Broderick v. State

• Decision Date: 19 June 2018
• Docket Number: F073710
• Parties: CHRISTOPHER BRODERICK, Individually and as Successor in Interest, etc. et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

CHRISTOPHER BRODERICK, Individually and as Successor in Interest, etc. et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA et al., Defendants and Respondents.

F073710

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

June 19, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. CVPO-10150)

OPINION

APPEAL from a judgment of the Superior Court of Mariposa County. Wayne R. Parrish, Judge. (Retired judge of the Mariposa County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Greene Broillet & Wheeler, Browne Greene, Robert D. Jarchi, Christian T.F. Nickerson, and Esner, Chang & Boyer, Stuart B. Esner, Holly N. Boyer, and Joseph S. Persoff, for Plaintiffs and Appellants.

Jeanne Scherer, Lauren A. Machado, Douglas L. Johnson, Bruce D. McGagin, and Raiyn Bain for Defendants and Respondents.

-ooOoo- In 1953, the California Department of Transportation (Caltrans) built a structure to carry water under a highway. The structure included a pipe seven feet in diameter and 136 feet long, leading to a concrete apron where the water channel ended a short distance beyond the end of the pipe, discharging water onto the ground below. The end of the apron was only a few feet above the ground when the structure was built, but the ground eroded over the years, creating a drop-off onto jagged rocks. In 2010, the apron was about 25 feet directly above the rocks; about five feet out from the end of the apron the drop-off was about 50 feet. The apron itself was thick with slick algae growth. Caltrans was aware that the location was frequented by the public, members of which often walked through the pipe and stood on the apron. Despite its employees' awareness of the situation, Caltrans never installed signage, fences, guardrails, or anything similar.

On April 30, 2010, plaintiffs' decedent, Ryan Christopher Broderick, jogged or skipped through the pipe, slipped on the apron, and fell to his death. Plaintiffs sued Caltrans, alleging a dangerous condition of public property. After plaintiffs presented their evidence at trial, the trial court granted Caltrans' motion for nonsuit, finding that (1) plaintiffs failed to present substantial evidence to support each element of their cause of action based on a dangerous condition of public property, and (2) the facts fell within the doctrine of primary assumption of risk, which afforded Caltrans a complete defense. The court entered a defense judgment and awarded Caltrans over $300,000 in costs and attorneys' fees under Code of Civil Procedure section 1038.

We find the nonsuit motion was granted in error. Plaintiffs did present evidence from which a reasonable finder of fact could conclude the elements of the cause of action were proven. At the same time, the evidence did not compel the conclusion that Caltrans was shielded by the defense of primary assumption of risk.

The erroneous nonsuit is sufficient to reverse the judgment in its entirety, but there are additional issues we will address for the guidance of the trial court on remand. First, the award of attorneys' fees and costs was a manifest abuse of discretion. Under Code of Civil Procedure section 1038, such an award requires a finding that no reasonable attorney could have believed the lawsuit had merit or that plaintiffs acted with subjective bad faith. The record is devoid of support of either element. Second, the court made several important errors in excluding evidence. Finally, there were certain irregularities in the conduct of the trial judge that, while not reversibly erroneous, are disturbing and must not be repeated on remand.

We reverse the judgment, including the award of costs and attorneys' fees, and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

Plaintiffs Christopher and Lisa Broderick (Ryan Broderick's parents) and the estate of Ryan Broderick filed a complaint in Orange County Superior Court on January 25, 2011, and a second complaint in Mariposa County Superior Court on April 27, 2012. The two cases were consolidated in Mariposa County Superior Court on November 26, 2012.

The 2011 complaint named the following defendants: Caltrans, Mariposa County, the Fischer Family 1993 Trust, and the Prange Trust. Only Caltrans is a party to this appeal.

