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Larry A. Simington et al v. Raymond Ujimori

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


February 23, 2011

LARRY A. SIMINGTON ET AL., PLAINTIFFS AND APPELLANTS,
v.
RAYMOND UJIMORI, DEFENDANT AND RESPONDENT.

(Super. Ct. No. 34200800010772CUPCGDS)

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

Simington v. Ujimori CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Motorist Raymond Ujimori found himself named as a defendant in a personal injury lawsuit because he yielded the right-of-way to another motorist, Donna Garcia (who is not party to this appeal), who collided with a motorcycle ridden by plaintiff Larry A. Simington. Simington and his wife, Carol J. Simington, sued defendant for negligence, negligent misrepresentation, and loss of consortium, on a theory that defendant undertook to direct traffic and failed to exercise reasonable care in doing so. The trial court entered summary judgment in favor of defendant, based on case law that holds that a motorist who yields the right-of-way to another motorist does not thereby assume liability to third parties for the other motorist's negligence. Plaintiffs appeal, arguing a triable issue exists as to whether defendant, by his affirmative acts of waving to Garcia to precede him, assumed a duty of reasonable care to protect other motorists such as Mr. Simington. We affirm the judgment.

FACTS AND PROCEEDINGS

On review of an order granting summary judgment, we construe the evidence in the light most favorable to the opposing party. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

On October 31, 2006, around 6:45 p.m., Garcia's car was stopped at a stop sign on northbound Tamarindo Bay Drive, waiting to make a left-hand turn onto westbound Gerber Road. Defendant's vehicle was stopped westbound on Gerber Road, in the center bi-directional turn lane, waiting to make a left turn onto Tamarindo Bay Drive. Garcia's view of eastbound traffic on Gerber Road was obstructed by cars backed up in the number two eastbound lane (the second lane from the center of the road), apparently positioned to make a right hand turn up ahead. Defendant had a clear view of eastbound traffic on Gerber Road.

Defendant, facing forward in his car, signaled with his right hand for Garcia to make her turn before he made his turn. He did not exit his vehicle or honk his horn. He waved twice when Garcia was stopped at the stop sign, and then waved a third time when she was in the intersection, in the number two eastbound lane. Garcia understood, and relied on, defendant's waves as signals that it was all clear to proceed. She proceeded and was hit by plaintiff, who was riding his motorcycle eastbound on Gerber Road, in the number one lane (closest to the center of the road).

On May 12, 2008, plaintiffs filed a complaint alleging negligence, negligent misrepresentation, and loss of consortium, on the theory that defendant undertook to direct traffic, represented that it was safe for Garcia to proceed through the intersection, and failed to exercise reasonable care in directing traffic. Defendant cross-complained against Garcia, who later settled out of the case for $50,000.

Defendant moved for judgment on the pleadings, citing Gilmer v. Ellington (2008) 159 Cal.App.4th 190 (Gilmer), as holding that a motorist who yields his right-of-way does not thereby assume a duty of care to protect others from the motorist to whom the right-of-way is yielded. The trial court denied the motion on the ground the complaint was unclear about the facts.

Defendant moved for summary judgment. On October 5, 2009, the trial court issued its order granting summary judgment stating in part: "Plaintiff frames the issue to be determined as: 'In all instances, does a driver in a better position to foresee danger who yields the [right-of-way] to a driver with an obstructed view have no duty of reasonable care, regardless of whether his actions could be reasonably interpreted by other drivers as directing traffic and/or a representation of fact that it was safe to proceed?' [¶] In the State of California, the answer is yes. Here, the parties essentially dispute the interpretation of the hand gestures. Even favoring the plaintiff's interpretation, which is that defendant's gestures meant 'it is safe to proceed' rather than merely 'you can go first,' there is no duty on the part of defendant to the plaintiff under the Gilmer case." (Italics omitted.)

Plaintiffs appeal from the ensuing judgment.

DISCUSSION

A motion for summary judgment is properly granted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Summary judgment provides courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is necessary to resolve their dispute. (Westcon Construction Corp. v. County of Sacramento (2007) 152 Cal.App.4th 183, 190.) In our de novo review, we first identify the issues framed by the pleadings, then determine if the moving party has established a prima facie entitlement to judgment. (Ibid.) If the moving party has satisfied this burden, we then consider whether the opposing party has produced evidence demonstrating a triable issue of material fact. (Ibid.)

