Cole v. State of California

CourtCalifornia Court of Appeals
Citation11 Cal.App.3d 671,90 Cal.Rptr. 74
Decision Date28 September 1970
PartiesPatricia 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,
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.

Page 76

[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.


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.

[11 Cal.App.3d 675] 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

Page 77

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...

To continue reading

Request your trial
10 cases
  • Neumann v. Bishop
    • United States
    • California Court of Appeals
    • 22 Marzo 1976
    ...some substantial evidence, fell far short of satisfying, the test of preponderance of the evidence. (See Cole v. State of California (1970) 11 Cal.App.3d 671, 678--679, 90 Cal.Rptr. 74.) Any prejudice would only be reflected in the damages awarded. (See part IV We note, as did the court in ......
  • April Enterprises, Inc. v. KTTV
    • United States
    • California Court of Appeals
    • 5 Octubre 1983
    ....... Civ. 66885. . Court of Appeal, Second District, Division 7, California. . Oct. 5, 1983. . As Modified on Denial of Rehearing Nov. 2, 1983. . Hearing Denied Dec. 22, ....         Respondents demurred on two grounds: (1) the complaint failed to state a cause of action for breach of fiduciary duty or for breach of contract; and (2) both causes of ...Roach (1975) 53 Cal.App.3d 893, 897, 126 Cal.Rptr. 29 citing Cole v. State of California (1970) 11 Cal.App.3d 671, 674, 90 Cal.Rptr. 74; Timmsen v. Forest E. Olson, ......
  • Day v. Sears Holdings Corp., Case No. CV 11–09068 MMM (PJWx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 13 Marzo 2013
    ...of employment relates to the physical condition of the place rather than activities of other employees.” Cole v. State of California, 11 Cal.App.3d 671, 675, 90 Cal.Rptr. 74 (1970); see also Burnette v. Godshall, 828 F.Supp. 1439, 1446 (N.D.Cal.1993) (“ Labor Code section 6400 relates to th......
  • Burnette v. Godshall, Civ. No. 93-20218 SW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 12 Julio 1993 the physical conditions of the workplace (i.e., machinery repairs, toxics, etc.) and not to employee conduct. Cole v. California, 11 Cal.App.3d 671, 675, 90 Cal.Rptr. 74, 77 Both Labor Code sections 4551 and 4553 refer to remedies available under the California Worker's Compensation Act ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT