximate cause of her injury? No.
"'Question
No. 2. Was there negligence on the part of the corporation property owner which contributed as a proximate cause
of her injury? Yes.
"'Question
No. 3. Was there negligence on the part of Sidney Farrington which contributed as a proximate cause of her
injury? No.'"
FN 3. Plaintiff
and Unigard purport to appeal from the order granting judgment notwithstanding the verdict. Such an order is but a
step preliminary to final judgment, and therefore is not appealable. (Jordan v. Talbot (1961)
55 Cal.2d 597,
602 [12 Cal.Rptr. 488, 361 P.2d 20, 6 A.L.R.3d 161].) The order herein was made on March 18, 1977; plaintiff's
notice of appeal from the order was filed March 23, 1977; judgment notwithstanding the verdict was entered March
25, 1977. Rule 2(c), California Rules of Court provides in part: "A notice of appeal filed prior to rendition of
the judgment, but after the judge has announced his intended ruling, may, in the discretion of the reviewing court
for good cause, be treated as filed immediately after entry of the judgment." This rule applies to a notice of
appeal from a nonappealable order. Evola v. Wendt Construction Co. (1958)
158 Cal.App.2d 658,
660-661 [323 P.2d 158].) Accordingly, we treat plaintiff's appeal as having been filed after entry of the judgment.
Rule 2(c) is inapplicable to Unigard's appeal, inasmuch as it was filed after entry of the judgment. Under the rule
that a notice of appeal must be liberally construed in favor of its sufficiency (Cal. Rules of Court, rule 1(a)),
notices of appeal referring to an "order" have been interpreted to apply to a "judgment" so as to protect the right
of appeal where it is reasonably clear from what appellant was attempting to appeal, and where respondent could not
possibly have been misled or prejudiced. (Vibert v. Berger (1966)
64 Cal.2d 65,
67-68 [48 Cal.Rptr. 886, 410 P.2d 390]; Luz v. Lopes (1960)
55 Cal.2d 54,
59-60 [10 Cal.Rptr. 161, 358 P.2d 289].) In accordance with these principles, we deem Unigard's appeal to have been
taken from the judgment notwithstanding the verdict rather than from the nonappealable order granting the judgment.
The
order granting a new trial is appealable. (Code Civ. Proc., § 904.1, subd. (d).)
FN 4. The
specification of reasons begins with the following statement: "In granting the Judgment N.O.V. this Court feels
that there is no basis to impose a higher duty on the property owner of a shopping center than we can impose upon a
property owner of a public street store. Both are subject to the same passage of bicycle riders who are impliedly
invited to patronize them. ....
FN 5. Plaintiff
does not challenge the adequacy of the specification of reasons, which appears to satisfy the requirements of
section 657. (See Scala v. Jerry Witt & Sons, Inc. (1970)
3 Cal.3d 359,
363-364 [90 Cal.Rptr. 592, 475 P.2d 864]; Mercer v. Perez (1968)
68 Cal.2d 104,
112-116 [65 Cal.Rptr. 315, 436 P.2d 315].)
FN 6. It
is not true, as stated by the court in its specification of reasons, that the evidence fails to indicate the nature
of the precautions which Ambrose reasonably could have taken to prevent bicyclists from riding in the presence of
pedestrians. Moreover, there is no basis in the evidence for the court's assumption that because the owner of a
store located on a public street cannot prevent bicycle riding in the vicinity of his premises, no such duty can be
imposed on Ambrose, the owner of a private shopping center. As to the "design and maintenance" of the shopping
center, the evidence shows, without contradiction, that the center was designed and maintained so as to give
bicyclists unrestricted access to areas frequented by pedestrians. The volume of bicycle traffic in relation to the
volume of automobile traffic at the shopping center simply is not pertinent to the question whether Ambrose
reasonably could have foreseen that bicyclists would endanger the safety of pedestrians. The lack of evidence of
prior accidents, and of complaints concerning bicycle riding, does not establish that Ambrose could not reasonably
have anticipated the type of accident which befell plaintiff
FN 7. The
applicable provision of section 657 reads: "On appeal from an order granting a new trial the order shall be
affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order
or specification of reasons ..."
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