Ballard v. Uribe

Decision Date03 April 1986
Citation224 Cal.Rptr. 664,715 P.2d 624,41 Cal.3d 564
CourtCalifornia Supreme Court
Parties, 715 P.2d 624 Percy BALLARD, Plaintiff, Respondent and Cross-Appellant, v. Frank URIBE, Defendant, Appellant and Cross-Respondent. L.A. 31799

[41 Cal.3d 568] Gerald H.B. Kane, Jr., Redondo Beach, for plaintiff, respondent and cross-appellant.

Law Offices of Joseph Ryan, Jr., Long Beach, for defendant, appellant and cross-respondent.

GRODIN, Justice.

In this personal injury case, which was bifurcated to permit separate determinations of liability and damages, the jury found defendant liable and rendered a verdict in favor of plaintiff for $200,000. Defendant seeks to overturn the finding of liability on the basis of instructional error. Plaintiff, by cross-appeal, seeks to overturn the damages verdict on the basis of instructional error and juror misconduct. We find no error requiring reversal, and therefore affirm.


Plaintiff was injured in December 1975 while using an "aerial manlift" owned by defendant. At the time of the injury, plaintiff was employed by Guy F. Atkinson Company (Atkinson), a general contractor engaged in the construction of a freeway interchange. Several months before the injury, defendant had been hired by Atkinson as a subcontractor to perform concrete work on the project and defendant brought the lift to the construction site to use in his work.

The lift, which rested on a truck bed, consisted of a basket mounted on an extension or boom ladder; the basket had three sides but was open at the back to permit entry and exit. A stabilizing cable was connected to the ladder to keep the basket level as the ladder was raised or lowered.

In late November or early December 1975, defendant noticed that the stabilizing cable was frayed and broken. Since defendant intended to be away from the construction site for several weeks and did not plan on using the lift over that period of time, he asked Atkinson's project manager, Peter Boli, for permission to leave the lift in Atkinson's fenced equipment yard for a few weeks until defendant's mechanic could repair it.

Although all parties agreed that Boli gave defendant permission to leave the lift in Atkinson's yard, there was some dispute as to an additional discussion between the two men. Boli testified that because he believed that Atkinson workers might have some use for the lift in their own work on the project, he asked defendant if Atkinson could borrow or rent the lift. When defendant informed Boli that some sort of cable on the lift was broken, Boli offered to have Atkinson's master mechanic make whatever repairs were necessary. Boli testified that defendant agreed that Atkinson could use the lift after repairing it.

Defendant gave conflicting accounts of these events. At his deposition and at one point in his trial testimony, defendant stated that he had never given Boli permission to use the lift; at other points in his testimony, however, he admitted that he may have told Boli that Atkinson could use the machine but only after it was repaired.

Defendant acknowledged that his usual practice was to remove the keys to both the truck engine and the lift engine before leaving the lift at a job site, as a precaution against unauthorized use of the equipment by others. There was also evidence that it was customary in the construction industry--in dealing with defective equipment--to remove the equipment's keys, to lock existing control boxes and to use warning tags to protect against unauthorized use. When defendant parked the lift in Atkinson's yard, however, he left the keys to both engines in the truck and did not lock the control box or post any warning signs.

Boli testified that on the day defendant left the lift in Atkinson's yard, he asked William McAnally, Atkinson's master mechanic, to inspect the lift and make necessary repairs. After examining the lift, McAnally removed the broken stabilizing cable and ordered a replacement cable.

On December 11, 1975, plaintiff was sandblasting a bridge column with another Atkinson employee, Bruce Duren. The equipment they were using would not lift them high enough to finish the job, and a supervisor, Ramon Lopez, told them to use defendant's lift. Plaintiff and Duren began using the lift, unaware that its stabilizing cable had broken and had been removed.

