Cabral v. Ralphs Grocery Co., No. E044098.

CourtCalifornia Court of Appeals
Writing for the CourtHollenhorst
Docket NumberNo. E044098.
PartiesMARIA CABRAL, Plaintiff and Respondent, v. RALPHS GROCERY COMPANY, Defendant and Appellant.
Decision Date10 November 2009
179 Cal.App.4th 1
101 Cal. Rptr. 3d 474
MARIA CABRAL, Plaintiff and Respondent,
v.
RALPHS GROCERY COMPANY, Defendant and Appellant.
No. E044098.
Court of Appeals of California, Fourth District, Division Two.
November 10, 2009.

[179 Cal.App.4th 5]

Bell, Orrock & Watase, Stanley Orrock; Greines, Martin, Stein & Richland, Timothy T. Coates and Lillie Hsu for Defendant and Appellant.

Shernoff Bidart Darras Echeverria, Frank N. Darras, Lissa A. Martinez; Donahue & Horrow and Michael B. Horrow for Plaintiff and Respondent.

OPINION

HOLLENHORST, Acting P. J.


On February 27, 2004, Adelelmo Cabral's pickup truck collided with a tractor-trailer (big rig) driven by Hen Horn, an

179 Cal.App.4th 6

employee of defendant and appellant, Ralphs Grocery Company (Ralphs),1 while it was stopped on the side of the freeway. As a result of the collision, Adelelmo Cabral (Decedent) died. On August 26, 2005, Decedent's wife, plaintiff and respondent Maria Cabral (Plaintiff)2 sued Ralphs and Horn for wrongful death, contending Horn's negligence in stopping in an "Emergency Parking Only" area for a nonemergency caused Decedent's death. On September 29, 2005, Ralphs cross-complained for property damage to the big rig. The case went to trial on June 20, 2007, and the jury returned a verdict for Plaintiff on the complaint and for Ralphs on its cross-complaint.

Ralphs appeals, contending that (1) as a matter of law, Horn owed no duty to Decedent to avoid stopping in the emergency parking area; (2) Horn's alleged negligence did not proximately cause the accident; and (3) the trial court erred in admitting the testimony of Plaintiff's expert on causation, and thus, the evidence is insufficient to support the verdict. We agree with Ralphs and reverse the judgment.

I. PROCEDURAL BACKGROUND AND FACTS

A. Pretrial Motions

The trial court granted motions by Ralphs to exclude (1) an accident report prepared by the California Highway Patrol (CHP), except for photographs, physical measurements and a diagram of the accident scene, and (2) any reference to the excluded portions of the report, including any opinions regarding the accident. Ralphs's motions were based on the grounds that, among other things, the accident report was inadmissible under Vehicle Code section 20013, the report was inadmissible hearsay, and the opinions in the report were inadmissible lay opinions. At trial, a single page from the accident report containing physical measurements and a diagram of the accident scene was admitted.

The trial court denied the request of Ralphs to exclude testimony by Plaintiff's accident reconstruction expert, Robert Anderson, on the grounds that his opinions were speculative, lacked foundation, and were unduly prejudicial, confusing, and misleading.

B. Motion for Nonsuit

Following Plaintiff's opening statement, Ralphs moved for nonsuit under Code of Civil Procedure section 581c on the grounds that Plaintiff failed to

179 Cal.App.4th 7

present evidence to prove defendants Ralphs and Horn owed any duty to Decedent or to Plaintiff, and that defendants' negligence, if any, was the cause of Decedent's death. Ralphs emphasized the cases of Arthur v. Santa Monica Dairy Co. (1960) 183 Cal.App.2d 483, 487 through 488 [6 Cal.Rptr. 808], Bentley v. Chapman (1952) 113 Cal.App.2d 1 [247 P.2d 575], and Victor v. Hedges (1999) 77 Cal.App.4th 229, 238 [91 Cal.Rptr.2d 466]. The trial court denied the motion, and the case proceeded to trial.

C. Trial Testimony

On February 27, 2004, around 9:00 p.m., Decedent was driving an F-150 pickup truck (pickup) eastbound in the number three lane (of four lanes) on Interstate 10 (I-10) in San Bernardino County. Juan Perez testified that he was driving a big rig behind Decedent for some distance. He estimated Decedent's speed to be around "70, 80," miles per hour.3 Perez opined that Decedent appeared to be intoxicated or falling asleep because his pickup was swerving left and right within the number three lane. Perez saw the pickup suddenly turn right, cutting in front of another big rig truck in the number four lane, as if attempting to exit the freeway. The pickup crossed the number four lane and the paved shoulder of the freeway and then hit the back of Ralphs's big rig, which was stopped4 in the dirt area approximately 16 feet from the number four lane.5 Perez did not see brake lights activated on the pickup, nor was there any indication that Decedent tried to reduce speed or avoid hitting the big rig. There was an "Emergency Parking Only" sign (R45 sign) posted in the area (about 100 feet away) where the big rig had stopped.6 As a result of the collision, Decedent suffered massive injuries and died at the scene.

