NICANOR ROMERO et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; RYAN N., a Minor, etc., et al., Real Parties in Interest.
Ford, Walker, Haggerty & Behar, Maxine J. Lebowitz and Timothy Lee Walker for Petitioners.
Plaintiff and real party in interest Ryan N. (Ryan), then 13 years of age, was sexually assaulted by another minor, defendant Joseph W. (Joseph) who was then 16 years of age, fn. 1 while both teenagers were visiting a teenage son of petitioners and defendants Nicanor Romero and Gail Romero (together petitioners or the Romeros) in petitioners' home. Ryan's mother, real party in interest Marcellyn W. (mother or Ryan's mother), brought Ryan to the Romeros' home and left her there after telling Gail Romero that she did not leave her child anywhere without adult supervision, and Gail Romero replied that she and her husband would be at home gardening. Mother, however, gave permission for Ryan to walk with Joseph [89 Cal. App. 4th 1073] and other teenagers that afternoon from petitioners' home to a drugstore without adult supervision. Later that afternoon, Joseph sexually assaulted Ryan after petitioners left their home for an hour to buy pizza for the teens.
Ryan and her mother (together plaintiffs) sued the Romeros for negligent supervision and intentional infliction of emotional distress. The Romeros brought a motion for summary judgment or, alternatively, for summary adjudication, arguing (among other things) that they owed no duty to Ryan or her mother. Concluding that the Romeros owed a duty of care to plaintiffs in this matter, the court denied summary judgment, but summarily adjudicated there was no merit to plaintiffs' claims for punitive damages and intentional infliction of emotional distress.
Contending the court erred in ruling that they owed a duty to Ryan, petitioners ask this court to issue a peremptory writ of mandate commanding the court to vacate its ruling and issue a new order granting their motion for summary judgment. We adopt and apply the duty rule announced in Chaney v. Superior Court (1995) 39 Cal. App. 4th 152 [46 Cal. Rptr. 2d 73] (Chaney) (discussed, post), and hold that to the extent plaintiffs alleged the Romeros were liable for negligent supervision under a theory of nonfeasance for negligently failing to properly supervise Ryan and control the conduct of her assailant Joseph, the Romeros did not owe a duty of care to supervise Ryan or take other measures to protect her against Joseph's sexual assault because there is no evidence from which the trier of fact could find that the Romeros had prior actual knowledge that Joseph had a propensity to sexually assault female minors. Balancing the duty factors set forth in Rowland v. Christian (1968) 69 Cal. 2d 108, 112 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496] (Rowland), we also hold that to the extent plaintiffs alleged the Romeros were liable for negligent supervision under a theory of misfeasance and principles of ordinary negligence, the Romeros again owed no duty of care to Ryan. Consequently, petitioners were entitled to summary judgment. We grant the petition.
The facts are largely undisputed. At the time of the April 1999 incident from which the instant action arose (the incident), Ryan was 13 years of age and attending middle school in the 8th grade, and Joseph was 16 and attending high school in the 11th grade. About two weeks before the incident, Ryan met Joseph at Skateworld, where she gave him her phone number. When Joseph phoned Ryan the next day, her mother asked her who had called. Ryan told her mother that she had met Joseph at Skateworld, and he was 16 years old and in the 11th grade. Joseph called Ryan every [89 Cal. App. 4th 1074] evening, and mother sometimes answered the phone. Mother approved of his calls to Ryan and later met Joseph. She thought he was a nice young man.
The Romeros first met Joseph about a year prior to the incident, after their teenage son Elijah befriended him. During that year, Joseph visited the Romeros' home once or twice per month, he spent the night there about eight times, and sometimes he went to church with the Romeros.
Prior to the incident, Joseph had a long history of school misconduct, including sexual harassment of female students, fighting, and other misbehavior that resulted in numerous detentions and suspensions. He had been arrested and charged with vandalism and violating curfew. Gail Romero was aware of Joseph's curfew violations, but there is no evidence the Romeros knew about the arrests and Joseph's misconduct in school. Prior to the incident, Ryan and her mother had never met, and did not know, the Romeros.
Sometime during the morning of April 18, 1999, the Romeros' son, Elijah, met with Joseph, who asked whether Ryan could come over to the Romeros' house. Elijah asked his mother, Gail Romero, for permission to invite Joseph and Ryan over to the house.
Later that morning, Joseph phoned Ryan and asked her whether she wanted to get together with him. While still on the phone with Joseph, Ryan asked her mother for permission, and her mother took the phone and spoke with Joseph. Mother gave her permission, and they decided Ryan and Joseph would "hang out" together at the Romeros' house, and Joseph gave her directions.
After making these arrangements with Joseph, mother and her live-in boyfriend drove Ryan to the Romeros' home and arrived at about 3:00 p.m. Upon their arrival, Gail Romero came out of the house, and she and mother introduced themselves and spoke for about 20 minutes. During this conversation, Ryan was standing next to her mother.
Mother asked Gail Romero whether Ryan could stay there and visit with Joseph and other minors present. Mother said, "I do not leave my child anywhere without adult supervision," and asked, "Are you going to be home?" Gail Romero replied, "Yes, we're just going to be in the backyard gardening." Gail Romero then asked mother whether it was okay for Ryan and the other teens to walk to the Thrifty Drug Store during her visit at the Romeros' home, and mother gave her approval.
After telling Gail Romero she would return at 5:00 p.m., mother and her boyfriend left. Ryan, Joseph and the other teens walked to the Thrifty Drug [89 Cal. App. 4th 1075] Store and returned to the Romeros' home. Gail Romero supervised the teens by checking several times to see what they were doing. Gail Romero felt she needed to care for Ryan while she was in her home, but she also felt Ryan was safe with the other teens who were there.
About 4:30 p.m., the Romeros left to buy the teens a pizza. They were gone for about an hour.
While the Romeros were gone, Joseph sexually assaulted Ryan inside a bedroom in the Romeros' home. Joseph later entered a plea in juvenile court admitting one count of committing a lewd and lascivious act upon a child under the age of 14 years, a felony, in violation of Penal Code section 288, subdivision (a).
Ryan and her mother filed their original complaint in October 1999. In their operative third amended complaint, they alleged a total of 16 causes of action, naming Joseph, his father and mother, the Romeros, and the local public school district as defendants. Plaintiffs asserted three tort claims against the Romeros: Negligent supervision (seventh cause of action, alleged by Ryan alone), and two counts of intentional infliction of emotional distress (12th cause of action, alleged by Ryan; and 14th cause of action, alleged by Ryan's mother). Plaintiffs sought both compensatory and punitive damages.
In support of her claim for negligent supervision, Ryan alleged in paragraph 36 of her amended pleading that on the date in question, the Romeros invited her into their home, and they were "entrusted with [the] responsibility of caring for [her] physical and emotional well being." She further alleged that the Romeros "represented to plaintiffs that their home was safe and that [Ryan] would not be exposed to harm or unreasonable risks while under their supervision." Ryan also asserted that she was a minor of "tender years" and dependent on the Romeros for protection from harm and unreasonable risks.
In paragraph 38, Ryan asserted that the Romeros "knew or should have known" that Joseph was "engaging in abnormal sexual behavior with minors"; that Joseph was "experiencing mental problems and was not in control of his mental state or his actions"; and that "due to his abnormal behavior and mental problems," Joseph was "acting in reckless disregard for the safety of others" and was "engaging in, or wished to engage in acts of sexual misconduct with [her]." Ryan also alleged that the Romeros "negligently failed to properly supervise and protect [her] from harm and unreasonable risks by failing to prevent [Joseph] from committing acts of sexual molestation on [her] or warn plaintiffs of the same." She also asserted that the Romeros negligently failed to warn her and her mother of Joseph's "abnormal sexual behavior, mental problems and unlawful sexual contact with [her]."
In paragraph 39, Ryan alleged that the Romeros breached their duty of care to her by failing to properly supervise and protect her from harm and unreasonable risks by "failing to prevent [Joseph] from committing acts of sexual molestation on [Ryan] or warn plaintiffs of the same." She also averred that as a result of the Romeros' alleged negligent supervision and failure to warn and protect her, Joseph sexually molested her in the Romeros' home.
In their petition, the Romeros argue that the court erred in ruling that they owed a duty to Ryan. We are thus called upon to determine the scope of the duty of care that adults owe to teenagers they invite into their homes to supervise and protect them against assaults by other teenage invitees during their visits.
This well-established principle of California tort jurisprudence, which may be appropriately referred to as the "no duty to aid" rule, is "based on the concept that a person should not be liable for 'nonfeasance' in failing to act as a 'good Samaritan.' It has no application where the defendant, through his or her own action (misfeasance) has made the plaintiff's position worse and has created a foreseeable risk of harm from the third person. In such cases the question of duty is governed by the standards of ordinary care. [Citations.]" (Pamela L., supra, 112 Cal.App.3d at p. 209, italics added, citing Weirum v. RKO General, Inc. (1975) 15 Cal. 3d 40, 49 [123 Cal. Rptr. 468, 539 P.2d 36] (Weirum) and Tarasoff v. Regents of University of California (1976) 17 Cal. 3d 425, 435, fn. 5 [131 Cal. Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166].) Stated more simply, as a general rule, California tort law does not require people to be Good Samaritans, and ordinarily does not impose liability for mere nonfeasance.
[4a] Applying the foregoing legal principles, we first conclude that to the extent plaintiffs alleged the Romeros were liable for negligent supervision under a theory of nonfeasance for negligently failing to properly supervise Ryan and control the conduct of her assailant Joseph, the undisputed material facts establish that the Romeros assumed a "special relationship" fn. 5 with Ryan and Joseph when they invited the minors into their home. Under the circumstances of this case, however, we also conclude that the existence of such a special relationship was insufficient to impose a duty of care on the Romeros. For reasons we shall explain, we hold that notwithstanding the special relationship between the Romeros and the teenage invitees, the Romeros did not owe a duty of care to supervise Ryan at all times during her visit, to warn her, or to protect her against Joseph's sexual assault, because there is no evidence from which the trier of fact could find that the Romeros had prior actual knowledge of Joseph's propensity to sexually assault female minors.
Here, the undisputed material facts establish that Ryan was 13 years of age when her mother drove her to the Romeros' home, and Gail Romero, after speaking with Ryan's mother for about 20 minutes, invited Ryan to spend the afternoon there visiting with Joseph, who was 16 years of age, and the Romeros' teenage son Elijah. The undisputed facts also show that the Romeros had also given permission to Elijah to invite Joseph over to the house that same afternoon. We conclude that by inviting Ryan and Joseph to their home, the Romeros assumed a special relationship with both Ryan and Joseph as a matter of law.
We adopt and apply the Chaney duty rule and hold as a matter of law that an adult defendant who assumed a special relationship with a minor by inviting the minor into his or her home will be deemed to have owed a duty of care to take reasonable measures to protect the minor against an assault by another minor invitee while in the defendant's home when the evidence and surrounding circumstances establish that the defendant had actual knowledge of, and thus must have known, the offending minor's assaultive propensities. Under the California "no duty to aid" rule (discussed, ante), no liability may be imposed on such a defendant for negligent supervision of an injured minor invitee under a nonfeasance theory of liability solely upon evidence that the defendant had constructive knowledge or notice of, and thus "should have known" about, the minor assailant's assaultive propensities.
Were we to hold otherwise, parents who invite into their homes teenage minors they do not know intimately would face lawsuits and potentially devastating financial liability in tort in the event one invitee minor assaults another under circumstances in which the assaultive propensities of the offending teenager were not known to them. Parents possessing any information suggesting that a teenager that they or their own children may wish to invite into the home may have been involved in physical conduct that resulted, for example, in disciplinary action at school would be required to conduct an investigation in order to protect themselves against potential liability. They would be hampered in their investigative efforts by legitimate and well-established rules of confidentiality regarding juvenile matters. In the event such parents were to invite the minor into their home, they would be required to continually and personally provide the closest supervision during the minor's entire visit in order to minimize the risk of tort liability. Such a rule would impose unwarranted burdens and an unjustifiable risk of tort liability on families with teenage children.
Ryan contends the recent decision in Juarez, supra, 81 Cal. App. 4th 377, sets forth the applicable case law for determining whether the Romeros owed Ryan a duty of care to protect her against Joseph's sexual assault in this matter. Ryan's reliance on Juarez is misplaced.
A careful review of the Juarez decision shows that it favors petitioners in the instant case, rather than Ryan who relies upon it. Addressing the plaintiff's theory that the Scouts were liable for negligence in the selection, supervision and retention of the scoutmaster who allegedly molested him, the Court of Appeal began its analysis by stating that "[t]he conclusive determination that there was no information accessible to the Scouts that would cause them to suspect that [the scoutmaster] had a propensity to molest children is fatal to Juarez's causes of action based on these theories, even if such a common law duty existed." (Juarez, supra, 81 Cal.App.4th at p. 395.) In a footnote, the Juarez court stated that for purposes of its discussion, it assumed "without deciding" that the defendants owed the plaintiff a duty "to use due care in selecting, retaining, and supervising" the scoutmaster who had allegedly molested him. (Id. at p. 395, fn. 5, italics added.) Because the Juarez court did not decide whether the defendants in that case owed a duty to supervise, and in the instant case Ryan supports her claim for negligent supervision by relying on Juarez for the proposition that the Romeros owed Ryan a duty to supervise, we conclude that her reliance on Juarez in this matter is misplaced.
Thus, although the Juarez court did not decide whether the defendants in that case owed the plaintiff a duty to use due care in supervising him to protect him against being sexually molested by his troop's scoutmaster, it concluded there was no merit to the claim for negligent supervision because the plaintiff had failed to present evidence showing there was a triable issue of material fact whether the defendants had actual knowledge that the scoutmaster had a propensity to molest children.
Because the specific duty of care recognized in Juarez is not implicated in the instant case, Ryan's reliance on that case is unavailing.
Reviewing de novo the court's denial of the Romeros' summary judgment motion, and applying the Chaney duty rule (discussed, ante) to the instant case, we conclude that although the undisputed material facts establish that the Romeros assumed a "special relationship" with both Ryan and Joseph [89 Cal. App. 4th 1087] when they invited the minors into their home, Ryan failed to meet her burden of presenting any direct or circumstantial evidence of facts from which the trier of fact could reasonably infer that the Romeros must have known of Joseph's assaultive propensities before he sexually assaulted her. Accordingly, we also conclude as a matter of law that the Romeros did not owe a duty to supervise or otherwise protect Ryan against Joseph's sexual assault.
In support of her negligent supervision claim, Ryan's allegation in paragraph 38 of the operative third amended complaint that the Romeros "knew or should have known" that Joseph was "engaging in abnormal sexual behavior with minors," that he was "experiencing mental problems and was not in control of his mental state or his actions," and that he was "acting in reckless disregard for the safety of others" and was "engaging in, or wished to engage in acts of sexual misconduct with [Ryan]" is insufficient as a matter of law to show for pleading purposes that the Romeros owed a duty of care to protect Ryan against Joseph's sexual assault. As already discussed, under the Chaney duty rule an inference that the defendant possessed prior actual knowledge of the third party offender's criminal propensities is permitted only where the circumstances are such that the defendant "must have known," and not "should have known," of such propensities. (Chaney, supra, 39 Cal.App.4th at p. 157, italics added.) Ryan's allegations are thus legally insufficient to the extent they aver that the Romeros "should have known" of Joseph's sexually assaultive propensities.
Gail Romero's deposition testimony also showed that during the time she knew Joseph before the incident, she never considered him to be dangerous; she knew him to be polite, helpful and likeable; she knew nothing adverse about him other than that he might have had a curfew violation; and to her knowledge Joseph acted appropriately with girls. Based on the foregoing evidence, we conclude the Romeros met their burden of showing they had no actual knowledge before the April 18 incident that Joseph had a propensity to sexually assault female minors or that he posed a threat of physical harm to Ryan if she was left unsupervised for an hour while the Romeros were away from the home buying a pizza for the teenagers.
This issue of whether the court properly denied the Romeros' summary judgment motion on the ground they owed a duty to supervise Ryan and protect her from a sexual assault by Joseph then becomes whether Ryan met her burden of presenting evidence supporting a reasonable inference that the Romeros must have known that Joseph had a propensity to sexually assault girls. (Chaney, supra, 39 Cal.App.4th at p. 157; see Code Civ. Proc., § 437c, subd. (o)(2) [fn. 9, ante].) We conclude that Ryan failed to meet her burden. In their separate statement of disputed and undisputed facts in opposition to the Romeros' summary judgment motion, plaintiffs purported to dispute the facts presented by the Romeros. Plaintiffs claimed that circumstantial evidence indicated that Gail Romero was "close" to Joseph and was aware of his propensity to sexually molest female minors. Specifically, plaintiffs asserted that by virtue of Gail Romero's experience as a mother, adoptive parent, and foster parent of a total of 23 teenage children, and by virtue of alleged unspecified prior incidents involving teenage boys and girls having sexual relations in her family, she must have known that Ryan and Joseph would be likely to have sexual relations if the Romeros left them unsupervised.
Similar reasoning is appropriate here. To impose on an adult a duty to supervise and protect a female teenage invitee against sexual misconduct by a male teenage invitee, it is not enough to assert that is it conceivable the latter might engage in sexual misconduct during a brief absence of adult supervision. As we have already held, the imposition of such a duty of care requires evidence of facts from which a trier of fact could reasonably find that the defendant adult had prior actual knowledge of the teenage assailant's propensity to sexually molest other minors.
In opposing the Romeros' summary judgment motion, plaintiffs also contended (as they do on appeal) that Gail Romero assumed a duty to supervise and protect Ryan from a sexual assault by Joseph. Specifically, in their separate statement of undisputed facts plaintiffs presented evidence that when she arrived with Ryan at the Romeros' home, Ryan's mother told Gail Romero, "I do not leave my child anywhere without adult supervision," and [89 Cal. App. 4th 1090] asked her, "Are you going to be home?" Plaintiffs also presented evidence that Gail Romero replied that she and her husband would be home gardening in the backyard. On appeal, Ryan contends this evidence shows that Gail Romero "assumed the duty to supervise."
Here, we conclude that Ryan failed to show there is a triable issue of material fact whether the Romeros assumed or undertook a duty, as good Samaritans, to stay home all afternoon and supervise Ryan to protect her from a sexual assault by Joseph. Plaintiffs' evidence supports only a reasonable inference that Gail Romero gave an assurance that she and her husband had no plans for the afternoon other than to be in the backyard gardening. The undisputed facts show that Ryan and her mother knew and agreed that the Romeros would not personally supervise Ryan at all times during Ryan's visit. As already discussed, it is undisputed that on the day of the incident Ryan's mother gave express permission for Ryan and Joseph to walk with the other youngsters from the Romeros' home to a local drug store without any adult supervision.
In sum, to the extent plaintiffs allege the Romeros are liable for negligent supervision under a theory of nonfeasance for negligently failing to properly supervise Ryan and control the conduct of her teenage assailant Joseph, we hold under the applicable Chaney duty rule that the Romeros owed Ryan no duty of care, and that Ryan failed to show there is a triable issue of material fact whether the Romeros undertook a duty of care for purposes of the "Good Samaritan" rule.
