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Connie B. Lawson et al v. Safeway Inc. et al

December 30, 2010

CONNIE B. LAWSON ET AL, PLAINTIFFS AND APPELLANTS,
v.
SAFEWAY INC. ET AL., DEFENDANTS AND APPELLANTS.



(Del Norte County Super. Ct. No. CVUJ 06-1190)

The opinion of the court was delivered by: Marchiano, P.J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

A large Safeway tractor trailer was parked legally on the side of U.S. Highway 101 (101) close to an intersection near Crescent City. The position of the tractor trailer blocked the view of oncoming traffic for a driver attempting to cross and turn onto 101. The driver's pickup truck collided with motorcyclist Charles Lawson whose wife Connie was riding with him as they traveled on 101. The Lawsons filed suit for personal injuries against Safeway, the driver of the Safeway truck, the driver of the pickup, and the State of California. A jury awarded substantial damages to the plaintiffs and apportioned 35 percent fault to Safeway, 35 percent to the State of California, and 30 percent to the driver of the pickup.

The primary issue on appeal is whether the driver of the Safeway truck owed a duty of care to those injured in the accident when he parked in an area that was not prohibited by the Vehicle Code or any other statute or ordinance.

The principal consideration in deciding whether a duty is owed is the foreseeability of the harm (Dillon v. Legg (1968) 68 Cal.2d 728, 740 (Dillon)), which " 'is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct' " (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58 (Bigbee).) We must also be mindful of "the extent of the burden to the defendant and consequences to the community" of imposing the duty at issue. (Rowland v. Christian (1968) 69 Cal.2d 108, 113 (Rowland).)

When we drive and park, we will frequently block nearby views to some extent. The risk of collisions created thereby must not, in the vast majority of cases, create any exposure to liability because it is an inevitable, everyday aspect of today's driving with a myriad of SUV's, vans, and large trucks on the road.

We are nevertheless persuaded that a duty to park safely, as well as legally, was owed because of the particular facts of this case, where the parked vehicle was a 65 feet long, 13 1/2 feet tall, 8 1/2 feet wide commercial truck and the evidence showed that: the drivers of such trucks are or should be professionally trained to be aware of the risk of blocking other drivers' sight lines when parking; the truck was parked at a high-speed well-traveled intersection; and a safe parking spot was available right around the corner. In the final analysis, the line to be drawn is between a risk of harm that is unreasonably great and one that is not. (Dillon, supra, 68 Cal.2d at p. 739.) Under the circumstances, as we explain below, we conclude that the risk of harm was sufficiently great that a jury should have been allowed to determine whether the driver of the truck, in parking where he did, bore some responsibility for the accident.

We affirm the judgment for plaintiffs and, for the reasons set forth in the unpublished portion of the opinion, the order denying their motions for expert witness fees and prejudgment interest.

I. BACKGROUND

The accident occurred on a clear afternoon in July 2005, at the intersection of 101 and Anchor Way, near Crescent City. Highway 101 at that point has a speed limit of 50 miles per hour, and is a three-lane road with southbound and northbound lanes, and a center lane for left turns. There is a stop sign on Anchor Way where it intersects 101 from the west and forms a T-shaped intersection. The Anchor Beach Inn is located just north of the intersection on the west side of 101 next to the southbound lane.

Defendant Shawn Kite was driving a pickup truck east on Anchor Way and wanted to make a left-hand turn onto 101 going north, which required crossing 101's southbound lane. When Kite reached the stop sign on Anchor Way at the intersection with 101 and looked toward the southbound 101 lane to his left, his view was obstructed by a large (13-1/2 feet tall, 8-1/2 feet wide, 65 feet long) Safeway tractor trailer truck. The front of the truck, which was parked parallel to 101 in front of the Anchor Beach Inn, was approximately 80 feet to Kite's north. Plaintiff Charles Lawson was riding a trike motorcycle with his wife, plaintiff Connie Lawson, in the back seat, heading south on 101 at 35 to 40 miles per hour.*fn2 Mr. Lawson did not recall noticing the Safeway truck before the accident, but testified that he saw nothing indicating that there was an intersection at Anchor Way as he approached it.

Kite testified that he crept forward past the stop sign, trying to see around the Safeway truck, and looking back to the right to check for traffic coming north on 101. Kite said that he could not see the Lawsons' motorcycle approaching until his pickup was about halfway out into the southbound 101 lane. Kite accelerated across the lane trying to avoid the Lawsons, but they collided with the left side of his pickup. Mrs. Lawson was thrown from the motorcycle and was seriously injured in the collision.

