Gonzalez v. So. Ca. Gas 12/13/11 CA4/1

SUPREME COURT CASES

Laws-info.com » Cases » California » 4th Appellate District Division 1 » 2011 » Gonzalez v. So. Ca. Gas 12/13/11 CA4/1

State: California

Court: California Eastern District Court

Docket No: D054677A

Case Date: 12/14/2011

Plaintiff: Gonzalez

Defendant: So. Ca. Gas 12/13/11 CA4/1

Preview:Filed 12/13/11; opinion following transfer from Supreme Court

CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

DEBORAH GONZALEZ et al., Plaintiffs and Respondents, v. SOUTHERN CALIFORNIA GAS COMPANY, Defendant and Appellant.

D054677

(Super. Ct. No. L-01518)

APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. Reversed and remanded with directions. C. Larry Davis; Horvitz & Levy, Barry R. Levy, Felix Shafir, John A. Taylor, Jr.; Higgs, Fletcher & Mack, William M. Low and Loren G. Freestone for Defendant and Appellant. Wolfe Legal Group, Lann G. McIntyre; O'Mara & Padilla, Michael D. Padilla and Jeffrey M. Padilla for Plaintiffs and Respondents. Defendant Southern California Gas Company (SCG) appeals a judgment following a jury verdict finding SCG liable to plaintiffs Peter and Deborah Gonzalez (Plaintiffs) for the wrongful death of their daughter, Tiffany. She died after driving her

car off a street, over a curb and striking an SCG gas meter assembly located 11 feet, 4 inches beyond the curb. On appeal, SCG contends the trial court erred by denying its motions for judgment notwithstanding the verdict (JNOV) and for new trial because: (1) it did not owe Tiffany a legal duty of care in the circumstances of this case; (2) its conduct was not the proximate cause of her injuries; (3) the court erred in instructing the jury; and (4) the court erred by excluding certain evidence showing Plaintiffs negligently entrusted Tiffany with a vehicle. On November 5, 2010, we issued an opinion reversing the judgment based on our conclusion SCG did not owe Tiffany a legal duty of care. (Gonzalez v. Southern California Gas Co. (Nov. 5, 2010, D054677) [nonpub. opn.].) On January 26, 2011, the California Supreme Court granted Plaintiffs' petition for review. On April 27, it transferred the case to this court for reconsideration in light of Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764 (Cabral). We requested, and have received and considered, supplemental briefing by the parties on the impact of Cabral on this case.1 We issue this revised opinion reversing the judgment based on our conclusion that SCG did not owe Tiffany a legal duty of care.

1 SCG subsequently requested that we strike pages 24 through 30 of Plaintiffs' supplemental brief on the ground the arguments set forth on those pages were not limited to the impact of Cabral on this case. We hereby grant in part that request and strike pages 24 through 28 of Plaintiffs' supplemental brief as beyond the scope of our request for supplemental briefing on the impact of Cabral. We deny in part SCG's request as to pages 28 through 30 of Plaintiffs' supplemental brief, but nevertheless note that Carroll v. Central Counties Gas Co. (1925) 74 Cal.App. 303, discussed therein, does not persuade us to reach a contrary result. 2

FACTUAL AND PROCEDURAL BACKGROUND In 1988, SCG, a natural gas distributor, installed a new gas main and service line to provide gas service to the portion of Gio's Mobile Home Estates (Gio's) located south of Lincoln Avenue in El Centro.2 Gio's and its engineers proposed plans for the location of SCG's new gas meter assembly that were reviewed and approved by SCG. The meter assembly was installed 11 feet, 4 inches from the southern curb of Lincoln Avenue, near the outside of Gio's perimeter wall, and 13 feet from the driveway entrance to the southern portion of Gio's. Both the meter assembly and perimeter wall were located on Gio's property. A riser gas line was connected to the above-ground meter assembly that had a regulator reducing the pressure from 40 pounds per square inch to five pounds per square inch. Individual customer lines were connected to the meter assembly and installed underground to individual regulators at each of the approximately 50 mobile homes. In 1989, SCG installed three concrete-filled, steel posts around the meter assembly. Two were set in the concrete sidewalk and the third was set in dirt with a 12inch deep concrete footing. Each of the three posts was four-and-one-half inches in diameter and rose three feet above the ground. SCG intended the posts to protect the meter assembly from damage from being hit by vehicles traveling at less than 10 miles per hour. SCG engineers were capable of designing other barriers that would provide a higher level of protection. 2

