Hanif v. Housing Authority

• Citation: 246 Cal.Rptr. 192,200 Cal.App.3d 635
• Decision Date: 21 April 1988
• Docket Number: No. C000119,C000119
• Parties: Sajjad HANIF, a Minor, etc., Plaintiff and Respondent, v. HOUSING AUTHORITY of yolo county, Defendant and Appellant.
• Court: California Court of Appeals

Page 192

246 Cal.Rptr. 192

200 Cal.App.3d 635

Sajjad HANIF, a Minor, etc., Plaintiff and Respondent, v. HOUSING AUTHORITY of yolo county, Defendant and Appellant.

No. C000119.

Court of Appeal, Third District, California.

April 21, 1988.

Certified for Partial Publication ^*

Robert M. Cole and Cole & Cole, Inc., Davis, for defendant and appellant.

James V. Nolan and Chalmers, Sans, Gardner & Nolan, Woodland, for plaintiff and respondent.

EVANS, Associate Justice.

This personal injury action arises out of an accident that occurred on defendant Housing Authority's property in which an automobile struck and injured plaintiff, Sajjad Hanif. Following a bench trial, judgment was entered for plaintiff. Defendant appeals, challenging various of the court's findings and conclusions respecting liability and special damages. We shall modify the judgment to reduce the amount of special damages awarded. As modified, the judgment will be affirmed.

FACTS

On September 3, 1979, at about 7 p.m., plaintiff, then seven years old, and Betty Brady, an adult companion, were cutting flowers from oleander bushes along a two-foot strip of land abutting Donelly Circle in Woodland. Donelly Circle is a 26-foot wide paved, unmarked roadway running through defendant's housing project. The strip of land on which the oleander bushes were planted is directly across Donelly Circle from the housing project and is owned and maintained by defendant. Growth from the tall bushes was spilling across the curb and protruding into Donelly Circle for a distance of one to two feet. Plaintiff dropped his scissors and, in retrieving them, stepped onto the roadway and into the path of an oncoming car being driven by Lydia Ulloa. Plaintiff did not see the car. Brady attempted to pull him out of harm's way, but she was unsuccessful. Both she and plaintiff were struck. The impact forced plaintiff under the car, and he was dragged a considerable distance. He suffered severe and permanent injuries.

According to eyewitnesses Bob Barton and Vernon Washabaugh, who were attending a nearby ice cream vending truck, Ulloa was traveling about 35 miles per hour, and her car was brushing the oleander bushes as it proceeded along the road. Plaintiff was struck by the front of the car midway between the right headlight and the center of the grill. Ulloa did not slow down or alter her course, either before or after striking Brady and plaintiff; she stopped only after Barton had flagged her down.

Ulloa and her passenger, Maria Enriquez, testified they were driving into the sun at the time but that their vision was not significantly impaired. The car's sun visor was down and the windshield appeared to be clean. Ulloa and Enriquez saw the ice cream truck in the distance, which was stopped on the opposite side of the road. Neither one of them saw Brady or plaintiff, however, and they were initially unaware the car had struck anybody; they attributed the thumping noises under the car to a possible flat tire.

Housing Authority groundskeeping and maintenance personnel, as well as the Housing Authority's director, testified that the oleander bushes were trimmed back from the roadway and beyond the curb "as needed," ordinarily in the spring and the fall, but on no regular schedule. The reason for trimming them back was to permit an unimpeded path for the city's streetsweepers.

William Neuman, an expert on accident reconstruction and highway design and safety, testified that the oleander bushes, at the time of the accident, were in a condition contrary to accepted safety standards and practices in roadway maintenance. The bushes, protruding as they did into the roadway, would tend to obscure the vision of both drivers and pedestrians, creating a classic "dart out" hazard.

Woodland Police Officer Craig Vierra, who investigated the accident, as well as Barton and Washabaugh, testified that children commonly played in and around the oleander bushes along Donelly Circle. Donald Parker, the Housing Authority's director, knew that many children lived in the housing project, and the Housing Authority did not prohibit them from playing in the area of the oleander bushes.

The trial court apportioned 80 percent of the fault for this accident to Ulloa and 20 percent to defendant. ¹ Considering plaintiff's age, the court found no comparative fault on his part. As to defendant, a public entity, the court found the overhanging and untrimmed oleander bushes, which protruded into the roadway and obscured Ulloa's and plaintiff's view of one another, constituted a dangerous condition on defendant's property and were a proximate cause of plaintiff's injuries. The court found defendant's negligent failure to have kept the bushes trimmed back from the roadway created a reasonably foreseeable risk of the kind of injury that did in fact occur. The court awarded, as special damages for past medical expenses and home attendant care, $53,314 and, as general damages for pain and suffering and impaired future earning capacity, $250,000. Defendant's motion for new trial was denied, and this appeal followed.

