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Nelson Thomas v. Erland L. Stenberg et al

May 29, 2012

NELSON THOMAS, PLAINTIFF AND APPELLANT,
v.
ERLAND L. STENBERG ET AL., DEFENDANTS AND RESPONDENTS.



Trial Court Marin County Superior Court Trial Judge Honorable Lynn Duryee Super. Ct. No. CIV-1000278

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

CERTIFIED FOR PUBLICATION

Marin County

Plaintiff Nelson Thomas appeals from the judgment of non-suit after the trial court entered its order granting the motion of defendants Erland L. Stenberg, Maryann Stenberg, and E Lazy S Land and Livestock, Inc. (collectively referred to herein as defendants) for non-suit. Plaintiff claims the court erred in concluding defendants did not have a legal duty to take measures to protect him from the harm that occurred when the motorcycle upon which he was riding collided with a cow on a private road passing through defendants' property. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On January 19, 2010, plaintiff filed a complaint against the Stenbergs, alleging causes of action for general negligence and premises liability.*fn1 Plaintiff alleged that on April 24, 2008, a cow charged him while his motorcycle was stopped on a paved road located within the E Lazy S Ranch in Petaluma. He sustained injuries as a result the impact. He claimed the accident was a proximate result of the defendants' negligent failure to warn him "of the inherently dangerous animal which was not contained in a fenced area."

On February 28, 2011, an amendment to the complaint was filed adding E Lazy S Land and Livestock, Inc. as a defendant.

On March 30, 2010, defendants filed their answer to the complaint.

The trial in this matter commenced on April 15, 2011.

On May 4, 2011, at the close of plaintiff's evidence, the trial court filed its order granting defendants' motion for judgment on non-suit. Judgment was entered in favor of defendants. This appeal followed.

DISCUSSION

I. Standard of Review

"We independently review an order granting a non-suit, evaluating the evidence in the light most favorable to the plaintiff and resolving all presumptions, inferences and doubts in his or her favor. [Citations.] 'Although a judgment of non-suit must not be reversed if plaintiff's proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is "some substance to plaintiff's evidence upon which reasonable minds could differ . . . ." ' [Citation.] In other words, '[i]f there is substantial evidence to support [the plaintiff's] claim, and if the state of the law also supports that claim, we must reverse the judgment.' [Citation.]" (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1124-1125 [76 Cal.Rptr.3d 585], original italics.)

II. Plaintiff's Case

A. The Private Road

The road upon which the accident occurred is a one-mile-long private road that crosses pasture owned by defendants, as well as land owned by other parties. The road provides ingress and egress to a cluster of "landlocked" houses, including a house belonging to Jackly Bentley (plaintiff's aunt) and her husband. About eight family dwellings are serviced by the road, which is classified as an easement where it passes through defendants' property. The easement itself is owned by the Bentley family and the Dolcini family. The private road lies off Chileno Valley Road, which is a public road. There is a cattle guard that marks where the public road meets the private road.

The distance from Chileno Valley Road to the start of defendants' property along the private road is about a half-mile. The road initially crosses the pasture owned by the Dolcini family. Here, the road is comprised of dirt and gravel. The Dolcini's property is also used as cow pasture and there has never been a fence on either side of the private road. At this point, the surrounding land is mostly open pasture. As the road continues, it meets another cattle guard marking the entrance to defendants' property. The distance between this cattle guard and the Bentley's home is about a ...


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