Andrews v. County of Orange

• Decision Date: 21 April 1982
• Citation: 130 Cal.App.3d 944,182 Cal.Rptr. 176
• Court: California Court of Appeals Court of Appeals
• Parties: Peter P. ANDREWS, et al., Plaintiffs and Appellants, v. COUNTY OF ORANGE, Defendant and Respondent. Civ. 20783.

Page 176

182 Cal.Rptr. 176

130 Cal.App.3d 944

Peter P. ANDREWS, et al., Plaintiffs and Appellants, v. COUNTY OF ORANGE, Defendant and Respondent.

Civ. 20783.

Court of Appeal, Fourth District, Division 2, California.

April 21, 1982.

[130 Cal.App.3d 949] Fadem, Berger & Norton, and Michael M. Berger, Santa Monica, for plaintiffs and appellants.

Goebel & Monaghan, Louis E. Goebel, San Diego, Luce, Forward, Hamilton & Scripps, Eckmann, Lodge & Gatzke, and Michael Scott Gatzke, Carlsbad, for defendant and respondent.

OPINION

TAMURA, Associate Justice. ^*

Owners of fifty-four (54) homes located near John Wayne Orange County Airport (airport) filed inverse condemnation actions against the County of Orange claiming that the county had damaged and diminished the market value of their homes by subjecting them to frequent jet overflights, fallout of soot and fumes from jet aircraft, excessive noise and vibrations from "run-ups" (warm up of jet engines), take offs, and landings. Six of the plaintiffs also sued in negligence, nuisance and trespass for damages for personal injuries and emotional distress caused by the noise, vibrations and fallout from jet aircraft using the airport. Four of these six claimants also sought recovery on the theory that the county was operating the airport without a valid permit.

In a consolidated trial, a nonsuit was granted on the cause of action based on the alleged lack of a valid permit and the case was submitted to the jury on the inverse condemnation cause of action as to all plaintiffs and on the cause of action for personal injuries and emotional distress as to six of the plaintiffs. The jury returned special verdicts for defendant on all counts, finding that the value of the easements allegedly taken over plaintiffs' properties was zero dollars and that plaintiffs had suffered no damages by reason of defendant's actions. Plaintiffs' motion for a new trial was denied and they appeal from the judgment on the jury verdict.

Plaintiffs' primary contention on appeal is that they were deprived of a fair trial by reason of jury misconduct. Their other contentions relate to evidentiary rulings and claimed instructional errors.

FACTS

Subject to amplification when we consider the specific issues, the following summary of the pertinent facts will suffice to place the issues in their proper setting:

(a) The Airport

The county operates the airport under an "Airport Permit" issued by the California Aeronautics Commission in 1949. Until the middle 1960's only propeller-driven aircraft used the airport; its sole runway was 4800 feet long and would bear a weight of only 12,500 pounds. In 1964 or 1965 the old runway was discontinued and two new ones were built--a 5700 foot runway able to bear 67,000 pounds and thus suitable for jet aircraft, and a shorter runway for conventional propeller-driven planes. The new runways extend in a southerly direction, while the old one ran southwest.

In 1967 commercial jets began using the airport. Initially there were only four such flights a day but the number increased steadily over the years so that at the time of trial there were 41 scheduled flights a day. In the early 1970's small jets used for training, for charters, and by business corporations began using the airport. At first there was only occasional usage by transient small jets; by 1977, however, at least two aviation companies with fleets of small jets (4-8 planes) were operating at the airport, and a number of business corporations based their company jets there. In 1977 small jet traffic at the airport averaged 15 flights per day.

(b) Plaintiffs' Properties

Plaintiffs are homeowners whose residences are located south of the airport. All of plaintiffs' homes are in a geographic area which airport officials have designated a "noise sensitive area." According to the airport's definition, noise sensitive areas are residential areas which lie "under or near the flight tracks" of jet aircraft using the airport.

(c) The Trial

Trial lasted over three months. The jury heard testimony from three expert witnesses concerning the devaluation of plaintiffs' homes resulting from jet noise and fallout. Plaintiffs' appraiser testified that all of plaintiffs' homes had suffered substantial diminution in value due to jet traffic. The county presented two appraisers. One testified that none of the homes had suffered loss in value because of the jets. The other was of the opinion that jet noise and fallout caused nine of the homes to suffer loss in value ranging from $5,500 to $7,000 for seven, $10,500 for one, and $50,000 for one. The jury viewed most of the subject homes during field trips on four separate days.

