(Los Angeles County Super. Ct. No. SC109298) APPEAL from a judgment of the Superior Court of Los Angeles County, Linda K. Lefkowitz, Judge.
The opinion of the court was delivered by: Suzukawa, J.
CERTIFIED FOR PUBLICATION
This appeal arises out of a collision between a bicycle ridden by plaintiff Micheal Spriesterbach and a car driven by defendant Janice Holland. Spriesterbach sued Holland for negligence, alleging that he suffered a serious shoulder injury as a result of the collision. The jury returned a verdict for Holland, finding by special verdict that she was not negligent.
Spriesterbach appeals from the resulting judgment and denial of his motion for new trial, urging that the trial court made two prejudicial instructional errors. Because we conclude that neither alleged error was prejudicial, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 10, 2010, Spriesterbach left Santa Monica City College (SMCC) and began riding home on his bicycle. Initially, he rode on the right-hand (south) side of National Boulevard, traveling in the same direction as the vehicular traffic. When he got to the intersection of National Boulevard and Barrington Avenue, he crossed to the sidewalk on the opposite (north) side of National Boulevard, where he continued to travel east. As he approached a supermarket parking lot on his left, he saw a car, driven by Holland, stopped at the threshold between the parking lot exit and the sidewalk. Holland did not see Spriesterbach, and she began to move forward just as he was directly in front of her car. Holland's car hit Spriesterbach's left bicycle pedal, causing the bicycle and Spriesterbach to fall to the street.
Following the collision, Spriesterbach suffered ongoing pain in his left shoulder and ultimately had surgery to repair a tear in the labrum in his left shoulder. He incurred medical bills in excess of $80,000.
Spriesterbach filed the present action against Holland on August 20, 2010. He alleged two causes of action, for general negligence and motor vehicle liability. Holland filed a general denial and asserted 11 affirmative defenses, including that Spriesterbach's own negligence was the cause of the accident.
The case went to trial on January 5, 2012. The testimony at trial relevant to the present appeal is as follows:
On March 10, 2010, Spriesterbach finished his classes at SMCC and began riding home on his bicycle, traveling three to five miles per hour. The ride home generally took him 30 to 45 minutes. Initially, Spriesterbach rode on the right-hand side of National Boulevard, traveling in the same direction as the vehicular traffic. When he got to Barrington Avenue, he saw construction signs indicating that the sidewalk was closed ahead. He decided not to stay on the right side of the street because there were orange cones and tape near the construction that made it a "tight squeeze for a bicyclist and a car to stay in that same lane." It "didn't look safe to me." Thus, he crossed the street and "took the sidewalk until I got to a safer crossing like a major street like Sawtelle or Sepulveda where it would be easy for me to cross at a light."
As he continued riding on the sidewalk adjacent to National Boulevard, he rode next to a hedge and wall separating the sidewalk from an adjacent supermarket parking lot. He noticed Holland's car at a "dead stop" at the threshold of the parking lot and the sidewalk. Spriesterbach could not tell whether Holland saw him because there was a glare on her windshield. He did not do anything to get her attention because he "just assumed that she was at a stop sign and she was either waiting for me to cross or she was waiting for like a gap in the traffic to pull out and safely merge into National Boulevard." He "just felt that she noticed me or she was waiting for traffic to die down to make a safe merge into National Boulevard."
As he rode in front of Holland's car, she pulled forward and hit his left pedal, causing the bicycle to fall over. Spriesterbach's handlebar hit the emblem on Holland's car and Spriesterbach's shoulder landed on the hood of the car. When Holland stopped her car, Spriesterbach "fell off the hood of the car into National Boulevard." Holland continued to move after the impact, stopping two to three feet from the threshold of the parking lot and the sidewalk.
Spriesterbach called 911, and both the police and an ambulance responded. Spriesterbach elected not to go to the hospital because he was a full-time student and did not have money to pay for a hospital visit. He had pain in his left shoulder, which increased several hours after the accident.
Three days after the accident, Spriesterbach saw Dr. Rajan Patel. Dr. Patel ordered an x-ray and an MRI and told Spriesterbach he had torn the labrum in his left shoulder. Dr. Patel prescribed anti-inflammatory medication and 12 sessions of physical therapy. Spriesterbach could not tolerate the medication and was able to go to only two physical therapy sessions.
