Draper Mortuary v. Superior Court

Petition for writ of mandate after the denial of defendants’ motion for summary judgment.

Plaintiff in a first amended complaint stated two causes of action against defendants, one sounding in negligence and the other in breach of an oral contract. Defendants’ motion for summary judgment was denied as to the negligence cause of action and a petition for writ of mandate or prohibition is now before us. We granted an alternative writ but refuse to issue the permanent writ.

Facts

Plaintiff’s first amended complaint filed on April 9, 1981, states that defendants are engaged in the business of maintaining an establishment *535 for the preparation and transportation or disposition of and for the care of dead human bodies. On November 27, 1979, plaintiff gave to defendants the temporary custody, care and possession of plaintiff’s deceased wife’s remains. Defendants placed decedent’s remains in their chapel and negligently interfered with the right of plaintiff to dispose of and to the remains of the decedent by failing to provide adequate protection for decedent’s remains. The defendants are alleged to have been negligent in that they failed to lock the door to the chapel…

I respectfully dissent.

In the trial court the petitioning defendants’ motion for summary judgment was denied because the court perceived an issue of fact to be resolved. To the contrary, in my view, the case presents solely an issue of law, and the motion should have been granted. The trial court and the majority point to the issue of fact as being whether the defendants were negligent- in failing to lock the door against the intruder.

However, implicit in characterizing the record as presenting an issue of fact is an underlying and prior legal determination that a duty devolved upon the defendants to exercise some measure of care in maintaining the security of the mortuary premises. It is in their perception of the duty here applicable that I disagree with my colleagues.

*539 In undertaking to define such a duty, the majority first invokes Dillon v. Legg (1968) 68 Cal.2d 728 [ 69 Cal.Rptr. 72 , 441 P.2d 912 , 29 A.L.R.3d 1316 ], which forthrightly conceded that “‘[duty] is a shorthand statement of a [legal] conclusion, rather than an aid to analysis in itself ... [and that] “duty” is not sacrosanct in itself, but only an expression of the sum total of those considerations of…

William F. Batchelor for Real Party in Interest.

OPINION

TROTTER, J.

Petition for writ of mandate after the denial of defendants' motion for summary judgment.

Plaintiff in a first amended complaint stated two causes of action against defendants, one sounding in negligence and the other in breach of an oral contract. Defendants' motion for summary judgment was denied as to the negligence cause of action and a petition for writ of mandate or prohibition is now before us. We granted an alternative writ but refuse to issue the permanent writ.

Plaintiff's first amended complaint filed on April 9, 1981, states that defendants are engaged in the business of maintaining an establishment for the preparation and transportation or disposition of and for the care of dead human bodies. On November 27, 1979, plaintiff gave to defendants the temporary custody, care and possession of plaintiff's deceased wife's remains. Defendants placed decedent's remains in their chapel and negligently interfered with the right of plaintiff to dispose of and to the remains of the decedent by failing to provide adequate protection for decedent's remains. The defendants are alleged to have been negligent in…