After plaintiff entered the basket, Duren, operating the ladder controls from the truckbed, raised the basket into position next to the bridge column. When Duren attempted to move the basket away from the column, the basket began to rise and flipped backwards; plaintiff was tossed out, falling approximately 35 feet to the ground. He suffered serious injuries as a result of the fall. 1

Plaintiff thereafter instituted this action against defendant, claiming he had taken inadequate precautions to prevent injuries from the foreseeable use of his lift. As noted above, the issues of liability and damages were bifurcated. After an initial jury found in favor of plaintiff on the question of liability, a second jury set plaintiff's damages at $200,000. Both parties appeal from the judgment.


Defendant contends that the trial court erred in instructing the jury on the applicable principles of liability. The trial court initially gave the jury a modified BAJI instruction with regard to the duty of care that must be exercised by a bailor of property. 2 At plaintiff's request, and over defendant's objection, the court additionally gave an instruction--"special instruction number 5"--which informed the jury that if an owner of a vehicle knows or should have known "of special circumstances which create a reasonable risk of harm from the use or operation of a vehicle, if the keys are left in the vehicle," then the owner has a duty to use reasonable care to protect third persons from harm arising from such conduct. 3 The principal issue presented by this case is whether the giving of this latter instruction constituted prejudicial error.

Defendant initially contends that on the facts of this case the bailment instruction fully covered all aspects of defendant's liability and that no additional instruction should have been given at all. The bailment instruction (see fn. 2, ante), however, defined bailment to include only situations in which "one gives possession and the right to use personal property to another." (Italics added.) Although much of the evidence did suggest that defendant had authorized Atkinson to use the lift if Atkinson first made the necessary repairs, the record also contains statements by defendant--largely, but not completely, recanted at trial--to the effect that he had never authorized Atkinson to fix or use the lift. In light of that evidence, plaintiff was entitled to have the jury instructed on the general principles that would apply if it found that defendant had not authorized the use of its lift. Plaintiff's special instruction No. 5 was intended to address that situation, and plaintiff's counsel, in closing argument, explained to the jury that the principles of the special instruction were to be applied if it found that defendant had not authorized the lift's use. 4

Defendant next contends that even if the plaintiff was entitled to some instruction applicable outside of the authorization-of-use context, the trial court erred in framing the instruction in terms of the "special circumstances" doctrine embodied in a line of decisions emanating from Richardson v. Ham (1955) 44 Cal.2d 772, 285 P.2d 269 and Hergenrether v. East (1964) 61 Cal.2d 440, 39 Cal.Rptr. 4, 393 P.2d 164. 5

Defendant contends that Richardson and Hergenrether establish an analysis to guide courts in determining when a duty arises on the part of a vehicle owner to protect third parties from the unauthorized use of the vehicle by another, and that the trial court erred in leaving the question of duty--a question which is generally for the court--to the jury.

Although defendant is correct in suggesting that the trial court should properly have resolved the duty issue itself, 6 defendant could not have been prejudiced by the instruction in this case because it is clear under past authorities that here defendant did bear a duty to use due care even if he had not authorized Atkinson or its employees to use his machinery. The Richardson decision itself--the first case to apply the "special circumstances" exception in recognizing duty--establishes that the significant danger posed by the unauthorized use of heavy construction machinery warrants recognition of a duty on the part of machinery owners to use due care to prevent the injurious misuse of the machinery by others. The Richardson court concluded that in light of the dangers involved, the imposition of liability on the machinery owner for negligence in controlling unauthorized use might have a salutary effect on public safety and would not impose an undue burden on the machinery owner. That conclusion is as applicable to the owner of an aerial manlift as it was to the owner of the bulldozer involved in Richardson.

Defendant maintains, however, that because the machinery in this case was left in a fenced-in area in the possession of Atkinson, rather than in an unenclosed, unguarded location as in Richardson, Richardson does not support the imposition of a duty of care. Although the location in which defendant left his machinery, as well as the other steps which defendant may have taken to minimize the danger of injury--for example, notifying Atkinson's foreman and other supervisory employees of the lift's dangerous condition--could well have been found by the jury to render defendant nonnegligent in controlling his machinery, those factors, in themselves, did not negate defendant's general duty--as the owner of a piece of heavy construction machinery--to use due care to prevent injurious misuse. That general duty applies wherever the machinery may be found.

Finally, ...

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