[6a] Ryan's factual allegations in her operative amended complaint also show that she was seeking to hold the Romeros liable in tort for negligent supervision based upon a theory of misfeasance. Specifically, she alleged in [89 Cal. App. 4th 1091] paragraph 36 of her amended pleading that on the date in question, the Romeros invited her into their home after they "represented to plaintiffs that their home was safe ...." She also alleged in paragraph 38 that the Romeros knew at that time that Joseph was "engaging in abnormal sexual behavior with minors." These allegations indicate that Ryan was claiming the Romeros did not merely fail to prevent Joseph from harming her, but that by their own acts they increased the risk that such harm would occur.
Our high state court has explained that a court's task in determining "duty" by applying the Rowland factors is to generally evaluate "whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party." (Ballard v. Uribe (1986) 41 Cal. 3d 564, 572-573, fn. 6 [224 [89 Cal. App. 4th 1092] Cal.Rptr. 664, 715 P.2d 624].) We proceed to the task of applying the Rowland factors to the record below to determine whether, and the extent to which, the Romeros owed a duty of care to Ryan under principles of ordinary negligence.
[6b] Here, Ryan has presented no evidence to support a reasonable inference that the Romeros were aware of any facts sufficient to put a reasonable person on notice that Joseph had a long history of misconduct at school that resulted in numerous detentions and suspensions, that he had been arrested and charged with vandalism, or that he posed a threat of sexual assault to Ryan if left unsupervised. The record is devoid of any evidence showing that such risk of harm was reasonably foreseeable in this matter.
None of the parties dispute that Ryan suffered injury when Joseph sexually assaulted her in the Romeros' home.
Ryan contends that the injury she suffered would not have occurred "[i]f [Gail Romero] had not broken her promise to [Ryan's mother] to remain at the residence and had not breached her duty to supervise the teenagers ...." We conclude there is only a tenuous connection between the Romeros' conduct and Ryan's injury. As we have already discussed, the evidence that Ryan and her mother presented in opposition to the Romeros' summary judgment motion supported only a reasonable inference that Gail Romero gave an assurance that she and her husband had no plans for the afternoon other than to be in the backyard gardening. Plaintiffs presented no evidence that the Romeros promised they would be physically present in the home and would personally supervise Ryan at all times during Ryan's visit. To the contrary, as we have already noted, the undisputed facts show that on [89 Cal. App. 4th 1093] the day of the incident Ryan's mother gave express permission allowing Ryan to walk with Joseph and the other youngsters, without any adult supervision, from the Romeros' home to a local drugstore. It is undisputed that the teens did walk to the drugstore unsupervised, and that they returned to the Romeros' home without incident.
No evidence was adduced during the summary judgment proceeding in this matter to show that the Romeros engaged in any morally blameworthy conduct. On the contrary, the undisputed facts show that Gail Romero acted appropriately at all relevant times. Uncontradicted evidence shows that she supervised the teens prior to the assault by interrupting her gardening and entering the house several times to see what they were doing. She testified during her deposition that she felt she needed to care for Ryan while she was in their home, but she felt Ryan was safe with the other teens who were there. It is undisputed that about 4:30 p.m. the Romeros left for about an hour to buy the teens a pizza. During this brief period of time, Joseph sexually assaulted Ryan inside a bedroom in the Romeros' home. It is undisputed that other teenagers were present in the home when the assault occurred. Because we have concluded the risk that Joseph would commit such a sexual assault while temporarily unsupervised was not reasonably foreseeable, we conclude that the Romeros' act of leaving their home for an hour for the purpose of bringing pizza to the youngsters was not morally blameworthy.
Imposition of tort liability under civil law can also promote the policy of preventing future harm to minors by imposing pecuniary consequences in appropriate cases on tortfeasors who assault minors, or who through acts of [89 Cal. App. 4th 1094] nonfeasance fail to take reasonable action to protect them from harm when the law requires such action, or who through acts of misfeasance unreasonably increase the risk that minors will be sexually assaulted. The policy of preventing future harm is not well served, however, by imposition of a legal duty in circumstances where, as here, the risk of harm to a teenager is not reasonably foreseeable.
Applying the Rowland factor that assesses the extent of the burden to the defendants, Ryan argues that either Gail Romero or her husband could have stayed home to supervise the minors while the other went out to buy the pizza for the teens or, in the alternative, the Romeros could have attempted to contact Ryan's mother by telephone to inform her they were going out for an hour to buy pizza for the youngsters and she needed to pick up her daughter if she did not want her to remain unsupervised. However, in light of the undisputed fact that the mother had already given Ryan permission to walk to the drugstore with Joseph without adult supervision, it appears unlikely she would have picked up Ryan had the Romeros informed her they were planning to leave Ryan unsupervised for an hour. Moreover, while we believe that some adults in the Romeros' situation might decide that one parent could stay at home to supervise, or might contact the teenage invitee's parents or caretakers, this fact does not equate to a duty of care to protect the invitee against a reasonably unforeseeable sexual assault by another teenage invitee while they are in the defendants' home. The imposition of such a duty would place the parents in the untenable position of either excluding any group of teens from their home or making sure that at least one parent is physically present in close proximity to the teens at all times. We conclude that this burden, in the absence of any knowledge on the part of the parents of a risk of particular harm associated with an individual invitee, militates against imposition of a duty of care.
The consequences to the community of imposing a duty to provide continuous supervision of teenage invitees, accompanied by the potential for ruinous tort liability for monetary damages for breach of that duty under circumstances in which the risk that one teenager may sexually assault another is not reasonably foreseeable, would be serious and detrimental. Parents aware of such potential for being sued for negligent supervision would hesitate to invite into their home other minors, friends of their children, and even a teenager they have known for a long time, whom they [89 Cal. App. 4th 1095] have reason to trust, and who to their knowledge has exhibited no behavior that would cause a reasonably prudent person to suspect the minor poses a threat of physical harm to another minor invitee. A cloud of suspicion would hang over all youngsters invited into the home and would deter social interaction among minors in a family environment that is typically among the safest: the home. The imposition of such a duty would lead to the further result of encouraging minors who are unable to socialize with young friends in a home environment to socially interact elsewhere where adult supervision may not be as thorough and protective.
In sum, we conclude under the facts of the instant case that petitioners did not owe Ryan a duty of care under a theory of misfeasance and general negligence principles to control Joseph, warn Ryan, or take any other affirmative action to prevent Joseph from sexually assaulting her. Consideration of the relevant Rowland factors militates against imposition of such a duty on the Romeros. Because the record in this matter is devoid of any evidence showing that petitioners were aware of facts sufficient to put a reasonable and prudent adult on notice that Joseph had previously engaged in assaultive behavior or posed a threat of physical harm to Ryan or the other teens in petitioners' home, we conclude as a matter of law that they owed no duty of care under principles of ordinary negligence to supervise these two teenagers during the entire time they were in the petitioners' home.
Here, unlike in Pamela L., there is no evidence to show that the Romeros were aware of any facts sufficient to put a reasonable person on notice that Joseph had a propensity to molest female minors or had engaged in assaultive behavior at school.
Petitioners are thus entitled to summary judgment. Accordingly, we grant the petition.
Let a writ of mandate issue directing the superior court to vacate its order denying the Romeros' motion for summary judgment, enter a new order granting the motion, and enter a judgment of dismissal in their favor. The temporary stay imposed on October 31, 2000, will vacate upon issuance of the remittitur. Petitioners shall recover costs incurred in this writ proceeding.
Huffman, Acting P. J., and McDonald, J., concurred.
The petition of real parties in interest for review by the Supreme Court was denied September 26, 2001.
FN 1. Joseph is not a party to the instant writ proceeding.
FN 2. In its written order, the court explained its reasoning: "Defendants Nicanor Romero and Gail Romero's motion for summary adjudication that they owed the Plaintiffs no duty is denied. [¶] It is undisputed that before leaving her minor daughter with the Romeros, [mother] asked Gail Romero whether she would be home and [Gail] Romero confirmed she would. ... [Mother] testified she told [Gail] Romero she did not leave her daughter anywhere without adult supervision and that she would take Ryan with her if [Gail] Romero was not going to be home.... [Gail] Romero again confirmed she would be home.... Notwithstanding these representations, the Romeros left the residence for approximately one hour to pick up a pizza.... It was during this time that the alleged incident occurred. [Ryan's] age, coupled with the representations by [Gail] Romero and the fact the harm was foreseeable, is sufficient to impose a duty on these Defendants."
FN 3. Code of Civil Procedure section 437c, subdivision (f)(1) provides in its entirety: "A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty."
FN 4. Civil Code section 1714, subdivision (a) provides in part: "(a) Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself."
FN 5. See footnote 6, post.
FN 8. In her response to the petition, Ryan asserts that the parties did not raise the "Good Samaritan theory" during the summary judgment proceeding, and petitioners are "now attempting to distract" this court "from the issues at hand by placing petitioners in the shoes of a Good Samaritan." The record shows, however, that the factual allegations in plaintiffs' operative complaint raised the issue of whether the Romeros were liable under a theory of nonfeasance for failure to use due care in supervising Ryan and protecting her from a third party's sexual assault upon her. The record also shows that the Romeros' memorandum of points and authorities in support of their summary judgment motion discussed the duty rule announced in Chaney, supra, 39 Cal. App. 4th 152.
FN 9. Code of Civil Procedure section 437c, subdivision (o)(2) provides in part: "(o) For purposes of motions for summary judgment and summary adjudication: [¶] ... [¶] (2) A defendant ... has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto."
FN 10. As we have recited (ante), the undisputed facts in this case show that on April 18, 1999, shortly before Joseph assaulted Ryan, and with express permission that Ryan's mother gave in Gail Romero's presence, Ryan and the other teens present in the Romeros' home, including Joseph, walked to a local drug store without adult supervision and returned uneventfully. The undisputed facts also show that prior to the incident, Ryan's mother knew that Joseph was phoning Ryan, she approved of these phone calls, and she met Joseph and thought he was a nice young man.
FN 11. Because neither of the parties has addressed the last Rowland factor, we shall not consider it in deciding the duty issue presented here.


