Dunphy v. Walsh
| Decision Date | 13 February 2019 |
| Docket Number | B283412 |
| Parties | THOMAS DUNPHY et al., Plaintiffs and Appellants, v. ROBERT WALSH, Defendant and Respondent. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC586230)
APPEAL from a judgment of the Superior Court of Los Angeles County, Bobbi Tillmon, Judge. Affirmed.
Law Offices of Farrah Mirabel and Farrah Mirabel; Alan Goldberg for Plaintiffs and Appellants.
McNeil Tropp & Braun, Jeff I. Braun and Kendall L. Craver for Defendant and Respondent.
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Appellants were plaintiffs in a personal injury action involving an automobile collision. The action went to jury trial and the jury found Respondent was not negligent. Appellants seek reversal of the judgment in favor of Respondent, arguing the trial court erred: 1) by granting Respondent's motion in limine precluding argument, evidence, and instruction regarding the doctrine of res ipsa loquitur; 2) by refusing to instruct the jury regarding negligence per se on the theory that Respondent violated the duty imposed on drivers by Vehicle Code section 21703 to follow at a safe distance; and 3) by altering the wording of the jury instruction on alternative causation.
We disagree with Appellants' contentions, and affirm the judgment entered by the trial court on April 25, 2017.
On October 21, 2013, at approximately 10:00 a.m., a multiple rear-end automobile collision occurred on the westbound I-10 freeway near the Stewart Street exit in Santa Monica, California. Five vehicles were involved in this collision during heavy "stop-and-go" traffic.
Ernesto Gudino1 started a chain reaction of accidents; Gudino was the driver of the last vehicle—a midsize U-Haul-type truck (vehicle No. 5)—and collided with the rear of vehicle No. 4, driven by Jorge Carhuamaca. Carhuamaca was stopped when Gudino collided with his vehicle. Carhuamaca's vehicle was thenpushed forward into vehicle No. 3, Robert Walsh's (hereinafter Respondent) vehicle. Respondent's vehicle was also at a complete stop when Carhuamaca's vehicle hit it from behind. Walsh's vehicle was then pushed forward into vehicle No. 2, Appellant Michael Ward's vehicle. Appellant Thomas Dunphy was a passenger in vehicle No. 2. There was a distance of "about one foot" between Respondent's vehicle and Appellants' vehicle. Ward's vehicle was also at a complete stop when it was hit, and there was a distance of several feet between his vehicle and vehicle No. 1. When Respondent's vehicle No. 3 collided with Ward's vehicle No. 2, Ward's vehicle was pushed forward into vehicle No. 1, driven by one Garza, not a party to the underlying civil action.
The accident caused Ward's seat to break completely and Ward was thrust into the back of the vehicle. His vehicle was completely totaled.
On December 20, 2014, Ward and Dunphy (hereinafter collectively Appellants) reached a settlement with Gudino, the driver of vehicle No. 5, for $13,000 each.
On June 25, 2015, Appellants filed a lawsuit against Respondent—the driver of vehicle No. 3—claiming he had negligently failed to leave sufficient space when he stopped behind Appellants' vehicle. Appellants argued that when Respondent stopped with only one foot between his car and Appellants' car in front of him, it "didn't leave any room for there to be an impact or for any avoidance of an accident." Appellants sought damages from Respondent to compensate them for the injuries they sustained in the accident.
On October 16, 2015, Respondent filed his answer to the complaint. He also filed a cross-complaint against the drivers of vehicle Nos. 4 and 5—Carhuamaca and Gudino (as well as the owner of the commercial truck driven by Gudino, Oscar Rivera). Respondent argued that Gudino started the chain reaction of accidents when it crashed into vehicle No. 4. Respondent further argued that Carhuamaca, the driver of vehicle No. 4, was a contributing factor in the collision, as Carhuamaca crashed into Respondent's own vehicle, which then crashed into Appellants' vehicle.
In March 2017, the parties filed various motions in limine. Respondent filed a motion in limine that sought to preclude argument, evidence, or instruction pertaining to the doctrine of res ipsa loquitur. One of the elements of this doctrine is that the injury "must have been caused by an agency or instrumentality within the exclusive control of the defendant." Respondent's counsel argued that Respondent argued that Appellants failed to present any evidence that Respondent "was the cause of this accident" as opposed to the drivers of the other vehicles (namely, Gudino and/or Carhuamaca). Respondent's counsel also brought to the court's attention that Appellants would then be guilty of the same negligence that they alleged against Respondent—failing to keep sufficient distance between their vehicle and the vehicle in front such that a collisionoccurred— as Appellants' vehicle struck the vehicle in front of it as well. Appellants opposed this motion in limine.
The trial court granted Respondent's motion in limine. The court said, [¶] . . .
On March 29, 2017, Appellants renewed their request for a jury instruction on res ipsa loquitur "because it does apply in this case." Respondent again reminded the court that this "was a multi-vehicle collision" and that there is "no way that any of the evidence can show that Mr. Walsh alone was the cause of this accident." The court stuck with its initial ruling.
On March 28, 2017, Appellants filed requests for certain jury instructions, including but not limited to instructions on the presumption of negligence—negligence per se— should the jurors find Respondent violated Vehicle Code section 21703. Vehicle Code section 21703 provides: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon, and the condition of, the roadway." Appellants argued that Respondent violated Vehicle Code section 21703 because he stopped only one foot behind Ward's vehicle just before the accident, which was not reasonable and prudent. Respondent's own expert, Michael Akerson, testified that when stopped in traffic, the closer one vehicle is to the vehicle before it,the "more likely it would be to strike the . . . rear of the vehicle in front of it . . . ."
The court reasoned that because "this proposed CACI instruction . . . will depend on the evidence that's presented during the course of the trial", this instruction shall be revisited before the final set of jury instructions are read, so as to allow further discussion as to whether it is applicable based on the evidence presented at trial and whether "this particular instruction should be given."
On March 29, 2017, after the testimony of multiple witnesses, including the parties, and argument of counsel, the court found there was not enough evidence to establish negligence per se. The court found that Vehicle Code section 21703 does not adequately address a situation where, as here, Respondent was at a complete stop. The court said that it "read several of the notes that followed [section] 21703 of the Vehicle Code [] do not seem to specifically address when . . . all the vehicles involved in this case, meaning the parties in this case, are stopped." The court further explained that "in looking at the language, 'follow' still seems to suggest[ ] to the court that it's movement" and that the statutory language "having due regard for speed" similarly does not apply in this case as "the cars were stopped."
The court stated that it does not believe "there is enough evidence at this point to establish this presumption of negligence per se," as the evidence thus far showed that the driver of vehicle No. 5 (the U-Haul-type truck) hit the car in front of him, causing a chain reaction of automobile collisions. The court explained that none of the other vehicles "rolled" into another vehicle, nor was there any evidence that the other vehicles were in theprocess of stopping, as the other vehicles were already at a complete stop. The court therefore found the language in CACI No. 418 inappropriate based on the facts of the present matter because "this particular Vehicle Code [section] doesn't adequately address the circumstances of this case."
CACI No. 434, as amended by the court, stated: "You may decide that more than one of the defendants parties was negligent, but that the negligence of only one of them could have actually caused MICHAEL WARD and THOMAS DUNPHY's harm. If you cannot decide which defendant party caused MICHAEL WARD and THOMAS DUNPHY's harm, you must...
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