BOWMAN v. WYATT
| Decision Date | 28 July 2010 |
| Docket Number | No. B207468.,B207468. |
| Court | California Court of Appeals Court of Appeals |
| Parties | Barry A. BOWMAN, Plaintiff and Respondent, v. Tommie WYATT, Jr., et al., Defendants and Appellants. |
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Law Office of Stephen S. Talt and Stephen S. Talt, Pasadena, for Defendant and Appellant Tommie Wyatt, Jr.
John P. DeGomez, Greines, Martin, Stein & Richland, Feris M. Greenberger, Carolyn Oill, and Sheila A. Wirkus, Los Angeles, for Defendant and Appellant City of Los Angeles.
Robert S. Gerstein, Tourtelot & Butler and Robert H. Tourtelot, Los Angeles, and T. Sean Butler for Plaintiff and Respondent.
Plaintiff Barry A. Bowman (plaintiff or Bowman) brought the present action after suffering devastating injuries when his motorcycle collided with a dump truck owned and operated by defendant Tommie Wyatt, Jr. (Wyatt). The collision occurred shortly after Wyatt delivered a load of asphalt to a work site of defendant City of Los Angeles (City), with whom Wyatt was under contract.
The jury found that Wyatt caused the accident by negligently making a left turn in front of Bowman's motorcycle. The jury further found that Wyatt was a City employee, that the City breached a duty to inspect and maintain the dump truck's brakes, that the truck was controlled by the City and was in a dangerous condition, and that the work in which Wyatt was engaged at the time of the accident involved a special risk of harm. It returned a verdict for Bowman of over $15 million.
The City has appealed, contending that: (1) the jury was misinstructed on several critical issues, including the factors it was to consider in determining if Wyatt was an employee or independent contractor; (2) there was no substantial evidence to support a finding that defects in the dump truck's brakes were a proximate cause of the accident; (3) as a matter of law, the work in which Wyatt was engaged did not involve a peculiar risk of harm; and (4) the trial court erred in deciding as a matter of law that the City was the dump truck's “motor carrier” within the meaning of Vehicle Code sections 408 and 34501.12. Wyatt has also appealed, contending that the court abused its discretion by allowing evidence that Wyatt's motor carrier permit had been suspended, allowing lay opinion testimony, and limiting the testimony of defendants' expert.
We agree with the City that the trial court erred by misinstructing the jury about the factors relevant to determining whether Wyatt was an employee or an independent contractor, allowing the jury to find that the work in which Wyatt was engaged involved a peculiar risk of harm, and instructing the jury that the City was the motor carrier as a matter of law. We further agree with the City that substantial evidence did not support the jury's finding that defects in the dump truck's brakes were a proximate cause of the accident. Because these errors infected all four bases of liability Bowman asserted against the City, we reverse the judgment for Bowman and against the City, and remand for a limited retrial on vicarious liability.
With respect to Wyatt's appeal, we conclude that his contentions are without merit and affirm the jury finding as to his liability.
Bowman was seriously injured on October 13, 2004, when the motorcycle he was riding collided with a dump truck driven by Wyatt. Bowman had been traveling southbound on Wilbur Avenue in Northridge; Wyatt was traveling eastbound on Vanalden Avenue, rolled through a stop sign, and collided with Bowman at the intersection of Wilbur and Vanalden as he began making a left turn. As a result of the accident, Bowman suffered traumatic brain injury, a stroke, hearing and vision loss, a jaw laceration, a frozen shoulder, compound leg fractures, and a hip fracture. At the time of trial, he remained blind in one eye, walked with a cane, and suffered severe mental impairment that interfered with his memory and reasoning.
When the accident occurred, Wyatt was under contract with the City of Los Angeles, Bureau of Street Services, to deliver asphalt to City work sites on an as-needed basis. 1 Wyatt had just delivered a load of asphalt for the City and was returning to a City yard to determine if there was another load for him to haul.
Bowman sued Wyatt and the City for personal injuries. The operative third amended complaint alleged that Wyatt failed to stop at the stop sign and/or to yield the right-of-way to Bowman; defendants negligently failed to maintain the dump truck's brakes; Wyatt was engaged in an activity that lawfully could be carried out only pursuant to a permit from the state of California; the City was vicariously liable for the harm to Bowman because Wyatt's duties involved possible danger to the public and were nondelegable; the operation of the dump truck was, as a matter of law, an activity involving an unreasonable risk of harm to others; Wyatt's operation of the dump truck was pursuant to the California Motor Carrier of Property Permit Act; and the City had a nondelegable duty to exercise due care to Bowman as a member of the driving public.
The case went to trial before a jury in November 2007. Bowman presented evidence that the dump truck's brakes failed, Wyatt's motor carrier permit had been suspended, and required safety inspections had not been performed as required by law. Defendants presented evidence that the brakes did not fail, Wyatt's motor carrier permit had not been suspended, required inspections were performed, and the City was not responsible for maintaining the dump truck. 2
After hearing several weeks of testimony, the jury returned a verdict for Bowman, finding as follows:
...
The jury found that Wyatt was 25 percent responsible for the accident and the City was 75 percent responsible. It awarded damages as follows:
+------------------------------------------+
¦¦Past economic loss: ¦$ 776,339 ^[FN3]¦
++------------------------+----------------¦
¦¦Future economic loss: ¦$ 3,959,005 ¦
++------------------------+----------------¦
¦¦Past noneconomic loss: ¦$ 1,500,000 ¦
++------------------------+----------------¦
¦¦Future noneconomic loss:¦$ 9,500,000 ¦
++------------------------+----------------¦
¦¦TOTAL: ¦$15,735,404 ¦
+------------------------------------------+
Judgment was entered on January 28, 2008, and notice of entry of judgment was served on January 30, 2008. The trial court denied defendants' motions for new trial and for judgment notwithstanding the verdict. This timely appeal followed.
The City contends: (1) the jury was misinstructed on critical issues, including the factors it should consider in determining if Wyatt was an employee or independent contractor of the City; (2) the trial court erred in allowing the jury to find that Wyatt's use of the dump truck involved a special risk of harm; (3) substantial evidence did not support a finding that the condition of the brakes was a proximate cause of the accident and Bowman's injuries; and (4) the trial court erred in finding that the City was the “motor carrier” as a matter of law. We consider each issue below.
[1] At Bowman's request, the jury was instructed pursuant to the Judicial Council's California Civil Jury Instructions (CACI) No. 3704 that it must determine whether Wyatt was an employee or an independent contractor of the City, as follows: 4
“In deciding whether Tommie Wyatt, Junior was the City of Los Angeles's employee, you must first decide whether the City of Los Angeles had the right to control how Tommie Wyatt, Junior performed the work, rather than just the right to specify the result.
“It does not matter whether City of Los Angeles exercised the right to control. If you decide that the right to control existed, then Tommie Wyatt, Junior was the City of Los Angeles' employee.
“If you decide that the City of Los Angeles did not have the right of control, then you must consider all the circumstances in deciding whether Wyatt was the City of Los Angeles's employee.
“The following factors, if true, may show that Wyatt was the employee of the City of Los Angeles:
“A, The City of Los Angeles supplied the equipment, tools and place of work;
“B, Tommie Wyatt, Junior was paid by the hour rather than by the job;
“C, The work being done by Tommie Wyatt, Junior was part of the regular business of the City of Los Angeles;
“D, The City of Los Angeles had an unlimited right to end the relationship with Tommie Wyatt,...
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