Officer Michael Migliacci, the primary investigating officer for the collision, testified that the CHP's investigation of the collision revealed the same facts as observed by Perez. The evidence further revealed that the road surface was dry and there were no unusual conditions that would have caused Decedent to go off the road. A CHP inspection disclosed no mechanical defects that would have hindered the normal operation of Decedent's pickup. The CHP's investigation concluded that Decedent's unsafe turn from the

179 Cal.App.4th 8

number three lane, a violation of Vehicle Code section 22107, was the sole cause of the accident. Because the cause of Decedent's death was clear, no autopsy was performed. A toxicology report showed no evidence of intoxication.

Plaintiff's human factors expert, Dr. Mark Sanders, opined that Decedent was fighting drowsiness and finally fell asleep, which caused him to leave the number three lane. The human factors expert for Ralphs, Dr. Antony Stein, opined that an undiagnosed medical condition caused Decedent, who was five feet 11 inches tall and weighed 350 pounds, to leave the freeway.

Plaintiff's expert, Anderson, testified that when Decedent hit the big rig, he was awake and alert, his pickup was in a left turn, and he would have returned safely to the freeway had the big rig not been in his path. Anderson further opined that Decedent was going no faster than 60 miles per hour (plus or minus 10 miles per hour) and that he was braking when he hit the big rig. Anderson relied on the factual diagram and a photograph taken by the CHP. Over the objection of Ralphs, and contrary to the motion in limine ruling, the trial court permitted Anderson to testify that two marks recorded on the factual diagram were labeled elsewhere in the CHP report as tire marks from Decedent's pickup. Officer Migliacci was the only witness who testified regarding preparation of the CHP report. He did not take the measurements or the photographs. He had no basis to believe the marks came from Decedent's vehicle other than the fact that the officer who had taken the measurements had labeled the marks that way. No one had compared the tread marks with the pickup's tires or found any other physical evidence indicating that the marks were from the pickup.

In contrast, the accident reconstruction expert for Ralphs, Fred Cady, testified the marks could not have been made by Decedent's pickup because (1) the marks did not align with how the pickup contacted the big rig, (2) eyewitnesses reported there was no indication that Decedent applied his brakes or reacted in any way, and (3) the pickup had antilock brakes, which would not have left a braking mark. Using eyewitness testimony and physical evidence, Cady performed a time-distance study and concluded that Decedent would not have had time to begin turning left, as Anderson claimed, before hitting the big rig.

D. Ralphs's Motion for Nonsuit

At the close of Plaintiff's evidence, Ralphs again moved for a nonsuit, incorporating its prior written motion, on the grounds that Horn owed no duty to Decedent or Plaintiff, and Horn's negligence, if any, did not proximately cause the collision. In response, Plaintiff argued that, regardless of the R45

179 Cal.App.4th 9

sign, the presence of Ralphs's big rig "creat[ed] a roadside obstacle." Specifically, Plaintiff's counsel argued, "There is no superseding intervening cause because when you place that roadside obstacle where it is, sign or no sign, it creates the risk of death." The court denied the motion. Ralphs sought clarification and the following exchange occurred:

"[COUNSEL FOR RALPHS]: Your Honor, may I just inquire? . . . [I]f I could go back just for a moment to the motion for judgment nonsuit. Is the court finding that [Decedent] is within a protected class?

"THE COURT: I think he is. And I think that's based on one of the experts that was talking about the danger. He talked about the danger of the deceleration and acceleration, and that did not get included at all. But one of the experts . . . testified as to the requirement that people don't park there for reasons that—of avoiding the very sort of thing that happened here. This freeway is used there and parking spot is there because of some shade and trucks pull off there and they shouldn't. And the CHP has decided that they shouldn't. And that's the attraction is the shade [sic]."

E. Jury's Verdict

The jury returned a verdict for Plaintiff on the complaint and for Ralphs on its cross-complaint. On the special verdict form, the jury found both Ralphs (through Horn) and Decedent were negligent, that each one's negligence was a substantial factor in causing Plaintiff's harm, and that Decedent's negligence was a substantial factor in causing damage to Ralphs's big rig. The jury assessed 90 percent responsibility for the accident to Decedent, and 10 percent to Horn. Both parties were awarded damages based on their claims. After adjusting the awards to reflect the jury's allocation of fault, a final judgment was entered against Ralphs in the amount of $475,298.40.

F. Posttrial Motions

On August 1, 2007, Ralphs filed notice of its intent to move for a new trial or judgment notwithstanding the verdict on the following grounds: (1)...

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