Gilmer v. Ellington, No. B194605.

CourtCalifornia Court of Appeals
Writing for the CourtRubin
Citation70 Cal.Rptr.3d 893,159 Cal.App.4th 190
PartiesDaniel E. GILMER, Plaintiff and Appellant, v. Kyseme ELLINGTON, Defendant and Respondent.
Decision Date23 January 2008
Docket NumberNo. B194605.
70 Cal.Rptr.3d 893
159 Cal.App.4th 190
Daniel E. GILMER, Plaintiff and Appellant,
v.
Kyseme ELLINGTON, Defendant and Respondent.
No. B194605.
Court of Appeal, Second District, Division 8.
January 23, 2008.

[70 Cal.Rptr.3d 895]

Gajewski & Baughan and Edward W. Baughan, Culver City, for Plaintiff and Appellant.

Gibeaut, Mahan & Briscoe, J. Jackson Briscoe and Julie A. Mullane, Los Angeles, for Defendant and Respondent.

RUBIN, J.


This case arises from an incident in which plaintiff and appellant Daniel E. Gilmer was injured when a left-turning driver collided with plaintiff as he was riding his motorcycle through an intersection. Plaintiff sued not only the left-turning driver, but also defendant and respondent Kyseme Ellington for negligently gesturing to that driver to proceed with the turn. The trial court granted defendant's motion for judgment on the pleadings, finding defendant did not owe a duty to plaintiff. Plaintiff appeals from the resulting judgment of dismissal. He contends the trial court erred in granting the motion because defendant's liability turned on a factual determination incapable of resolution by judgment on the pleadings. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We recite the facts in accordance with the usual rules of appeal from a dismissal entered after a motion for judgment on the pleadings has been granted without leave to amend.1 On January 30, 2006, codefendant Rebecca Cherry was talking

70 Cal.Rptr.3d 896

on a cell phone while waiting for traffic conditions to allow her to safely turn left from southbound Lincoln Blvd. onto eastbound Nelrose Ave. Defendant, then traveling north on Lincoln Blvd. in the lane closest to the middle, stopped and "gestured and motioned indicating to defendant Cherry that it was safe and clear for her" to make the turn. But it was not safe because, although defendant had stopped, plaintiff was approaching the intersection on his motorcycle. Cherry's vehicle collided with plaintiffs motorcycle in the intersection.

Plaintiff brought a personal injury action against defendant and Cherry, among others. Cherry was sued for actually colliding with plaintiffs motorcycle while the gravaman of plaintiffs action against defendant was that defendant negligently signaled Cherry to turn left without first ascertaining that Cherry could proceed safely in front of all oncoming traffic, not just defendant's stopped vehicle.

In his motion for judgment on the pleadings, defendant argued that the complaint failed to state a cause of action under In re Kirk (1962) 202 al.App.2d 288, 291, 20 Cal.Rptr. 787 (Kirk) and Sesler v. Ghumman (1990) 219 Cal.App.3d 218, 268 Cal. Rptr. 70 (Sesler), because, under California law, Cherry had the duty to ascertain whether she could safely turn left across each successive lane of oncoming traffic and, as a matter of law, defendant's act of signaling to Cherry could be interpreted only as defendant yielding his own right-of-way, not that it was generally safe for Cherry to turn. Plaintiff countered that whether defendant's act of gesturing to Cherry was negligent under the circumstances was a question of fact.2

The trial court found the complaint failed to state a cause of action, reasoning: "Both `the law and common sense' dictate that [defendant] could not waive the right of way as to any other motorist but himself. [Sesler, supra, 219 Cal.App.3d at p. 224, 268 Cal.Rptr. 70.] Given that defendant Cherry was required to look for and yield to [plaintiff] regardless of [defendant's] hand motion, [defendant] neither had a duty to [plaintiff], breached that duty nor was a substantial factor in causing harm to [plaintiff]." An order of dismissal was subsequently filed; from which appellant filed a timely notice of appeal.

DISCUSSION

A. Defendant Had No Legal Duty to Assure All Oncoming Traffic Was Clear Before Signaling to Cherry That He Was Yielding His Right of Way

Plaintiff contends that the operator of a motor vehicle has a duty to use reasonable care in signaling other drivers to initiate a turning maneuver. He argues that, although no California case has expressly so held, this is the trend in the law in the majority of other states and we should adopt it here. We disagree.

