Van Horn v. Watson 3/21/07 CA2/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B188076

Case Date: 06/13/2007

Preview:Filed 3/21/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

ALEXANDRA VAN HORN, Plaintiff and Respondent, v. ANTHONY GLEN WATSON, Defendant and Appellant; LISA TORTI, Defendant and Respondent.

B188076 (Los Angeles County Super. Ct. No. PC034945)

ALEXANDRA VAN HORN, Plaintiff and Appellant, v. ANTHONY GLEN WATSON et al., Defendants and Respondents.

B189254

APPEALS from judgments of the Superior Court of Los Angeles County, Howard J. Schwab, Judge. Reversed.

Crandall, Wade & Lowe, Edwin B. Brown; McNeil, Tropp & Braun, Jeffrey I. Braun and Frank Cracchiolo for Defendant and Appellant Glen Anthony Watson. Law Offices of Hutchinson & Snider and Robert B. Hutchinson for Plaintiff and Appellant. Hanger, Levine & Steinberg, Jody Steinberg and Lisa Mead for Defendant and Respondent.

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In these consolidated appeals, the plaintiff Alexandra Van Horn claims that she was severely injured when, after a single vehicle accident, she was negligently removed from the vehicle by the defendant Lisa Torti and, as a result, suffered permanent paraplegia. Plaintiff appeals from a summary judgment granted in favor of Torti on the ground that Torti was entitled to immunity from liability under Health and Safety Code, section 1799.102 (section 1799.102). The defendant Glen Watson was the driver of the vehicle in which plaintiff was a passenger at the time of the accident. Both he and Torti were sued by plaintiff and each filed cross-complaints against each other. At the time of the accident, Torti was riding as a passenger in a second vehicle driven by the defendant Dion Ofoegbu. They were right behind Watson's vehicle when the accident occurred. Plaintiff, Torti, Watson and Ofoegbu were all friends and had been socializing together in a bar prior to the accident.
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Health and Safety Code, section 1799.102 provides: "No person who in good faith, and not for compensation, renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered." Unless otherwise stated, all statutory references are to the Health and Safety Code. Although Watson filed opposition to Torti's motion for summary judgment, Torti's motion addressed only plaintiff's complaint, not the cross-complaint filed by Watson against Torti, nor the cross-complaint filed by Torti against Watson. After the trial court issued its order granting Torti's motion for summary judgment, Torti and Watson stipulated that the order had a res judicata/collateral estoppel effect on Torti's and Watson's cross-complaints against each other and therefore judgment "is in favor of . . . Torti with regard to [their cross-complaints]." Watson states the stipulation was made solely to facilitate appellate review of the summary judgment.
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As we explain, section 1799.102 has an application only to the rendering of care at the scene of a medical emergency. As the record demonstrates the absence of a medical emergency, Torti was not entitled to summary judgment on this basis. As disputes of fact exist as to (1) whether Torti was negligent; and (2) whether that negligence increased the risk of harm to plaintiff, summary judgment was inappropriate. We will therefore reverse and remand. FACTUAL AND PROCEDURAL BACKGROUND
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The accident in which plaintiff was injured took place in the early morning of November 1, 2004. During the evening of October 31, 2004, plaintiff, Torti and Jonelle Freed were relaxing at Torti's home where some marijuana was apparently shared and smoked by both plaintiff and Torti. After Watson and Ofoegbu arrived, they all went to a bar at about 10:00 p.m., where they consumed several drinks. They remained there until about 1:30 a.m. on November 1. When they left the bar, plaintiff and Freed rode as passengers in the vehicle driven by Watson and Torti rode with Ofoegbu in his vehicle. The accident happened when Watson lost control of his vehicle and crashed into a curb and light standard at about 45 miles per hour. The police concluded that it was the speed at which Watson was traveling that had caused the accident. The force of the
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The facts that we recite were taken from the papers filed by the parties in support and opposition to the motion for summary judgment filed by Torti. Watson claimed that he lost control of the vehicle after he swerved to avoid an animal that had darted in front of him. 4
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impact caused the front air bags to deploy. Plaintiff was in the front passenger seat. When the Watson vehicle crashed, Ofoegbu pulled his vehicle off to the side of the road and he and Torti exited their vehicle to assist the other three people. Torti removed plaintiff from Watson's vehicle. Watson was able to leave the vehicle by himself. Ofoegbu assisted Freed by opening a door for her. Plaintiff sued Watson, Ofoegbu and Torti. The cause of action against Torti alleged that even though plaintiff was not in need of assistance from Torti after the accident, and had only sustained injury to her vertebrae, Torti dragged plaintiff out of the vehicle, causing permanent damage to her spinal cord and rendering her a paraplegic. After some discovery, Torti moved for summary judgment. It is clear, from the papers filed by the parties in support and opposition to Torti's motion, that there are conflicting recollections about the critical events that followed the accident. Torti apparently removed plaintiff from the vehicle because she feared the car would catch fire or "blow up." Although Torti testified at deposition that she saw smoke coming from the top of Watson's vehicle and also saw liquid coming from the vehicle, these facts were subject to dispute. There is also a dispute as to how Torti removed plaintiff from the car. Torti testified that she placed one arm under plaintiff's legs and the other behind plaintiff's back to lift her out of the car; plaintiff testified that Torti used one hand to grab her by the arm and pull her out of the car "like a rag doll." Emergency personnel were called to the scene and plaintiff and Freed were treated and taken to the hospital. Plaintiff suffered various injuries, including injury to

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her vertebrae and a lacerated liver that required emergency surgery. There is a dispute whether the accident itself caused plaintiff's paraplegia. The trial court, relying exclusively on section 1799.102, concluded that Torti was immune from liability and granted her motion for summary judgment. Both plaintiff and Watson have appealed (see fn. 2, ante). ISSUE ON APPEAL These appeals present the question whether the trial court correctly applied section 1799.102 to this case to find that Torti is entitled to summary judgment on the complaint, or whether it is Civil Code section 1714 and the law of negligence set out in cases such as Williams v. State of California (1983) 34 Cal.3d 18 that apply to Torti's acts at the accident.
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Civil Code section 1714 states: "Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself." In Williams v. State of California, supra, 34 Cal.3d 18, 23, the court stated: "As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act. [Citations.] Also pertinent to our discussion is the role of the volunteer who, having no initial duty to do so, undertakes to come to the aid of another--the `good Samaritan.' He is under a duty to exercise due care in performance and is liable if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking. [Citation.]"

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DISCUSSION 1. Standard of Review

We review the summary judgment granted to Torti on a de novo basis. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 474.) In doing so, we apply the same rules the trial court was required to apply in deciding that motion. When the defendant is the moving party, it has the burden of demonstrating as a matter of law that one or more elements of plaintiff's cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc.,

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