Elsner v. San Diego Gas & Elec. Co.
| Decision Date | 02 March 2023 |
| Docket Number | D080055 |
| Parties | LINDA KAY ELSNER et al., Plaintiffs and Appellants, v. SAN DIEGO GAS &ELECTRIC COMPANY et al., Defendants and Respondents |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2018-00041012-CU-PO-CTL Richard S. Whitney, Judge. Affirmed.
Abir Cohen Treyzon Salo, Boris Treyzon, Anna L. Knafo, and Brianna Franco for Plaintiffs and Appellants.
Higgs Fletcher &Mack, John Morris, William M. Low, Rachel M Garrard, and Steven Brunolli for Defendants and Respondents.
Linda Kay Elsner and Kelsey Carson Elsner (collectively the Elsners) appeal the summary judgment in their action against San Diego Gas &Electric Company (SDG&E) and George William Delucas III (collectively defendants) for the wrongful death of Rohn Elsner, Linda's husband and Kelsey's father. Delucas drove an SDG&E truck over Rohn after he crashed his motorcycle into an embankment and landed in Delucas's lane of traffic. The trial court ruled the sudden emergency doctrine barred the action. We agree and affirm.
As Rohn was riding his motorcycle in the northbound (uphill) lane of Wildcat Canyon Road one afternoon, Delucas was driving an SDG&E truck in the southbound (downhill) lane. Rohn crossed over the double solid yellow lines into the southbound lane to pass two vehicles. When Rohn crossed the lines a third time to pass another vehicle, he collided with the vehicle, lost control of the motorcycle, crossed over the southbound lane, and struck the adjacent embankment. Rohn landed in the southbound lane, and his motorcycle landed in the northbound lane. Delucas arrived at the scene from the opposite direction after driving around a blind curve. He saw the motorcycle and then Rohn, but could not stop the truck and drove over him. Rohn died at the scene.
The Elsners filed a complaint against defendants for wrongful death. They alleged Delucas negligently drove the SDG&E truck at an unsafe speed, collided with Rohn, and caused his death. The Elsners alleged SDG&E was liable as the employer of Delucas, who operated the truck in the course of his employment.
Defendants answered the complaint with a general denial and many affirmative defenses. As one such defense, they alleged:
Defendants moved for summary judgment (Code Civ. Proc., § 437c) on the basis of the sudden emergency doctrine. They argued Delucas encountered a sudden and unexpected emergency, namely, Rohn's presence in Delucas's lane of traffic; Delucas did not cause the emergency; and he acted reasonably by trying to stop the truck and to avoid running over Rohn by passing over him between the wheels instead of swerving to his right into the steep embankment or swerving to his left into the lane of oncoming traffic.
In support of the motion, Delucas submitted a declaration describing Wildcat Canyon Road and his drive down the road in a work truck after completing a job for his employer, SDG&E, on the afternoon of the fatal accident. While traveling southbound at approximately 40 miles per hour (which was 10 miles per hour below the speed limit), with the engine brake engaged to control downhill speed, Delucas encountered a series of blind curves and slowed to maneuver through them. As he came out of one of the curves, he "suddenly and unexpectedly" saw a motorcycle overturned and sliding on the road from his lane into the opposite lane and stepped on the brake. Delucas "immediately" saw Rohn sliding from the embankment into the southbound lane and continued to brake. Delucas could not stop the truck in time to avoid Rohn and attempted to pass over him without running him over with the tires. Delucas could not swerve to the right, because a rock embankment bordered the west side of the southbound lane; and he chose not to swerve to the left, because he would have crossed into the oncoming traffic lane and possibly gone over a steep cliff. He "quickly and suddenly decided the best and safest course of action was to bring the truck to a stop and, while doing so, attempt to straddle [Rohn] given the space between the bottom of the truck and the roadway." Defendants also submitted a map of Wildcat Canyon Road; photographs of the accident scene; excerpts of transcripts of depositions of witnesses to the accident; discovery responses from the Elsners; and other documents.
