APPEAL from the Superior Court of San Bernardino County. Kenneth Andreen, Judge. (Retired Associate Justice of the Court of Appeal, Fifth Appellate District assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with directions. (Super. Ct. No. RCV089849).
The opinion of the court was delivered by: Hollenhorst, Acting P.J.
CERTIFIED FOR PUBLICATION
On February 27, 2004, Adelelmo Cabral's pickup truck collided with a tractor-trailer (big rig) driven by Hen Horn, an employee of defendant and appellant, Ralphs Grocery Company (Ralphs),*fn1 while it was stopped on the side of the freeway. As a result of the collision, Adelelmo Cabral (Decedent) died. On August 26, 2005, Decedent's wife, plaintiff and respondent Maria Cabral (Plaintiff)*fn2 sued Ralphs and Horn for wrongful death, contending Horn's negligence in stopping in an "Emergency Parking Only" area for a nonemergency caused Decedent's death. On September 29, 2005, Ralphs cross-complained for property damage to the big rig. The case went to trial on June 20, 2007, and the jury returned a verdict for Plaintiff on the complaint and for Ralphs on its cross-complaint.
Ralphs appeals, contending that (1) as a matter of law, Horn owed no duty to decedent to avoid stopping in the emergency parking area; (2) Horn's alleged negligence did not proximately cause the accident; and (3) the trial court erred in admitting the testimony of Plaintiff's expert on causation, and thus, the evidence is insufficient to support the verdict. We agree with Ralphs and reverse the judgment.
I. PROCEDURAL BACKGROUND AND FACTS
The trial court granted motions by Ralphs to exclude (1) an accident report prepared by the California Highway Patrol (CHP), except for photographs, physical measurements and a diagram of the accident scene, and (2) any reference to the excluded portions of the report, including any opinions regarding the accident. Ralphs's motions were based on the grounds that, among other things, the accident report was inadmissible under Vehicle Code section 20013, the report was inadmissible hearsay, and the opinions in the report were inadmissible lay opinions. At trial, a single page from the accident report containing physical measurements and a diagram of the accident scene was admitted.
The trial court denied the request of Ralphs to exclude testimony by Plaintiff's accident reconstruction expert, Robert Anderson, on the grounds that his opinions were speculative, lacked foundation, and were unduly prejudicial, confusing, and misleading.
Following Plaintiff's opening statement, Ralphs moved for nonsuit under Code of Civil Procedure section 581c on the grounds that Plaintiff failed to present evidence to prove defendants Ralphs and Horn owed any duty to Decedent or to Plaintiff, and that defendants' negligence, if any, was the cause of Decedent's death. Ralphs emphasized the cases of Robert Arthur v. Santa Monica Dairy Co. (1960) 183 Cal.App.2d 483, 487 through 488, Bentley v. Chapman (1952) 113 Cal.App.2d 1, and Victor v. Hedges (1999) 77 Cal.App.4th 229, 238. The trial court denied the motion, and the case proceeded to trial.
On February 27, 2004, around 9:00 p.m., Decedent was driving an F-150 pickup truck (pickup) eastbound in the number three lane (of four lanes) on Interstate 10 (I-10) in San Bernardino County. Juan Perez testified that he was driving a big rig behind Decedent for some distance. He estimated Decedent's speed to be around "70, 80," miles per hour.*fn3 Perez opined that Decedent appeared to be intoxicated or falling asleep because his pickup was swerving left and right within the number three lane. Perez saw the pickup suddenly turn right, cutting in front of another big rig truck in the number four lane, as if attempting to exit the freeway. The pickup crossed the number four lane and the paved shoulder of the freeway and then hit the back of Ralphs's big rig, which was stopped*fn4 in the dirt area approximately 16 feet from the number four lane.*fn5 Perez did not see brake lights activated on the pickup, nor was there any indication that Decedent tried to reduce speed or avoid hitting the big rig. There was an "Emergency Parking Only" sign (R45 sign) posted in the area (about 100 feet away) where the big rig had stopped.*fn6
As a result of the collision, Decedent suffered massive injuries and died at the scene.
Officer Michael Migliacci, the primary investigating officer for the collision, testified that the CHP's investigation of the collision revealed the same facts as observed by Perez. The evidence further revealed that the road surface was dry and there were no unusual conditions that would have caused Decedent to go off the road. A CHP inspection disclosed no mechanical defects that would have hindered the normal operation of Decedent's pickup. The CHP's investigation concluded that Decedent's unsafe turn from the number three lane, a violation of Vehicle Code section 22107, was the sole cause of the accident. Because the cause of Decedent's death was clear, no autopsy was performed. A toxicology report showed no evidence of intoxication.
Plaintiff's human factors expert, Dr. Mark Sanders, opined that Decedent was fighting drowsiness and finally fell asleep, which caused him to leave the number three lane. The human factors expert for Ralphs, Dr. Antony Stein, opined that an undiagnosed medical condition caused Decedent, who was 5 feet 11 inches tall and weighed 350 pounds, to leave the freeway.
