Bashi v. Wodarz

• Decision Date: 23 May 1996
• Docket Number: No. F022797,F022797
• Citation: 53 Cal.Rptr.2d 635,45 Cal.App.4th 1314
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 3892 Mubarak BASHI et al., Plaintiffs and Appellants, v. Margie Marie WODARZ, Defendant and Respondent.

Page 635

53 Cal.Rptr.2d 635

45 Cal.App.4th 1314, 96 Cal. Daily Op. Serv. 3892

Mubarak BASHI et al., Plaintiffs and Appellants, v. Margie Marie WODARZ, Defendant and Respondent.

No. F022797.

Court of Appeal, Fifth District, California.

May 23, 1996.

[45 Cal.App.4th 1316] Ralph J. Rubenstein, Encino, for Plaintiffs and Appellants.

Clifford & Brown, Michael L. O'Dell and Stephen P. Wainer, Bakersfield, for Defendant and Respondent.

OPINION

ARDAIZ, Presiding Justice.

Defendant and respondent, Margie Wodarz, was involved in a rear-end auto accident with a third party. According to the traffic collision report, respondent left the scene without stopping. A short time later, respondent was involved in a second automobile accident with the plaintiffs and appellants, Mubarak Bashi and Nasim Akhtar.

Respondent has little recollection of either event occurring. According to the traffic report, respondent engaged in some "bizarre" behavior before and after the collision with appellants. Under the heading of "Statement of Witnesses and Remarks" the traffic report contains the following remarks with respect to respondent's statement:

"... Somewhere, shortly after making the turn, she stated, 'I wigged out.' She stated that all she could remember was ramming into the back of someone's vehicle and then continuing east. She had no control of her actions at that time and then she remembered being involved in a second collision at an unknown location on White Lane. She also stated, 'My family has a history of mental problems and I guess I just freaked out.' "

Appellants filed a complaint for negligence. At non-binding arbitration, appellants' claims were denied. The arbitrator made the following comments in support of his decision:

"Although a rear-end collision was involved whereby the Plaintiffs' vehicle was struck by Defendant's vehicle, Defendant produced unrebutted medical expert evidence (Declaration of Terry Lanes, M.D.) indicating the accident was unavoidable due to the Defendant's 'Sudden, unanticipated onset of mental illness' shortly before the impact.

"This evidence was also supported by the traffic accident report setting forth the actions and comments by the Defendant driver, Margie Marie Wodarz, immediately prior to and subsequent to the subject accident indicating uncontrollable mental illness of which the Defendant has no prior warning.

"Accordingly, under such circumstances, the Plaintiffs' claim is denied."

Appellants timely filed a request for trial de novo. Appellants' subsequent motion to reopen discovery, supported by counsel's declaration that the defense of a sudden onset of mental illness was "a complete surprise," was denied.

Thereafter, respondent filed a motion for summary judgment pursuant to Code of Civil Procedure section 437c, arguing that due to the sudden, unanticipated mental disorder, respondent was not negligent as a matter of law and that no triable issue of material fact existed with respect to the issue that respondent was afflicted by the unforeseen onset of the mental disorder. Respondent's motion was granted. Appellants filed a timely notice of appeal from the judgment of dismissal.

DISCUSSION

A. Standard of Review

On appeal from a summary judgment, "it is the task of the reviewing court to determine whether the moving party has established facts which negate the opponent's claims and whether a triable issue of material fact has been shown." (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1515, 285 Cal.Rptr. 385.)

When summary judgment is granted in favor of the defendant, the defendant must either establish an affirmative defense to the cause of action or disprove at least one essential element of the cause of action. (Code Civ.Proc., § 437c, subd. (n).)

This court recently summarized the standard of review as follows:

"Summary judgment is proper if the supporting papers are sufficient to sustain a judgment in favor of the moving party as a matter of law and the opposing party presents no evidence giving rise to a triable issue as to any material fact. (Code Civ.Proc., § 437c, subd. (c).) To prevail on a summary judgment motion, the defendant must conclusively negate a necessary element of the plaintiff's case or establish a complete defense. [Citation.] Where the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff. [Citation.] The evidence of the moving party is strictly construed and that of the opposing party liberally construed. [Citation.] Where there is no material issue of fact to be tried and the sole question before the court is one of law, it is the duty of the trial court on a motion for summary judgment to hear and determine the issue of law. [Citation.]

