Carson v. Facilities Development Co.

• Decision Date: 13 September 1984
• Court: California Supreme Court
• Parties: , 686 P.2d 656 Jason R. CARSON, a Minor, etc., et al., Plaintiffs and Appellants, v. FACILITIES DEVELOPMENT COMPANY et al., Defendants and Respondents. L.A. 31840.

Page 136

206 Cal.Rptr. 136

36 Cal.3d 830, 686 P.2d 656

Jason R. CARSON, a Minor, etc., et al., Plaintiffs and Appellants, v. FACILITIES DEVELOPMENT COMPANY et al., Defendants and Respondents.

L.A. 31840.

Supreme Court of California,

In Bank.

Sept. 13, 1984.

George R. McClenahan and Harold F. Tyvoll, San Diego, for plaintiffs and appellants.

George E. Fleming, McInnis, Fitzgerald, Rees, Sharkey & McIntyre, San Diego, for defendant and respondent Facilities Dev. Co.

Alejandro Matuk, Deputy City Atty., Litigation Div., San Diego, for defendant and respondent City of San Diego.

Philip D. Sharp, Jr., Shifflet, Sharp & Walters, San Diego, for defendant and respondent Roger Kurtz.

Donald H. Glaser, Higgs, Fletcher & Mack, San Diego, for defendant and respondent Friars Hollow Homeowners Assn.

John W. Witt, City Atty., Ronald L. Johnson, Chief Deputy City Atty., Vincent P. Di Figlia, Deputy City Atty., Virginia R. Gilson, McInnis, Fitzgerald, Rees, Sharkey & McIntyre, for defendants and respondents.

BIRD, Chief Justice.

Did the trial court err in granting defendants' motions for nonsuit in this wrongful death action?

I.

Plaintiffs are the surviving minor children and husband of Carol Carson (decedent), who was killed in a car collision on March 30, 1978, in the City of San Diego, California. Defendants are the City of San Diego (City), Facilities Development Company (FDC), which built the Friars Hollow condominium complex located near the site of the car accident, the Friars Hollow Homeowners Association (Friars Hollow), and Roger Kurtz, the driver of the automobile that collided with decedent's vehicle.

About 5 p.m. on March 30, 1978, decedent was driving her Ford Pinto southbound on Colusa Street. Her two children, Jason and Michael, were passengers. Decedent was following her husband, Robert, who was riding ahead of the Pinto on his motorcycle.

At the intersection of Colusa Street and Friars Road, Robert turned left and proceeded east along Friars Road. Decedent approached the intersection behind him and stopped her car at the stop sign limit line. She then drove forward, closer to Friars Road, and stopped again.

After her second stop, decedent pulled out into the intersection, intending to make a left turn and proceed east along Friars Road. While her car was still in the intersection, it was struck by Kurtz's Chevrolet Impala, which was proceeding west on Friars Road. Kurtz's car was about 50 feet from decedent's vehicle when she started into the intersection. Decedent died about an hour later from the injuries sustained in the collision. Jason and Michael were injured as well.

The Friars Hollow condominium complex is located on the north side of Friars Road, immediately to the east of the Colusa Street intersection. The complex was built and originally managed by FDC. In August of 1977, prior to the accident, FDC erected an address sign along Friars Road. This sign was placed in a position perpendicular to Friars Road, near the intersection of Friars Road and Colusa Street.

The strip of land on which the sign was erected was owned by the City. A few trees were located near the sign on the same strip of land. The City required an encroachment permit for the placement of a sign on its property. ¹ FDC did not seek or obtain the required permit.

In November of 1977, FDC sold the condominium complex to Friars Hollow, an incorporated association of condominium owners. Friars Hollow left the address sign in place and did not apply to the City for a permit authorizing the encroachment.

Plaintiffs presented a timely claim to the City for damages for the wrongful death of decedent. ² On August 14, 1978, that claim was rejected.

Subsequently, on January 10, 1979, plaintiffs filed a lawsuit for wrongful death and personal injuries naming the City, FDC, Friars Hollow and Kurtz as defendants. ³ In their complaint, plaintiffs alleged that the City negligently maintained Colusa Street and Friars Road in a dangerous and defective condition by permitting the address sign and shrubbery to obstruct the visibility of drivers travelling along those streets. Similarly, plaintiffs alleged that FDC and Friars Hollow negligently built, maintained and controlled the condominium complex by allowing the sign and shrubbery to create an obstruction to the drivers' visibility. Further, plaintiffs alleged that Kurtz was driving in a negligent manner when his car collided with decedent's car. The complaint stated that the negligence of each of the defendants proximately caused the injuries suffered by plaintiffs. At the beginning of trial, plaintiffs successfully moved to amend their complaint to add a cause of action for nuisance against FDC and Friars Hollow.