Plaintiff's expert, Anderson, testified that when Decedent hit the big rig, he was awake and alert, his pickup was in a left turn, and he would have returned safely to the freeway had the big rig not been in his path. Anderson further opined that Decedent was going no faster than 60 miles per hour (plus or minus 10 miles per hour) and that he was braking when he hit the big rig. Anderson relied on the factual diagram and a photograph taken by the CHP. Over the objection of Ralphs, and contrary to the motion in limine ruling, the trial court permitted Anderson to testify that two marks recorded on the factual diagram were labeled elsewhere in the CHP report as tire marks from Decedent's pickup. Officer Migliacci was the only witness who testified regarding preparation of the CHP report. He did not take the measurements or the photographs. He had no basis to believe the marks came from Decedent's vehicle other than the fact that the officer who had taken the measurements had labeled the marks that way. No one had compared the tread marks with the pickup's tires or found any other physical evidence indicating that the marks were from the pickup.
In contrast, the accident reconstruction expert for Ralphs, Fred Cady, testified the marks could not have been made by Decedent's pickup because (1) the marks did not align with how the pickup contacted the big rig, (2) eyewitnesses reported there was no indication that Decedent applied his brakes or reacted in any way, and (3) the pickup had antilock brakes, which would not have left a braking mark. Using eyewitness testimony and physical evidence, Cady performed a time-distance study and concluded that Decedent would not have had time to begin turning left, as Anderson claimed, before hitting the big rig.
D. Ralphs's Motion for Nonsuit
At the close of Plaintiff's evidence, Ralphs again moved for a nonsuit, incorporating its prior written motion, on the grounds that Horn owed no duty to Decedent or Plaintiff, and Horn's negligence, if any, did not proximately cause the collision. In response, Plaintiff argued that, regardless of the R45 sign, the presence of Ralphs's big rig "creat[ed] a roadside obstacle." Specifically, Plaintiff's counsel argued, "There is no superseding intervening cause because when you place that roadside obstacle where it is, sign or no sign, it creates the risk of death." The court denied the motion. Ralphs sought clarification and the following exchange occurred:
"[COUNSEL FOR RALPHS]: Your Honor, may I just inquire? . . . [I]f I could go back just for a moment to the motion for judgment nonsuit. Is the court finding that [Decedent] is within a protected class?
"THE COURT: I think he is. And I think that's based on one of the experts that was talking about the danger. He talked about the danger of the deceleration and acceleration, and that did not get included at all. But one of the experts . . . testified as to the requirement that people don't park there for reasons that-of avoiding the very sort of thing that happened here. This freeway is used there and parking spot is there because of some shade and trucks pull off there and they shouldn't. And the CHP has decided that they shouldn't. And that's the attraction is the shade [sic]."
The jury returned a verdict for Plaintiff on the complaint and for Ralphs on its cross-complaint. On the special verdict form, the jury found both Ralphs (through Horn) and Decedent were negligent, that each one's negligence was a substantial factor in causing Plaintiff's harm, and that Decedent's negligence was a substantial factor in causing damage to Ralphs's big rig. The jury assessed 90 percent responsibility for the accident to Decedent, and 10 percent to Horn. Both parties were awarded damages based on their claims. After adjusting the awards to reflect the jury's allocation of fault, a final judgment was entered against Ralphs in the amount of $475,298.40.
On August 1, 2007, Ralphs filed notice of its intent to move for a new trial or judgment notwithstanding the verdict on the following grounds: (1) irregularity in proceedings; (2) conduct of the jury; (3) excessive damages; (4) insufficiency of the evidence to justify the verdict; and (5) error of law occurring at trial. The motions were filed on August 6. Specifically, Ralphs argued that (1) there was no evidence that Horn owed any duty to Decedent; (2) the intervening superseding negligence of Decedent exonerated defendants from all liability; (3) the court erred in allowing Officer Migliacci to testify that he could have given Horn a ticket; (4) the verdict is against the law because there is no evidence that Horn's actions created a risk different than that which already existed at the time of Decedent's negligent conduct; (5) the noneconomic damages are excessive; and (6) the trial court erred in denying costs and fees to defendants. In the motion for judgment notwithstanding the verdict, Ralphs argued that Horn owed no duty to Decedent and that the intervening superseding negligence of Decedent exonerated Ralphs from all liability.