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“Covered Entity” shall have the same meaning as the term “covered entity” in 45 CFR § 160.103 of HIPAA.
“Customer”, for this BAA only, means Customer and its Affiliates.
“Information Systems Data” means all data, including all text, sound, video, or image files, and software, that are provided to Cyberspace Armor, LLC by or on behalf of Customer for Cyberspace Armor’s performance of the Information Security and Desktop Support Services.
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“HIPAA” collectively means the administrative simplification provision of the Health Insurance Portability and Accountability Act enacted by the United States Congress, and its implementing regulations, including the Privacy Rule, the Breach Notification Rule, and the Security Rule, as amended from time to time, including by the Health Information Technology for Economic and Clinical Health (“HITECH”) Act and by the Modifications to the HIPAA Privacy, Security, Enforcement, and Breach Notification Rules under the Health Information Technology for Economic and Clinical Health Act and the Genetic Information Nondiscrimination Act; Other Modifications to the HIPAA Rules; Final Rule.
incorporated into the Agreement; and any additional Cloud online services and U.S. Government online services listed as in scope for this BAA.
“Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information.
“Protected Health Information” shall have the same meaning as the term “protected health information” in 45 CFR § 160.103 of HIPAA, provided that it is limited to such protected health information that is received by Cyberspace Armor from, or created, received, maintained, or transmitted by Cyberspace Armor on behalf of, Customer (a) through the use of the Cyberspace Armor Online Services or (b) for Cyberspace Armor’s performance of the Information Security Services.
“Provider”, for this BAA only, means Provider and its Affiliates.
“Security Rule” means the Security Standards for the Protection of Electronic Protected Health Information.
a. Performance of the Agreement for Cyberspace Armor, LLC Information Security and Online Services. Except as otherwise limited in this BAA, Cyberspace Armor may Use and Disclose Protected Health Information for, or on behalf of, Customer as specified in the Agreement; provided that any such Use or Disclosure would not violate HIPAA if done by Customer, unless expressly permitted under paragraph b of this Section.
b. Management, Administration, and Legal Responsibilities. Except as otherwise limited in this BAA, Cyberspace Armor, LLC may Use and Disclose Protected Health Information for the proper management and administration of Cyberspace Armor and/or to carry out the legal responsibilities of Cyberspace Armor, provided that any Disclosure may occur only if: (1) Required by Law; or (2) Cyberspace Armor obtains written reasonable assurances from the person to whom the Protected Health Information is Disclosed that it will be held confidentially and Used or further Disclosed only as Required by Law or for the purpose for which it was Disclosed to the person, and the person notifies Cyberspace Armor of any instances of which it becomes aware in which the confidentiality of the Protected Health Information has been breached.
3. Responsibilities of the Parties with Respect to Protected Health Information.
efforts to Use, Disclose, and/or request the minimum necessary Protected Health Information to accomplish the intended purpose of such Use, Disclosure, or request.
(ii) Safeguards. Cyberspace Armor shall: (1) use reasonable and appropriate safeguards to prevent inappropriate Use and Disclosure of Protected Health Information other than as provided for in this BAA; and (2) comply with the applicable requirements of 45 CFR Part 164 Subpart C of the Security Rule.
(iii) Reporting. Cyberspace Armor shall report to Customer: (1) any Use and/or Disclosure of Protected Health Information that is not permitted or required by this BAA of which Cyberspace Armor becomes aware; (2) any Security Incident of which it becomes aware, provided that notice is hereby deemed given for Unsuccessful Security Incidents and no further notice of such Unsuccessful Security Incidents shall be given; and/or (3) any Breach of Customer’s Unsecured Protected Health Information that Cyberspace Armor may discover (in accordance with 45 CFR § 164.410 of the Breach Notification Rule). Notification of a Breach will be made without unreasonable delay, but in no event more than five (5) business days after Cyberspace Armor’s determination of a Breach. Taking into account the level of risk reasonably likely to be presented by the Use, Disclosure, Security Incident, or Breach, the timing of other reporting will be made consistent with Cyberspace Armor’s and Customer’s legal obligations.
For purposes of this Section, “Unsuccessful Security Incidents” mean, without limitation, pings and other broadcast attacks on Cyberspace Armor’s firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and any combination of the above, as long as no such incident results in unauthorized access, acquisition, Use, or Disclosure of Protected Health Information. Notification(s) under this Section, if any, will be delivered to contacts identified by Customer pursuant to Section 3b(ii) (Contact Information for Notices) of this BAA by any means Cyberspace Amor selects, including through e‑mail. Cyberspace Armor’s obligation to report under this Section is not and will not be construed as an acknowledgement by Cyberspace Armor of any fault or liability with respect to any Use, Disclosure, Security Incident, or Breach.
(iv) Subcontractors. In accordance with 45 CFR §§ 164.502(e)(1)(ii) and 164.308(b)(2) of HIPAA, Cyberspace Armor shall require its Subcontractors who create, receive, maintain, or transmit Protected Health Information on behalf of Cyberspace Armor to agree in writing to: (1) the same or more stringent restrictions and conditions that apply to Cyberspace armor with respect to such Protected Health Information; (2) appropriately safeguard the Protected Health Information; and (3) comply with the applicable requirements of 45 CFR Part 164 Subpart C of the Security Rule. Cyberspace Armor remains responsible for its Subcontractors’ compliance with obligations in this BAA.
request from the Secretary in accordance with the Section titled “Disclosure of Customer Data and Support Data” in the Agreement.
(vi) Access. If Cyberspace Armor maintains Protected Health Information in a Designated Record Set for Customer, then Cyberspace Armor, at the request of Customer, shall within fifteen (15) days make access to such Protected Health Information available to Customer in accordance with 45 CFR § 164.524 of the Privacy Rule.
(vii) Amendment. If Cyberspace Armor maintains Protected Health Information in a Designated Record Set for Customer, then Cyberspace Amor, at the request of Customer, shall within fifteen (15) days make available such Protected Health Information to Customer for amendment and incorporate any reasonably requested amendment in the Protected Health Information in accordance with 45 CFR § 164.526 of the Privacy Rule.
(vii) Accounting of Disclosure. Cyberspace Armor, at the request of Customer, shall within fifteen (15) days make available to Customer such information relating to Disclosures made by Cyberspace Armor as required for Customer to make any requested accounting of Disclosures in accordance with 45 CFR § 164.528 of the Privacy Rule.
(xi) Performance of a Covered Entity’s Obligations. To the extent Cyberspace Armor is to carry out a Covered Entity obligation under the Privacy Rule, Cyberspace Armor shall comply with the requirements of the Privacy Rule that apply to Customer in the performance of such obligation.
(i) No Impermissible Requests. Customer shall not request Cyberspace Armor to Use or Disclose Protected Health Information in any manner that would not be permissible under HIPAA if done by a Covered Entity (unless permitted by HIPAA for a Business Associate).
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2) Implement privacy and security safeguards in hardware, systems, applications, and software Customer controls, configures, and uploads into the Cyberspace Armor’s Online Services or uses in connection with the Information Security Services.
This BAA is applicable to Cyberspace Armor’s Online Services and Information Security Services. Cyberspace Armor may, from time to time, (a) include additional Cyberspace Armor online services on the Cyberspace Armor Website (https://cyberspacearmor.com/services) and/or in the “Data Processing Terms” section of the Online Services Terms incorporated into the Agreement or additional Information Security Services on the Cyberspace Armor’s site, and (b) update the definition of Cyberspace Armor’s Online Services and Information Security Services in this BAA accordingly, and such updated definitions will apply to Customer without additional action by Customer. It is Customer’s obligation to not store, transmit, or process in an online service, or provide to Cyberspace Armor’s for performance of a professional service or Information Security Services, protected health information (as that term is defined in 45 CFR § 160.103 of HIPAA) until this BAA is effective as to the applicable service.
a. Term. This BAA shall continue in effect until the earlier of (1) termination by a Party for breach as set forth in Section 5b, below, or (2) expiration of Customer’s Agreement.
b. Termination for Breach. Upon written notice, either Party immediately may terminate the Agreement and this BAA if the other Party is in material breach or default of any obligation in this BAA. Either party may provide the other a thirty (30) calendar day period to cure a material breach or default within such written notice.
c. Return, Destruction, or Retention of Protected Health Information Upon Termination. Upon expiration or termination of this BAA, Cyberspace Armor, LLC shall return or destroy all Protected Health Information in its possession, if it is feasible to do so, and as set forth in the applicable termination provisions of the Agreement. If it is not feasible to return or destroy any portions of the Protected Health Information upon termination of this BAA, then Cyberspace Armor shall extend the protections of this BAA, without limitation, to such Protected Health Information and limit any further Use or Disclosure of the Protected Health Information to those purposes that make the return or destruction infeasible for the duration of the retention of the Protected Health Information.
Agreement remain unchanged. Any captions or headings in this BAA are for the convenience of the Parties and shall not affect the interpretation of this BAA.
b. BAAs; Waiver. This BAA may not be modified or amended except in a writing duly signed by authorized representatives of the Parties. A waiver with respect to one event shall not be construed as continuing, as a bar to, or as a waiver of any right or remedy as to subsequent events.
c. No Third-Party Beneficiaries. Nothing express or implied in this BAA is intended to confer, nor shall anything in this BAA confer, upon any person other than the Parties, and the respective successors or assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever.
d. Severability. In the event that any provision of this BAA is found to be invalid or unenforceable, the remainder of this BAA shall not be affected thereby, but rather the remainder of this BAA shall be enforced to the greatest extent permitted by law.
e. No Agency Relationship. It is not intended that an agency relationship (as defined under the Federal common law of agency) be established hereby expressly or by implication between Customer and Cyberspace Armor under HIPAA or the Privacy Rule, Security Rule, or Breach Notification Rule. No terms or conditions contained in this BAA shall be construed to make or render Cyberspace Armor, LLC an agent of Customer.


February 26, 1948. Rehearing Denied March 24, 1948.
Proceeding under the Workmen's Compensation Law, Code 1932, § 43-901 et seq., by Edith Teater, as an individual and as guardian of the estate of Bonnie Louise Teater, a minor, claimant, for the death of claimant's husband, opposed by Dairymen's Co-operative Creamery of Boise Valley, employer, and Aetna Casualty Surety Company, surety. From an order of the Industrial Accident Board denying compensation, claimant appeals.
Order reversed and cause remanded with directions.
Hugh N. Caldwell, of Caldwell, and Elam Burke, of Boise, for appellant.
Industry takes employe as it finds him. If duties of employe precipitate, aggravate or accelerate a previous weakened condition, resulting in death, dependents are entitled to compensation. Bishop v. Morrison-Knudsen Co., 64 Idaho 806, 137 P.2d 963; Cain v. C. C. Anderson Co., 64 Idaho 389, 133 P.2d 723; Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605, 97 A.L.R. 1399; Aranguena v. Triumph Mining Co., 63 Idaho 769, 126 P.2d 17.
The facts in this case fully meet the requirements of Section 43-1001 Idaho Code Annotated as amended by Chapter 161, 1939 Session Laws, defining accident. There was an unexpected, undesigned, and unlooked-for mishap, or untoward event, to wit: a coronary thrombosis and coronary occlusion accelerated and precipitated by work being performed arising out of and in the course of his employment. Section 43-1001 Idaho Code Annotated as amended by Chap. 161, 1939 Session Laws; Cain v. C. C. Anderson Co., 64 Idaho 389, 133 P.2d 723; Aranguena v. Triumph Mining Co., 63 Idaho 769, 126 P.2d 17; Pinson v. Minidoka Highway Dist., 61 Idaho 731, 106 P.2d 1020.
E.B. Smith, of Boise, for respondents.
The burden of proof is on the claimant to show that decedent's death arose out of and in the course of his employment. Walker v. Hyde, 43 Idaho 625, 253 P. 1104; Croy v. McFarland-Brown Lumber Co., 51 Idaho 32, 1 P.2d 189; Dunnigan v. Shields, 52 Idaho 195, 12 P.2d 773; Vaughn v. Robertson Thomas, 54 Idaho 138, 29 P.2d 756.
To constitute an accident there must be some noticeable mishap or fortuitous incident of which the employee was conscious and following which injury resulted; or there must be some sudden or manifest change in the conditions or surroundings under which the employee was working. Sonson v. Arbogast, 60 Idaho 582, 94 P.2d 672; Hoffman v. Consumers Water Co., 61 Idaho 226, 99 P.2d 919; Cain v. C. C. Anderson Co., 64 Idaho 389, 133 P.2d 723.
In a case where injury might or could have been occasioned by either disease or accident, the claimant must fail in event the proof was insufficient to establish accident within the meaning of the workmen's compensation law; especially is this true since it is for the Board to decide such question of fact. Hoffman v. Consumers Water Co., 61 Idaho 226, 99 P.2d 919; Clark v. General Mills. 65 Idaho 742, 152 P.2d 895; Illinois Bell Tel. Co. v. Industrial Commission, 325 Ill. 102, 156 N.E. 319.
Chester Otis Teater died August 4, 1944, suddenly and unexpectedly. August 10, 1944, the manager of the creamery made out an "Employer's Notice of Death of Employee", filing the same with the Industrial Accident Board September 20, 1944. The notice showed the following: "Heart; increased effort and exertion in connection with loading truck caused coronary occlusion by thrombus. The coronary occlusion caused the death of decedent." August 3, 1945, claim for compensation was filed by the widow of decedent, as an individual and as guardian of the minor daughter. November 12, 1946, claimant filed a petition with the Board praying that a time and place be fixed for hearing claim for compensation. The parties having failed to reach an agreement regarding compensation, the Board set the hearing for December 5, 1946, giving the parties notice thereof. December 5, 1946, the matter was heard. January 2, 1947, findings of fact and rulings of law were made and filed in favor of defendants and respondents and against claimant, whereupon the Board entered thereon the following order: "Wherefore, it is ordered, and this does order that Edith Teater, individually and as guardian of the estate of Bonnie Louise Teater, a minor, take nothing by these proceedings, and that her claim for compensation benefits against the defendants, Dairymen's Cooperative Creamery of Boise Valley, employer, and Aetna Casualty and Surety Company, surety, and each of them, be and the same hereby is denied and her application dismissed."
January 9, 1947, claimant prosecuted an appeal to this court from that order.
The Board found, among other things, that Teater performed logging work during the summer of 1927, and thereafter for three years performed ranch work during winter seasons and general timber work during the summers; for several years pruned orchards and performed general work, including operating his own truck line for a period of about five years; May 5, 1942, Teater entered the employ of defendant and respondent, Dairymen's Cooperative Creamery, employer, and worked for the creamery from May 5, 1942, to and including July 8, 1944; from July 9, 1944, to and including August 2, 1944, Teater was under a doctor's care, returning to work on the morning of August 3, 1944, and on that date, performed his regular work. Teater's regular work was that of a cream hauler, consisting mainly of obtaining merchandise invoices at his employer's office mornings, filling the invoices which consisted of butter to be delivered to patrons and ice cream to merchants, the butter being packed in packages weighing not over 30 pounds each, and the ice cream generally in 5-gallon packers weighing 60 to 80 pounds each, and occasionally in 20-gallon packers weighing upwards to 150 pounds each; Teater had assigned to him two cream routes, each of which he covered on alternate days, a distance of 60 to 80 miles; he would drive to the patrons' residences or farms on each route, pick up the cream theretofore placed in 10-gallon cream cans, empty it from other containers into the cream cans, then weigh the cream, take samples and load each can of cream by taking hold of the handles and boosting it upward with his knee to an upright position on the floor of the truck, always loading from the back end of the truck and pushing the can forward, an empty can, or cans, left with patron, having already been removed from the front end of a row of cream cans; he would also deliver butter to patrons and butter and ice cream to the merchants in the towns through which he traveled.
Teater would arrive back at the creamery about noon of each day, unload his truck-load of cream by lifting the full cans of cream some six or eight inches to an endless belt which carried the cans of cream on a downward income into the creamery, sometimes assisting in washing cream cans and always reloaded his truck with empty cream cans and then drove his truck to the creamery four blocks away and service the truck.
Teater always loaded his cream truck the previous afternoon with 35 to 38 empty 10-gallon cream cans, each about 24 inches in height and weighing 100-110 pounds when full; the floor of the cream truck was 44 inches from the ground and had a deck immediately back of the truck's cab, the floor of which was about six to eight inches higher than the top of the cream cans loaded onto the floor of the truck which included the area beneath the truck's deck; the floor of the truck deck being 74-76 inches from the ground.
During the morning of July 8, 1944, Teator worked as usual in covering one of the assigned cream routes and gathered a truckload of cream but did not unload his truck that day; after he came in from his route, he stopped at the home of Robert W. Welsh, the employer's route supervisor, telling him that he was not feeling very well, wanted some time off and was going to see a doctor, stating he had become choked up, had a pain and patted his chest; Teater did not look well to the route supervisor and the route supervisor at that time arranged that Teater might have time off; during the next day, July 9, 1944, a physician and surgeon was called to Teater's home and found Teater suffering from pain in his chest, bending over a chair, perspiring, in shock, and holding his chest; such physician diagnosed Teater to be suffering from a coronary thrombosis, administered morphine and nitro-glycerin and directed that he, the doctor, be kept advised of Teater's condition, especially if Teater didn't get better; on or about July 15, 1944, Teater went to the office of such physician and, in so doing, climbed a flight of stairs but appeared somewhat improved; the physician advised Teater to stay home and in bed; July 22, 1944, Teater again went to the office of his physician, appeared to have lost some weight, but still more improved and told his doctor he wanted to go back to work, had been working a little around his acreage, had dug some post holes, and that such work hadn't hurt him, was suffering only a little pain; his physician advised him to stay at home, not do any tasks such as he had related.
Proper treatment of the aforesaid heart affliction required Teater to lead a sedentary life for three or four weeks and not exert himself by performance of work for a period of two months or more thereafter; July 28, 1944, employer's route supervisor visited Teater at his home; Teater appeared weak; July 29, 1944, Teater went to the employer's plant, told the employer's route supervisor he had been to see his doctor who "wasn't crazy about him returning to work"; that he wanted to return to work and indicated that he was feeling good; the employer's route supervisor thereupon made arrangements for Teater to return to work August 3, 1944, which Teater did. During the time intervening between July 15th and the end of July, 1944, Teater took two fishing trips, driving his own automobile; one of which trips being of a week's duration and the other of some three days duration. Prior to 7 o'clock in the morning of August 4, 1944, Teater drove his own automobile about eight miles from his home to his employer's garage, got his cream truck and drove it about four blocks to the Albany Street entrance of his employer in Caldwell and parked his truck about 64 feet away from where the ice cream was stored in the cold room; thereupon he obtained merchandise invoices from his employer's office, went to his employer's cold room, obtained five of the 5-gallon packers of ice cream, each weighing 60 to 80 pounds, and each having four metal gliders on the bottom, and, in accordance with the practice which prevailed, probably carried or dragged them out of the cooler a distance of about 24 feet onto the sidewalk and then to the place where he had parked his truck, the total distance being about 64 feet, and all the distance traversed being on a level plane.