The 2011 complaint alleged that on April 30, 2010, Ryan was legally on property owned or managed by the defendants along Highway 140 at Briceburg Grade in Mariposa County (at a location known as Rancheria Gulch ) when he slipped at the end of a culvert and fell off a steep cliff to his death. The complaint alleged one cause of action against Caltrans and Mariposa County for maintaining public property in a dangerous condition. It stated that the steep drop-off was located beneath a slipperysurface approached via a tunnel, that the edge of the slippery surface was a short distance from the tunnel exit, and that the drop-off was concealed from the view of persons approaching it through the tunnel. The Fischer Family 1993 Trust and the Prange Trust also were alleged to be owners or managers of the property. Against them, the 2011 complaint alleged a premises liability cause of action. The complaint prayed for economic and noneconomic damages and pre- and post-judgment interest.

The defendants named in the 2012 complaint were Three Springs Community, Kearey Allison, and Susan Aronson. As will be seen, these were an entity by which Ryan was employed at the time of the accident and two of its agents or managers. The complaint alleged one cause of action for negligence against them. The trial court granted these defendants' motion for nonsuit, a decision not at issue in this appeal.

At trial, Aronson testified that Ryan was an apprentice in the apprenticeship program at Three Springs Community at the time of his death. Apprentices provided their labor in exchange for room and board, and they learned about organic farming on Three Springs Community's 160-acre property. In addition to Ryan, who was 20 years old at the time of his death, there were three other apprentices at that time, aged 18, 18, and 21. Aronson worked as a mentor or teacher in this program. At the time of trial, she had served on the Three Springs Community Corporation's board of directors for about 10 years and had been its treasurer.

Aronson testified that on the day of the accident, she, Allison, Ryan, and the other apprentices set out on a trip from Three Springs Community to Yosemite. They planned to make sightseeing stops at a number of points along the way, including the location on Highway 140 at Briceburg Grade. Aronson had been to the location before and had walked through the pipe and looked at the view from the end of the culvert.

When the group arrived at the site on the day of the accident, according to Aronson's testimony, they parked in a pullout beside the highway. There were no signsindicating they should not park or should not get out there. As the group walked from the parking place to the culvert, Aronson saw no signage of any kind. There also were no barriers or fences along the way. There were indications that the location was visited by the public, however, including trash and cigarette butts on the ground and graffiti in the large pipe.

As the group proceeded toward the overlook, they sang and made echoes inside the pipe, which was seven feet high. A couple of members of the group were ahead of Aronson, and the rest, including Ryan, were behind her. Aronson found there was traction for her feet inside the pipe if she avoided a narrow stream of water several inches deep running down the middle of the curved floor, but the concrete apron outside at the end was covered with green algae and very slippery.

Inside the pipe, Ryan passed Aronson and skipped toward the exit. When he reached the point where the pipe ended and the apron began, he tried to stop but instead began to slide out of control. It "looked like he was stepping on 100 slippery banana peels." Aronson saw Ryan slip off the edge. She looked down and saw him lying on the rocks below.

Allison testified at trial that he had been part of Three Springs Community since 2005 and worked teaching the apprentices about organic farming. In the 10 to 12 years before the accident, he had visited its location about 24 times, and had seen graffiti and other indications of public usage each time. The amount of graffiti had gradually increased over the years. He had never seen signs there indicating that the public should not enter, or any other kind of signs.

Allison's account of the accident was consistent with Aronson's. There were no warning signs, barriers or fences at the location that day. Although Allison had been to the location many times, he did not recall saying anything about the need to watch out for the drop-off when emerging from the pipe. He was the first member of the group toreach the concrete apron, which he described as about 20 feet wide and 20 feet long. (A Caltrans engineer testified that the distance from the pipe edge to the end of the apron was actually 10 to 15 feet.) He saw the algae, which was very slippery and something less than half an inch thick, covering most of the surface of the apron. He saw this a minute or so before the others emerged from the pipe, but did not warn them. One of the other apprentices emerged and stood on the apron. Next, Allison heard splashing and footsteps of someone moving faster than a walk, perhaps skipping or possibly running, toward the end of the pipe. Thinking someone must be approaching too fast, he turned and shouted, "Stop." Just as he did so, he saw Ryan slipping and falling onto the apron. Ryan landed on his side,...