Plaintiff opposed Ralphs's motions, arguing that "the issue is whether Mr. Horn was negligent in his duty to operate Ralphs' tractor-trailer in a safe manner and whether parking that truck on the side of the I-10 freeway in an "Emergency Parking Only' area was a breach of that duty." Regarding the R45 sign, Plaintiff claimed "the issue is whether Mr. Horn had a duty to operate Ralphs' tractor-trailer safely, independent of the R45 sign, and whether he was negligent in stopping in an "Emergency Parking Only' area to drink some water and have a banana. Mr. Horn's status as a driver confers his duty of care, not the R45 sign." (Underlining in original.) Regarding superseding cause, Plaintiff argued that the basic rule is that "the negligence of a third person which is the immediate cause of the injury may be viewed as a superseding cause only when it is so highly extraordinary as to be unforeseeable." (Bolding and italics in original.) Thus, in this case, Plaintiff asserted "it is reasonably foreseeable that a "speeding and/or intoxicated driver' would lose control while driving on the I-10 freeway, veer off the freeway and crash into a truck parked on the side of the freeway."
Following argument, the trial court denied Ralphs's motions. Regarding the motion for judgment notwithstanding the verdict, the court found that emphasis by Ralphs on the R45 sign was misplaced because the jury was "not instructed on a negligence per se theory . . . ." As to Decedent's negligence as a superseding cause, the court found that it was foreseeable "that a negligent driver could drift off the freeway and onto the dirt next to the shoulder . . . ." Regarding the motion for new trial, the court found that whether Horn owed a duty to Decedent "is dependent on the foreseeability of risk" and "[i]t was foreseeable that a driver on that highway could lose control of his vehicle, that it would depart the traveled portion at a high speed and that it would collide with any vehicle parked [on] the dirt area beyond the shoulder." As for the superseding cause, the court found that it was within the scope of the evidence for the jury to find that if Horn had not been parked there, Decedent might have decelerated without hitting anything, or that he could have finished his left turn and made it back to the freeway. The court further found that the verdict was not against the law and that the noneconomic damages were supported by the evidence.
II. JUDGMENT NOTWITHSTANDING THE VERDICT
"A party is entitled to a judgment notwithstanding the verdict on a timely motion if there is no substantial evidence to support the verdict and the evidence compels a judgment for the moving party as a matter of law. [Citations.] If the motion challenges the sufficiency of the evidence to support the verdict, we review the ruling under the substantial evidence standard. [Citations.] If the motion presents a legal question based on undisputed facts, however, we review the ruling de novo. [Citation.] If we determine that the trial court denied a motion for judgment notwithstanding the verdict that should have been granted, we must order the entry of judgment in favor of the moving party. [Citation.]" (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1043-1044.)
Ralphs contends that it is entitled to judgment notwithstanding the verdict because, as a matter of law, it (via its driver Horn) owed no duty to Decedent. We agree.
Plaintiff claimed that Horn was negligent in stopping in an "Emergency Only Parking" area on the side of the freeway for a nonemergency. While Plaintiff denies that the case proceeded on a negligence per se theory, and the trial court stated that the jury was not instructed on negligence per se, we note that Plaintiff emphasized both the R45 sign and the fact that Horn stopped in an "Emergency Only Parking" area. Nonetheless, we accept the representations of the court and Plaintiff and proceed to analyze the existence of a duty, if any, on the part of Horn under a general negligence theory.
"The well-known elements of a cause of action for negligence are duty, breach of duty, proximate cause, and damages. [Citation.] The threshold element of the existence of duty is a question of law to be resolved by the court. [Citation.]" (Minch v. Department of California Highway Patrol (2006) 140 Cal.App.4th 895, 900-901.) On appeal, we apply a de novo standard of review. (Garcia v. Paramount Citrus Assn., Inc. (2008) 164 Cal.App.4th 1448, 1453.) "In a posttrial procedural setting, we view the facts, where supported by substantial evidence, in the light most favorable to the plaintiff. [Citation.]" (Ibid.)
In the late 1800's, the concept of duty was created as a legal means "to curtail the feared propensities of juries toward liberal awards." (Dillon v. Legg (1968) 68 Cal.2d 728, 734.) In analyzing duty, we must ask ""whether the plaintiff's interests are entitled to legal protection against the defendant's conduct. . . . It [duty] is a shorthand statement of a conclusion, rather than an aid to analysis in itself. . . . But it should be recognized that "duty" is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' [Citation.]" (Ibid.)
As a general rule, a person is liable for injuries caused by his or her failure to exercise reasonable care. (Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 828.) However, the decision to depart from this general rule requires courts to balance the following policy considerations, which 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. [Citations.]" (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)
The foreseeability of harm has become a chief factor in determining whether a duty exists. (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515-516.) Nonetheless, our task "is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but to evaluate "generally 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.' [Citation.]" (Avis Rent A Car System, Inc. v. Superior Court (1993) 12 Cal.App.4th 221, 232.)
According to Plaintiff, "it was reasonably foreseeable that a "speeding and/or intoxicated driver' would lose control while driving on the I-10 freeway, veer off the freeway and crash into a vehicle parked on the shoulder of the freeway. In addition, Horn knew that he was parked next to a busy freeway and that at any moment a vehicle could exit the road for any reason. In fact, [Ralphs] told [its] drivers not to park in emergency parking only areas for nonemergency reasons because of safety concerns for both the ...