The Elsners opposed the summary judgment motion. They argued the sudden emergency doctrine did not defeat their action as a matter of law, because Delucas's negligent driving at too high a speed through blind curves contributed to the emergency and because there were triable issues of fact on whether he responded to the emergency as a reasonably prudent commercial truck driver would have. The Elsners submitted declarations from two expert witnesses, Alvin Lowi III, an expert on accident reconstruction, and V. Paul Herbert, an expert on commercial motor vehicle safety. Lowi stated that Delucas could have stopped his truck without coming into contact with Rohn because Delucas could have seen the motorcycle for 300 feet and needed less than that distance to stop the truck whether he was traveling 25 or 40 miles per hour. Herbert stated that Delucas breached the standard of care by failing to follow the posted advisory speed of 25 miles per hour while driving through the blind curves on Wildcat Canyon Road and by failing to look ahead through the distance that would be traveled in 12 to 15 seconds in anticipation of potential hazards in the road. The Elsners also submitted photographs of the SDG&E truck involved in the accident; excerpts of transcripts of depositions of witnesses to the accident; a photograph of the sign advising drivers to travel no more than 25 miles per hour through the blind curve; and a copy of the traffic collision report of the accident.
In reply, defendants again argued Delucas did not contribute to the emergency and acted reasonably in response to it. They also objected that the opinions of the experts retained by the Elsners lacked foundation and were otherwise inadmissible.
After holding a hearing and taking the matter under submission, the trial court granted the motion for summary judgment. The court overruled defendants' written objections to the Elsners' experts' declarations, but agreed with the argument of defendants' counsel at the hearing that "Lowi's declaration lacks foundation and therefore his opinions as to SDG&E's fault are largely without merit." The court entered a judgment in favor of defendants and against the Elsners.
The Elsners contend the trial court erred by granting the motion for summary judgment because there are triable issues of material fact on whether the sudden emergency doctrine shields defendants from liability for Rohn's death. After setting out the standard of review and the sudden emergency doctrine, we shall address each of the Elsners' claims of error and conclude none has merit.
We review a trial court's decision to grant a motion for summary judgment de novo. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39; Shiver v. Laramee (2018) 24 Cal.App.5th 395, 400 (Shiver).) When the defendant relies on an affirmative defense as the basis for the motion, the defendant has the burden to produce evidence to support each element of the defense; and if the defendant does so, the burden shifts to the plaintiff to produce evidence that would allow a reasonable trier of fact to reject the defense.
(Mayes v. La Sierra University (2022) 73 Cal.App.5th 686, 696-697; Shiver, at p. 400.) In reviewing the trial court's ruling, we determine whether there is a triable issue of material fact by considering all the evidence presented on the motion, except that to which objections were sustained, liberally construing the plaintiff's evidence and resolving any evidentiary conflicts, doubts, or inferences in plaintiff's favor. (Gonzalez, at p. 39; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767, 768; Shiver, at p. 400.) If there is a triable issue of material fact, we reverse; if there is not and the defendant is entitled to judgment under the law, we affirm. (Code Civ. Proc., § 437c, subd. (c); Mubanda v. City of Santa Barbara (2022) 74 Cal.App.5th 256, 261; EHP Glendale, LLC v. County of Los Angeles (2011) 193 Cal.App.4th 262, 273-274.)
Defendants moved for summary judgment based on the sudden emergency doctrine. That doctrine, which is "also known as the imminent peril doctrine, shields a defendant from liability in a negligence action." (Shiver supra, 24 Cal.App.5th at p. 397.) "[U]nder the cases and the authorities, a person who, without negligence on his part, is suddenly and unexpectedly confronted with peril, arising from either the actual presence, or the appearance, of imminent danger to himself or to others, is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments." (Leo v. Dunham (1953) 41 Cal.2d 712, 714 (Leo).)" 'The test is whether the [person] took one of the courses of action which a standard [person] in that emergency might have taken, and such a course is not negligent even though it led to an injury which might have been prevented by adopting an alternative course of action.'" (Schultz v....
To continue reading
Request your trial