The court excluded testimony on three matters offered by the six plaintiffs who pursued the tort cause of action for damages for personal injuries and emotional distress. The court excluded evidence concerning emotional disturbance allegedly caused by aircraft in flight. It also sustained the county's objection to plaintiffs' offer to prove that certain measures could have been taken by the county to alleviate the noise problem at the airport (e.g., extension or varying of curfew hours; enforcement of existing curfew; banning private jets, jet taxis, or jet aircraft flight instruction; installing noise limitation system). Finally, the court excluded evidence concerning alleged assurances by the County Board of Supervisors in 1962 that no jets would use the airport, and in 1967 that there would be no jet noise problem. Plaintiffs maintained that the supervisors' failure to live up to those assurances contributed to plaintiffs' emotional disturbance.

On the inverse condemnation cause of action, the court refused plaintiffs' requested instruction that the jury should determine the value of the "loss of use" of plaintiffs' homes from September 1967 (when jets began using the airport) to May 8, 1978, (the date of value). ¹ As to the personal injury cause of action, the court instructed the jury that it could not award damages for physical injuries or emotional distress resulting from aircraft in flight. ²

After eight days of deliberation, the jury returned verdicts for defendant on all counts. Plaintiffs moved for additur and/or new trial on grounds of inadequate damages, insufficient evidence, jury misconduct and errors of law. The alleged incidents of jury misconduct were based on juror declarations and included various comments made by jurors during the field trips to inspect the homes, consideration during deliberations of matters on which no evidence had been presented, and failure of two of the jurors to participate in all of the deliberations and certain other juror conduct. The judge denied the motion for new trial.

CONTENTIONS ON APPEAL

Plaintiffs contend that there were incidents of flagrant juror misconduct which deprived them of a fair trial and that the court abused its discretion in denying them a new trial on that ground. They also contend that the court erred in refusing to instruct the jury that they should value and award damages for plaintiffs' "loss of use" of their properties from September 1967 to May 1978. (See fn. 1, ante.)

The six plaintiffs who sought damages for personal injuries and emotional disturbance raise three additional contentions. First, they contend the court erred in instructing the jury that they may not award damage for physical injuries or emotional distress resulting from aircraft in flight (see fn. 2, ante). Second, they maintain they should have been allowed to introduce evidence concerning measures which the county might have taken to alleviate the disturbances caused by jet aircraft. Third, they contend the court erred in excluding evidence of misrepresentations made by county supervisors concerning jet use of the airport.

The four plaintiffs who alleged a cause of action based on defendant's alleged failure to obtain a valid airport permit challenge the correctness of the order granting the county's motion for nonsuit on that cause of action.

In the ensuing discussion we have concluded that the entire judgment, except as it pertains to the cause of action based on an alleged lack of a valid airport permit, must be reversed for jury misconduct. We have further concluded that the judgment on the personal injury and emotional distress cause of action must also be reversed for the rendition of the instruction that noise from jet aircraft in flight could not be considered and for certain evidentiary rulings.

I JURY MISCONDUCT

Preliminarily, we review the principles governing proof of jury misconduct and the evaluation of its prejudicial effect.

"Trial by jury is an inviolate right and shall be secured to all ...." (Cal.Const., art. I, § 16.) The right to unbiased and unprejudiced jurors is an "inseparable and inalienable part" of the right to jury trial. (People v. Hughes (1961) 57 Cal.2d 89, 17 Cal.Rptr. 617, 367 P.2d 33; People v. Galloway (1927) 202 Cal. 81, 92, 259 P. 332.) The guarantee is the right to 12 impartial jurors. (Smith v. Covell (1980) 100 Cal.App.3d 947, 955, 161 Cal.Rptr. 377; Clemens v. Regents of University of California (1971) 20 Cal.App.3d 356, 360, 97 Cal.Rptr. 589.) ³ Subject to the restrictions of Evidence Code section 1150, a juror's affidavit may be used to impeach a verdict. ⁴ The statements made, or conduct, conditions or events relied upon as constituting misconduct must be objectively ascertainable and subject to corroboration. (People v. Hutchinson (1969) 71 Cal.2d 342, 349-350, 78 Cal.Rptr. 196, 455 P.2d 132.) A verdict may not be impeached by an affidavit purporting to prove the subjective reasoning process of a juror which can neither be corroborated nor disproved. (Id., at p. 349, 78 Cal.Rptr. 196, 455 P.2d 132.)

In criminal cases, jury misconduct raises a presumption of prejudice and unless the prosecution rebuts the presumption by proof that no prejudice actually resulted, defendant is entitled to a...