Teater then mounted the cream truck to the top of the cream cans standing thereon, and in so doing probably used the brace which extended downward from the body of the truck immediately back of the truck's cab, all in his usual customary manner; a coemployee then "tossed" the 5-gallon packers of ice cream up to the top of the cream cans at a point just back of the cab's deck, Teater then stooped over, upended each packer of ice cream and lifted each a distance of six to eight inches onto the truck's deck; he then descended from the truck, from the right-hand side toward the front to the ground, and thereupon made a remark to such coemployee that he, Teater, "nearly had another heart attack", and appeared sick and weak; Teater then walked around to the back end of the truck to its left-hand side, got into the truck's cab, reeled back and forth, lay down on the truck's seat to his right, sat up again, lay down again on the seat to his right, was gasping, had a "starey" look in his eyes and was perspiring. His coemployee then went to the opposite or right side of the cab, straightened out Teater's right arm and called for help from the office, observed Teater's face appeared drawn, flushed, covered with beads of perspiration, and that Teater appeared to expel his breath; all of the foregoing having occurred within a period of about ten minutes, i.e., from 7 to 7:10 o'clock on the morning of August 4, 1944. The office manager called a physician, who came at once to attend Teater, such physician, upon examination, pronounced Teater dead.
Claimant-appellant contends the Board erred in finding "that the death of Teater was not caused or accelerated, and the said disease of his heart was not aggravated, increased or accelerated, as the result of any unexpected, undesigned, or unlooked for mishap"; in finding that the coronary thrombosis Teater suffered on the morning of August 4, 1944, resulting in his death was not an event "happening suddenly and connected with his employment by the defendant, Dairymen's Cooperative Creamery of Boise Valley, employer, and which can be definitely located as to the time when and the place where it occurred, causing an injury by accident which resulted in violence to the physical structures of the body"; in finding "that Teater's work for said employer did not augment or accelerate any injury resulting from, or personal injury caused by an accident arising out of and in the course of his said employment", on the ground such findings are contrary to and are not supported by the evidence.
"Q. Were you acquainted with Chester Otis Teater during his lifetime? A. Yes.
"Q. Was he at any time during the year 1944 a patient of yours? A. He was a patient of mine in 1944.
"Q. When did you see him, Doctor, do you recall? A. I saw him for the first time on July 9th. I was called out to see him.
"Q. Were you called out to his home here, some eight or nine miles west of Caldwell? A. Yes, that is right.
"Q. State what you found at that time. A. At the time I saw Mr. Teater he was in very evident pain. He was in the house. He had his work clothes on and he was suffering considerably. He was bending over a chair when I saw him and he was holding his hand to his chest, and I noticed there were beads of perspiration on him. It was very evident that he was in shock. I proceeded then to examine him and made my diagnosis of coronary thrombosis. What else do you want besides that?
"Q. State what treatment you gave. A. At that time I gave a hypodermic of morphine, and I gave some nitroglycerin to take, and I gave him some tablets. I stayed there a while until he became more comfortable. He couldn't lie down. He sat in a chair. I advised him — I told the wife that I should perhaps see him if he wasn't better. I had never known Mr. Teater before. I was just called on this emergency condition, and I told her to contact me later if he didn't improve. I didn't see him for approximately a week and at that time he came to my office and he was considerably improved, said he felt better and I advised him then to stay home and get to bed if he possibly could. He objected. He didn't want to get to bed. He was an active fellow and didn't want to get to bed. He promised to be quiet, and he did.
"Q. Did you see him after that? A. Yes, I saw him, the next time was about July 22nd, and at that time he was still more improved. I asked what he had been doing and he said working around the house, digging some post holes, and I admonished him about that, that was the wrong type of work, if he wanted to go on with some degree of comfort he must not do that. He says, 'I shouldn't do that, I guess,' he said it didn't hurt him, but he said he had a little pain, and 'I have to do something,' he said. He said he hadn't returned to work. I told him not to go down there and work any more because of his condition — things could happen to you. He didn't like it very well but I talked to him a little and he left and the next I heard — I was called one morning. I was out and they needed a doctor in an emergency and I was informed Mr. Teater had collapsed and had died down there at the creamery. That is the extent of my knowledge on the case.
"Q. Did he appear to you from your examination and what you saw later in the month of July to be a rather typical case of coronary thrombosis? A. Yes."
"`To the extent that he did perform these acts against your medical advice, would you classify his acts in that regard as unreasonable, and following unreasonable practices against the advice of his physician?' A. I may state, I didn't prescribe any acts for him not to perform. I wanted him at rest. I didn't know about the post holes — I didn't know about that. I had nothing to do with that. I told him I wanted absolute rest. I didn't anticipate the post holes.
"Q. Anything he would do having to do with physical exertion would be against your advice, is that right? A. Yes.
"Q. And against the treatment you prescribed? A. Yes, I told him rest and I meant rest, and digging post holes is not restful.
"Q. Doctor, you had not yet released him from your treatment for this coronary on August 3, 1944, had you? A. I hadn't released him on July 22nd as far as having him stop or begin work, I hadn't released him.
"Q. The fact that he — you knew that he was a cream hauler, didn't you? A. Yes.
"Q. And the fact that in hauling cream he has to handle anywhere from 32 to 38 10-gallon cream cans, weighing from 105 to 110 pounds apiece, load them a distance of 44 inches from the ground, would you recommend that type of work? A. No. That is very strenuous work. No.
"Q. You didn't release him from your care to go back to work on August 3rd? A. No, I told him not to go to work.
"Q. You told him not to go to work? A. Yes.
"Q. As a matter of fact, some time in the latter part of July he told you he wanted to go back to work, and you told him not to? A. He asked me on July 22nd if he could go back. I was rather surprised to hear he had gone back to work."
"Q. On July 8th, would that indicate to you the process of an occlusion of the coronary? A. It well could.
"Q. In the light of what you found on July 9th, of course? A. Yes.
"Q. That would be likely, would it not, Doctor? A. It is likely.
"Q. Now the fact that he had this attack on August 4, 1944, that would mean a continuation of the symptomatology, would it not, Doctor, as it became evident on July 8th and July 9th. * * * an indication of a continuation? A. Yes, I believe so.
"Q. Then it is not unreasonable to assume this thing had been gathering for some little time, is it? A. As far as I know when I saw him on July 9th.
"Q. Any of the various types of exertion that you ascertained he had been performing from July 9th on, or July 15th on would be conducive of the end result of death, wouldn't it? A. Yes.
"Q. So that it is impossible, Doctor, to claim the slight exertion which this man was shown to perform on the morning of August 4, 1944, to be the single contributing factor of death, isn't that true? A. It would be impossible to say?
"Q. It would be just as likely that anything else you know he performed might have caused it? A. It is very probable from that severe strain of climbing onto the truck and climbing down after handling those cans precipitated this thrombus. That is the reason we warned him. That is the reason we tell them to avoid physical strain.
"Mr. Smith: Now would you answer the question, the matter of your opinion. A. Any exertion might have caused the condition. Any exertion that this man undertook, as far as I am familiar with the case from July 9th, any type of exertion could have caused that condition, but it so happened the climbing of the stairs and the work around the farm did not precipitate the condition. It could have been possible in any one of those things, but it didn't."
"Q. Dr. Kaley, you have heard the hypothetical question which was propounded here? A. Yes.
"Q. Do you have an opinion after hearing the hypothetical question as amended and completed, as to what caused the death of Chester Teater on August 4, 1944? A. I have.
"Q. Will you state that opinion? A. I think he died of coronary thrombosis.
"Q. And do you have an opinion, Doctor, after hearing the testimony of what he had done, and taking into consideration the hypothetical question, and particularly his work that he was employed in at that time, of what precipitated the coronary thrombosis resulting in his death? A. The fact that he had a coronary disease, the exertion that he performed at that time was sufficient to cause the thrombosis.
"Q. And is it your opinion that that is the probable and precipitating cause of his death? A. I think so."
"Q. You have made a distinction, Doctor, I believe that this coronary thrombosis being a disease, that the exertion at the time was sufficient to cause the thrombosis? A. I didn't say that he had coronary thrombosis at that time. He had, evidently, a stenosis of the coronary artery.
"Q. That stenosis, of course, was caused by a previous coronary thrombus or something which occluded the coronary, in your opinion? A. I didn't say a clot occluded it, but it was occluded, but he wouldn't have the thrombus until he already had the stenosis.
"Q. The stenosis itself, that was not new, in your opinion, but something which occurred prior to July 9, 1944? A. I don't know when it occurred.
"Q. I didn't ask you the actual fact as to when it occurred. I asked your opinion as to the likelihood of it. There is a difference in asking you the actual fact and your opinion. You must bear in mind he was distressed — he said he was sick on July 8, 1944, and July 9th Dr. Ross was called and found him in extreme, violent pain, diagnosed it as a coronary thrombosis, or coronary occlusion, now isn't it your opinion that at the time and prior to that time the coronary was stenosed? A. It was, in my opinion.
"Q. By virtue of some body, or by virtue of some condition that had occluded it? A. I think he had a stenosis at that time.
"Q. Now, we call that an occlusion, coronary, — do you know if it comes on rather suddenly or over a period of relatively a short time, a matter of a few hours or a few days? A. You mean in reference to the condition of shock that he was in at that time?
"Q. Yes. A. Well, he had to have a decreased amount of blood supply to his heart at that time to precipitate this.
"Q. Now, anyone who has that coronary condition must be very careful of himself for some period of time, does he not? A. Indeed.
"Q. Ordinarily what do you prescribe — do you prescribe bed rest, for instance? A. I do.
"Q. For a matter of weeks or a month? A. It depends on his cardiogram — I put them at rest.
"Q. It is your opinion, is it Dr. Kaley, that on August 4, 1944, that the man then and there suffered this thrombus of the coronary, is it? A. Yes, he had a thrombus in the coronary vessel at that time.
"Q. But it wasn't completed then and there — it related back to at least July 8th or July 9th, didn't it? A. The thrombus wasn't. He had the stenosis at that time, but he had the thrombus on the 4th.
"Q. And the stenosed condition of the coronary affects the circulatory system of the heart muscles, doesn't it? A. That is right.