The trial court did not err. Civil Code section 1714 imposes on everyone a duty of reasonable care in the management of his property and person. "'"The existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide [Citation.]"'". (Gilmer, supra, 159 Cal.App.4th at pp. 195-196.) Gilmer held that a person who waives his right-of-way to another driver does not yield the right-of-way of any other drivers, nor does he expose himself to liability for the tort of the driver to whom he yielded.

In Gilmer, supra, 159 Cal.App.4th 190, the defendant was in the number two lane, heading in the same direction as the plaintiff, who was further back, in the number one lane. The defendant allowed a motorist on a side street to make a left turn in front of him. (Id. at p. 194.) The turning motorist collided with the plaintiff on a motorcycle. The appellate court affirmed judgment on the pleadings in favor of the defendant. (Id. at p. 194.) Gilmer held as a matter of law that a driver's hand gestures, even if they could be interpreted as saying it is safe to go, do not give rise to a duty of care to a person who is injured when those hand gestures are followed. (Id. at p. 198.) A motorist may waive his or her own right-of-way, but that waiver does not waive the right-of-way of any other motorist. (Id. at p. 197.) Gilmer gleaned the following rules: "(1) approaching vehicles in oncoming traffic that are close enough to constitute a hazard to a left-turning vehicle have the right-of-way over that left-turning vehicle; (2) a left-turning driver has a duty to ascertain whether an approaching vehicle constitutes a hazard and, if so, to yield the right-of-way to that approaching vehicle [Veh. Code, § 21801; undesignated statutory references that follow are to the Vehicle Code]; (3) such duty continues throughout the turning maneuver and applies to each approaching vehicle in each successive lane of oncoming traffic; and (4) even where the driver of an approaching vehicle yields its right-of-way, the left-turning driver has a continuing duty to anticipate that other drivers will not yield their right-of-way; i.e., the left-turning driver may not treat one driver's yielding as a yielding of the right-of-way of any other approaching vehicle. [Citations.]" (Id. at p. 198.)

Gilmer analyzed the familiar factors typically considered in determining the existence of a duty, including moral blame, burden on the defendant, and adverse consequences to the community. (Gilmer, supra, 159 Cal.App.4th at pp. 198-200.) A yielding driver bears no moral blame, because the Legislature has imposed on the left-turning driver the duty to ascertain whether it is safe to proceed. (§ 21801.) "We should encourage cooperative drivers, not penalize them." (Gilmer, supra, at p. 199.) Gilmer said it would be unreasonable to impose on the yielding driver the burden to check the traffic behind him or her and ascertain if it constitutes a hazard to the turning motorist. (Ibid.) "Finally, there would be reactive negative consequences to the community by imposing a duty on the yielding driver; most notably, a relaxed vigilance by left-turning drivers who may rely unthinkingly on ambiguous signals from other drivers, or at least claim to have done so. At a time when 'road rage' is unhappily common [citation], the added duty may further erode what infrequent civility is left on the roads. If the common courtesy of yielding the right-of-way results in lawsuits, we can expect further egocentric driving." (Ibid.)

Gilmer declined to follow other states which have found a duty in similar situations. (Gilmer, supra, 159 Cal.App.4th at pp. 200-202.)

Gilmer's reasoning is sound.

Plaintiffs argue a triable issue exists as to whether defendant intended his gestures to mean "it's safe to go." Under Gilmer, it does not matter. As a matter of law, Garcia could not rely on defendant's hand gestures as assurance that all was clear--regardless whether defendant intended to convey it was safe to proceed and regardless whether it was reasonable for Garcia to so construe defendant's gestures. Garcia had the continuing duty to proceed with care. A yielding driver's hand motion signifies only permission to cross in front of the yielding driver's car and cannot be relied upon as assurance that all is clear ahead.

Plaintiffs argue Gilmer is distinguishable because there the defendant was traveling in the same direction as the plaintiff and accordingly could not be expected to look behind him and assess speed and distance of others before gesturing the motorist on the side street to make her turn. Here, defendant had an unobstructed view of oncoming traffic traveling the path of plaintiff Larry Simington. However, the difference in location of the gesturing driver does not change the result. The issue is whether one driver who waives the right-of-way by a hand gesture that could be interpreted as "it's safe to go," can waive the right-of-way of another driver in the mind of the person who proceeds based on the hand gesture. The fact that defendant may have had a better view of the traffic than Garcia is inconsequential. As noted by the trial court, the adverse consequences that would result from putting blame on courteous drivers while encouraging the negligent party to rely on other drivers to make safety decisions are the same in both cases.

