Bossi v. State of California

Decision Date30 April 1981
Citation119 Cal.App.3d 313,174 Cal.Rptr. 93
CourtCalifornia Court of Appeals
PartiesNorma F. BOSSI and John Bossi, Plaintiffs and Appellants, v. STATE of California and Adriana Gianturco, Defendants and Respondents. Civ. 19387.

David B. Mogilefsky, San Francisco, for plaintiffs and appellants.

Richard Rypinski, Chief Counsel, Dept. of Transportation, Sacramento, Richard Wehe, and George Cory, Sacramento, for defendants and respondents.

CARR, Associate Justice.

Plaintiffs appeal from a judgment entered on a jury verdict for defendant State of California (hereafter State) and against plaintiffs in their action for damages for personal injuries sustained in a vehicle-pedestrian collision. For reasons which appear, the judgment is affirmed.

The collision occurred January 2, 1977, at about 12:15 p. m. on a steep and icy portion of State Route 267, just outside the Tahoe Basin. Plaintiffs' vehicle, driven by John Bossi, husband of Norma Bossi, was traveling northbound on State Route 267 over the Brockway Summit. It was snowing at the time and the Bossi vehicle was equipped with tire chains. As plaintiffs' vehicle descended the summit it suddenly slid across the highway, coming to rest diagonally in the southbound uphill lane. Moments later another vehicle came down the summit, slid out of control, following the same trajectory as the Bossi vehicle, and collided with the Bossi vehicle.

Norma Bossi walked over to the second vehicle, and while standing in the southbound lane of the highway was struck by a third vehicle which also slid out of control after cresting the summit, following the trajectory of the two preceding vehicles.

The Bossis sued the California Department of Transportation (Caltrans) for negligent highway maintenance, contending proper snow and ice control procedures had not been followed, resulting in a dangerous condition of public property. (Gov.Code, § 835.)

I

Plaintiffs initially challenge the validity of the jury verdict. A special verdict form was submitted to the jury for each plaintiff, which set forth, in pertinent part, the following interrogatories and directions:

"Question No. 1. Was State Route 267 in a dangerous condition at the location and time of the injury to plaintiff? If you have answered 'no' to Question No. 1, you shall not answer any further questions. If you have answered 'yes' to Question No. 1, then answer the next question. Question No. 2a. Was the dangerous condition created by a negligent or wrongful act or omission of an employee of the State of California? Question No. 2b. Did the State of California have actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition? If you have answered 'no' to Questions Nos. 2a and 2b, you shall not answer any further questions. If you have answered 'yes' to either Questions Nos. 2a or 2b, then answer the next question."

To Question No. 1 the jury answered "Yes"; to Question Nos. 2a and 2b the jury answered "no". At appellant's request, the jury was polled. Nine jurors said the verdicts read in open court were their verdicts, three said otherwise.

After the jury were discharged, and the verdict entered, plaintiffs moved for a new trial on the ground the verdicts were inherently invalid. In support of the motion, plaintiffs offered the declaration of one of the three dissenting jurors, to the effect that nine identical jurors did not vote in favor of all of the above three answers; that of the nine jurors who voted "no" to questions No. 2a and No. 2b. Three of them voted "yes" on question No. 1. The motion was denied.

Appellants assert the verdict and judgment thereon is inherently invalid and not legal, relying on Borns v. Butts (1979) 98 Cal.App.3d 208, 210, 159 Cal.Rptr. 400, and cases therein cited. Respondents contend 1) the attempted impeachment of the jury verdict is improper; 2) the right to a jury poll in each question in the special verdict form was waived by appellants' failure to request such a poll, and 3) the verdict is valid since the same nine jurors agreed on the questions necessary to sustain a defense verdict whether the State was negligent or had notice of the alleged dangerous condition of the roadway.

We agree that appellants' attempted impeachment of the verdict is improper.

Section 1150, subdivision (a) of the Evidence Code provides: "(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." (Emphasis added.)

The significant words are "of such a character as is likely to have influenced a verdict improperly...." While Evidence Code section 1150, subdivision (a) and People v. Hutchinson (1969) 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132 have considerably broadened the rule of the admissibility of jurors' affidavits, there is preserved the distinction between proof of overt acts, objectively ascertained and proof of the subjective reasoning processes of individual jurors which can neither be corroborated nor disproved. The former is proper impeachment, the latter is not. In the instant case, appellants seek to impugn the verdict which nine jurors in open court stated was their verdict by a conclusionary declaration of one juror. The declaration was not offered to demonstrate "improper influences" upon the jury verdicts but to attack the validity of the jury poll and to show the mental processes of the jurors. As such it was incompetent evidence to impeach the jury verdicts.

In Silverhart v. Mount Zion Hospital (1971) 20 Cal.App.3d 1022, 1029-1030, 98 Cal.Rptr. 187, upon a second polling of the jury, a vote of 10 to 2 in favor of the verdict was found. Plaintiff attempted to impeach the verdict with a declaration by one juror that three-fourths of the jurors were not in agreement with the verdict when they were called in to announce a verdict. In rejecting this declaration as inadmissible impeaching evidence, the court stated: "... In the present case the juror's declaration was inadmissible because it showed only her mental processes and those of her fellow jurors, and the subjective considerations which influenced her verdicts. (Citations omitted.) The subject declaration by only one juror purports to impeach the mental processes of her fellow jurors by the unsupported conclusionary statements that 'In truth, three-fourths of such jurors at that time were not in agreement as to a verdict in this action' .... As already pointed out, the circumstances surrounding the return of the verdict are devoid of any coercion." (Emphasis added.)

