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Mahnaz Saberi et al v. Cal-Nevada Towing

September 30, 2011

MAHNAZ SABERI ET AL., PLAINTIFFS AND APPELLANTS,
v.
CAL-NEVADA TOWING, DEFENDANT AND RESPONDENT.



(Super. Ct. No. T072757C)

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

Saberi v. Cal-Nevada Towing

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Nahid and Mohammad Saberi died after Nahid Saberi lost control of their car on an icy portion of the highway and slid into a tow truck parked on the shoulder of the road. Their daughter, plaintiff Mahnaz Saberi, along with plaintiff Estate of Mohammad Saberi, sued defendant Cal-Nevada Towing for wrongful death, contending that its employee, tow truck driver Douglas Casler, negligently parked his tow truck where it was foreseeable that another car would slide into it. Following a court trial, the trial court entered judgment in favor of Cal-Nevada Towing.

Plaintiffs contend on appeal that the trial court erred (1) in its application of the duty of care to the facts of this case, and (2) in allowing police officers to give expert testimony without foundation.

We conclude that the tow truck driver had a duty to use reasonable care in choosing whether, when and where to stop on the side of the highway. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 783 (Cabral).) Nonetheless, on these particular facts, the tow truck driver did not breach his duty of care as a matter of law. As a result, we need not address plaintiffs' additional claim regarding police officer expert testimony. We will affirm the judgment.

BACKGROUND

On December 22, 2006, Tamara O'Connell was traveling to Reno in her Toyota pickup truck in the fast lane on eastbound Interstate 80. She approached a curve near the Hirschdale Road exit and noticed there was snow on the road. O'Connell tapped her brakes, quickly realized that was a mistake, and lost control of her vehicle. Her pickup truck continued to slide off the road, crossed the shoulder, and hit a steep embankment. The pickup truck followed the embankment and came to rest in a position to the right of the guardrail at the base of the Hirschdale Road exit sign. The accident damaged O'Connell's vehicle, making it inoperable. O'Connell, who had been driving 55 to 60 miles per hour, believed she was at fault for the accident because she was going too fast for the icy conditions.

Casler was on duty and traveling to defendant's tow yard when he observed O'Connell's vehicle. He thought an occupant might be injured and decided to stop to see if anyone needed assistance. Casler parked his tow truck on the right shoulder past O'Connell's Toyota and then backed up his truck so that his right front bumper was alongside the Toyota's front bumper. Casler called the California Highway Patrol (CHP), advised them of the accident, and told O'Connell the CHP was en route. Casler expected the CHP to respond within five to ten minutes and remained with O'Connell because he was concerned for her safety and did not want to leave her stranded until the CHP arrived. O'Connell did not specifically ask Casler to stay with her but testified she did not want him to leave her either.

Defendant Cal-Nevada Towing has a tow service agreement with the CHP which provides the guidelines for a towing company that wants to be on rotation with the CHP. Generally tow trucks cannot pull over and solicit business on the side of the highway. Under the agreement, however, defendant's drivers are allowed to stop and assist disabled vehicles, call the CHP if a tow truck is not already en route, and wait for the arrival of an officer. The CHP officer will determine if the driver's services are needed and, if not, will release the driver.

While waiting for the CHP to arrive, Casler decided to move his tow truck because it was possible that another car could veer off the road where Casler and O'Connell were waiting by the Toyota. The guardrail provided protection for the side of the Toyota, but not the back if another vehicle lost control and followed O'Connell's path off the freeway. Casler backed his truck to a position on the shoulder a few car lengths behind the Toyota. He had been trained to place the tow truck in such a defensive position to protect everyone at an accident scene. Casler also activated the lights on the tow truck as a warning to motorists of the presence of his truck on the shoulder and the hazard presented by the ice on the highway. He had been trained to activate the lights while operating close to the edge of a highway.

A CHP officer, Sergeant Pellegrino, arrived about ten minutes later. Dispatch had advised him that the accident was in the westbound lane to the left and he was looking in that direction rather than the eastbound lane. When he belatedly saw the tow truck and Toyota on his right, Pellegrino applied his brakes, momentarily lost traction on the ice, regained it, and stopped east of the guardrail. If the tow truck had not been parked behind the Toyota, Pellegrino would have parked his patrol car there to protect everyone at the scene from being hit by vehicles that might ...


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