IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Nevada)
September 30, 2011
MAHNAZ SABERI ET AL., PLAINTIFFS AND APPELLANTS,
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
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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 spin out on the ice. If not for the tow truck lights, he also would have activated his emergency lights to warn other motorists of the situation.
Pellegrino got out of his car and went behind the guardrail to talk to O'Connell and Casler. He did not instruct Casler to move his truck or leave the scene. He talked with Casler about removing the Toyota and relayed that he "would call one of [the] rotation tows to handle it." Less than five minutes after Pellegrino arrived, and seconds after he released Casler from the scene, the Saberis' accident occurred.
The Saberis were traveling eastbound on Interstate 80 to Reno in their Cadillac. Pellegrino heard the sound of a car sliding and looked up to see the Cadillac collide with the tow truck. Pellegrino did not see what caused the accident but it appeared the Cadillac lost traction, rotated clockwise, continued eastbound and struck the rear of Casler's tow truck. The tow truck was 35 feet long, weighed approximately 36,000 pounds, and was capable of towing buses and big rig commercial vehicles in addition to passenger vehicles. The Cadillac driver's door struck the boom of Casler's truck, killing the driver, Nahid Saberi. Mohammad Saberi, the passenger, died 20 days later.
CHP Officer James Giraudo responded to a radio dispatch regarding the accident soon after it occurred. He parked his car in the slow lane as a "blocker" to protect himself and everyone else at the scene, and put his lights on as a warning to oncoming traffic. Giraudo had investigated approximately 900 accidents, over 100 of which involved vehicles skidding off the road due to icy or wet conditions, and 35 to 40 of which were in the area where the Saberi accident occurred. He examined the road and did not see anything that he deemed a major hazard; there were simply "winter driving conditions," which included the potential for ice. He testified that Casler did not violate any laws by parking on the shoulder but that Saberi did by driving at a speed that was not safe for conditions and by failing to maintain control of her vehicle on a mountain highway.
According to two accident reconstructionists, Thomas Braun and Jay Mandell, the driver's loss of control and the trajectory of the Cadillac were dependent on the Cadillac's speed and the driver's reactions with respect to braking and turning the steering wheel once she began to slide on the ice. Because these factors were so variable, it was impossible for anyone to predict where the car would have veered off the road, and Casler could not have predicted that a car would strike his truck at the spot where he parked it. Braun stated he could not opine what would have occurred to the Saberis' vehicle if Casler's tow truck was not in the way because there were too many variables.
Mandell observed that numerous other drivers navigated the area in question without incident yet O'Connell and Saberi were unable to do so and lost control of their vehicles. He opined this was because they were traveling too fast for road conditions. Mandell also stated that based on his 30 years of experience with accident statistics, it is dangerous for a person to be unprotected adjacent to a road -- especially a high speed one -- because there are numerous accidents where people get injured or killed by vehicles leaving the road. Accordingly, people on the side of the road should protect themselves, and a straightforward way to accomplish this is to use an assisting vehicle such as a tow truck as a barrier.
At trial, plaintiffs asserted that Casler had a duty not to park his 36,000-pound tow truck on the side of the road as a shield when it was foreseeable that a vehicle would lose control on the ice, slide off the road and collide with the truck, thereby injuring the people in the vehicle. Plaintiffs argued the size of the truck created an unreasonable risk of harm.
Defendant asserted that Casler owed no duty to the Saberis to refrain from positioning his tow truck in a protective manner on the shoulder of the road while attending to a motorist with a disabled vehicle just because it was possible a vehicle might veer off the road and collide with the tow truck.
The trial court entered a defense verdict. It acknowledged the general rule that each person has a duty to use ordinary care and is liable for injuries caused by his or her failure to exercise reasonable care under the circumstances (Rowland v. Christian (1968) 69 Cal.2d 108, 112), but determined that Casler did not owe a duty to the Saberis under these particular factual circumstances.
The trial court ruled that although Casler moved the tow truck to a position where he thought another car might veer off the road, he did so to provide protection while he and O'Connell waited for the CHP, which decreased any moral blame attached to his conduct. Sergeant Pellegrino stated that if Casler's truck was not already positioned there, he would have done the same thing in order to protect the safety of everyone present. The trial court reasoned that under appropriate circumstances, tow trucks are permitted to stop and render assistance and they should be permitted to engage in protective behavior or they will be disinclined to stop. The trial court added that if a duty was found for repositioning vehicles for protection, then even the CHP might be reluctant to block possible slide paths. The trial court determined that even though the accident was foreseeable, the consequences to the community were too great to impose a duty not to reposition a tow truck in a potential slide path.
