Cole v. State of California

• Decision Date: 28 September 1970
• Citation: 11 Cal.App.3d 671,90 Cal.Rptr. 74
• Court: California Court of Appeals Court of Appeals
• Parties: Patricia Lucille COLE et al., Plaintiffs and Appellants, v. STATE of California et al., Defendants and Respondents. Civ. 9786.

Page 74

90 Cal.Rptr. 74

11 Cal.App.3d 671

Patricia Lucille COLE et al., Plaintiffs and Appellants, v. STATE of California et al., Defendants and Respondents.

Civ. 9786.

Court of Appeal, Fourth District, Division 1, California.

Sept. 28, 1970.

Hearing Denied Nov. 25, 1970.

[11 Cal.App.3d 674] Richard M. Hawkins, Long Beach, for plaintiffs and appellants.

Harry S. Fenton, Chief Counsel, Richard G. Rypinski, and Robert L. Smith, Deputy Counsels, for defendant and respondent State of California.

Luce, Forward, Hamilton & Scripps and Gerald S. Davee, San Diego, for defendants and respondents Judy Lou Preece and Martin Pena Quintero.

Thompson & Colegate, and Robert C. Coppo, Riverside, Frederick J. Lower, Jr., Los Angeles, for defendant and respondent Estate of John J. Gilmore.

OPINION

GERALD BROWN, Associate Justice.

Plaintiffs, surviving widows and children of two deceased State employees, appeal a judgment of nonsuit in favor of all defendants entered after their counsel made his opening statement at the trial of their wrongful death action.

On October 18, 1966, about 8:00 a.m., plaintiffs' deceaseds were passengers in a State-owned car driven by another State employee, John Gilmore, on their way to a job location to work for the California Division of Highways. At the intersection of Ross Avenue and Austin Road in Imperial County, Gilmore drove through a stop sign about 50 miles per hour as he entered the intersection traveling southbound on Austin Road. He collided with a truck driven by defendant Judy Preece who entered the intersection driving eastbound on Ross Avenue. Ross Avenue was a through street with an intersection warning but no stop signs or signals.

The impact carried both vehicles into the Brawley Main Canal. Passersby rescued defendant Preece. All three in the State car were killed.

Plaintiffs have received death benefits under the Workmen's Compensation Act. The question here is whether, based upon their counsel's representation of what he expected to develop by evidence, they have a civil remedy against defendant estate of John Gilmore or defendant State of California, and whether they have offered to show facts from which a reasonable inference of negligence on the part of defendant Preece would arise to establish her liability and the vicarious liability of defendant Quintero who owned the truck she was driving. In construing the opening statement we accept as proven all the facts counsel says he expects to prove and indulge in all favorable inferences reasonably arising from those facts. (Palazzi v. Air Cargo Terminals, Inc., 244 Cal.App.2d 190, 194, 52 Cal.Rptr. 817.) After the motions for nonsuit were made the court gave plaintiffs' counsel full opportunity to state all facts he expected to prove before it ruled on the motions.

Plaintiffs first contend the trial court erroneously denied a motion they brought for summary judgment on the liability issues involving the Gilmore estate and the State of California. The denial of summary judgment is not appealable. We consider the theoretic bases for plaintiffs' motion insofar as it might raise a jury issue which would invalidate the judgment of nonsuit as to those defendants.

Plaintiffs contended in their summary judgment motion Gilmore was a supervisory employee, thus a 'statutory employer' as defined in Labor Code section 6304. As such, plaintiffs argue, Gilmore was required to furnish plaintiffs' deceaseds with a safe place of employment (Lab.Code § 6400). While a vehicle may qualify as a 'place of employment' (Lab.Code § 6302; De Cruz v. Reid, 69 Cal.2d 217, 229, 70 Cal.Rptr. 550, 444 P.2d 342), the requirement employees be furnished a safe place of employment relates to the physical condition of the place rather than activities of other employees, be they 'statutory employers' or not. Plaintiffs did not plead any defect in the State car involved in the accident; they alleged no defect in the car in the declaration supporting their motion for summary judgment or in counsel's opening statement. The liability of Gilmore's estate and of the State of California is governed by Labor Code sections 3600 and 3601 rather than Labor Code section 6400.

