Car Accident While Backing Up to a Loading Platform
In Kirkpatrick v. Damianakes (1936) 15 Cal. App. 2d 446 [59 P.2d 556], a commercial trucker hit a car while backing up to a loading platform in a private alley. the trucker was a business invitee. ( Id., at p. 449.)
The owner of the car "entered upon the property of another without right and without any express or implied invitation or permission.
She was not in the performance of any duty to the owner or tenants nor was she upon any business with the owner or tenants. She was driving for her own purposes and her own convenience and was given no express or implied assurance of safety from anyone when entering upon said private alley." (Ibid.) As such, she " '. . . occupies the status of trespasser . . . .' " (Ibid.)
"It is therefore clear that the only duty of the owner or tenant of the property was to abstain from willfully or wantonly injuring plaintiff." (Ibid.)
The trucker "stood in the same position as the owner or tenants toward persons who were trespassers," such as the driver of the car. (Ibid.)
Kirkpatrick held that it was error to instruct the jury that "the parties each owed to the other the duty of exercising ordinary care." ( Id., at p. 451.) the trucker owed no duty of due care to the injured car driver.