"Q. It decreases the blood supply, doesn't it? A. That is right.
"Q. And any continued exertion over a period of time you are just simply wearing out and starving that heart muscle, aren't you? A. Yes.
"Q. You are just getting it ready to collapse, aren't you? A. It is favorable under adverse conditions.
"Q. Now the fact that this man did exercise, he drove an automobile, he worked and did some tasks around home, helped dig post holes, he went on a couple of fishing trips and drove the automobile — that certainly is not conducive of mending that heart muscle so it could get well, is it? A. Not very favorable.
"Q. The point I am getting at, Doctor, is this, that after this period of activity, from at least July 15th on until his death including going back to work on August 3, 1944, and boosting those cans around, weighing from 105 to 110 pounds, including that activity against the doctor's orders, that is not conducive is it, of bringing about the healing result? A. That was very favorable for the precipitation of this.
"Q. It relates back to the time when this thing became evident? A. Yes.
"Q. When he said he became sick — doesn't it? A. Yes."
"Q. You have heard the hypothetical question that has been propounded here? A. Yes.
"Q. Now, considering that hypothetical question and the facts involved and as we have amended it in the record, and then considering the amendments to the hypothetical question, have you an opinion as to what caused the death of Chester Teater on the morning of a August 4, 1944? A. Yes, I have.
"Q. Will you state that opinion? A. It is my opinion that this man died of a coronary thrombosis based upon the preexisting coronary artery disease and precipitated by the exertion just prior to his death."
"Q. You stated based upon the previous history of the disease? A. The pre-existing coronary artery disease.
"Q. That relates back to at least July 9, 1944? A. I am not too clear on the date, but it would be back to the time he was first seen and a diagnosis of coronary thrombosis.
"Q. By Dr. Ross? A. Yes.
"Q. Now you say that it relates from that time? A. That the coronary artery disease relates from that.
"Q. At least from that time? A. At least from that time.
"Q. And the disease would have to gradually progress to some extent to become evident on July 9th? A. That is right. All cases of coronary artery disease show a gradual diminished heart reserve, and as that heart reserve diminishes it requires less and less physical effort to produce a thrombosis.
"Q. You classify it as a disease in this case? A. The coronary artery was the seat of a disease which was pre-existing.
"Q. And it comes on rather gradually? A. The coronary artery as a disease does come on gradually.
"Q. The fact that during this time when he was under Dr. Ross — as Dr. Ross' patient, commencing July 9, 1944, you would expect a patient of that character to remain very sedentary would you not, with that character of affliction and the severity of the affliction as testified to by Dr. Ross? A. I would expect him to be advised to remain sedentary, but whether or not he would do it would depend upon his knowledge of the disease.
"Q. The fact that up to July 9, 1944, he was not subjected to any unusual strain or stress in accordance with the record, Doctor, wouldn't that lead you to the opinion that this disease was gradually progressing up to that point until it became evident? A. That is right.
"Q. And the fact that the man performed his work, and you know what type of work he was performing in accordance with the hypothetical question, and that he performed that for two years and two months before that, his work had nothing to do with it? A. Not at that time, no. It was time — time was the only factor that increased his coronary artery disease.
"Q. Then after this disease became so violently evident in July — July 9, 1944, anything that the man might do at all would aggravate it, would it not? A. I think, that only if he exerted himself sufficiently to use up all the remaining heart reserve and produce a coronary thrombosis, would it aggravate it any more than time alone."
Dr. S.M. Poindexter, a heart specialist, called by claimant, on direct examination, testified: "Q. What percentage of your cases would you say have to do with the heart and heart disturbances? A. I don't believe I could state any definite percentage. A large number of my cases are cardiac problems.
"Q. Are heart cases referred to you by other physicians, Doctor? A. Yes.
"Q. In Boise and elsewhere? A. Yes, they are.
"Q. And you have made a practice, have you, of keeping up on the latest literature and medical opinions with respect to heart diseases and heart trouble? A. Yes.
"Q. Now, Doctor, you heard the hypothetical question as it was read here — you were in the court room, were you not, and heard it? A. Yes.
"Q. And you were present when practically all of the witnesses testified and heard their testimony? A. Yes.
"Q. Now then, basing your opinion upon the hypothetical question submitted to you, and the amendments that were made here in your presence, I will ask you to state if you have an opinion as to the cause of the death of Mr. Teater? A. Yes.
"Q. Based upon the hypothetical question? A. — that this man died of a cardiac accident, and to be more specific, a coronary occlusion.
"Q. I wonder if you would tell the Board what a coronary occlusion is? A. A coronary occlusion is a plugging of either the right or left coronary artery, or any of its branches, by any kind of solid matter, or it may even be liquid. It will not mix with the blood, in such a way as to obstruct the circulation of blood through the arteries.
"Q. From the facts related in the hypothetical question, do you have any opinion as to the precipitating cause of the coronary thrombosis? A. Yes.
"Q. Will you tell the Board what that is? A. It is my opinion that the strain or physical exertion was the precipitating cause of the coronary occlusion, most probably due to a thrombus which occurred at the time this man was exerting on the milk truck.
"Q. Why do you relate the coronary thrombus to the work he was doing on the milk truck that morning of August 4, 1944? A. Because of the fact that his symptoms — he apparently was symptomless when he came to work, and in the course of his morning's work, which includes climbing onto the truck and loading the ice cream packers and climbing down off the truck, immediately following that he complained of chest pains and stated that he thought he had had a heart attack, and those who saw him noted that he was obviously acutely ill. The fact that this came on immediately after he finished this work, or it may have been in the course of his work, we don't know. He said when he got down — he complained of discomfort, at any rate, and walked around the truck and sat in the seat where he expired, and to me that is clear evidence that exertion was a factor, if not the entire factor in producing the coronary occlusion.
"Q. What exertion do you refer to? A. It could have been the exertion of climbing onto the truck, the lifting of the ice cream packers, or it might have been the result of climbing down off the truck.
"Q. But you have reference to the exertion that occurred immediately preceding the attack? A. Yes."
"A. His distress came on while exerting on July — while in the course of his employment, and that he went home in distress and the next day he called Dr. Ross, and according to my understanding, my diagnosis would have been a coronary occlusion.
"Q. You call it a disease, however, do you not? A. Yes.
"Q. And this disease must have been progressing for some time? A. Yes.
"Q. The hypothetical question shows no unusual happening or accident of any kind or character other than his performance of his usual and ordinary work for a period of over two years and two months prior to July 8th or July 9, 1944. You are taking that into consideration too, aren't you, Doctor? A. Yes.
"Q. And this thing was gradually building up on the man as a matter of disease, was it not? A. Yes.
"Q. And it became very violently evident on July 9th when he became practically in extremus because of the pain. A. Yes, but a coronary occlusion occurs all at once, not gradually — a complete occlusion.
"Q. How do you account for the fact he had distress before that? A. He could have had the occlusion on the 8th.
"Q. But with the stenotic character of the vessel, that is quite sufficient to cut off all of the blood supply? A. That is not my understanding. By coronary occlusion we mean the complete occlusion of the blood vessel, not partial.
"Q. What do you mean by thrombosis? A. Thrombosis? A coronary occlusion due to a thrombus.
"Q. One is the end result, the causative character — the terminology is used rather loosely sometimes? A. The correct terminology would be coronary occlusion, and the most common cause is a thrombus.
"Q. In view of your statement to the effect that if a man suffers an occlusion it hits him all at once, nevertheless the symptomatology of the distress might come on rather gradually, might it not? A. Yes.
"Q. Then this case becomes a typical case, does it not, of progress of the disease, coronary disease, — does it not? A. Yes it is a typical case.
"Q. And from and after that date of July 9th anything that the man did after that with reference to exertion or work or stress or strain such as driving an automobile, or climbing stairs or doing chores around the place, or digging past holes, or going fishing, those are things he shouldn't have done with that disease, aren't they? A. No he shouldn't have.
"Q. What is your opinion as to whether it is important as to whether he should follow the advice? A. Not so much as to future occlusions, but to the one previously referred to, to allow it to be healed.
"Q. But the tendency is there for the future occlusions to occur if he doesn't obey these orders? A. That isn't all, the complications — the complications of a coronary occlusion —. * * * He would have a tendency to a future occlusion, but the fact that he doesn't obey orders doesn't mean that that is going to precipitate a coronary occlusion. It means we are protecting him from the first coronary occlusion and the complications of it.
"Q. One of those complications might be death, if he doesn't obey orders? A. Not necessarily."
"Q. I don't know whether you said it was possible or probable, but you said he might have had a coronary occlusion on July 9th at the time of his first attack? A. Yes.
"Q. Would you say this was the same coronary occlusion he suffered immediately prior to his death? A. No.
"Q. In other words, it is a separate and distinct coronary occlusion? A. Yes.
"Q. What would you say from the history given in the hypothetical question, what happened to the first occlusion, had that healed up to some extent? A. The occlusion remains. It isn't the occlusion itself, it is the injury to the heart muscle — it is the heart muscles you are trying to protect by rest, and which if not protected may lead to a softening of the muscle, and the muscle already being soft might lead to a rupture of that heart muscle. If they disobey orders and get by without difficulty, we just figure they are lucky.
"Q. What you have said on cross-examination is to the effect that the work performed immediately prior to the attack and death was the precipitating and aggravating cause? A. Yes."
During the course of the trial it was stipulated, so far as material here, that: "Mr. Smith: I will stipulate. * * * that Teater worked on a ranch for three years; that during the summer of 1927 he worked at logging, then he worked at ranch work for three years during the winter seasons. During the summer he did some timber work, and for several years thereafter he pruned orchards and did general work, and then operated his own truck line for five years. That since their marriage, so far as she knew [Teater's wife], he enjoyed good health except a period of indigestion which he suffered in 1939, and minor illnesses; that after he suffered that heart attack on July 9, 1944, he remained home for one week and then they went on a fishing trip in the Lowman area for a week, and then after that they went into the Silver City country for another fishing trip for about three days. Is that sufficient?"
