Does a business establishment incur liability for wrongful death if it denies use of its telephone to a good samaritan who explains an emergency situation occurring without and wishes to call the police?

   This appeal follows a judgment of dismissal of the second cause of action of a complaint for wrongful death upon a motion for summary judgment. The motion was supported only by a declaration of defense counsel. Both briefs on appeal adopt the defense averments:

This action arises out of a shooting death occurring on August 9, 1977. Plaintiff’s father [Darrell Soldano] was shot and killed by one Rudolph Villanueva on that date at defendant’s Happy Jack’s Saloon. This defendant owns and operates the Circle Inn which is an eating establishment located across the street from Happy Jack’s. Plaintiff’s second cause of action against this defendant is one for negligence.

  Plaintiff alleges that on the date of the shooting, a patron of Happy Jack’s Saloon came into the Circle Inn and informed a Circle Inn employee that a man had been threatened at Happy Jack’s. He requested the employee either call the police or allow him to use the Circle Inn phone to call the police. That employee allegedly refused to call the police and allegedly refused to allow the patron to use the phone to make his own call. Plaintiff alleges that the actions of the Circle Inn employee were a breach of the legal duty that the Circle Inn owed to the decedent.

   We were advised at oral argument that the employee was the defendant’s bartender. The state of the record is unsatisfactory in that it does not disclose the physical location of the telephone—whether on the bar, in a private office behind a closed door or elsewhere. The only factual matter before the trial court was a verified statement of the defense attorney which set forth those facts quoted above. Following normal rules applicable to motions for summary judgment, we strictly construe the defense affidavit. [Citation.] Accordingly, we assume the telephone was not in a private office but in a position where it could be used by a patron without inconvenience to the defendant or his guests. We also assume the call was a local one and would not result in expense to defendant. There is a distinction, well rooted in the common law, between action and nonaction [Citation.] It has found its way into the prestigious Restatement Second of Torts (hereafter cited as ‘‘Restatement’’), which provides in section 314:

The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.

* * *

   As noted in [citation], the courts have increased the instances in which affirmative duties are imposed not by direct rejection of the common law rule, but by expanding the list of special relationships which will justify departure from that rule. * * *

* * *

   Section 314A of the Restatement lists other special relationships which create a duty to render aid, such as that of a common carrier to its passengers, an innkeeper to his guest, possessors of land who hold it open to the public, or one who has a custodial relationship to another. A duty may be created by an undertaking to give assistance. [Citation.]

   Here there was no special relationship between the defendant and the deceased. It would be stretching the concept beyond recognition to assert there was a relationship between the defendant and the patron from Happy Jack’s Saloon who wished to summon aid. But this does not end the matter.

   It is time to re-examine the common law rule of nonliability for nonfeasance in the special circumstances of the instant case.

* * *

   We turn now to the concept of duty in a tort case. The [California] Supreme Court has identified certain factors to be considered in determining whether a duty is owed to third persons. These factors include:

the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citation.]

   We examine those factors in reference to this case. (1) The harm to the decedent was abundantly foreseeable; it was imminent. The employee was expressly told that a man had been threatened. The employee was a bartender. As such he knew it is foreseeable that some people who drink alcohol in the milieu of a bar setting are prone to violence. (2) The certainty of decedent’s injury is undisputed. (3) There is arguably a close connection between the employee’s conduct and the injury: the patron wanted to use the phone to summon the police to intervene. The employee’s refusal to allow the use of the phone prevented this anticipated intervention. If permitted to go to trial, the plaintiff may be able to show that the probable response time of the police would have been shorter than the time between the prohibited telephone call and the fatal shot. (4) The employee’s conduct displayed a disregard for human life that can be characterized as morally wrong: he was callously indifferent to the possibility that Darrell Soldano would die as the result of his refusal to allow a person to use the telephone. Under the circumstances before us the bartender’s burden was minimal and exposed him to no risk: all he had to do was allow the use of the telephone. It would have cost him or his employer nothing. It could have saved a life. (5) Finding a duty in these circumstances would promote a policy of preventing future harm. A citizen would not be required to summon the police but would be required, in circumstances such as those before us, not to impede another who has chosen to summon aid. (6) We have no information on the question of the availability, cost, and prevalence of insurance for the risk, but note that the liability which is sought to be imposed here is that of employee negligence, which is covered by many insurance policies. (7) The extent of the burden on the defendant was minimal, as noted.

* * *

   We acknowledge that defendant contracted for the use of his telephone, and its use is a species of property. But if it exists in a public place as defined above, there is no privacy or ownership interest in it such that the owner should be permitted to interfere with a good faith attempt to use it by a third person to come to the aid of another.

* * *

   We conclude that the bartender owed a duty to the plaintiff’s decedent to permit the patron from Happy Jack’s to place a call to the police or to place the call himself.

   It bears emphasizing that the duty in this case does not require that one must go to the aid of another. That is not the issue here. The employee was not the good samaritan intent on aiding another. The patron was.

* * *

   We conclude there are sufficient justiciable issues to permit the case to go to trial and therefore reverse.