Mitchell v. Gonzales

• Decision Date: 09 December 1991
• Court: California Supreme Court
• Parties: , 819 P.2d 872, 60 USLW 2414 James MITCHELL, et al., Plaintiffs and Appellants, v. Jose L. GONZALES, et al., Defendants and Respondents. S018678

Page 913

1 Cal.Rptr.2d 913

54 Cal.3d 1041, 819 P.2d 872, 60 USLW 2414

James MITCHELL, et al., Plaintiffs and Appellants, v. Jose L. GONZALES, et al., Defendants and Respondents.

S018678.

Supreme Court of California

Dec. 9, 1991.

Edward J. Horowitz, Greenberg & Panish and David Greenberg, Los Angeles, for plaintiffs and appellants.

Bodkin, McCarthy, Sargent & Smith and Richard P. Kinnan, Los Angeles, for defendants and respondents.

Rogers, Joseph, O'Donnell & Quinn, Joseph W. Rogers, Susan M. Popik, Richard D. Shively, San Francisco, Thelen, Marrin, Johnson & Bridges, Lee A. McCoy and Curtis A. Cole, Los Angeles, amici curiae on behalf of defendants and respondents.

LUCAS, Chief Justice.

In this case we decide whether BAJI No. 3.75, ¹ the so-called proximate cause instruction, which contains a "but for" test of cause in fact, should continue to be given in this state, or whether it should be disapproved in favor of BAJI No. 3.76, the so-called legal cause instruction, which employs the "substantial factor" test of cause in fact. ²

Plaintiffs James and Joyce Mitchell, the parents of 12-year-old Damechie Mitchell, who drowned in Lake Gregory on July 4, 1985, sued defendants Jose L. Gonzales, Matilde Gonzales, and Mrs. Gonzales's son The Court of Appeal concluded that, under the facts, the trial court erred when it denied plaintiffs' request to instruct the jury pursuant to BAJI No. 3.76 and instead instructed under BAJI No. 3.75. After reviewing both instructions, the Court of Appeal concluded that BAJI No. 3.75 is potentially misleading and should not have been given, and that the trial court committed prejudicial error when it refused to give BAJI No. 3.76.

Luis (hereafter defendants) for damages, claiming defendants' negligence caused Damechie's death. By special verdict, the jury found that defendants were negligent, i.e., they had breached a duty, but that the negligence was not a proximate cause of the death.

We granted review in this case to determine whether courts should continue to instruct juries on cause in fact using BAJI No. 3.75 in light of the frequent criticism of that instruction. We conclude that the Court of Appeal was correct and that BAJI No. 3.75 should be disapproved.

I. FACTS

Damechie, 12 years old, standing 4 feet 11 inches tall, and weighing 90 pounds, had a tag-along little-brother relationship with his friend Luis, who was 14 years old, 5 feet 4 inches tall, and weighed 190 pounds. The Gonzales invited Damechie to accompany them to Lake Gregory for the Fourth of July. According to Mrs. Mitchell's testimony, when Mrs. Gonzales called her to ask whether Damechie could accompany them, she informed Mrs. Gonzales that Damechie could not swim. After Mrs. Gonzales suggested that the boys would play in the shallow edge of the lake, the Mitchells agreed that Damechie could go, as long as he was restricted to the edge of the lake.

Mrs. Gonzales denied that she had told Mrs. Mitchell the children would be swimming or that Mrs. Mitchell had told her Damechie could not swim.

According to Mrs. Mitchell, while Damechie was packing, he, Luis, and Luis's sister, Yoshi, talked about swimming. Mrs. Mitchell told the children Damechie could not swim and should not go swimming. Luis and Yoshi said they would watch Damechie.

Luis testified that Mrs. Mitchell did not tell him that Damechie could not swim. He did remember telling her they were going swimming, but he did not remember what she said about it. He also remembered that Mrs. Mitchell told him to watch out for Damechie because Luis was bigger and older than Damechie.

At the lake, the Gonzales family was joined by Mr. and Mrs. Reyes and their young children. Luis asked his parents for money to rent a paddleboard. Mrs. Gonzales told him, as she always did, not to go into water over his head. Both Luis and Yoshi knew how to swim.

The three children rented two paddleboards, replying affirmatively when asked by the employee in charge of rentals whether they knew how to swim. During the morning, the children stayed within 30 feet of shore, in water that was not over their heads. Mr. and Mrs. Gonzales admittedly did not watch the children during some of the time the children were in the water.

Mrs. Gonzales testified that had she known the children were going into deep water, she probably would not have allowed it because she believed it would be dangerous. Apparently, because of her vantage point, it was difficult for her to watch the children in the water, and there was a long period when she did not have them in sight. She assumed Luis would obey her, although she acknowledged that he had disobeyed her on other occasions.

Mr. Gonzales testified that he relied on the lifeguards to watch the children and that he neither knew nor asked whether Damechie could swim.

After lunch, Mrs. Gonzales told the children not to leave the picnic area and went to the restroom. Nevertheless, the children left and rented another paddleboard. When she returned to the picnic site 15 minutes later, the children were gone and Mr. Gonzales was asleep. She did not know where they had gone, nor did she ask The children had entered the water and, on their paddleboard, crossed the lake. When Luis started to push Damechie and Yoshi, who were on the paddleboard, back across the lake, Damechie told Luis he could not swim.

Mr. Reyes, who was awake and at the site, of their whereabouts.

Luis, nevertheless, pushed them 100 feet out onto the lake, into water over their heads. He then told Damechie to let him get on the paddleboard because he was tired. Damechie again told Luis he was unable to swim and asked him to be careful. Luis promised to be careful. After Luis got on board, Damechie asked Luis whether Luis would save him if he fell off. Luis said he would do so.

Shortly before the accident, the children were five to ten feet from three women, apparently on a nearby paddleboard, who testified that the children made a lot of noise and engaged in horseplay. They each testified that Luis was the rowdiest.

One of the women testified that the paddleboard tipped over and that the noise and roughhousing stopped for five to ten minutes. Immediately before the board tipped over, Luis was on the center of the board and Damechie and Yoshi were draped over it. During the quiet period, neither Luis nor Yoshi called or gestured for help, but they appeared to be whispering.

The second woman testified that the quiet period lasted from one to five minutes, during which time she glanced over and saw only Luis and Yoshi. She did not hear any cries for help.

The third woman thought three minutes of quiet elapsed before she notice only two children where there had previously been three. She never heard any call for help.

After the women noticed one of the children was missing, Luis said, "Lady, my friend's down there," indicating the lake. One of the women yelled for a lifeguard and asked Luis why he had not signalled for help sooner. He replied that neither he nor his sister could swim. He also said that Damechie had grabbed Luis in an effort to save himself and that he, Luis, had kicked Damechie to get him off and to avoid being pulled under.

Luis testified that the board tipped over when Damechie put his hands on Luis's shoulder. He admitted he rocked the board before it tipped over and that Damechie's movement had not caused the board to tip. The employee in charge of the paddleboard rentals testified that "You have to work at it" to get a board to tip. Yoshi testified that the board tipped when Luis attempted to climb on.

Luis testified that Damechie was very scared while the board was rocking and that he asked Luis not to rock the board because he did not want to fall off. Additionally, Luis admitted that at the time, he was being very rowdy and that when he tipped the board, he and Damechie fell off. Damechie panicked and grabbed Luis's shorts, pulling them down. Luis pulled them up, and Damechie grabbed Luis's ankles. Luis shook free of Damechie, got to the surface, and climbed onto the board. He looked into the water and could see Damechie's fingers, which he tried to grab. Yoshi remained on the board. Luis testified inconsistently, one time stating that he waited two or three minutes before calling a lifeguard and another time stating that he immediately called for a lifeguard.

Later that day, Luis told the lifeguards that Damechie had rocked the board, causing it to flip. He asked them whether he and his family would be sued. Mrs. Gonzales asked him, "Why didn't you stay where I told you to stay?"

Damechie's body was not recovered for several days because of the opacity of the water and bottom vegetation. The body was about 120 feet from shore in 8 feet of water.

The Mitchells sued the Gonzaleses, including Luis, and others not party to this appeal. The complaint alleged causes of action for negligence and wrongful death. Defendants asserted comparative negligence on the part of Damechie and his parents.

As noted above, the court refused plaintiffs' proffered instruction on causation in The jury, by special verdict, concluded that defendants were negligent but that the negligence was not a cause of the death. The jury therefore did not reach a special verdict on comparative negligence.

fact (i.e., BAJI No. 3.76) and instead gave the causation in fact instruction requested by defendants, BAJI No. 3.75.

The trial court denied plaintiffs' motions for a new trial or a judgment notwithstanding the verdict. The Court of Appeal reversed.

II. DISCUSSION

As explained below, we conclude the Court of Appeal correctly determined that the trial court prejudicially erred when it refused BAJI No. 3.76 and instead gave BAJI No. 3.75. Our discussion proceeds in two steps. We begin by determining whether instructional error occurred. Our analysis focuses on whether conceptual and grammatical flaws in BAJI No. 3.75 may confuse jurors and lead them to improperly...