(San Francisco City & County Super. Ct. No. CGC-07-469973)
The opinion of the court was delivered by: Marchiano, P.J.
Jaworowski v. Mitchell Engineering
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This personal injury case arises from a traffic accident caused by an unsafe lane change. Defendant Finbar James Brody, an employee of defendant Mitchell Engineering driving a company truck, allegedly changed lanes without looking and struck the motorcycle driven by plaintiff James Jaworowski. The jury found Brody 85 percent responsible and returned a verdict for plaintiff. The trial court reduced the amount of special damages by the negotiated rate differential in accordance with Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 (Hanif) and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298 (Nishihama). The court then denied a defense motion for a new trial and entered judgment for plaintiff.
On appeal, defendants contend the trial court erred by admitting certain expert testimony and accompanying photographs of the accident scene, and by admitting certain evidence of emotional distress. On a cross-appeal, plaintiff challenges the damage award. He contends the court violated the collateral source rule by reducing the special damages by the amount of the negotiated rate differential. We disagree with defendants' contentions and agree with plaintiff's. Accordingly, we affirm the judgment in all respects except as to the award of special damages. We reverse the special damage award and remand with instructions to reinstate the full amount of special damages and enter a new judgment in favor of plaintiff.
The evidence shows two conflicting versions of the accident. Under appellate standards of review, we must accept plaintiff's version. Where testimony conflicts we must view the evidence in the light most favorable to the prevailing party. (See Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) "We have no power on appeal to weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or the reasonable inferences that may be drawn from the evidence. [Citation.]" (Navarro v. Perron (2004) 122 Cal.App.4th 797, 803; see Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.) Plaintiff testified as follows. On January 24, 2006, he was riding his motorcycle from his home in the Sunset District to his welding job in Hunter's Point. He started work at 7:00 a.m. He rode down O'Shaughnessy Boulevard in a generally southeast direction. At the southern tip of Glen Canyon Park, O'Shaughnessy becomes Bosworth Street, which continues generally eastbound toward its intersection with Diamond Street near the Glen Park BART station.*fn1
As plaintiff approached the intersection of Bosworth and Diamond, he was riding in the #1 lane, or the left-hand lane of two lanes of eastbound traffic. His speed was 10−15 m.p.h. After two vehicles in front of him turned left, plaintiff had a clear view of Bosworth all the way down the street past the BART station to the I-280 overpass. The #1 lane in front of him "was absolutely free of any type of traffic." Plaintiff "had a very clear view of an open lane ahead of me."
As he entered the intersection, plaintiff resumed and maintained his normal speed of 25 m.p.h.*fn2 He continued to be able to see all the way to the freeway overpass. His #1 lane was completely open, with no traffic in front of him. He noticed several cars stopped in the #2, or right-hand lane, because of pedestrians using the crosswalk to cross to the BART station. This backed up traffic queuing up in the #2 lane to approach the freeway on-ramp. Plaintiff saw the traffic in the #2 lane slowing, with the brake lights of the vehicles activated. But he saw no turn indicators flashing and had "no real concerns" about somebody pulling out in front of him.
Plaintiff saw a white GMC Sierra pickup truck in the line of stopped traffic queuing up in the #2 lane. This was the truck driven by defendant Brody and owned by defendant Mitchell Engineering. The truck's brake lights were on, but its turn indicators were not. The truck was the last vehicle in the line of queued traffic.
Plaintiff, who had driven motorcycles for 29 years, always looked for indications that a driver was going to pull into his lane. He tended to look in the mirrors of cars ahead of him and make eye contact with drivers. As he approached Brody's truck, plaintiff could see the back of Brody's head, but never saw Brody's head move as if to focus on the truck's inside or left-side rearview mirrors. Plaintiff did not see Brody's head move at all. He also did not see Brody make eye contact with him.
As plaintiff approached the rear bumper of the truck, he glimpsed a light out of the corner of his eye that appeared to be an activated turn indicator. At the same moment, Brody changed lanes into the #1 lane, striking plaintiff's motorcycle. Plaintiff shouted, "What the fuck [are you] doing?" Only then did Brody turn his head and look in plaintiff's direction. Brody "was absolutely startled" and "had a completely scared look on his face." Brody did not attempt to veer away from plaintiff's motorcycle, but continued to move into the #1 lane. Plaintiff braked hard, was pushed into the curb, and was thrown off his motorcycle.
Dr. Harris Meyer, a chiropractor, was parking his motorcycle at the Glen Park BART station at approximately 6:45 a.m. that day. He heard something, looked up, and saw the rear of a motorcycle rising up and the driver in the air. He also saw a pickup truck on the other side, the right side, of the motorcycle. It was his "impression" that the truck had moved into the motorcycle's lane and struck the motorcycle, but he did not actually see the collision. He did see that the motorcycle had landed on top of plaintiff, and that plaintiff was in pain and distress.