"Q. * * * What is your opinion as to whether or not stress and strain and exertion would enhance the coming, or the probability of the coming on of the second occlusion, — that is, would it enhance the chances of the second occlusion occurring? A. I don't know as it would have any effect."
"Q. When he [Teater] went to work he was in a weakened condition? A. Yes, I think that he was.
"Q. Definitely in a weakened condition? A. Yes.
"Q. Any exertion he performed on the morning of August 4th would probably affect him adversely where it might not have affected a normal person? A. It might have affected him adversely, but not a coronary occlusion. It might affect a damaged heart, and if the exertion was enough to kill him, but it didn't — what he had the second time was a new coronary occlusion, but his work didn't do it.
"Q. These symptoms, extreme weakness, the perspiration on his face and forehead, doesn't that indicate to you that there was rather a sudden injury to the heart at that time? A. It don't take an argument to say this man had a sudden thing happen to that heart. He sure did. When a man gets a coronary occlusion, he has a sudden tremendous injury to his heart, whether he sweats or whether he don't, Ye Gods, he has got it."
"Q. You will assume the facts therein stated are true, and I will now ask you the question, have you an opinion as to what caused the death of Mr. Teater? A. I have.
"Q. Will you state that opinion? A. Coronary occlusion.
"Q. What is your opinion as to what the causative factors of that coronary occlusion on August 4, 1944, were? A. Diseased coronary vessels.
"Q. What is the usual treatment for a heart afflicted with coronary occlusion? A. Opiates for the relief of pain and absolute bed rest, supportive treatment.
"Q. From the hypothetical statement of facts relating to the heart spell which this man had on July 9, 1944, what is your opinion as to whether or not that spell was mild or severe, the first attack? A. A coronary occlusion, I feel, is always severe.
"Q. In your opinion, how long should the man have lived a sedentary life, observed rest and stayed away from anything requiring exertion after that incident of July 9, 1944? A. Depending upon the severity of damage to the heart muscles, it varies from three weeks to three months.
"Q. Does the incident of a second occlusion have anything to do with the element of exertion, assuming that this man did have a second coronary occlusion on August 4, 1944? A. I feel that subsequent exertion plays a factor in the production of a subsequent occlusion. * * * I feel that all exertion has something to do with it.
"Q. So that any exertion whatever with that kind of a heart, no matter what the man did, would be a causative factor? A. I feel that it would, yes."
"Q. Now if digging the post holes might precipitate his death, then do you mean to tell the Board that performing the acts which he did that morning of August 4th, pulling himself upon the truck, as you have heard, and lifting these other articles, the ice cream packers, and getting back down off the truck and doing those things, do you mean to say that those did not precipitate his death? A. Those are events leading up to his death, such as climbing into the truck immediately prior to his death.
"Q. He got down off the truck, as you have heard the testimony, and put his hand on his heart and said, after performing these acts, 'I almost had another heart attack,' and he looked pale, and the man that was with him was worried about him and followed him around the truck, do you still say that those acts were not the precipitating factor in his death at that particular time, taking his heart as you found it on August 4th, that morning? A. The last act of jumping down off the truck and complaining of pain, you would assume that something had happened to his heart, and then he climbed into the truck and put another added occlusion on a previously damaged heart and led to his death.
"Q. And do you say that those were factors contributing to his death at that particular time, the exertion at that time was a factor contributing to his death? A. Yes."
"Q. And do you have an opinion, Doctor, after hearing the testimony of what he [Teater] had done, and taking into consideration the hypothetical question, and particularly his work that he was employed in at that time, of what precipitated the coronary thrombosis resulting in his death? A. The fact that he had a coronary disease, the exertion that he performed at that time was sufficient to cause the thrombosis.
"Q. Why do you relate the coronary thrombus to the work he was doing on the milk truck that morning of August 4, 1944? A. Because of the fact that his symptoms — he apparently was symptomless when he came to work, and in the course of his morning's work, which includes climbing onto the truck and loading the ice cream packers and climbing down off the truck, immediately following that he complained of chest pains and stated that he thought he had had a heart attack, and those who saw him noted that he was obviously acutely ill. The fact that this came on immediately after he finished this work, or it may have been in the course of his work, we don't know. He said when he got down — he complained of discomfort, at any rate, and walked around the truck and sat in the seat where he expired, and to me that is clear evidence that exertion was a factor, if not the entire factor in producing the coronary occlusion."
"Q. He got down off the truck, as you have heard the testimony, and put his hand on his heart and said, after performing these acts, 'I almost had another heart attack,' and he looked pale, and the man that was with him was worried about him and followed him around the truck, do you still say that those acts were not the precipitating factor in his death at that particular time, taking his heart as you found it on August 4th, that morning? A. The last act of jumping down off of the truck and complaining of pain, you would assume that something had happened to his heart, and then he climbed into the truck and put another added occlusion on a previously damaged heart and led to his death.
It thus appears there is really and actually no substantial dispute in the evidence, as we understand it, on two important propositions: First, Teater had a coronary disease both before and at the time of his death, and, second: The work he was doing at the time of his death caused an accident accelerating or aggravating such diseased condition, thereby precipitating coronary occlusion, causing death. That, of course, presents the question of law: Where the work of an employee aggravates or accelerates a previous diseased condition of the heart of such employee, precipitating coronary occlusion causing death, are dependents entitled to compensation?
First, and as this court held some twenty years ago in Re Larson, 48 Idaho 136, 143, 279 P. 1087, 1089: "Our statute prescribes no standard of fitness, makes no distinction between the sound and the unsound, which, being true, compensation under the act is not based on an implied warranty of perfect health or immunity from latent or unknown tendencies to disease." Secondly: This court has uniformly held compensation is recoverable where the work of an employee causes an accident which aggravates or accelerates a previous diseased condition of the worker, causing death (Cain v. C. C. Anderson Co., 64 Idaho 389, 396, 397, 133 P.2d 723, 726, pointing out: "The fact that the deceased was suffering or afflicted with a serious heart ailment, predisposing him to coronary occlusion, was of no consequence in the case, and the fact that he might or would have died in a week or year with coronary occlusion was immaterial."
In closing the discussion of this angle of the case at bar, we think it should be further pointed out that Teater was stricken and died while in the performance of his regular duties, so that there can be no question whatsoever that the accident resulting in death arose out of and in the course of his employment.
There is another matter, however, to which we desire to direct attention. Respondent, Dairymen's Cooperative Creamery, following the accident and on August 10, 1944, pursuant to and as required by sec. 43-1801, I.C.A., filed with the Industrial Accident Board a report of the accident involved in the case at bar, which report was incorporated in and made a part of the record on appeal of this case. Sec. 43-1801, supra, requires, among other things, that an employer report "the nature and cause of the injury" to its employee. In complying with the statute, respondent Creamery reported the nature of the accident thus: "Heart, increased effort and exertion in connection with loading truck caused coronary occlusion thormbus [thrombus]. The coronary occlusion caused the death of decedent [Teater]", thus characterizing the incident as an accident.
The Board in passing on the right of claimant to recover compensation entirely overlooked the report of the employer, showing the nature of the injury, which constitutes prima facie evidence that the accident and injury were as so reported. Sater v. Home Lumber Coal Co., 63 Idaho 776, 783, 784, 126 P.2d 810; Larson v. Independent School Dist. No. 11J, 53 Idaho 49, at page 53, 22 P.2d 299; Empire Zinc Co. v. Industrial Comm. of Colorado, 94 Colo. 98, 28 P.2d 337; Northeast Oklahoma R. Co. v. State Indus. Comm., 88 Okl. 146, 212 P. 136; Ideal Bakery v. Schryver, 43 Wyo. 108, 299 P. 284.
That brings us to respondents' contention Teater returned to work in August "absolutely against the [his] doctor's order", and further, that, and as in substance insisted by respondents at the bar, Teater's doctor warned him that if he returned to work death would probably result. The evidence in the case at bar does not support either contention. The fact is, that Teater could not have returned to work absolutely against his doctor's order because Teater's doctor (Dr. Ross) testified he "didn't prescribe any acts for him [Teater] not to perform", from which it may also be fairly concluded Teater did not know, and had no good reason to believe, his heart was in such a condition as to endanger his life if he returned to work. Respondents insist, however, that the case at bar is controlled by Walters v. City of Weiser, 66 Idaho 615, 164 P.2d 593, 597.
In the case at bar there is a very substantial and material difference in the facts, Here, as above pointed out, there is really and actually no substantial dispute in the evidence, that it was the work Teater was doing at the time of his death which caused an accident accelerating the diseased condition of his heart, and that it was the acceleration which precipitated coronary occlusion, causing Teater's death. Hence, in the instant case, it is just a matter of invoking the applicable rule of law, as we have done. On the other hand, in the Walters case, supra, it does not appear it was just the work he was performing for his employer which accelerated the weakened condition of his heart to such an extent as to cause death. Instead, it appears Walters while quite sick with the "flu" continued to work for a period of ten days, and then and while still quite sick arose from a sick bed and attended an evening meeting of a fire department (clearly outside of any duty he owed his employer), after which he steadily grew weaker and died. As stated by this court: "Though one cannot help but admire such courage, * * * it leaves us no choice but to hold that the Board's order [denying claim for compensation] should be affirmed". It is obvious the Walters case, supra, is not in point here.
It follows the order of the Board denying compensation must be reversed and the cause remanded, and it is so ordered, with directions to the Board to make findings of fact and conclusions of law in harmony with the views expressed in this opinion, and enter thereon an appropriate order awarding compensation. Costs awarded to appellant.
GIVENS, C.J., and BUDGE, MILLER and HYATT, JJ., concur.