Plaintiffs argue defendant failed to show he had the right-of-way, and a triable issue exists as to whether defendant had the right-of-way over Garcia. (§ 525 ["'[R]ight-of-way' is the privilege of the immediate use of the highway"].) Plaintiffs argue plaintiff Larry Simington, not defendant, had the right-of-way. Plaintiffs appear to think that, if defendant did not have the right-of-way over Garcia, he was "directing traffic" and signaling it was safe for Garcia to go.

However, Larry Simington's right-of-way is not at issue in this appeal. No one disputes he had the right-of-way over both cars. The issue is whether defendant assumed a duty of care by letting Garcia go first. We question plaintiffs' view that their case would be stronger if defendant did not have the legal right-of-way over Garcia. Whether his deference to Garcia was voluntary or legislated would seem to make little difference. But we need not decide the consequence of defendant not having the right-of-way over Garcia, because defendant, in fact and in law, clearly had the right-of-way over Garcia, based on the undisputed position of the vehicles. Section 21802 provides: "The driver of any vehicle approaching a stop sign at the entrance to, or within, an intersection [i.e., Garcia] shall stop as required by Section 22450. The driver shall then yield the right-of-way to any vehicles which have approached from another highway [i.e., defendant and Larry Simington], . . . and shall continue to yield the right-of-way to those vehicles until he or she can proceed with reasonable safety." Additionally, "[w]hen two vehicles enter an intersection from different highways at the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on his or her immediate right. . . ." (§ 21800, subd. (b)(1).) "A motorist proceeding along a through street or highway protected by stop signs has the right-of-way at intersections over motorists on intersecting thoroughfares. . . ." (Bristow v. Brinson (1963) 212 Cal.App.2d 168, 173.) Defendant clearly had the right-of-way over Garcia.

Plaintiffs argue defendant wrongly relies on another statute, section 21801 (rather than section 21802), as giving him the right-of-way over Garcia. However, defendant cited section 21801 for the proposition that Garcia had a continuing duty to use care in making her left turn (reducing any moral blame attached to defendant's conduct). That statute provides: "The driver of a vehicle intending to turn to the left . . . upon a highway . . . shall yield the right-of-way to all vehicles approaching from the opposite direction which are close enough to constitute a hazard at any time during the turning movement, and shall continue to yield the right-of-way to the approaching vehicles until the left turn . . . can be made with reasonable safety." (§ 21801, subd. (a).) Gilmer, supra, 159 Cal.App.4th at p. 197, observed this statute has been construed to mean that if the oncoming vehicle in the lane closest to the left-turning vehicle surrenders its right of way by gesturing the left-turning vehicle to proceed, the left-turning vehicle may not proceed beyond that first lane of traffic if other cars are approaching in other oncoming lanes. The left-turning driver's continuing duty of care reduced the moral blame attached to the conduct of the yielding motorist. (Ibid.)

At oral argument, plaintiff renewed his claim that section 21801 was not the proper statute for analyzing the right-of-way and the duty to yield in the circumstances we have before us contending that section 21802 should be the focus of this analysis.

Section 21802 provides in pertinent part: "The driver of any vehicle approaching a stop sign at the entrance to, or within, an intersection shall stop as required by Section 22450. The driver shall then yield the right-of-way to any vehicles which have approached from another highway, or which are approaching so closely as to constitute an immediate hazard, and shall continue to yield the right-of-way to those vehicles until he or she can proceed with reasonable safety." (§ 21802, subd. (a).)

Assuming that plaintiff is right and that section 21802 is the effective statute in this circumstance, we fail to see how it makes a difference. Except for differences describing the traffic patterns, both statutes describe the same duty. Both sections create a statutory duty on the part of a driver to yield to oncoming traffic (§ 21801) or cross traffic (§ 21802) until it is safe to proceed. That was Garcia's duty here and she was not relieved of that duty by defendant's actions.

Plaintiffs ask us to revisit the factors determining the existence of duty. Plaintiffs fault Gilmer for "overblown" language and placing courtesy above safety. We disagree. Gilmer is good law.

DISPOSITION

The judgment is affirmed. Defendant shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

We concur:

ROBIE ,J. BUTZ ,J.

20110223

© 1992-2011 VersusLaw Inc.



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