On March 1, 1982, the jury trial on plaintiff's action commenced. Plaintiffs offered testimony from defendant Kurtz, plaintiff Robert Carson, Bruce Gomes, a witness to the accident, Michael Varlas, the police officer who investigated the accident, and Cortland Young, Richard Alexander and Marjorie Warner, current and former residents of the Friars Hollow condominium complex who were familiar with the driving conditions at the Colusa Street-Friars Road intersection.

One of the major issues addressed by the testimony was whether and to what degree the address sign and the trees located along the north side of Friars Road obstructed the visibility of drivers stopped on Colusa Street at the north side of the intersection. Warner and Varlas testified that visibility to the east was clear from the driver's seat of a car stopped behind the stop sign limit line. This evidence suggested that decedent's view of oncoming traffic was clear each time she stopped before entering the intersection. In contrast, Young testified that the driver of a southbound car on Colusa Street did not have a clear view of oncoming westbound traffic until the front of his car had moved past the stop sign limit line and was protruding slightly into Friars Road past its north curb. This evidence suggested that the sign and/or shrubbery obstructed decedent's view at both her stopping points.

At the close of plaintiffs' case, the City, FDC and Friars Hollow each moved for a judgment of nonsuit. ⁴ The trial court granted their motions and entered judgments in their favor. The trial continued and at its conclusion the jury returned a verdict in favor of defendant Kurtz. Plaintiffs appeal from each of these judgments.

II.

A motion for nonsuit allows a defendant to test the sufficiency of the plaintiff's evidence before presenting his or her case. Because a successful nonsuit motion precludes submission of plaintiff's case to the jury, courts grant motions for nonsuit only under very limited circumstances. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 117, 184 Cal.Rptr. 891, 649 P.2d 224.) A trial court must not grant a motion for nonsuit if the evidence presented by the plaintiff would support a jury verdict in the plaintiff's favor. (Id., at pp. 117-118, 184 Cal.Rptr. 891, 649 P.2d 224; Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 395, 143 Cal.Rptr. 13, 572 P.2d 1155.)

"In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give 'to the plaintiff['s] evidence all the value to which it is legally entitled, ... indulging every legitimate inference which may be drawn from the evidence in plaintiff['s] favor....' " (Campbell v. General Motors Corp., supra, 32 Cal.3d at p. 118, 184 Cal.Rptr. 891, 649 P.2d 224, quoting Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583, 75 Cal.Rptr. 652, 451 P.2d 84; accord Ewing v. Cloverleaf Bowl, supra, 20 Cal.3d at p. 395, 143 Cal.Rptr. 13, 572 P.2d 1155; Estate of Lances (1932) 216 Cal. 397, 400, 14 P.2d 768.)

In an appeal from a judgment of nonsuit, the reviewing court is guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. "The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law." (Mason v. Peaslee (1959) 173 Cal.App.2d 587, 588, 343 P.2d 805; accord Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 699, 106 Cal.Rptr. 1, 505 P.2d 193; Hughes v. Oreb (1951) 36 Cal.2d 854, 857, 228 P.2d 550.)

Although a judgment of nonsuit must not be reversed if plaintiff's proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is "some substance to plaintiff's evidence upon which reasonable minds could differ...." (Ulwelling v. Crown Coach Corp. (1962) 206 Cal.App.2d 96, 104-105, 23 Cal.Rptr. 631; accord Campbell v. Security Pac. Nat. Bank (1976) 62 Cal.App.3d 379, 384-385, 133 Cal.Rptr. 77; Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 415, 196 Cal.Rptr. 117.) Only the grounds specified by the moving party in support of its motion should be considered by the appellate court in reviewing a judgment of nonsuit. (Lawless v. Calaway (1944) 24 Cal.2d 81, 92-94, 147 P.2d 604; Markwell v. Sykes (1959) 173 Cal.App.2d 642, 651-652, 343 P.2d 769.)

Plaintiffs' cause of action against the City alleged that the City negligently maintained and controlled Colusa Street and Friars Road in a dangerous and defective condition by permitting the sign and trees to obstruct the visibility of drivers travelling on those streets. Plaintiffs also alleged that the City knew, or should have known, that the dangerous condition was present at the time of the accident, that it constituted a hazard to the general public, and that it created a reasonably foreseeable risk of the kind of injuries...