The trial court questioned if the negligence of others affected the duty analysis and concluded "[i]t was only the negligent act of Ms. Saberi in losing control of her vehicle which created the harm." According to the trial court, Casler did not violate any Vehicle Code provisions by stopping and parking on the shoulder of the road, and only a negligent driver veering off the road would be endangered by Casler's protective conduct of repositioning the tow truck and activating the warning lights. The trial court observed that although the precise reason Saberi lost control of the Cadillac was not established, her inability to maintain control was a violation of Vehicle Code section 21662.*fn1 In addition, her vehicle speed must have been too fast for the icy conditions in violation of Vehicle Code section 22350.*fn2 The presence of snow by the road was adequate warning that greater caution was required regarding the potential for snow or ice on the road.
Moreover, the trial court found no evidence that the increased mass of the tow truck either caused or exacerbated the injuries the Saberis would have suffered if the truck had not been there and they instead slid into a 4,000-pound vehicle such as O'Connell's Toyota or Pellegrino's SUV. The trial court said that "the increased mass of a large tow truck possibly changes the forces of impact, [but] tow truck drivers are not obligated to understand Newtonian physics. From a negligence standpoint, the mass difference between vehicles . . . does not, by itself, create a difference in duty. Therefore, if the positioning of any vehicle is not negligent, the fact that greater injuries may occur due to larger mass, and therefore greater force of impact, does not convert the repositioning into a negligent act."
Plaintiffs challenge the trial court's determination that Casler did not have a duty to the Saberis. Plaintiffs argue that Casler was not required to stop and assist O'Connell, but once he chose to do so, he acted as a good Samaritan with a duty not to create an unreasonable risk of harm to others. (Williams v. State of California (1983) 34 Cal.3d 18, 23 (Williams).) They assert that by positioning his tow truck where he foresaw that someone would leave the road, he actively increased the risk of harm to the Saberis. Plaintiffs add that the trial court erred in considering the effect of such a duty on the CHP's future conduct, because "the conduct of the CHP was not at issue. The issue was whether a motorist (someone not a police officer and not acting in a capacity as a tow truck driver) can knowingly create a danger to others by purposely placing his vehicle immediately next to a freeway, where he thinks others will hit it."
The well-known elements of a cause of action for negligence are duty, breach of duty, proximate cause, and damages. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.)
Regarding duty, "[u]nder general negligence principles, . . . a person ordinarily is obligated to exercise due care in his or her own actions so as not to create an unreasonable risk of injury to others, and this legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor's conduct." (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716 (Lugtu).) "Whether a given case falls within an exception to this general rule, or whether a duty of care exists in a given circumstance, 'is a question of law to be determined on a case-by-case basis.' [Citation.]" (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472 (Parsons).)
"'"[D]uty" is not an immutable fact of nature "'but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.'" [Citation.]' [Citation.] Some of the considerations that courts have employed in various contexts to determine the existence and scope of duty are: 'the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citations.]'" (Parsons, supra, 15 Cal.4th at pp. 472-473, quoting Rowland v. Christian, supra, 69 Cal.2d at p. 113.)
After the trial court entered its judgment and the parties filed their appellate briefs in this case, the California Supreme Court issued its opinion in Cabral, supra, 51 Cal.4th 764.*fn3 There, a driver for Ralphs Grocery parked a tractor-trailer rig in an emergency parking zone alongside an interstate highway to have a snack. The plaintiff's decedent veered off the freeway and collided with the rear of the trailer. The jury found both the decedent and the Ralphs driver were negligent and allotted 10 percent of the fault to the Ralphs driver. The trial court denied a motion for judgment notwithstanding the verdict but the Court of Appeal reversed, finding Ralphs owed no duty to avoid a collision between a negligent driver and the company's parked truck. (Cabral, supra, 51 Cal.4th at p. 768.)
The Supreme Court reversed the Court of Appeal. It determined that it was not unforeseeable "[t]hat drivers may lose control of their vehicles and leave a freeway for the shoulder area, where they may collide with any obstacle placed there," and "decline[d] to create a categorical rule exempting those parking alongside freeways from the duty of drivers to exercise ordinary care for others in their use of streets and highways." (Cabral, supra, 51 Cal. 4th at p. 768.) The Supreme Court held that drivers have a duty to use reasonable care in choosing whether, when and where to stop alongside a freeway and that this duty applies in both emergencies and nonemergencies. (Id. at p. 783.) Whether this duty has been breached depends upon the particular circumstances. (Ibid.)
