APPEAL from a judgment of the Superior Court of Los Angeles County, Holly E. Kendig, Judge. Affirmed in part; reversed in part. (Los Angeles County Super. Ct. No. BC329390).
The opinion of the court was delivered by: Suzukawa, J.
CERTIFIED FOR PUBLICATION
Plaintiff Barry A. Bowman (plaintiff or Bowman) brought the present action after suffering devastating injuries when his motorcycle collided with a dump truck owned and operated by defendant Tommie Wyatt, Jr. (Wyatt). The collision occurred shortly after Wyatt delivered a load of asphalt to a work site of defendant City of Los Angeles (City), with whom Wyatt was under contract.
The jury found that Wyatt caused the accident by negligently making a left turn in front of Bowman's motorcycle. The jury further found that Wyatt was a City employee, that the City breached a duty to inspect and maintain the dump truck's brakes, that the truck was controlled by the City and was in a dangerous condition, and that the work in which Wyatt was engaged at the time of the accident involved a special risk of harm. It returned a verdict for Bowman of over $15 million.
The City has appealed, contending that: (1) the jury was misinstructed on several critical issues, including the factors it was to consider in determining if Wyatt was an employee or independent contractor; (2) there was no substantial evidence to support a finding that defects in the dump truck's brakes were a proximate cause of the accident; (3) as a matter of law, the work in which Wyatt was engaged did not involve a peculiar risk of harm; and (4) the trial court erred in deciding as a matter of law that the City was the dump truck's "motor carrier" within the meaning of Vehicle Code sections 408 and 34501.12. Wyatt has also appealed, contending that the court abused its discretion by allowing evidence that Wyatt's motor carrier permit had been suspended, allowing lay opinion testimony, and limiting the testimony of defendants' expert.
We agree with the City that the trial court erred by misinstructing the jury about the factors relevant to determining whether Wyatt was an employee or an independent contractor, allowing the jury to find that the work in which Wyatt was engaged involved a peculiar risk of harm, and instructing the jury that the City was the motor carrier as a matter of law. We further agree with the City that substantial evidence did not support the jury's finding that defects in the dump truck's brakes were a proximate cause of the accident. Because these errors infected all four bases of liability Bowman asserted against the City, we reverse the judgment for Bowman and against the City, and remand for a limited retrial on vicarious liability.
With respect to Wyatt's appeal, we conclude that his contentions are without merit and affirm the jury finding as to his liability.
FACTUAL AND PROCEDURAL BACKGROUND
Bowman was seriously injured on October 13, 2004, when the motorcycle he was riding collided with a dump truck driven by Wyatt. Bowman had been traveling southbound on Wilbur Avenue in Northridge; Wyatt was traveling eastbound on Vanalden Avenue, rolled through a stop sign, and collided with Bowman at the intersection of Wilbur and Vanalden as he began making a left turn. As a result of the accident, Bowman suffered traumatic brain injury, a stroke, hearing and vision loss, a jaw laceration, a frozen shoulder, compound leg fractures, and a hip fracture. At the time of trial, he remained blind in one eye, walked with a cane, and suffered severe mental impairment that interfered with his memory and reasoning.
When the accident occurred, Wyatt was under contract with the City of Los Angeles, Bureau of Street Services, to deliver asphalt to City work sites on an as-needed basis.*fn1 Wyatt had just delivered a load of asphalt for the City and was returning to a City yard to determine if there was another load for him to haul.
Bowman sued Wyatt and the City for personal injuries. The operative third amended complaint alleged that Wyatt failed to stop at the stop sign and/or to yield the right-of-way to Bowman; defendants negligently failed to maintain the dump truck's brakes; Wyatt was engaged in an activity that lawfully could be carried out only pursuant to a permit from the state of California; the City was vicariously liable for the harm to Bowman because Wyatt's duties involved possible danger to the public and were non-delegable; the operation of the dump truck was, as a matter of law, an activity involving an unreasonable risk of harm to others; Wyatt's operation of the dump truck was pursuant to the California Motor Carrier of Property Permit Act; and the City had a non-delegable duty to exercise due care to Bowman as a member of the driving public.
The case went to trial before a jury in November 2007. Bowman presented evidence that the dump truck's brakes failed, Wyatt's motor carrier permit had been suspended, and required safety inspections had not been performed as required by law. Defendants presented evidence that the brakes did not fail, Wyatt's motor carrier permit had not been suspended, required inspections were performed, and the City was not responsible for maintaining the dump truck.*fn2
After hearing several weeks of testimony, the jury returned a verdict for Bowman, finding as follows:
"1. On the claim of Barry Bowman for negligence against Tommie Wyatt[,] we find in favor of Barry Bowman and against Tommie Wyatt[.]
"2. On the claim of Barry Bowman against the City of Los Angeles for failure to inspect or maintain the brakes of the truck it leased from Tommie Wyatt[,] we find in favor of Barry Bowman and against the City of Los Angeles[.]