Another portion of Gio's is located north of Lincoln Avenue. 3

At about 5:00 p.m. on August 3, 2002, 17-year-old Tiffany was driving home from work in her Ford Escort. She was traveling westbound on Lincoln Avenue at a speed of about 25 miles per hour (the posted speed limit). Lincoln Avenue is about 39 feet, 6 inches wide and has one westbound lane and one eastbound lane. When another vehicle apparently attempted to pass Tiffany's vehicle on its right side, her vehicle drifted to the left into the eastbound lane and jumped the eight-inch southern curb without any apparent braking. Continuing at a speed of about 25 miles per hour, her vehicle apparently rotated counter-clockwise and struck and bounced off of Gio's perimeter block wall. With her vehicle continuing to rotate, its passenger door then struck the eastern steel post of SCG's gas meter assembly, which was set in dirt and guarded the meter assembly. The force of the collision knocked that post onto the meter assembly, breaking the gas line on the high-pressure side of the assembly. A spark ignited gas that escaped from the ruptured gas line, causing a fire that engulfed Tiffany's vehicle. After a minute or two, Tiffany was able to escape the burning vehicle. Tiffany's father, Peter, arrived while paramedics were assisting her. Tiffany told him she had swerved to miss a gray car. She was transported by ambulance to a hospital for emergency treatment of her severe burn injuries. In the hospital emergency room, she told a police officer that she had turned to avoid a silver car. Two days later, Tiffany died from burn injuries to 80 percent of her body's surface. In July 2003, Plaintiffs filed the instant action against SCG and Gio's, alleging wrongful death claims based on theories of general negligence, negligence per se, and

4

premises liability.3 The complaint alleged SCG created a dangerous condition by placing the gas meter assembly near a roadway without adequate protection. SCG filed a motion for summary judgment, apparently arguing that it did not owe Tiffany a legal duty of care.4 The trial court denied that motion. In October 2005, the first trial in this matter was held, resulting in a mistrial after the jury could not reach a verdict. In October 2008, the second trial in this matter was held. Eleven of 12 jurors found SCG was negligent and that its negligence was a substantial factor in causing Plaintiffs' damages. The jury found Plaintiffs' past and future damages were $2 million. The jury apportioned 40 percent of the fault for the accident to SCG, 50 percent to Tiffany, and 10 percent to Gio's. The trial court ordered judgment entered against SCG in the amount of $800,000, plus costs. SCG filed motions for JNOV and for new trial based on the absence of a legal duty, instructional and evidentiary error, and excessive damages. The trial court denied both motions. SCG timely filed a notice of appeal.

3

Gio's agreed to a settlement with Plaintiffs before trial.

4 The record on appeal does not contain a copy of SCG's motion for summary judgment. 5

DISCUSSION I Negligence and the Legal Duty of Care Generally "The elements of a cause of action for negligence are: the 'defendant had a duty to use due care, that he [or she] breached that duty, and that the breach was the proximate or legal cause of the resulting injury.' " (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278 (Vasquez).) "Under general negligence principles, . . . a person ordinarily is obligated to exercise due care in his or her own actions so as not to create an unreasonable risk of injury to others, and this legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor's conduct." (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716.) Civil Code section 1714, subdivision (a), provides: "Everyone is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property . . . , except so far as the latter has, . . . by want of ordinary care, brought the injury upon himself or herself." In Vasquez, we noted: "The existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide." (Vasquez, supra, 118 Cal.App.4th at p. 278.) An appellate court determines de novo the existence and scope of a legal duty in a particular case. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674, disapproved on another ground in Reid v. Google, Inc. (2005) 50 Cal.4th 512, 527, fn. 5.)