Initially, Spriesterbach believed he was getting better. Subsequently, however, the pain "kept coming back. It stayed longer. It just kept being uncomfortable sitting down at my work, at my station, typing, doing my necessary duties. I would have to get up a lot and move around. I was continually taking Advil . . . . I was taking those for a while, and it was just really uncomfortable for me to do my daily activities with my shoulder in constant pain." Eventually Spriesterbach had surgery, which was followed by physical therapy. Spriesterbach's medical expenses were close to $80,000.
Before the accident, Spriesterbach never had any problems or pain in his left shoulder. Afterwards, he could not lift more than five pounds with his left arm. Even after the surgery, his mobility in his left arm was limited and he continued to experience pain.
King is a forensic engineer who reconstructs accidents. He testified for Spriesterbach that based on the area of impact indicated by the police report, Holland's car hit Spriesterbach's bicycle at the "inboard arrow" of the parking lot (i.e., the parking lot entrance), not "outboard arrow" (the parking lot exit). King assumed, based on the physical evidence, that Holland's car was traveling four to six miles per hour at impact and that Holland accelerated before hitting Spriesterbach. He also assumed, because Spriesterbach testified that his bicycle was in the lowest gear, that Spriesterbach was traveling three to five miles per hour immediately before the accident.
Based on these assumptions, King estimated that Spriesterbach would have been visible to Holland for four to seven seconds before the impact. If Holland had instead exited over the exit arrow, Spriesterbach would have been visible to Holland for 2.2 to 3.4 seconds before impact.
Holland testified that upon leaving the Ralphs parking lot at about 4:40 p.m., she came to a complete stop behind the line separating the parking lot from the sidewalk. She was "at the very western most exit which is by the wall," such that the exit arrow "was probably close to underneath . . . where the driver position would be, not in the middle of the car." She was not positioned over the entrance arrow because "[i]t would have been deadly to do that because that's where people are entering." She looked right and left and then "inched my foot off the brake to creep out while I was looking to see beyond the wall." She did not see Spriesterbach as she did so. As she took her foot off the brake and began to move forward, Spriesterbach rode directly in front of her and she drove her car into him. She immediately braked and stopped about 18 inches into the sidewalk area. She saw Spriesterbach make contact with the hood of her car; he then fell forward and disappeared from her view. He had been coming from the right, opposite the flow of traffic on the roadway.
Holland immediately got out of her car and asked Spriesterbach if he was okay. He said, "You fucking bitch. I'm going to sue you." He picked up his bicycle and threw it, and then picked it up again and threw it against a tree. He pulled earplugs from his ears and called the police.
Jansen is an engineer and an accident reconstruction expert. He testified for Holland that in performing his analysis, he assumed Holland had been sitting eight feet from the front of her car and was as far away from the wall as possible, giving her the best possible line of sight in the direction from which Spriesterbach was traveling. He noted that the trip from SMCC to Spriesterbach's apartment is about five miles, and he assumed, as Spriesterbach had testified, that the trip generally took him 30 to 40 minutes. Jansen said if that distance and time were converted to speed of travel, then Spriesterbach would have been traveling at about 8 to 10 miles per hour, equating to a cruising speed of 10 to 12 miles per hour.
Based on the foregoing, Jansen said that the distance Spriesterbach traveled from the time he first became visible to Holland to the point of contact was about 11 feet. If that distance were traveled at a speed of 10 to 12 miles per hour, it would have taken Spriesterbach .6 to .7 seconds to get to the point of contact. Jansen said it is generally accepted that "perception reaction time"--i.e., the time needed for the brain to detect and respond to a potential hazard--is about 1.5 seconds. Jansen thus concluded that given the visibility and Spriesterbach's speed, there was not enough time for Holland to perceive and react to the hazard posed by Spriesterbach.
The jury returned a verdict for Holland, finding by special verdict that she was not negligent. The jury did not reach the issues of Spriesterbach's contributory negligence or damages.
The court entered judgment and served notice of entry of judgment on January 10, 2012. Spriesterbach made a motion for a new trial, which the court denied on ...