"3. On the claim of Barry Bowman against the City of Los Angeles that the truck was controlled by the City and was in a dangerous condition[,] we find in favor of Barry Bowman and against the City of Los Angeles[.]
"4. On the claim of Barry Bowman against the City of Los Angeles that the work of Tommie Wyatt and the dump truck involved a special risk of harm[,] we find in favor of Barry Bowman and against the City of Los Angeles[.] . . .
"5. On the claim of Barry Bowman against the City of Los Angeles that Tommie Wyatt was an 'employee' of the City and not an independent contractor[,] we find in favor of Barry Bowman and against the City of Los Angeles[.]"
The jury found that Wyatt was 25 percent responsible for the accident and the City was 75 percent responsible. It awarded damages as follows:
Past economic loss: $776,339
Future economic loss: $3,959,005
Past non-economic loss: $1,500,000
Future non-economic loss: $9,500,000
Judgment was entered on January 28, 2008, and notice of entry of judgment was served on January 30, 2008. The trial court denied defendants' motions for new trial and for judgment notwithstanding the verdict. This timely appeal followed.
The City contends: (1) the jury was misinstructed on critical issues, including the factors it should consider in determining if Wyatt was an employee or independent contractor of the City; (2) the trial court erred in allowing the jury to find that Wyatt's use of the dump truck involved a special risk of harm; (3) substantial evidence did not support a finding that the condition of the brakes was a proximate cause of the accident and Bowman's injuries; and (4) the trial court erred in finding that the City was the "motor carrier" as a matter of law. We consider each issue below.
I. THE TRIAL COURT MISINSTRUCTED THE JURY ON THE FACTORS RELEVANT TO DETERMINING WHETHER WYATT WAS AN EMPLOYEE OR INDEPENDENT CONTRACTOR
A. The CACI No. 3704 Instruction
At Bowman's request, the jury was instructed pursuant to the Judicial Council's California Civil Jury Instructions (CACI) No. 3704 that it must determine whether Wyatt was an employee or an independent contractor of the City, as follows:*fn3
"In deciding whether Tommie Wyatt, Junior was the City of Los Angeles's employee, you must first decide whether the City of Los Angeles had the right to control how Tommie Wyatt, Junior performed the work, rather than just the right to specify the result.
"It does not matter whether City of Los Angeles exercised the right to control. If you decide that the right to control existed, then Tommie Wyatt, Junior was the City of Los Angeles' employee.
"If you decide that the City of Los Angeles did not have the right of control, then you must consider all the circumstances in deciding whether Wyatt was the City of Los Angeles's employee.
"The following factors, if true, may show that Wyatt was the employee of the City of Los Angeles:
"A, The City of Los Angeles supplied the equipment, tools and place of work;
"B, Tommie Wyatt, Junior was paid by the hour rather than by the job;
"C, The work being done by Tommie Wyatt, Junior was part of the regular business of the City of Los Angeles;
"D, The City of Los Angeles had an unlimited right to end the relationship with Tommie Wyatt, Junior;
"E, The work being done by Tommie Wyatt, Junior was the only occupation or business of Tommie Wyatt, Junior;
"F, The kind of work performed by Tommie Wyatt, Junior is usually done under the direction of a supervisor rather than by a specialist working without supervision;
"G, The kind of work performed by Tommie Wyatt, Junior does not require specialized or professional skill;
"H, The services performed by Tommie Wyatt were to be performed over a long period of time;
"and I, The City of Los Angeles and Tommie Wyatt, Junior acted as if they had an employer-employee relationship."*fn4
The City contends that this instruction is erroneous because it told the jury that the right of control, by itself, compelled a finding that Wyatt was a City employee. In other words, the City says, the instruction told the jury that if it found that the City had the right to control how Wyatt performed his work, then it must find that he was a City employee. The instruction misstates the law, the City argues, because while the existence of control is an important factor in determining whether someone is an employee or an independent contractor, it is not the only factor. Instead, where the right to control is not absolute, "the fact finder must be allowed to weigh the extent of the control that could be exercised against additional factors to determine if the worker is more like an employee or more like an independent contractor."
We review de novo whether a challenged instruction correctly states the law.*fn5 (Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 24; Sander/Moses Productions, Inc. v. NBC Studios, Inc. (2006) 142 Cal.App.4th 1086, 1094-1095; National Medical Transportation Network v. Deloitte & Touche (1998) 62 Cal.App.4th 412, 439.) For the reasons that follow, we conclude that CACI No. 3704 does not accurately state the law.*fn6
B. The Law Governing the Employee/Independent Contractor Distinction
The distinction between an employee and an independent contractor is a significant one: With some exceptions, an employer is vicariously liable for the negligent acts of its employees, but not of its independent contractors. (E.g., S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350 (Borello) ["The distinction between independent contractors and employees arose at common law to limit one's vicarious liability for the misconduct of a person rendering service to him"]; Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1100 [noting "general rule refusing to impose vicarious liability for the negligence of an independent contractor"].) Accordingly, there is a rich body of case law discussing when a worker is an "employee" or an "independent contractor."
