Ducey v. Argo Sales Co.

• Decision Date: 21 November 1979
• Docket Number: S.F. 23931
• Citation: 25 Cal.3d 707,159 Cal.Rptr. 835,602 P.2d 755
• Parties: , 602 P.2d 755 Dennis DUCEY et al., Plaintiffs and Appellants, v. ARGO SALES CO., Defendant and Respondent; The State of California, Defendant and Appellant.
• Court: California Supreme Court

Page 835

159 Cal.Rptr. 835

25 Cal.3d 707, 602 P.2d 755

Dennis DUCEY et al., Plaintiffs and Appellants, v. ARGO SALES CO., Defendant and Respondent The State of California, Defendant and Appellant.

S.F. 23931.

Supreme Court of California, In Bank.

Nov. 21, 1979.

Rehearing Denied Jan. 17, 1980.

Claude W. Heavin, San Leandro, and Richard Simmons, Hayward, for plaintiffs and appellants.

Robert E. Cartwright, San Francisco, Edward I. Pollock, Los Angeles, Leroy Hersh, San Francisco, Stephen I. Zetterberg, Claremont, Robert G. Beloud, Upland, Arne Werchick, San Francisco, William P. Camusi, Los Angeles, Richard D. Bridgman, Oakland, Ralph Drayton, Sacramento, Leonard Sacks, Encino, Boccardo, Lull, Niland & Bell, Edward J. Niland, San Francisco, Michael G. Briski, San Jose, and Jack L. Slobodin, San Francisco, as amici curiae on behalf of plaintiffs and appellants.

Harry S. Fenton, Sacramento, Richard G. Rypinski, San Diego, John P. Horgan, Robert J. DeFea, Kenneth G. Nellis, Robert E. Brown and Thomas J. Brandi, San Francisco, for defendant and appellant.

Robert E. Friedrich, San Francisco, and Jay R. Mayhall, Oakland, for defendant and respondent.

Burt Pines, City Atty., Los Angeles, John T. Neville, Asst. City Atty., and Daniel U. Smith, Deputy City Atty., as amici curiae on behalf of defendant and appellant.

TOBRINER, Justice.

In February 1972, plaintiffs Patricia and Dennis Ducey were seriously injured when a car driven by Dolores Glass crossed a freeway median and collided head-on with their automobile; Glass was killed in the accident. Plaintiffs thereafter brought the instant action to recover damages for their injuries, naming as defendants, inter alia, the State of California, the estate of Dolores Glass, and Argo Sales Co. (Argo Sales), Glass' employer. After a lengthy trial, the jury returned a verdict in favor of plaintiffs against the State of California and Glass' estate; the jury, however, absolved Argo Sales of any liability for plaintiffs' injuries.

Both the State of California and the plaintiffs appeal from the judgments subsequently entered in accordance with the jury verdicts. The state contends that the trial court erred in permitting plaintiffs' action against it to go to the jury, maintaining that the trial court should have ruled as a matter of law that the state's failure to provide a median barrier at the accident site could not subject it to liability for plaintiffs' injuries. Plaintiffs respond that the court properly left the question of the state's liability to the jury, but argue that the court erred in submitting Argo Sales' liability to the jury; plaintiffs assert in this regard that the evidence established as a matter of law that Glass was acting in the scope of her employment at the time of the accident and consequently conclusively demonstrated that Argo Sales was vicariously liable for plaintiffs' injuries.

As we shall explain, we believe that the trial court properly left the matter of both the state's liability and Argo Sales' liability to the jury for its resolution. Accordingly, we affirm the challenged judgments in all respects.

1. The facts

Shortly before noon on February 28, 1972, Mark Hunter entered state route 17 (the Nimitz Freeway) at the northbound Thornton Avenue on-ramp in Fremont. Finding traffic halted in both northbound lanes, he noticed a pickup truck weaving erratically ahead of the backed up cars. Hunter and Terry Kelsey, another driver caught in the traffic jam, managed to halt the pickup by driving around it and forming a roadblock with their vehicles. Evidence at trial revealed that the pickup that had caused the congestion was being driven by a 13-year-old "mentally retarded or emotionally disturbed" boy who had decided to visit his doctor.

Rick McEwen was among the numerous drivers whose vehicles subsequently were stopped by the traffic jam. McEwen testified that although he had been traveling at 65 miles per hour in the fast, northbound lane when he first saw the congestion, he was able to slow down without any difficulty. He also testified that after stopping he saw in his rearview mirror a blue Maverick "coming up quite fast behind him"; he stated that he next saw the front of the Maverick dip as though the brakes were set. Suddenly, the Maverick shot across the median "just like a blue blur" and crashed head-on into a southbound car. Analysis of skid marks and other physical evidence supported expert testimony that the driver of the Maverick had lost control of the car in a centrifugal skid on the pavement before the vehicle crossed the median area into the on-coming traffic.

Dolores Glass, the driver of the blue Maverick, was killed in the accident. Patricia Ducey, who was driving the southbound car struck by the Maverick, suffered severe personal injuries, including brain damage. Dennis Ducey, who was riding in the front passenger seat of the Ducey car, was knocked unconscious by the accident and suffered additional serious injuries, although his injuries were not as severe as those of his wife.

Thereafter, the Duceys instituted the present action, joining as defendants the State of California and Argo Sales, along with Dolores Glass' estate. ¹ Plaintiffs' claim against the state rested upon the state's failure to provide a median barrier on the heavily traveled freeway where the accident occurred. Evidence adduced at trial indicated that a properly built barrier effectively eliminates all cross-median freeway accidents, and plaintiffs contended that in light of the extent of freeway traffic and the prior history of cross-median accidents in the vicinity of the accident site, the state should share legal responsibility for the accident.

In support of their action against the state, plaintiffs presented a wealth of evidence concerning both the accident site and the state's procedures governing the placement of median barriers. In brief summary, the evidence revealed the following facts: In the vicinity of the accident, route 17 is a four-lane, limited-access highway, in which the two northbound lanes and the two southbound lanes are separated by a forty-six-foot wide dirt median with tall oleander bushes growing in the middle. The freeway was built in 1958. From 1965 to 1969, traffic between Warm Springs Boulevard and Jarvis Avenue in Fremont, the stretch encompassing the accident site, increased by more than 40 percent.

The criteria used by the state to determine whether it should authorize the installation of a median barrier are called "warrants." These "warrants" are contained in manuals issued by the Department of Transportation to its planning staff. According to the 1968 guidelines, the construction of a barrier on a 46-foot wide median was justified when average daily traffic exceeded 40,000 vehicles. Daily traffic on route 17 in Fremont exceeded 40,000 vehicles beginning in November 1968, more than three years before the Ducey's accident.

In June 1967 a member of the department's engineering staff in Sacramento sent a memo to the regional headquarters responsible for route 17 in Fremont requesting "that barriers be installed at all locations meeting barrier warrants, unless reconstruction will cause the removal of the barrier within three years of the barrier installation for cable barriers, or within five years for beam barriers." Employees of the regional headquarters submitted a response to Sacramento on November 30, 1967. This report stated that the "warrants" for construction of a median barrier in Fremont had been met. The report recommended construction of a cable-type median barrier along 16.55 miles of the highway, including the Fremont section in which the instant accident occurred.

Highway Department documents introduced by plaintiffs at trial revealed that between 1964 and 1967, 18 cross-median accidents occurred in the 8.44-mile stretch of route 17 which included the crash site. Those accidents killed 4 people and hurt approximately 42 others an average of one injury every 23 days. In requesting funds for the cable-type barrier in 1967, the regional office of the department concluded that the rate of cross-median injuries on route 17 around Fremont was "unusually high."

On July 12, 1968, the state Highway Commission granted the department's request for funds to build the proposed barrier, and authorized the allocation of $220,000 for that purpose. Approximately four months later, the state awarded a contract for the construction of the barrier to a private contractor.

1 In February 1969, however, the appropriation was cancelled because of an anticipated widening of the highway in 1972-1973 which under department standards would necessitate the use of a metal beam guardrail rather than a cable-type barrier. As a consequence of this determination, the state chose to leave route 17 in Fremont without a needed median barrier for more than three years; the Duceys' accident occurred during that period. According to the testimony of a state employee, a barrier probably would have saved Mrs. Glass' life and prevented any injury to the Duceys. Plaintiffs maintained that in light of these circumstances, the state should be held liable for the resulting damages.

As noted above, in addition to pursuing their claim against the state, plaintiffs also sued Argo Sales, Dolores Glass' employer, asserting that Glass was acting in the scope of her employment at the time of the fatal accident and that Argo was consequently liable for the resulting injuries under "respondeat superior" principles. Evidence at trial revealed that Glass had been employed by Argo Sales for almost 20 years to clean model homes at various locations in San Jose, Alameda and Union City and that she regularly drove up to 45 miles from her residence to such model homes several days a week; the accident in this case occurred when Glass was returning home after performing her job. Although plaintiffs introduced evidence that on occasion...