Larry Neuman, an engineer and accident reconstruction specialist, testified for plaintiffs that, according to CalTrans highway design manual, a driver in Kite's position should have been able to see 550 feet along 101 to safely cross the 50 miles-per-hour highway. Caltrans' personnel checked sight lines at the intersection when the Anchor Beach Inn was built in the late 1990's, and determined that the view from Anchor Way, when unobstructed, extended 1,500 feet along the southbound 101 lane. However, Neuman testified that with the Safeway truck blocking the view, a driver with the front of his vehicle at the stop sign on Anchor Way could see only 125 feet down Highway 101; if the driver moved forward so that his eyes were level with the stop sign, he could see only 144 feet. A driver who pulled the front of his vehicle out to the edge of the southbound lane of 101 could see 366 feet, but it would be difficult for the driver to know precisely where the southbound lane began because the line marking the western edge of the lane ended 126 feet to the north of the intersection. In Neuman's opinion, the Safeway truck thus created a dangerous condition that posed a "significant risk of vehicle conflict" at the intersection.

Dave O'Brien, a California Highway Patrol Officer who investigated the accident, testified that Kite needed to pull up close to the southbound 101 lane, 20 feet beyond the Anchor Way stop sign, to safely see around the truck. Clay Campbell, an accident reconstruction expert retained by Safeway and CalTrans, noted that the 2004 California Driver's Handbook published by the Department of Motor Vehicles states: "[M]ake sure you have a good view. If your view of a cross street is blocked by a building or a row of parked cars, inch forward slowly until you can see." Campbell opined that these recommendations established the standard of care for a driver in Kite's position. Neuman conceded that, given the speed at which the Lawsons were driving, Kite should have been able, with 366 feet of visibility at the edge of the southbound lane of 101, to safely negotiate the intersection.

The driver of the Safeway truck, Kenneth Wilburn, testified that he had been parking the truck in front of the Anchor Beach Inn since 2004, and had parked there without incident 20 to 40 times before the day of the accident. He drove at night and slept during the day, and Crescent City was a layover point during his deliveries. He said that when he pulled in front of the Anchor Beach Inn he attempted to get as far away as possible from the southbound lane of 101, and when he left the hotel he simply drove forward back into that lane. The curb in front of the hotel was not painted red, there were no signs that prohibited parking, and Wilburn said that he confirmed with a manager and a receptionist at the hotel that he was permitted to park there. Hotel personnel told him not to park on the other side of the hotel because the truck would block views of the beach. Sara Wilson, the hotel receptionist who spoke with Wilburn, testified that large trucks like Wilburn's parked in front of the hotel almost every day.

Safeway's written policies required its truck drivers to be both legally and safely parked when they went off duty. Wilburn said that Safeway never advised him to consider other drivers' sight lines when he parked his truck, that he was not concerned with blocking views when he parked at the Anchor Beach Inn, and that he did not consider whether there were any alternative places to park near the hotel.

John Riggins, a truck driving expert, opined for plaintiffs that Wilburn did not use reasonable care in parking the truck because of how the truck blocked views at the intersection. Riggins, who had been a supervisor at a professional truck driving school, testified that drivers like Wilburn need special licenses, and are trained on how and where to park, including the need to check sight lines to avoid obstructing the views of other motorists. Riggins said that Wilburn had other places to park that would have been safe, including around the corner on Anchor Way, or that he could have left the trailer part of his truck at a nearby Safeway facility. Riggins acknowledged that it was legal for Wilburn to park in front of the hotel.

Ralph Martinelli, the Caltrans traffic safety chief for the district where the accident occurred, testified that the average daily traffic volumes at the intersection were 9,000 vehicles going in both directions on 101, and 500 vehicles going in both directions on Anchor Way. Edward Ruzak, a forensic traffic engineer retained by Safeway and CalTrans, testified that these figures showed that the intersection was a relatively "low volume situation." Martinelli said that CalTrans had received no complaints about trucks parking in front of the Anchor Beach Inn. He said that only two prior accidents had been reported at the intersection before the one here, and that neither had involved parked vehicles obstructing views. He said that the accident rate at the intersection was lower than average for intersections of its type. Based on these records for the intersection, Ruzak opined that the design of the intersection, including the parking permitted there, did not constitute a dangerous condition that created a substantial risk of injury.

The Anchor Beach Inn required a permit from CalTrans when it was built because it encroached into the right-of-way of 101. CalTrans knew that the construction would include a newly-paved shoulder of the road that created parking spaces, but there was no record that, during the encroachment permit review process, CalTrans considered how vehicles parked in front of the hotel might obstruct views from Anchor Way. CalTrans' manuals did not require consideration of parking in connection with encroachment permits, and CalTrans engineer James Graham testified that CalTrans did not evaluate how transitory objects such as parked vehicles affected sight lines at intersections. Ruzak called it "unfortunate[]" that CalTrans' manual did not address parked vehicles blocking views, and Caltrans design branch chief Lena Ashley testified that she would have expected CalTrans' traffic safety personnel to be cognizant of that problem.

The jury apportioned fault for plaintiffs' damages 35 percent to Wilburn and Safeway, 35 percent to CalTrans, and 30 percent to Kite.

Safeway and Wilburn have appealed from the judgment, arguing that it must be reversed as to them because, as a matter of law, Wilburn owed no duty to plaintiffs, or there was insufficient evidence that his negligence was a proximate cause of plaintiffs' injuries. Plaintiffs have also appealed from the judgment, arguing that the court erred in denying their motions for expert witness fees ...


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