California Court of Appeals, Second District, Eighth Division
from a judgment of the Superior Court of Los Angeles County,
No. BC587234 Michele E. Flurer, Judge.
& Associates, Justin Jacob Effres, Esner, Chang &
Boyer, and Stuart B. Esner for Plaintiff and Appellant.
Macdonald & Cody LLP, Scott L. Macdonald, and Douglas M.
Carasso for Defendants and Respondents.
flying mattress made Mackenzie Baker-Smith swerve on the
freeway and crash at high speed. She sued a company for
failing to secure the mattress. The jury ruled against her,
but heard an incorrect jury instruction about negligence per
se. This doctrine presumes defendants are negligent if they
violate a law. A special exception excuses law violations if
a defendant can prove it tried but could not comply with the
law. Giving that excuse instruction here was error. We
reverse and remand.
summarize the case in the trial court. The first essential
point is the Vehicle Code requires cargo to be secured to
vehicles. We return to this secure-the-cargo law shortly.
was driving on the freeway when a mattress suddenly flew at
her car. She veered to avoid it and hit a barrier. Two
eyewitnesses chased a truck to get the license number. One
called 911 with the truck's description and plate. An
officer stopped that pickup, which was towing a trailer. The
driver was Dror Skolnick, the owner of G&L Design
Building & Landscape, Inc. We refer to Skolnick and
G&L collectively as G&L.
gave different accounts about a mattress in his trailer.
was pulled over, Skolnick told police he was unaware of
anything flying out of his truck but admitted there
“may” have been a mattress in the back.
Skolnick was pulling a four-wheel uncovered trailer with
seven foot sides. Skolnick opened the trailer's back
doors for the officer. There was no mattress. According to
the officer, Skolnick added Skolnick “wasn't aware
if for sure there was a mattress because the guys he says he
works with or works for, do the loading of the
trial, Skolnick's equivocation changed to certainty:
there was no mattress. Skolnick testified his
trailer was “[e]mpty, for sure, ” that day.
Skolnick told the jury he used the trailer to pick up trash a
day or two before the crash. At the dump, Skolnick unloaded
everything from the trailer and cleaned it with a broom. Then
he took it and left it at a job site. A couple days before
the crash, Skolnick directed his employee Juan Lopez to put
tools in the trailer, but then Skolnick changed his mind and
told Lopez to “make sure it's nothing in
there.” Skolnick said Lopez told him the trailer was
empty. Skolnick later retrieved the trailer from the job site
because, the day after that, he planned to use the trailer to
pick up plants from a nursery. G&L is a landscaping
business and Skolnick was buying plants for a job. He towed
the trailer to his house, parked it out front overnight, and
left for the nursery from his house the next morning, which
was the day of the crash.
trial, Skolnick admitted, on the day of the crash and after
police pulled him over, Skolnick said “maybe” his
trailer contained a mattress. Skolnick also admitted he did
not check his trailer before leaving home that morning, but
checking would have been “quick and easy.”
said the mattress came from a white dump truck, while the
G&L truck was blue and the trailer was black.
died before trial.
sued G&L. The main theory at trial was negligence per se,
which is the doctrine that a defendant breaking a law is
presumptively negligent. Baker-Smith claimed G&L broke
the secure-the-cargo law: Vehicle Code section 23114,
subdivision (a) requires vehicles be loaded so contents stay
put. Baker-Smith contended G&L broke this law because
eyewitnesses saw the mattress leave G&L's vehicle.
G&L claimed it did not break this law because the
eyewitnesses were wrong: Skolnick never carried a mattress
that day, and the eyewitnesses were untrustworthy, so the
mattress came from elsewhere. Alternatively, even if the
mattress did fly out of Skolnick's trailer, G&L
maintained Skolnick was not ...