1. Supreme Court Authority
The "seminal case" (Truesdale v. Workers' Comp. Appeals Bd. (1987) 190 Cal.App.3d 608, 615) addressing the employee/independent contractor distinction is Empire Star Mines Co. v. Cal. Emp. Com. (1946) 28 Cal.2d 33 (Empire Star), disapproved on other grounds in People v. Sims (1982) 32 Cal.3d 468, 479-480, fn. 8.). That case arose under the Unemployment Insurance Act, pursuant to which employers were required to pay unemployment insurance taxes for employees, but not for independent contractors. (Empire Star, at p. 36.) In affirming the trial court's determination that the defendant mining company's lessees were independent contractors, the Supreme Court identified a number of factors relevant to distinguishing independent contractors from employees. The most important factor was "the right to control the manner and means of accomplishing the result desired. If the employer has the authority to exercise complete control, whether or not that right is exercised with respect to all details, an employer-employee relationship exists." (Id. at p. 43.) The court also identified a series of "other factors" to be taken into consideration: "(a) whether or not the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee. (Rest., Agency, § 220; Cal.Ann. § 220.)" (Id. at pp. 43-44.)
The Supreme Court again addressed the employee/independent contractor distinction in Malloy v. Fong (1951) 37 Cal.2d 356. There, the plaintiff was injured in a car accident while attending a vacation Bible school run by his church. The issue before the court was whether the church was vicariously liable for the alleged negligence of the church's pastor and his assistant. (Id. at pp. 360-363, 370.) The court identified the right of control as the primary factor in determining whether a person performing work for another is an agent or an independent contractor, but noted that the additional factors outlined in Empire Star were also relevant. (Id. at pp. 370-371.) The court addressed each of the factors before concluding that the pastor was an employee, not an independent contractor. (Id. at pp. 371-372.)
The Supreme Court revisited the factors relevant to distinguishing employees from independent contractors in Tieberg v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943. There, the Director of Employment (director) levied assessments against a television production company for unemployment insurance contributions assertedly due based on salaries paid to writers who were employed to write television stories and plays. Such contributions were required only if the writers were employees rather than independent contractors. (Id. at p. 946.) The trial court agreed with the director and found that the writers were employees; the production company appealed. (Ibid.) The Supreme Court held that in determining that the production company was an employer, the trial court "improperly restricted its consideration to whether [the production company] had the right to and did exercise control over the writers' work." (Ibid.) It explained that while the right of control is the "principal test" of an employment relationship, the court should also have considered the additional factors identified in Empire Star. (Id. at pp. 946-947.) Indeed, it said, while the right to control and direct the individual who performs services as to the details and means by which the result is accomplished is the most important consideration, it is "not the only element in determining whether an employment relationship has been created." (Id. at p. 950, italics added.) The court thus considered all of the Empire Star factors before agreeing with the trial court that an employment relationship existed between the production company and its writers. (Id. at p. 955.)
The Supreme Court most recently discussed the employee/independent contractor distinction in Borello, supra, 48 Cal.3d 341. There, it considered whether agricultural workers were employees or independent contractors within the meaning of the Worker's Compensation Act. It discussed the relevant legal principles as follows: "Following common law tradition, California decisions . . . uniformly declare that '[t]he principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. . . .' [Citations.] [¶] However, the courts have long recognized that the 'control' test, applied rigidly and in isolation, is often of little use in evaluating the infinite variety of service arrangements. While conceding that the right to control work details is the 'most important' or 'most significant' consideration, the authorities also endorse several 'secondary' indicia of the nature of a service relationship." (Id. at p. 350.) Those "secondary indicia" "have been derived principally from the Restatement Second of Agency." (Id. at p. 351.) They generally "'cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.'" (Ibid.)
After reviewing the factors traditionally considered to determine whether workers are employees or independent contractors, the court declined to adopt new standards for examination of the issue. Instead, it determined that "the Restatement guidelines heretofore approved in our state remain a useful reference." (Borello, supra, 48 Cal.3d at p. 354.) It also noted with approval "the six-factor test developed by other jurisdictions . . . . Besides the 'right to control the work,' the factors include (1) the alleged employee's opportunity for profit or loss depending on his managerial skill; (2) the alleged employee's investment in equipment or materials required for his task, or his employment of helpers; (3) whether the service rendered requires a special skill; (4) the degree of permanence of the working relationship; and (5) whether the service rendered is an integral part of the alleged employer's business. [Citation.]" (Id. at pp. 354-355.) It concluded: "As can be seen, there are many points of individual similarity between ...