A similar result obtained in Continental Dairy Equip. Co. v. Lawrence, (1971) 17 Cal.App.3d 378, 94 Cal.Rptr. 887.

On appropriate motion, the declaration of juror John Brooks should have been stricken by the trial court. We therefore simply consider it incompetent to impeach the verdict and affirm the trial court.

Appellants' response to the contention of waiver is that Code of Civil Procedure section 618 does not specifically provide for a separate poll on each question when there is a special verdict form and counsel was unaware he had the right to request it. In Silverhart v. Mount Zion Hospital, supra, 20 Cal.App.3d 1022, 98 Cal.Rptr. 187, the court noted at page 1029: "In considering plaintiff's contention, we first observe that no objection was made by plaintiff's counsel to the polling procedure at the time the jury was polled, nor did her counsel suggest that the jury be sent out again on the ground that more than one-fourth of the jurors disagreed with the verdict as returned. If plaintiff's counsel was not satisfied with the polling procedure, or if he believed that the jury was still confused, he should have complained immediately. Since any impropriety could have been cured if raised on time, the failure to object amounted to a waiver of the alleged impropriety or error...."

Appellants' effort to distinguish Silverhart as a general verdict and the instant case as a special verdict case is unavailing. Whether a general or special verdict, section 618, Code of Civil Procedure, places the burden on the party litigant to request a poll of all or any part of a verdict. The language of section 618 that "Either party may require the jury to be polled" compels this conclusion.

II

Appellants' second point on appeal is that the trial court erred in refusing to submit to the jury an instruction pertaining to negligence per se. In their brief appellants state: "Plaintiffs requested the Court to instruct the jury on negligence per se for violation of a statutory duty (BAJI 3.45)." However, there is no indication in the record that BAJI 3.45 was submitted to the court. Appellants did request BAJI 11.52, which instructs as to liability of a public entity for failure to discharge a mandatory duty, pursuant to section 815.6 of the Government Code. It was not error for the court to refuse that instruction.

An instruction regarding liability under section 815.6 of the Government Code is appropriate only if the public entity is under a mandatory duty to perform an act. 1 The jury was instructed that: "It is the law of California, as enacted by the State Legislature, in Streets and Highways Code Section 91, that Caltrans has a duty to maintain the state highways." Section 27 of the Streets and Highways Code defines the meaning of "maintain" as used in section 91. Section 27 provides, inter alia, that: "The degree and type of maintenance for each highway, or portion...

To continue reading

Request your trial
16 cases
  • Shelton v. City of Westminster
    • United States
    • California Court of Appeals
    • December 24, 1982
    ...136 Cal.Rptr. 251, 559 P.2d 606; Bradford v. State of California, 36 Cal.App.3d 16, 18, 111 Cal.Rptr. 852; Bossi v. State of California, 119 Cal.App.3d 313, 174 Cal.Rptr. 93; Department of Motor Vehicles v. Superior Court, 105 Cal.App.3d 537, 164 Cal.Rptr. 379; Slagle Constr. Co. v. County ......
  • Ryan v. Crown Castle NG Networks Inc.
    • United States
    • California Court of Appeals
    • December 13, 2016
    ...Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1125–1126, 105 Cal.Rptr.3d 485 ; Bossi v. State of California (1981) 119 Cal.App.3d 313, 318, 174 Cal.Rptr. 93 [declaration asserting that jurors had not voted as they claimed when polled was incompetent pursuant to Ev......
  • People v. Garcia
    • United States
    • California Court of Appeals
    • October 2, 1990
    ...a good deal of room for us to decide the current matter. The most recent pronouncement on the subject is in Bossi v. State of California (1981) 119 Cal.App.3d 313, 174 Cal.Rptr. 93, and while we recognize that this is a civil case, still, it attempts to give meaning to the somewhat vague ph......
  • Guernsey v. City of Salinas
    • United States
    • California Court of Appeals
    • December 17, 2018
    ...statement in a juror affidavit that the polling of the jurors was inconsistent with their actual votes ( Bossi v. State of California (1981) 119 Cal.App.3d 313, 318, 174 Cal.Rptr. 93 ) and of statements describing the amount of time that the jury spent discussing an issue ( People v. Davis ......
  • Request a trial to view additional results
2 books & journal articles
  • Submission to jury and deliberations
    • United States
    • James Publishing Practical Law Books California Objections
    • March 29, 2023
    ...of the verdict. Keener v. Jeld-Wen, Inc. (2009) 46 Cal. 4th 247, 262, 92 Cal. Rptr. 3d 862; Bossi v. State of California (1981) 119 Cal. App. 3d 313, 319, 174 Cal. Rptr. 93. Making the Objection • Be wary of any shortcut the court may take in polling the jury. Request a sidebar conference a......
  • Table of cases
    • United States
    • James Publishing Practical Law Books California Objections
    • March 29, 2023
    ...825, §17:110 Borror v. Dept. of Investment (1971) 15 Cal. App. 3d 531, 92 Cal. Rptr. 525, §9:100 Bossi v. State of California (1981) 119 Cal. App. 3d 313, 174 Cal. Rptr. 93, §§9:120, 22:240 - BE - B-7 Table of Cases Boston v. Penny Lane Centers, Inc. (2009) 170 Cal. App. 4th 936, 88 Cal. Rp......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT