Maxwell v. Colburn

• Decision Date: 25 April 1980
• Parties: L. Gail MAXWELL et al., Plaintiffs and Appellants, v. Harold COLBURN, Defendant and Respondent. Civ. 4118.
• Court: California Court of Appeals Court of Appeals

Page 912

163 Cal.Rptr. 912

105 Cal.App.3d 180

L. Gail MAXWELL et al., Plaintiffs and Appellants, v. Harold COLBURN, Defendant and Respondent.

Civ. 4118.

Court of Appeal, Fifth District, California.

April 25, 1980.

[105 Cal.App.3d 182] Medearis & Grimm, Los Angeles, for plaintiffs and appellants.

Kosmo & Walsh, Oxnard, for defendant and respondent.

OPINION

FRANSON, Acting Presiding Justice.

STATEMENT OF THE CASE

Appellants, the plaintiffs in a personal injury action, appeal from a judgment entered after the trial court granted respondent's motion for summary judgment. Appellants are a mother and daughter who were seriously injured when respondent's vehicle collided with them while they were walking across the street. They filed a complaint against respondent and other defendants alleging inter alia that their injuries were a proximate result of respondent's negligent operation of his motor vehicle.

Approximately two years after answering the third amended complaint, respondent filed a motion for summary judgment on the ground that there was no triable issue of fact because there was no evidence of any negligence on respondent's part. The motion was supported by a memorandum of points and authorities and by the declarations of respondent, his wife, and his attorney. Respondent also submitted copies of requests for admissions which were served on appellants pursuant to Code of Civil Procedure, section 2033, and never answered.

Respondent recited the following matters in his declaration: On July 4, 1974, at about 11:10 p. m., respondent was driving his vehicle westbound on Morro Road past Atascadero State Park. He was travelling at a speed of approximately 35 m. p. h., which was 10 m. p. h. below the posted speed limit. It was dark, but the road was illuminated to a "slight degree" by lights from a carnival taking place in the park. The headlights on respondent's vehicle were on. Respondent's wife Marie was riding in the front seat with him. Respondent was watching the roadway in front of the car.

As respondent was passing the park, he observed a woman and a young girl holding hands and standing in the center of the two-lane roadway. The woman was looking away from respondent's vehicle. The pedestrians first came into respondent's view when he was approximately 80 feet from them; they were silhouetted in the light of a vehicle approaching from the opposite direction. Respondent let up on the accelerator when he first saw the pedestrians in the roadway.

Respondent did not see the woman look his way after looking to the west, but thereafter she and the girl "abruptly" started into respondent's lane of traffic. As soon as respondent saw the pedestrians start into his lane, he applied his brakes hard enough to make the tires squeal. He called: "Oh my God!" because he did not think his brakes could stop him before the two people got safely across the street. Two or three seconds after respondent first saw the pedestrians, his car hit them. At that point his vehicle had slowed to between five and seven miles per hour.

According to respondent's declaration, he had ingested no alcoholic beverages or intoxicating substances on the day of the accident. He had taken some medication that day (one tablet each of Persantine and Digoxin), but felt no perceptible effects therefrom. He was not tired or drowsy at the time of the accident.

The declaration of respondent's wife Marie confirmed that she was riding with her husband at the time of the accident and that the car was travelling about 35 miles per hour before the accident. Mrs. Colburn declared that she had been resting with her head down; consequently, she did not have her eyes on the road or her husband immediately prior to the impact. As far as Mrs. Colburn knew, her husband had been paying attention to his driving at all times that she observed him during the ride.

The declaration of respondent's attorney, Michael Mercy, stated that he had served appellants with requests for admissions which remained unanswered and should accordingly be deemed admitted under Code of Civil Procedure section 2033. ¹ The matters which respondent had requested appellants to admit included the following: that prior to the accident respondent had been driving 35 m. p. h. with his headlights on; that there were no known witnesses to the accident except respondent, appellants, and one Julie Smith who did not see either respondent's vehicle or appellants prior to the actual impact; that appellants saw respondent's vehicle, but not respondent himself, prior to the impact; that there is no known witness who can testify based on personal knowledge that prior to the accident respondent's attention was in any way distracted from the roadway in front of his vehicle.

Appellants filed no papers in opposition to the summary judgment motion. At the hearing before Judge Woolpert, appellants' counsel argued that respondent's moving papers did not foreclose a triable issue of fact because respondent did not expressly state that he put his foot on the brake as soon as he saw appellants in the roadway. The court responded that respondent's declaration "could only be interpreted as showing no delay in applying the brakes, since (his) vehicle slowed from 35 m. p. h. to 5-7 m. p. h. inside of 80 feet within a period of 2-3 seconds." The settled statement reflects no other triable issues advanced by appellants' counsel at the hearing. Judge Woolpert concluded the summary judgment motion should be granted.

DISCUSSION

We first dispose of respondent's contention that appellants have waived the right to argue certain inferences in their favor because the inferences were not argued to the trial court. Code of Civil Procedure section 437c, setting forth the procedure for summary judgment, provides in pertinent part:

"Such motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the admissible evidence set forth in the papers and all inferences reasonably deducible from such evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from such evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." (Emphasis added.)

The statute requires the trial court to consider all inferences reasonably deducible from the evidence; hence, the fact that appellants' attorney did not urge the trial court at the original...