San Francisco Police Officer Jose Lopez responded to the scene and investigated the collision. Plaintiff told Officer Lopez that Brody had moved into his lane and forced him into the curb, causing his motorcycle to cartwheel into the air. Brody told Officer Lopez that he moved into the #1 lane because a car slowed down in his lane, and that plaintiff crashed into the rear of his truck. Brody also told Officer Lopez that his truck and plaintiff's motorcycle travelled side by side for about 10 to 15 feet. Brody's statement to the officer apparently did not include any reference to Brody's looking in his mirrors and not seeing the motorcycle. Officer Lopez could not recall Brody telling him what Brody testified to at trial: that when the collision occurred he was already in the #1 lane, and that plaintiff was trying to go around him in the space between the truck and the curb.
Plaintiff presented the testimony of traffic accident reconstructionist James Hughes, a retired San Francisco Police Officer. Hughes had over 20 years' experience of traffic accident reconstruction, had a lifetime certification to teach at junior colleges in the field of accident investigation, and was accredited by A.C.T.A.R., the Accreditation Commission of Traffic Accident Reconstructionists, "the only organization that certifies accident reconstructionists." He had a bachelor's degree in criminal justice administration and a master's degree in organizational psychology, "the study of human perception and response and time and motion studies." Hughes, a former motorcycle officer, had ridden motorcycles for 35 to 40 years and had logged an estimated 200,000 miles.
Hughes visited the accident scene, took photographs, and analyzed the traffic patterns. He testified that the #1 lane was 10 feet wide, and the #2 lane was 22 feet wide. He testified that given the width of the handlebars of plaintiff's motorcycle, the width of the truck and the width of the #1 lane, it is doubtful―although possible―that plaintiff could have been riding next to Brody's truck if Brody was in the center of the #1 lane. Hughes believed there would have been insufficient room, or the vehicles would be practically touching.
Hughes also testified that given the speed of travel, plaintiff's motorcycle would have been 60 feet behind the rear of the truck, not next to it. When asked about plaintiff's contradictory testimony that he was right next to the truck when he saw the turn indicator, Hughes said this was his best recollection and was explained by the fact that plaintiff was moving throughout the sequence of events. Hughes testified such variations between perceptions and reality are common in accident victims. He found "nothing wrong" with plaintiff's overall perceptions of the accident, but noted they were "a little different from reality."
Hughes performed what he called a "sight distance study" of the accident. Standing at the point of impact, he took pictures at the height of 47 inches―the "bottom of the window height" of Brody's truck, and presumably the height of the left-hand rearview mirror. He stood on the dividing line between the #1 and #2 lanes and took six pictures, back up the street in the direction from which plaintiff had driven down toward the point of impact. Assuming plaintiff's speed was 25 m.p.h., he would have travelled 37 feet per second. Hughes positioned a motorcycle in six successive 37-foot intervals to show the position of plaintiff at one, two, three, four, five, and six seconds before the accident. In each picture the motorcycle is clearly visible in a rearward view which, we must assume, approximated the view from Brody's left-hand mirror. The six pictures were admitted as exhibit 3, with each picture captioned: "Motorcycle at Position" followed by the number of "Seconds Before Impact."
In short, the pictures showed that plaintiff's motorcycle would have been visible in Brody's mirror for six seconds before impact. Hughes testified his study "just gives you a picture, as is the motorcycle visible during all these periods. Yes."
Hughes also placed a GMC truck very similar to Brody's with similar mirrors in the #2 lane about 70 feet from the point of impact. Hughes chose that distance because it would have taken 33 feet for the truck to have made a lane change, and the extra distance would apparently account for the distance the truck traveled while the driver looked in his mirrors before a lane change. Thus, Hughes positioned the truck where he believed it would have begun the lane change. He photographed the left-hand rear-view mirror, which shows a clear and unobstructed view of the #1 lane all the way up to the intersection with Diamond Street.*fn3
Hughes testified that, in his opinion, Brody "probably [did] not" look before changing lanes. He testified that Brody was at fault for the accident because of his unsafe lane change, and plaintiff did not contribute to the accident.
Brody testified as follows. On the morning of the accident he was driving the company truck in the #2 lane on Bosworth. He was stopped at the intersection of Bosworth and Diamond. When the light changed to green, he proceeded through the intersection at 10−20 m.p.h. He saw two or three cars lined up at the I-280 on-ramp. He turned on his turn indicator to change lanes and slowed down. He looked in his left-hand rear-view mirror and looked over his left shoulder, and "proceeded gradually to ...