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Bermudez v. Ciolek

California Court of Appeals, Fourth District, Third Division

June 22, 2015

OMAR BERMUDEZ, Plaintiff and Respondent,
v.
FAITH CIOLEK, Defendant and Appellant NATHAN HEACOX, Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, No. 30-2012-00539759 Thierry Patrick Colaw, Judge.

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COUNSEL

Veatch Carlson, Peter H. Crossin and Bruce Schechter; Greines, Martin, Stein & Richland, Robert A. Olson, Gary D. Rowe and Edward L. Zanders for Defendant and Appellant Faith Ciolek.

Gibson & Hughes and Robert B. Gibson; The Simon Law Group, Robert T. Simon, Brad M. Simon and Jill P. McDonell for Plaintiff and Respondent Omar Bermudez.

Law Offices of Cleidin Z. Atanous and Cleidin Z. Atanous for Defendant and Respondent Nathan Heacox.

OPINION

IKOLA, J.

Two vehicles collided at an intersection in Fountain Valley on the afternoon of January 11, 2012. The accident occurred sometime during the traffic light transition from green to yellow to red in the east-west lanes of Talbert Avenue. Westbound defendant Faith Ciolek began a left turn onto Bushard Street. Eastbound defendant Nathan Heacox entered the intersection, intending to proceed straight through. Following the collision, Heacox’s car veered to the southeast corner of the intersection, striking plaintiff Omar Bermudez, who was on the sidewalk astride his bicycle. At the time of the collision, Bermudez apparently had no medical insurance.

In a special verdict, the jury found both defendants were “negligent” but concluded only Ciolek was “a substantial factor in causing harm” to Bermudez. Ciolek was therefore found to be responsible for 100 percent of Bermudez’s $3, 751, 969 in damages. Ciolek asserts the verdict is inconsistent. We disagree. The jury was entitled to conclude that Heacox slightly exceeded

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a reasonable speed when he entered the intersection but that his speed was not a substantial factor in causing Bermudez’s injuries.

Alternatively, Ciolek claims she is entitled to a new trial on damages because there is insufficient evidence of the reasonable value of Bermudez’s medical damages in the record. Citing Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 [129 Cal.Rptr.3d 325, 257 P.3d 1130] (Howell), Ciolek faults Bermudez (an uninsured plaintiff, unlike the insured plaintiff in Howell) for relying on the amount of medical expenses incurred and expert testimony attesting to the fairness and reasonableness of the majority of those medical bills. Ciolek asserts Bermudez’s experts needed to do more to establish that their testimony was rooted in the “market value” of medical services. We reject Ciolek’s bid for a new trial. But, because $46, 175.41 of the judgment is not supported by substantial evidence, we reduce the damage award to $3,706,793.60 and affirm the judgment as modified.

CONSISTENCY OF SPECIAL VERDICT

“‘[W]e review a special verdict de novo to determine whether its findings are inconsistent. [Citation.]. . . “‘“Where the findings are contradictory on material issues, and the correct determination of such issues is necessary to sustain the judgment, the inconsistency is reversible error.”’”’” (David v. Hernandez (2014) 226 Cal.App.4th 578, 585 [172 Cal.Rptr.3d 204] (David).) “A special verdict is inconsistent if there is no possibility of reconciling its findings with each other.” (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357 [112 Cal.Rptr.3d 455] (Singh).)

Evidence at Trial

The three parties, several percipient witnesses, and three accident reconstruction experts testified at trial. Key factual issues regarding Ciolek’s potential negligence included the color of the light as she began her left turn, her attentiveness to traffic conditions in front of her, her reaction upon observing the approaching Heacox vehicle, and the position of her vehicle at impact. It appears the jury credited evidence tending to show Ciolek began her turn before the light turned red, Ciolek was not adequately monitoring the traffic in front of her, and Ciolek braked when she saw Heacox approaching, thereby blocking parts of both lanes of the intersection. Ciolek’s appeal does not contest the sufficiency of the evidence for any of these propositions.