The Supreme Court observed that in the absence of a statutory provision establishing an exception to the general rule of reasonable care set forth in Civil Code section 1714, courts should create one only when foreseeability and policy considerations justify a "categorical no-duty rule." (Cabral, supra, 51 Cal.4th at pp. 771, 772.) In other words, "'[n]o-duty rules are appropriate only when a court can promulgate relatively clear, categorical, bright-line rules of law applicable to a general class of cases.'" (Id. at p. 773, fn. 3, quoting, Rest.3d Torts, Liability for Physical and Emotional Harm, § 7, com. a, p. 78.)
In this case, we agree with plaintiffs that Casler had a duty to use reasonable care in deciding whether, when and where to park on the side of the highway. (Civ. Code, § 1714, subd. (a); Cabral, supra, 51 Cal.4th at pp. 768, 771, 783.) This record does not present circumstances justifying a categorical no-duty rule. (Cabral, supra, 51 Cal.4th at pp. 771, 783.)
Nonetheless, in Cabral the Supreme Court added, "On the facts of a particular case, a trial or appellate court may hold that no reasonable jury could find the defendant failed to act with reasonable prudence under the circumstances. Such a holding is simply to say that as a matter of law the defendant did not breach his or her duty of care, i.e., was not negligent toward the plaintiff under the circumstances shown by the evidence." (Cabral, supra, 51 Cal.4th at p. 773, italics in original.)
Here, the evidence and the trial court's factual findings demonstrate that Casler did not breach his duty to the Saberis as a matter of law.*fn4
Casler stopped to assist a stranded motorist in compliance with Vehicle Code section 22513,*fn5 which permits tow truck operators to stop on the side of the highway to assist disabled vehicles. (Veh. Code, § 22513, subd. (a).) Casler's actions also complied with the agreement between his employer and the CHP. Casler did not solicit business from O'Connell but instead called the CHP. He parked completely on the shoulder of the highway, activated the amber warning lights on the tow truck, and waited for the CHP officer to arrive.
Although Casler parked where it was foreseeable that another vehicle might slide off the road due to the icy conditions, he positioned the truck consistent with his training. CHP Officer Pellegrino said he would have parked where Casler did if Casler had not already done so.
Plaintiffs conceded at trial that a tow truck driver performing tow truck services could position the tow truck to protect the people present on the side of the road. They claimed, however, the same was not true for a good Samaritan such as Casler, who was not acting in his capacity as a tow truck driver when he stopped to offer assistance.
Plaintiffs are incorrect in assuming that Casler was not acting in his capacity as a tow truck driver. Although Casler was not summoned to the scene, he was nonetheless on duty and his stop was in compliance with the agreement between his employer and the CHP. Indeed, it is because he was on duty as a tow truck driver when the accident occurred that plaintiffs sued his employer Cal-Nevada Towing.
Plaintiffs are also incorrect in their contention that the law of negligence treats a citizen stopping to help a stranded motorist differently than an on-duty tow truck driver or CHP officer. The duty of care is the same. (See, e.g., Williams, supra, 34 Cal.3d at p. 24 [agents who take action on behalf of public are held to same standard of care as a private person]; Camp v. State of California (2010) 184 Cal.App.4th 967, 975.)
We reach the determination that Casler did not breach his duty as a matter of law because there is no evidence in the record that he acted unreasonably or without due care. He complied with the law, he complied with the CHP agreement, he complied with his training, and he did what the CHP officer said he would have done.
Nonetheless, plaintiffs point to the size of Casler's tow truck, contending he breached his duty of care because he parked a 35-foot long, 36,000-pound tow truck on the side of the road, thereby significantly increasing the likelihood of serious injury if someone struck the truck. But no evidence was presented at trial establishing that the characteristics of the tow truck were unreasonably dangerous. In fact, the trial court expressly found that plaintiffs presented no evidence demonstrating that the increased mass of the tow truck caused or exacerbated the Saberis' injuries. Plaintiffs failed to meet their burden of proof on this point.
We conclude on these facts that as a matter of law, defendant did not breach the duty of ordinary care in deciding whether, when and where to park on the side of the highway. Accordingly, we need not address plaintiffs' additional claim that the trial court erred in admitting police testimony concerning the negligence of Nahid Saberi and Tamara O'Connell, because their alleged negligence has no bearing on our decision.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. NICHOLSON , J.