APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. Reversed and remanded with directions. (Super. Ct. No. L-01518)
The opinion of the court was delivered by: McDONALD, J.
opinion following transfer from Supreme Court
CERTIFIED FOR PUBLICATION
Defendant Southern California Gas Company (SCG) appeals a judgment following a jury verdict finding SCG liable to plaintiffs Peter and Deborah Gonzalez (Plaintiffs) for the wrongful death of their daughter, Tiffany. She died after driving her car off a street, over a curb and striking an SCG gas meter assembly located 11 feet, 4 inches beyond the curb. On appeal, SCG contends the trial court erred by denying its motions for judgment notwithstanding the verdict (JNOV) and for new trial because: (1) it did not owe Tiffany a legal duty of care in the circumstances of this case; (2) its conduct was not the proximate cause of her injuries; (3) the court erred in instructing the jury; and (4) the court erred by excluding certain evidence showing Plaintiffs negligently entrusted Tiffany with a vehicle.
On November 5, 2010, we issued an opinion reversing the judgment based on our conclusion SCG did not owe Tiffany a legal duty of care. (Gonzalez v. Southern California Gas Co. (Nov. 5, 2010, D054677) [nonpub. opn.].) On January 26, 2011, the California Supreme Court granted Plaintiffs' petition for review. On April 27, it transferred the case to this court for reconsideration in light of Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764 (Cabral). We requested, and have received and considered, supplemental briefing by the parties on the impact of Cabral on this case.*fn1 We issue this revised opinion reversing the judgment based on our conclusion that SCG did not owe Tiffany a legal duty of care.
FACTUAL AND PROCEDURAL BACKGROUND
In 1988, SCG, a natural gas distributor, installed a new gas main and service line to provide gas service to the portion of Gio's Mobile Home Estates (Gio's) located south of Lincoln Avenue in El Centro.*fn2 Gio's and its engineers proposed plans for the location of SCG's new gas meter assembly that were reviewed and approved by SCG. The meter assembly was installed 11 feet, 4 inches from the southern curb of Lincoln Avenue, near the outside of Gio's perimeter wall, and 13 feet from the driveway entrance to the southern portion of Gio's. Both the meter assembly and perimeter wall were located on Gio's property. A riser gas line was connected to the above-ground meter assembly that had a regulator reducing the pressure from 40 pounds per square inch to five pounds per square inch. Individual customer lines were connected to the meter assembly and installed underground to individual regulators at each of the approximately 50 mobile homes.
In 1989, SCG installed three concrete-filled, steel posts around the meter assembly. Two were set in the concrete sidewalk and the third was set in dirt with a 12-inch deep concrete footing. Each of the three posts was four-and-one-half inches in diameter and rose three feet above the ground. SCG intended the posts to protect the meter assembly from damage from being hit by vehicles traveling at less than 10 miles per hour. SCG engineers were capable of designing other barriers that would provide a higher level of protection.
At about 5:00 p.m. on August 3, 2002, 17-year-old Tiffany was driving home from work in her Ford Escort. She was traveling westbound on Lincoln Avenue at a speed of about 25 miles per hour (the posted speed limit). Lincoln Avenue is about 39 feet, 6 inches wide and has one westbound lane and one eastbound lane. When another vehicle apparently attempted to pass Tiffany's vehicle on its right side, her vehicle drifted to the left into the eastbound lane and jumped the eight-inch southern curb without any apparent braking. Continuing at a speed of about 25 miles per hour, her vehicle apparently rotated counter-clockwise and struck and bounced off of Gio's perimeter block wall. With her vehicle continuing to rotate, its passenger door then struck the eastern steel post of SCG's gas meter assembly, which was set in dirt and guarded the meter assembly. The force of the collision knocked that post onto the meter assembly, breaking the gas line on the high-pressure side of the assembly. A spark ignited gas that escaped from the ruptured gas line, causing a fire that engulfed Tiffany's vehicle. After a minute or two, Tiffany was able to escape the burning vehicle.
Tiffany's father, Peter, arrived while paramedics were assisting her. Tiffany told him she had swerved to miss a gray car. She was transported by ambulance to a hospital for emergency treatment of her severe burn injuries. In the hospital emergency room, she told a police officer that she had turned to avoid a silver car. Two days later, Tiffany died from burn injuries to 80 percent of her body's surface.
In July 2003, Plaintiffs filed the instant action against SCG and Gio's, alleging wrongful death claims based on theories of general negligence, negligence per se, and premises liability.*fn3 The complaint alleged SCG created a dangerous condition by placing the gas meter assembly near a roadway without adequate protection. SCG filed a motion for summary judgment, apparently arguing that it did not owe Tiffany a legal duty of care.*fn4 The trial court denied that motion.
In October 2005, the first trial in this matter was held, resulting in a mistrial after the jury could not reach a verdict. In October 2008, the second trial in this matter was held. Eleven of 12 jurors found SCG was negligent and that its negligence was a substantial factor in causing Plaintiffs' damages. The jury found Plaintiffs' past and future damages were $2 million. The jury apportioned 40 percent of the fault for the accident to SCG, 50 percent to Tiffany, and 10 percent to Gio's. The trial court ordered judgment entered against SCG in the amount of $800,000, plus costs.
SCG filed motions for JNOV and for new trial based on the absence of a legal duty, instructional and evidentiary error, and excessive damages. The trial court denied both motions. SCG timely filed a notice of appeal.
Negligence and the Legal Duty of Care Generally
"The elements of a cause of action for negligence are: the 'defendant had a duty to use due care, that he [or she] breached that duty, and that the breach was the proximate or legal cause of the resulting injury.' " (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278 (Vasquez).) "Under 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.) Civil Code section 1714, subdivision (a), provides: "Everyone is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property . . . , except so far as the latter has, . . . by want of ordinary care, brought the injury upon himself or herself."
In Vasquez, we noted: "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." (Vasquez, supra, 118 Cal.App.4th at p. 278.) An appellate court determines de novo the existence and scope of a legal duty in a particular case. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, ...