"In reviewing a grant of summary judgment, an appellate court must make its own independent determination of the construction and effect of the papers submitted. Review of the trial court's determination involves pure matters of law and requires reassessment of the legal significance of the documents. The reviewing court applies the same three-step analysis as that of the trial court: (1) identification of issues framed by the pleadings; (2) determination of whether the moving party has established facts which negate the opponent's claim and justify a judgment in movant's favor; and (3) determination of whether the opponent demonstrates the existence of a triable, material factual issue. [Citations.]" (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-886, 41 Cal.Rptr.2d 740.)

B. Is sudden onset of mental illness a defense to negligent operation of a motor vehicle?

In order to affirm the trial court's granting of the summary judgment motion at issue, we must first identify the issues framed by the pleadings. In this case, the appellants filed a simple form complaint for negligent operation of a motor vehicle.

Secondly, we must determine whether the respondent's showing in the trial court established facts which negate the appellants' claim and justify a judgment in respondent's favor. At the trial court, respondent contended that due to respondent's sudden, unanticipated mental disorder, respondent was not negligent as a matter of law. Whether the sudden onset of mental illness is a defense to a negligence action in California is pivotal to the correctness of the trial court's ruling.

"California has approved the rule of Cohen v. Petty (D.C.Cir.1933) 65 F.2d 820, that as between an innocent passenger and an innocent fainting driver, the former must suffer." (Ford v. Carew & English (1948) 89 Cal.App.2d 199, 203, 200 P.2d 828, citing Waters v. Pacific Coast Dairy, Inc. (1942) 55 Cal.App.2d 789, 131 P.2d 588.)

Under a line of appellate authorities beginning with Waters in 1942, these cases generally hold that a driver, suddenly stricken by an illness rendering the driver unconscious, is not chargeable with negligence. (Waters v. Pacific Coast Dairy, Inc., supra, 55 Cal.App.2d at pp. 791-793, 131 P.2d 588 [driver rendered unconscious from sharp pain in left arm]; Ford v. Carew & English, supra, 89 Cal.App.2d at pp. 203-204, 200 P.2d 828 [fainting spell from strained heart muscle]; Zabunoff v. Walker (1961) 192 Cal.App.2d 8, 11, 13 Cal.Rptr. 463 [jurors could have concluded that a sudden sneeze was an intervening cause similar to a fainting spell]; Tannyhill v. Pacific Motor Trans. Co. (1964) 227 Cal.App.2d 512, 520, 38 Cal.Rptr. 774 [heart attack]; Hammontree v. Jenner (1971) 20 Cal.App.3d 528, 530-531, 97 Cal.Rptr. 739 [loss of consciousness due to unexpected epileptic seizure].)

Although the driver in the Cohen case suffered a sudden illness rendering him unconscious, the court generally stated the rule regarding the effect of a sudden illness as follows:

"It is undoubtedly the law that one who is suddenly stricken by an illness, which he had no reason to anticipate, while driving an automobile, which renders it impossible for him to control the car, is not chargeable with negligence." (Cohen v. Petty, supra, 65 F.2d at p. 821.)

Respondent admits that "no prior California decisions have decided whether the [Cohen] rule also applies when defendant suffers a sudden and unanticipated mental, as opposed to physical illness." Respondent urges this court to extend the Cohen rule to any sudden "illness," without distinction between physical and mental illness. She argues that the public policy rationale would remain the same; "i.e., as between an innocent injured party and an innocent ill driver, the innocent injured party must suffer." The basis behind the Cohen rule is related to the general concept of " 'unavoidable accident.' " (6 Witkin, Summary of Cal.Law (9th ed.) Torts, § 759, p. 98.) In California, our Supreme Court has addressed this concept in Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 320 P.2d 500:

"In reality, the so-called defense of unavoidable accident has no legitimate place in our pleading. It appears to be an obsolete remnant from a time when damages for injuries to person or property directly caused by a voluntary act of the defendant could be recovered in an action of trespass and when strict liability would be imposed unless the defendant proved that the injury was caused through 'inevitable accident.' Although exactly what was covered by this expression is not clear, it apparently included cases where the defendant was utterly without fault. 'Unavoidable accident' was then an affirmative defense to be pleaded and proved by the defendant.

"..."

"... 'unavoidable or inevitable accident' ... 'simply denote[s] an accident that occurred without having been proximately caused by negligence' ...." (49 Cal.2d at p. 658, 659, 320 P.2d 500.)

In effect, the concept of unavoidable accident is predicated upon absence of fault.

After consideration of state and national case law, the rationale behind respondent's argument...