I-II ^**

III

Over defendant's objection, plaintiff introduced evidence that the "reasonable value" of the medical services rendered in this case was in excess of amounts Medi-Cal had actually paid the providers. The trial court found the reasonable value of the physician services to have been $4,618, whereas Medi-Cal had paid only $2,823, and the reasonable value of the hospital services to have been $27,000, whereas Medi-Cal had paid only $16,494. There was no evidence, however, that plaintiff was or would become liable for the difference. And the balance between the amount billed to Medi-Cal and the amount paid was "written off" by the hospital. Nevertheless, the court awarded, as special damages, the reasonable value of the medical services rendered. On appeal, defendant contends the court erred in its application of the controlling measure of damages in this regard, arguing that plaintiff's recovery is limited to the amount actually paid. ² We agree the trial court's award over-compensated plaintiff for this item of damages.

Preliminarily, we note there is no question here that Medi-Cal's payment for all injury-related medical care and services does not preclude plaintiff's recovery from defendant, as special damages, of the amount paid. This follows from the collateral source rule. (See Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6-16, 84 Cal.Rptr. 173, 465 P.2d 61; De Cruz v. Reid (1968) 69 Cal.2d 217, 223-224, 70 Cal.Rptr. 550, 444 P.2d 342; Reichle v. Hazie (1937) 22 Cal.App.2d 543, 547-548, 71 P.2d 849; Rest.2d Torts, § 920A & com. b; see generally Annot., Collateral Source Rule: Receipt of Public Relief or Gratuity as Affecting Recovery in Personal Injury Action (1977) 77 A.L.R.3d 366; cf. Waite v. Godfrey (1980) 106 Cal.App.3d 760, 766-775, 163 Cal.Rptr. 881.) For purposes of analysis, plaintiff is deemed to have personally paid or incurred liability for these services and is entitled to recompense accordingly. This is not unreasonable or unfair in light of Medi-Cal's subrogation and judgment lien rights (Welf. & Inst.Code, § 14124.70 et seq.; cf. Gov.Code, § 985, subd. (f)(1), added by Stats. 1987, ch. 1201, § 25). (See Helfend v. Southern Cal. Rapid Transit Dist., supra, 2 Cal.3d at pp. 10-11, 84 Cal.Rptr. 173, 465 P.2d 61.)

Nor is there any question about the appropriate measure of recovery: a person injured by another's tortious conduct is entitled to recover the reasonable value of medical care and services reasonably required and attributable to the tort. (Malone v. Sierra Railway Co. (1907) 151 Cal. 113, 115, 91 P. 522; Gimbel v. Laramie (1960) 181 Cal.App.2d 77, 81, 5 Cal.Rptr. 88; see BAJI No. 14.10 (7th ed. 1987 pocket pt.) p. 15.)

The question here involves the application of that measure, i.e., whether the "reasonable value" measure of recovery means that an injured plaintiff may recover from the tortfeasor more than the actual amount he paid or for which he incurred liability for past medical care and services. Fundamental principles underlying recovery of compensatory damages in tort actions compel the following answer: no.

"In tort actions damages are normally awarded for the purpose of compensating the plaintiff for injury suffered, i.e., restoring him as nearly as possible to his former position, or giving him some pecuniary equivalent. [Citations.]" (Emphasis in original, 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 842, p. 3137; see Civ.Code, §§ 3281 ["Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages."], 3282 ["Detriment is a loss or harm suffered in person or property."], 3333 ["For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not."].) "The primary object of an award of damages in a civil action, and the fundamental principle on which it is based, are just compensation or indemnity for the loss or injury sustained by the complainant, and no more [citations]." (Emphasis in original, Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 576, 136 Cal.Rptr. 751.) "A plaintiff in a tort action is not, in being awarded damages, to be placed in a better position than he would have been had the wrong not been done." (Valdez v. Taylor Automobile Co. (1954) 129 Cal.App.2d 810, 821-822, 278 P.2d 91.)

In tort actions, medical expenses fall generally into the category of economic damages, representing actual pecuniary loss caused by the defendant's wrong. (See Civ.Code, § 1431.2, subd. (b)(1).) Applying the above principles, it follows that an award of damages for past medical expenses in excess of...