Instead, Ciolek focuses on the perceived inconsistency between the jury finding Heacox negligent with the finding Heacox’s negligence was not a

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substantial factor in causing Bermudez’s harm. Relatedly, Ciolek argues there is insufficient evidence in the record to support the jury’s finding that Heacox was not a substantial factor in causing Bermudez’s harm. Key factual issues regarding Heacox’s potential negligence included the color of the traffic light as he entered the intersection, the speed of his vehicle as he approached the intersection, his attentiveness to the conditions in front of him, and the extent and timeliness of evasive maneuvers (i.e., braking and swerving) taken by him.

The posted speed limit on Talbert Avenue was 45 miles per hour. Heacox testified he was exceeding the posted speed limit as he approached the intersection, adding, “If I have to take a percentage of that fault then that’s on me.” When Heacox saw the vehicle in front of Ciolek’s vehicle turn left into the intersection, Heacox claims he was driving 55 miles per hour. At that point, he took his foot off the accelerator and placed it over the brake. By the time Heacox neared the intersection, [1] he claims he was driving 45 to 50 miles per hour. When Heacox saw Ciolek had entered and blocked the intersection, he began braking and swerving to the right. He collided with Ciolek’s vehicle while driving approximately 45 miles per hour (according to his testimony).

Percipient witnesses’ estimates of Heacox’s speed as he approached the intersection varied. Bermudez opined that Heacox was travelling from 40 to 50 miles per hour. Ciolek opined it was more like 55 to 60 miles per hour. A driver waiting to turn left onto Talbert Avenue testified that Heacox’s vehicle was moving at a “high rate of speed, ” “easily 40, 45.” A pedestrian witness stated Heacox was at 40 to 50 miles per hour but was “speeding up” into the intersection.

The accident reconstruction experts had fairly close estimates of the speed of Heacox at impact: Bermudez’s expert—45 miles per hour; Heacox’s expert—48 miles per hour; and Ciolek’s expert—45.7 miles per hour. Bermudez’s and Heacox’s experts agreed that Heacox’s stated speed of 50 miles per hour on approaching the intersection fit with their analyses, while Ciolek’s expert opined that Heacox’s speed approaching the intersection was “well in excess of 60 miles an hour.” The differences in these analyses depended in part on assumptions about the amount of time Heacox braked before impact.

Heacox testified he was already entering the intersection by the time he perceived Ciolek to be turning. One expert opined that 1.1 to 1.6 seconds passed between the moment Heacox entered the intersection and the collision

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between the two cars. Expert testimony also established that it takes a typical person as much as 1.5 seconds to react to a new stimulus, and that Heacox was unable to stop or swerve sufficiently to avoid the collision in the time he had. According to the witness who observed the accident from the north as he waited to turn left, Heacox’s veering maneuver was “as much as he possibly could [have done] in that short amount of time.” An accident reconstruction expert opined that Heacox would not have been able to control his vehicle immediately after the impact with Ciolek’s vehicle.

No evidence, whether expert testimony or otherwise, was presented to the jury concerning the effect of Heacox’s speed before impact on the direction or speed of travel of Heacox’s car after the collision with Ciolek. In other words, there was no attempt at trial to show Heacox’s car would not have ricocheted into Bermudez had Heacox been driving slower, or to show Bermudez’s injuries would have been less severe had Heacox been driving slower before impact.

Jury Instructions and Verdict Form

The court provided standard negligence instructions applicable to a motor vehicle accident (CACI Nos. 400, 401, 406, 411, 430, 700, 701). CACI No. 700 sets forth the basic standard of care for driving a vehicle: “A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles and other vehicles. They must also control the speed and movement of their vehicles. The failure to use reasonable care in driving a vehicle is negligence.” CACI No. 430 described the causation element: “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.”