To establish negligence, it must be shown that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached that duty, and (3) the breach was a proximate or legal cause of the plaintiffs injuries. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673, 25

70 Cal.Rptr.3d 897

Cal.Rptr.2d 137, 863 P.2d 207 (Ann M.); Barber v. Chang (2007) 151 Cal.App.4th 1456, 1463, 60 Cal.Rptr.3d 760 (Barber).) The absence of any one of these three elements is fatal to a negligence claim. Accordingly, if the plaintiff cannot establish that the defendant owed the plaintiff a duty, the action must be dismissed. (See e.g., Bryant v. Glastetter (1995) 32 Cal. App.4th 770, 776, 38 Cal.Rptr.2d 291 (Bryant).)

Generally, all people are required to use ordinary care to prevent others from being injured as a result of their conduct but "`[t]he existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide. [Citation.]'" (Barber, supra, 151 Cal.App.4th at p. 1463, 60 Cal. Rptr.3d 760; see also Paz v. State of California (2000) 22 Cal.4th 550, 93 Cal. Rptr.2d 703, 994 P.2d 975.)

There are several factors to be considered in determining the existence and scope of a duty of care (Ann M., supra, 6 Cal.4th at p. 673, 25 Cal.Rptr.2d 137, 863 P.2d 207). In Ann M., at page 675, footnote 5, 25 Cal.Rptr.2d 137, 863 P.2d 207, our Supreme Court listed the following factors: "`[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.' [Citation.]" (See also Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213, 63 Cal.Rptr.3d 99, 162 P.3d 610; Barber, supra, 151 Cal.App.4th at p. 1464, fn. 1, 60 Cal.Rptr.3d 760.) Of that list, we find the following particularly relevant here: (1) the moral blame attached to the defendant's conduct; (2) the extent of the burden to the defendant; and (3) the consequences to the community of imposing a duty to exercise care with resulting liability for breach.

In California, Vehicle Code section 21801 (§ 21801) governs the respective duties of drivers of left-turning vehicles and those of approaching vehicles. That statute imposes upon the left-turning driver the duty to ascertain, before proceeding across each successive lane of oncoming traffic, if any approaching vehicle constitutes a hazard. (§ 21801, subd. (a).)3 Section 21801, subdivision (a) has been construed to mean that "if the oncoming vehicle in the lane closest to the left turning vehicle surrenders its right of way by indicating to the operator of the left turning vehicle that it desires him to proceed, such operator may not proceed beyond that first lane of traffic, now effectively blocked by the waiving vehicle, if in fact other vehicles approaching in any of the other oncoming lanes will constitute a hazard to the left turning vehicle during the turning movement." (Kirk, supra, 202 Cal.App.2d at p. 291, 20 Cal.Rptr.

70 Cal.Rptr.3d 898

787.)4 Pursuant to subdivision (b) of section 21801, the burden shifts to oncoming traffic to yield the right-of-way to the left-turning driver only where the left-turning driver has complied with section 21801, subdivision (a) but is forced to stop midturn for some reason beyond the driver's control. (Ibid.)

Subsequently, in Sesler, supra, 219 Cal. App.3d at page 224, 268 Cal.Rptr. 70, the court held: "While a motorist may waive his or her own right-of-way, neither the law nor common sense dictates that the waiver applies to any other motorist." In Sesler, the plaintiff was traveling south when he stopped his motorcycle in a left turn pocket and waited for traffic to clear in the three oncoming lanes; the cars in oncoming lanes 1 and 2 stopped and motioned for the plaintiff to proceed with his left hand turn in front of them. Seeing no hazard in lane 3 (the lane closest to the curb), the plaintiff commenced his turn; but the defendant, who had been traveling north in lane 1, had moved to lane 3 to avoid the cars he saw stopped in front of him and he collided with the plaintiff in the intersection.

The trial court refused to give the following special instruction that defendant had proposed: "If an oncoming vehicle in the lane closest to the left-turning vehicle surrenders its right-of-way by indicating to the operator of the left-turning vehicle that it desires him to proceed, such operator may not proceed beyond the first lane of traffic, now effectively blocked by the waiving vehicle, if in fact other vehicles approaching in any of the other oncoming lanes will constitute a hazard to the left-turning vehicle during the turning movement." The Court of Appeal reversed, finding the failure to give the proffered instruction to be prejudicial error. The appellate court reasoned the absence of the instruction allowed the Sesler plaintiff—the left-turning motorcycle rider—to argue, contrary to the law, that he had no duty to anticipate that other drivers would not yield the right of way. (Sesler, supra, 219 Cal.App.3d at p. 222, 268 Cal.Rptr. 70.)

Following Sesler, the Committee on California Civil Jury Instructions added the following italicized language to BAJI No. 5.11, which now reads: "A person who has the right of way may intentionally waive it, or may act in such a manner as to indicate to a reasonably...

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    • United States
    • California Court of Appeals
    • June 12, 2013
    ...with their trucks because it would preclude the socially beneficial use of machinery in rural areas]; Gilmer v. Ellington (2008) 159 Cal.App.4th 190, 198, 70 Cal.Rptr.3d 893 (Gilmer ) [persons yielding the right of way to motorists making a left turn do not owe a duty to those motorists to ......
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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
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    ...the defendant breached that duty, and (3) the breach was a proximate or legal cause of the plaintiff's injuries. Gilmer v. Ellington , 159 Cal.App.4th 190, 195, 70 Cal.Rptr.3d 893 (2008). The absence of any one of these three elements is fatal to a negligence claim. Id .The Court infers Pla......
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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
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    ...of the plaintiff's injuries. The absence of any one of these three elements is fatal to a negligence claim." Gilmer v. Ellington, 159 Cal.App.4th 190, 195, 70 Cal.Rptr.3d 893 (2008) (internal citation omitted). "The existence of a legal duty to use reasonable care in a particular factual si......
  • Issakhani v. Shadow Glen Homeowners Ass'n, Inc., B301746
    • United States
    • California Court of Appeals
    • April 30, 2021
    ...than 24 minutes designed to facilitate loading and unloading, not to prevent traffic accidents; no duty]; Gilmer v. Ellington (2008) 159 Cal.App.4th 190, 203-204, 70 Cal.Rptr.3d 893 [statute prohibiting grid-locking of intersections designed to encourage free flow of 278 Cal.Rptr.3d 283 tra......
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28 cases
  • Pedeferri v. Enterprises, 2d Civil No. B233542
    • United States
    • California Court of Appeals
    • June 12, 2013
    ...with their trucks because it would preclude the socially beneficial use of machinery in rural areas]; Gilmer v. Ellington (2008) 159 Cal.App.4th 190, 198, 70 Cal.Rptr.3d 893 (Gilmer ) [persons yielding the right of way to motorists making a left turn do not owe a duty to those motorists to ......
  • Dougherty v. Bank of Am., N.A., No. 2:15-cv-01226-TLN-CKD
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 1, 2016
    ...the defendant breached that duty, and (3) the breach was a proximate or legal cause of the plaintiff's injuries. Gilmer v. Ellington , 159 Cal.App.4th 190, 195, 70 Cal.Rptr.3d 893 (2008). The absence of any one of these three elements is fatal to a negligence claim. Id .The Court infers Pla......
  • Sipe v. Countrywide Bank, No. 09-CV-00798-OWW-DLB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 16, 2010
    ...of the plaintiff's injuries. The absence of any one of these three elements is fatal to a negligence claim." Gilmer v. Ellington, 159 Cal.App.4th 190, 195, 70 Cal.Rptr.3d 893 (2008) (internal citation omitted). "The existence of a legal duty to use reasonable care in a particular factual si......
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    • United States
    • California Court of Appeals
    • April 30, 2021
    ...than 24 minutes designed to facilitate loading and unloading, not to prevent traffic accidents; no duty]; Gilmer v. Ellington (2008) 159 Cal.App.4th 190, 203-204, 70 Cal.Rptr.3d 893 [statute prohibiting grid-locking of intersections designed to encourage free flow of 278 Cal.Rptr.3d 283 tra......
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