APPEAL from an order of the Superior Court of Ventura County. Vincent J. O'Neill, Jr. (Super. Ct. No. 56-2009- 00357429-CU-PO-VTA) (Ventura County)
The opinion of the court was delivered by: Hoffstadt, J.*fn2
CERTIFIED FOR PUBLICATION
JUDGMENT VACATED AND REMANDED.
Does a commercial vendor owe a duty of care to persons on or near the roadway who are injured as a result of the vendor's negligence in loading and securing cargo in a vehicle in a way that distracts the vehicle's driver? Applying the controlling principles of California law, we conclude that such a duty exists and that a categorical "no duty" exception for vendors should not be created. We also hold that the driver's negligence in driving under the influence of marijuana does not constitute a superseding cause as a matter of law; instead, the issue of superseding cause is one for the jury. We nevertheless determine that the trial court abused its discretion in not striking, for lack of foundation, expert testimony that the driver in this case was a "chronic" marijuana user and thus unlikely to be impaired. Because the driver's impairment was crucial to the allocation of fault between the driver and vendor, we vacate the judgment and remand for a new trial.
FACTS AND PROCEDURAL HISTORY
This case arises from a tragic accident that partially paralyzed plaintiff Anthony Pedeferri, a California Highway Patrol (CHP) officer, and took the life of Andres Parra (Parra), the young man on the side of the highway with him.
On December 19, 2007, defendant Jeremy White (White) careened off the northbound 101 Freeway and slammed into an Xterra parked on the right shoulder. The Xterra exploded in a fireball, killing its sole occupant, Parra. The impact threw Officer Pedeferri 78 feet from where he was standing, and paralyzed him from the armpits down.
At the time of the accident, White had "quite high" levels of marijuana in his blood. In the 24 hours leading up to the accident, White consumed half a marijuana cake, smoked three "bowls" of marijuana, ate a "pretty big marijuana cookie," and drank an eight-ounce marijuana tea. He was transporting two pounds of marijuana in his truck's toolbox.
Just 90 minutes before the accident, White left Bert's Mega Mall, a motorsports dealership operated by defendants Seidner Enterprises LLC and RJS Financial (collectively, Bert's). Bert's employees had loaded and strapped down two dirt bikes in the bed of White's truck--a new dirt bike White just purchased and a bike already owned by White's friend and passenger Brian Kinsler (Kinsler).
As White drove at 74 miles-per-hour on a bumpy portion of the northbound 101 Freeway, just north of Ventura, he felt and saw the bikes "hopping around a little bit in the bed of the truck." The bikes moved from side to side, as well as back and forth. White then heard a popping sound. He asked Kinsler to look behind him at the truck's bed. Then, without braking, White took his eyes off the road to glance back over his left shoulder, and then his right. As he did, White steered his truck slightly to the right, and into Parra's Xterra on the side of the freeway.
White subsequently pled guilty to vehicular manslaughter while intoxicated. He was sentenced to 15 years in state prison.
A. The complaint and trial
Officer Pedeferri, his wife, and Parra's mother and father (collectively, plaintiffs) sued White for negligence and wrongful death. They later added Bert's as a defendant.
The case proceeded to a bifurcated jury trial. During the liability phase, plaintiffs' accident reconstruction expert testified that Bert's employees contributed to the accident by negligently loading and securing the bikes in the back of White's truck. Bert's expert offered a contrary opinion.
Plaintiffs also called two witnesses who addressed the contribution of White's marijuana use to the accident. A human factors expert testified that White's reaction to the movement of the dirt bikes and the popping sound was reasonable, and no different than a sober person's. A toxicologist also testified that White was "most likely" not impaired by his marijuana use because White was a "chronic user." The toxicologist defined a "chronic user" as a person who has used marijuana for "a long period of time" and who has "driven before with marijuana" in his system "over and over and over." The toxicologist assumed White had used marijuana for a while and that White had previously driven while under the influence of marijuana. At the close of plaintiffs' case, Bert's asked the trial court to strike the toxicologist's testimony on the ground that plaintiffs had failed to adduce any evidence to support their expert's assumptions. The court denied the request.
Bert's was also not permitted to question the expert about the other drugs in White's bloodstream at the time of the accident--namely, Paxil, Soma, Vicodin, Ecstasy and cocaine. The trial court had previously ruled that this evidence had marginal probative value and should be excluded under Evidence Code section 352 because Bert's elected not to call a toxicologist to establish that the levels of those drugs in White's blood were sufficient to potentially impair his driving.
The jury unanimously found White to be negligent and, by a nine-to-three vote, also found Bert's to be negligent. The jury unanimously assigned 67 percent of the fault to White, and the remaining 33 percent to Bert's. Following a separate trial on damages, the jury awarded a total of $49.6 million to plaintiffs.
Bert's moved for judgment notwithstanding the verdict (JNOV) in part on the ground that Bert's sole duty was to load and secure cargo so it would not fall out--not to load and secure cargo so it would not distract a driver. The trial court found Bert's articulation of its duty too narrow. The court ruled that "there's a duty on a commercial vendor that loads the goods in the back of [a] truck to use care so that those on or near the roadways are not harmed."
Bert's also sought a new trial on two grounds pertinent to this appeal.*fn1 First, Bert's argued that the toxicologist's assumptions were never established. The trial court ruled that the factual basis for the expert's assumption that White had engaged in long-term marijuana use was "thin," but sufficient. The court did not expressly decide whether there was a factual basis for the expert's further assumption that White had previously driven while using marijuana.
Second, Bert's contended that the damages were excessive. The court found the jury's $49.6 million award to be excessive and likely the product of "sympathy for the plaintiffs and outrage at the conduct of defendant White," and granted a new trial on damages. Plaintiffs accepted remittiturs, and the court entered judgment against White for $14.84 million; against Bert's for $7.3 million; and against both defendants jointly and severally for $13.01 million.
White settled with all plaintiffs, and Bert's settled with the Parra plaintiffs. Thus, the sole remaining parties are the Pedeferri plaintiffs and Bert's. White has nevertheless ...