6

The element of a legal duty of care generally acts to limit otherwise potentially infinite liability that would follow from every negligent act. (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) "A public utility [like other persons or entities] has a general duty to exercise reasonable care in the management of its personal and real property." (White v. Southern Cal. Edison Co. (1994) 25 Cal.App.4th 442, 447.) For example, "[a] public utility, which negligently places a power pole too close to the road, may be liable to the occupants of a motor vehicle injured when their vehicle collides with the pole." (Id. at pp. 447-448.) A determination that a legal duty of care exists is a "shorthand expression of the sum total of public policy considerations which lead the law to protect a particular plaintiff from harm." (Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 504.) No exception to the general rule of Civil Code section 1714 liability for negligence "should be made unless clearly supported by public policy." (Rowland v. Christian (1968) 69 Cal.2d 108, 112 (Rowland).) Rowland stated: "A departure from this fundamental principle involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Rowland, at pp. 112-113.) "The foreseeability of the harm, though not determinative, has become the chief factor in duty analysis." (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515.) In considering 7

the foreseeability of harm in a particular case for purposes of determining whether a legal duty of care existed, "[t]he proper focus is on the foreseeability of a harmful event of the general type that occurred. The relevant foreseeability is not the foreseeability of the particular and possibly unique details of how and why a particular harmful event came to pass." (Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1297 (Robison).) As we noted in Vasquez, "foreseeability depends not on whether a particular plaintiff's injury was foreseeable as a result of a particular defendant's conduct, but instead on whether the conduct at issue created a foreseeable risk of a ' "particular kind of harm." ' " (Vasquez, supra, 118 Cal.App.4th at p. 286.) Alternatively stated, it is the general character of the event or harm, not its specific nature or manner of occurrence, that must be reasonably foreseeable for a legal duty to exist. (Robison, at pp. 1298-1299; Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57-58 (Bigbee).) In determining the question of reasonable foreseeability, Bigbee stated: "[I]t is well to remember that 'foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.' [Citation.] One may be held accountable for creating even ' "the risk of a slight possibility of injury if a reasonably prudent [person] would not do so." ' " (Bigbee, at p. 57.) "An act must be sufficiently likely before it may be foreseeable in the legal sense. That does not mean simply imaginable or conceivable. Given enough imagination, everything is foreseeable. To paraphrase Justice Eagleson, with apologies to Bernard Witkin, on a clear judicial day, you can foresee forever. [Citation.] If the law imposed a duty to protect against every conceivable harm, nothing could function." (Jefferson v. Qwik 8

Korner Market, Inc. (1994) 28 Cal.App.4th 990, 996.) Foreseeability and the extent of burden to the defendant have become the primary Rowland factors to be considered on the question of legal duty. (Vasquez, supra, 118 Cal.App.4th at p. 280, fn. 5.) In Cabral, the California Supreme Court reaffirmed the general legal duty of care described above, which is set forth in Civil Code section 1714 and imposes liability for injuries caused by a person's failure to exercise ordinary or reasonable care in the circumstances. (Cabral, supra, 51 Cal.4th at p. 771.) The court also reaffirmed Rowland, stating: "In the Rowland decision, this court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714 . . . ." (Cabral, at p. 771.) However, absent a statutory exception to the general legal duty rule, "courts should create one only where 'clearly supported by public policy.' " (Ibid.) Cabral stated: "[T]he Rowland factors are evaluated at a relatively broad level of factual generality." (Id. at p. 772.) Cabral further stated: "[A]s to foreseeability, we have explained that the court's task in determining duty 'is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed . . . .' (Ballard v. Uribe (1986) 41 Cal.3d 564, [572], fn. 6 . . . ; [citations].) [

Download D054677A.PDF