The court also provided several instructions tailored to the question of Heacox’s speed, including modified versions of CACI Nos. 706 and 707. “A person must drive at a reasonable speed. Whether a particular speed is reasonable depends on the circumstances, such as traffic, weather, visibility, and road conditions. Drivers must not drive so fast that they create a danger to people or property. [¶] If plaintiff has proved that defendant Nathan Heacox was not driving at a reasonable speed at the time of the accident, then defendant Nathan Heacox was negligent.” “The speed limit where the accident occurred was 45 miles per hour. The speed limit is a factor to consider when you decide whether or not defendant Nathan Heacox was negligent. [¶] A driver is not necessarily negligent just because he or she was driving faster than the speed limit. However, a driver may be negligent even if he or she was driving at or below the speed limit.”

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The special verdict form asked the jury five basic questions: (1) was Heacox negligent; (2) was Ciolek negligent; (3) for each defendant, was their “negligence a substantial factor in causing harm to Omar Bermudez”; (4) what are Bermudez’s damages (numerous lines for each category); and (5) “[w]hat percentage of responsibility for Omar Bermudez’s harm do you assign to” each defendant?

Argument of Counsel

Bermudez’s counsel summarized his view of the liability evidence: “Heacox entered on a yellow and was travelling 50 miles an hour. Very little he could have done to avoid the collision. Miss Ciolek made a left turn without checking for oncoming traffic.” Counsel recommended a finding of negligence as to both defendants, but indicated he was not sure regarding causation as to Heacox. Counsel recommended Ciolek be held liable for 90 to 100 percent of damages, and Heacox be held liable for 0 to 10 percent of damages.

Counsel for Ciolek contended the evidence showed Heacox sped into the intersection on a red light and Ciolek did nothing wrong. He asked the jury to return a defense verdict for Ciolek and to hold Heacox liable for all damages. Counsel for Ciolek did not make an argument in the alternative about Heacox’s speed necessarily playing some role in Bermudez’s harm even if the jury found Ciolek was wholly responsible for the collision between the two cars.

Counsel for Heacox argued, “This accident was going to happen whether or not [Heacox] was going 40, 45, 50 or even slightly faster than that because Miss Ciolek was not paying attention. She failed to keep a lookout, which is what the instructions require under the Vehicle Code. She turned right in front of him and then puts her brakes on, stops and blocks his whole lane of travel.” “[T]he evidence in this case shows that Miss Ciolek was the sole cause of this accident, and if she doesn’t turn, there’s no accident, by the way. If she doesn’t turn, this never happens. Mr. Bermudez doesn’t get hurt....” Counsel for Heacox did not discuss whether Heacox’s speed could have played a role in harming Bermudez even if the jury concluded Heacox’s speed did not cause the collision between Heacox and Ciolek.

Verdict, Judgment, and Motion for New Trial

The jury found Heacox and Ciolek negligent, but also found only Ciolek’s negligence was a substantial factor in causing harm to Bermudez. The jury, answering a separate question, assigned 100 percent responsibility for

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Bermudez’s harm to Ciolek, and zero percent to Heacox. The jurors unanimously found Heacox’s negligence was not a substantial factor causing harm, but (strangely) three jurors dissented from the assignment of 0 percent fault to Heacox.

Ciolek timely moved for a new trial on multiple grounds, including her argument here that the special verdict findings were inconsistent in deeming Heacox negligent but not a substantial factor in causing Bermudez’s harm. For the first time in this case, Ciolek argued that “as a matter of physics, plaintiff Mr. Bermudez’s injuries were caused by Mr. Heacox’s vehicle striking Ms. Ciolek’s vehicle at a particular speed, causing it to then ricochet to the sidewalk, striking Mr. Bermudez with particular force, pushing him into a wall. Had Mr. Heacox been traveling at a slower, safer, lawful speed, the physical result of his vehicle’s impact against Ms. Ciolek’s vehicle ...


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