Mikialian v. City of Los Angeles

• Decision Date: 28 March 1978
• Citation: 79 Cal.App.3d 150,144 Cal.Rptr. 794
• Court: California Court of Appeals Court of Appeals
• Parties: Marc MIKIALIAN, Plaintiff and Appellant, v. CITY OF LOS ANGELES, a Municipal Corporation, Bruce Watkins and A. Castro, et al., Defendants and Respondents. CNA CASUALTY OF CALIFORNIA, a corporation, Plaintiff-In-Intervention and Appellant, v. CITY OF LOS ANGELES, a Municipal Corporation, Bruce Watkins and A. Castro, et al., Defendants-In-Intervention and Respondents. Civ. 51233.

Page 794

144 Cal.Rptr. 794

79 Cal.App.3d 150

Marc MIKIALIAN, Plaintiff and Appellant, v. CITY OF LOS ANGELES, a Municipal Corporation, Bruce Watkins and A. Castro, et al., Defendants and Respondents.

CNA CASUALTY OF CALIFORNIA, a corporation, Plaintiff-In-Intervention and Appellant, v. CITY OF LOS ANGELES, a Municipal Corporation, Bruce Watkins and A. Castro, et al., Defendants-In-Intervention and Respondents.

Civ. 51233.

Court of Appeal, Second District, Division 3, California.

March 28, 1978.

Hearing Denied May 25, 1978.

James H. Davis, Los Angeles, Al Schallau, Westchester and Setha Schlang, Los Angeles, for plaintiff and appellant.

Burt Pines, City Atty., John T. Neville, Sr. Asst. City Atty., Daniel U. Smith, Deputy City Atty., for defendant and respondent City of Los Angeles.

Chase, Rotchford, Drukker & Bogust, and Garry W. Williams, Los Angeles, for plaintiff-in-intervention and appellant CNA Cas. of California.

POTTER, Associate Justice.

Plaintiff Marc Mikialian and plaintiff-in-intervention CNA Casualty of California appeal from a judgment of nonsuit in favor of defendants and defendants-in-intervention City of Los Angeles, Bruce Watkins, A. Castro, and Thomas R. Whetzel. ¹

Plaintiff's complaint sought damages for personal injury sustained by him when he was struck by a hit-and-run driver while attempting to install a dolly under a front wheel of an automobile which he had taken in tow with his tow truck. CNA's complaint in intervention was brought in subrogation pursuant to Labor Code section 3852; it was the worker's compensation insurance carrier for Archer's Towing Service, the employer of plaintiff.

When plaintiff was struck, he was afoot on the traffic side of the towed vehicle which, together with his tow truck, was parked at the east curb of Vineland Avenue near its intersection with Sherman Way in the City of Los Angeles. The vehicle which hit him was northbound on Vineland, which at that point comprised a median strip 10 feet in width, a center lane 11 feet in width on either side, and a 24-foot outer lane on either side to the curb. Archer's Towing Service had been designated an official police garage by the Board of Police Commissioners of the City of Los Angeles, thereby qualifying to perform tow services for the police pursuant to rules for such garages. Plaintiff responded to a request for a tow vehicle in connection with a two-car collision in the southbound lanes of Vineland which resulted in one vehicle leaving the roadway, crossing the sidewalk and coming to rest with its front end into a fence. Since the driver of this vehicle was taken into custody and its rear protruded perpendicularly into the traffic lane on the west side of Vineland, the officers investigating the collision called for the tow truck to remove it from its position astride the sidewalk and to impound it. When plaintiff, an experienced tow truck operator, arrived at the scene he parked his truck at the curb on the east side of Vineland opposite the accident scene. He crossed over to the locality of the damaged vehicle and discussed the disposition of it with an officer. He then returned to the tow truck and drove it to a position where the rear of the damaged vehicle could be attached and lifted. When it was so attached, plaintiff drove eastward across Vineland and turned north parallel to the eastern curb, where he parked.

During the course of his testimony at the trial, plaintiff testified three times that the officers at the scene directed him to take the impounded car to the east side of Vineland. Each of these statements was to the same effect: that plaintiff was instructed to get the car out of the water (which filled the gutter at the place it occupied) "and put it back across the street." One such statement was made in the course of plaintiff's direct examination.

In cross-examination, plaintiff's deposition testimony, given nine months before the trial, was read as follows:

"Q. Did anyone direct you to pull the Chrysler across the street onto Vineland?

A. No, sir."

Plaintiff acknowledged that he had made that statement under oath at his deposition.