Before 1959, an employee injured by the negligence of a co-employee could recover in a civil action against the co-employee as a third party. The Legislature amended Labor Code section 3601 in 1959 to provide Workmen's Compensation is the exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within the scope of his employment except in limited situations. Plaintiffs challenge the constitutionality of the 1959 amendment of section 3601, arguing there is no sound public policy reason for extending civil action immunity to negligent co-employees. The constitutionality of section 3601 as amended in 1959 was thoroughly explored and upheld in Lowman v. Stafford, 226 Cal.App.2d 31, 37 Cal.Rptr. 681. We reject plaintiffs' constitutional challenge on the authority of that case.

Plaintiffs alleged causes of action against the Gilmore estate falling within an exception to the civil immunity granted to co-employees by section 3601, charging Gilmore operated the State car in a wanton and reckless manner and in such a way as to evince a reckless disregard for the safety of the plaintiffs' deceaseds and showed a calculated and conscious willingness to permit injury or death to the deceaseds (Lab.Code § 3601(a)(3)). The question on appeal is whether plaintiffs' counsel's opening statement stated sufficient facts plaintiffs expected to prove to support the causes of action under the exception alleged.

Insofar as it relates to Gilmore's driving, plaintiffs' opening statement related: plaintiffs' deceaseds

'* * * were riding as passengers in a State automobile being driven by Mr. Gilmore, * * * they had started their work and were on their way to the scene of a location where they were going to engage in the work for the Division of Highways of the State of California.'

At the intersection of Austin Road and Ross Avenue the State car collided with the pickup truck driven by defendant Preece; the 'two automobiles were under the control of the two respective drivers but * * * the duties on the two drivers differed as they approached and as they entered the intersection'; 'Back some 665 feet on Austin Road where the State car was coming from there was a sign up that said 'Stop Ahead.' Just before you entered the intersection from Austin there was another sign that said 'stop. " The State car 'passed by the 'Stop Ahead' sign and entered that intersection going through that stop sign around fifty miles an hour.' 'We believe the evidence will show * * * the driver of the State car was reckless in his conduct and * * * the driving of that vehicle in that way through that intersection showed a consciousness, a willingness to allow injury not only to himself or death, but to those that were riding with him. Now, that is the liability.'

In chambers, after the defendants had presented their motions for nonsuit, plaintiffs' counsel augmented his opening statement:

'There is only one thing * * * I can say in addition to the opening statement and that is the physical facts of this accident will show * * * the driver, Gilmore, apparently saw the danger as it approached and exercised a maneuver that apparently--let up on the brakes and attempted to proceed on through the intersection which is reflected in the police report. That would show a conscious and calculated effort. His net result was mistake because he got clobbered.'

Do the facts offered in the opening statement raise a reasonable inference Gilmore was guilty of 'an act * * * which evinces a reckless disregard for the safety of the employee injured, and a calculated and conscious willingness to permit injury * * * to such employee?' (Lab.Code § 3601(a)(3).) We think not. Breceda v. Gamsby, 267 Cal.App.2d 167, 178, 72 Cal.Rptr. 832, 840 says:

'Applicability of subdivision (a)(3), demands more than a reckless disregard of plaintiff's safety. It requires a 'calculated and conscious willingness' on Gamsby's part to permit injury to plaintiff. As stated, such willingness at the very least * * * equates with the 'willful misconduct' required by section 4553. To show such wilfulness, '(a) 'reckless disregard' of the safety of employees is not sufficient in itself unless the evidence shows that the disregard was more culpable than a...