Shortly thereafter, at the trial, in response to a question as to whether he had told the officers that he was going to tow the car to the east side of Vineland, plaintiff responded:

"A. No, sir. I assumed that is where they wanted me to take it."

Later, in cross-examination, plaintiff stated for the second time that he had been told to "get it out of the water and put it back across the street." However, two pages further in the transcript, the following questions and answers appear:

"Q. Then it was his decision to move the vehicle across the street northbound; is that correct?

A. No, sir. It was more or less my decision. He just told me to get it out of the water.

Q. In fact, you made the decision to move it to the east side of the street then pull it north, did you not?

A. Yes sir.

Q. And you made the decision because you thought it would be the easiest way to get the car off the fence and to get it out of the traffic; isn't that true?

A. Yes, sir."

A comparable explanation of the reason the tow truck was placed on the east side of Vineland was also given in plaintiff's deposition which was read in evidence. This deposition testimony was as follows:

"Q. You made that decision to pull it northbound yourself; is that correct?

A. Yes, sir.

Q. How did you pull it across? What directions did your vehicle actually move?

A. Well, before I pulled it across, my truck was facing the east side of the curb.

Q. Eastbound; is that correct?

A. Yes. So the easiest way and the quickest way to get it off the sidewalk and the fence was to just continue eastbound and to pull lengthwise up against the curb.

Q. Mr. Mikialian, is there any reason why you didn't proceed southbound on Vineland when you pulled the vehicle off the fence?

A. Yes, sir.

Q. What is the reason?

A. Because at that time it was much easier, much quicker to pull it into the northbound lanes. That way I would get my truck and the car out of the way so traffic could proceed freely. I was going to finish my procedure and then go over to the southbound lanes.

Q. So that was the reason you went to the east side?

A. Yes, sir."

On redirect examination, plaintiff was asked what his understanding was at the time. The question and answer in this respect were:

"Q. What was your understanding of what you were to do, Mr. Mikialian?

A. Get it out of the water and get it to an area that was dry."

At no time did plaintiff attempt to correct his deposition or indicate in any way that he misunderstood the questions, misspoke himself in giving his answers, or was confused or mistaken in any respect.

The officers who spoke to plaintiff were both called as witnesses for plaintiff. One of them, Watkins, denied that he gave plaintiff any instructions as to where to take the impounded vehicle. The other, Whetzel, was not asked whether any such directions had been given. Both officers, however, testified that they were aware at the time that plaintiff had towed the vehicle across the street and had parked near the curb on the east side of Vineland.

There was evidence offered by plaintiff to the effect that the usual procedure when vehicles were impounded required the preparation of an inventory of the contents of the impounded vehicle. Such inventory was prepared and was signed by the officer in charge and countersigned by the tow truck operator before the impounded vehicle was removed from the scene of the accident. This evidence also showed (1) that no unusual arrangement had been made in this case, and (2) that although an inventory report had been completed by one of the officers at the scene, it had not been delivered to plaintiff for his signature. Thus, plaintiff was required to wait until he received the inventory report from the officers before he could leave. Officer Whetzel gave testimony in his deposition to the effect that he thought at the time that plaintiff was filling out the inventory report.

There was, however, no evidence indicating that any of the officers were aware of the fact that plaintiff was engaged in activities involving his occupying a position on the traffic side of the parked tow truck and impounded vehicle.

The tow vehicle was equipped with a large number of illumination devices to warn oncoming motorists of its presence. It had a rotating amber light, two rear-facing amber spotlights, and two rear-facing white floodlights, all mounted atop the lifting hoist frame. The usual taillights, which were operable as flashing emergency lights, were mounted at the rear of the truck and provision was made for portable extensions to be attached to the rear of the towed vehicle. At the time plaintiff was struck by the hit-and-run driver, the flashing yellow light, the amber fixed lights, and the truck taillights were in operation. Plaintiff had not, however, attached the portable extensions nor had he activated the flashing emergency feature of the truck's taillights or the white floodlights. No warning flares were placed in the northbound lanes of Vineland by plaintiff or by any of the officers.

The place where the tow truck was located at the time of plaintiff's injury was northerly of a railroad grade crossing of Vineland. The railroad crossing was above the level of the street (to the north and to the south) to a sufficient degree that it obscured northward visibility from vehicles south of the tracks. The precise distance between the railroad tracks and the point where the tow truck was parked on the east side of Vineland was not definitely established though it was clear that it was in excess of 375 feet. At that distance northerly there was located the southernmost of a series of "no parking any time" signs prohibiting parking due to the proximity of the runways of the Burbank Airport.

Testimony offered by plaintiff from retired police officers was to the effect that the...