Murrell v. State of California ex rel. Dept. Pub. Wks.

• Decision Date: 16 April 1975
• Citation: 47 Cal.App.3d 264,120 Cal.Rptr. 812
• Court: California Court of Appeals Court of Appeals
• Parties: Jeanelle Marie MURRELL, a minor, by her guardian ad litem, Clarence Eugene Murrell, Plaintiff and Appellant, v. STATE of California, Acting BY AND THROUGH the DEPARTMENT OF PUBLIC WORKS, Defendant and Respondent. Civ. 14609.

Page 812

120 Cal.Rptr. 812

47 Cal.App.3d 264

Jeanelle Marie MURRELL, a minor, by her guardian ad litem, Clarence Eugene Murrell, Plaintiff and Appellant, v. STATE of California, Acting BY AND THROUGH the DEPARTMENT OF PUBLIC WORKS, Defendant and Respondent.

Civ. 14609.

Court of Appeal, Third District, California.

April 16, 1975.

John D. Barr, Redding, Foster, Waner, Boone, Monroe, Thurrell, Johnston & Flitner, Santa Rosa, Tocher & Gazzigli, William Coshow, Redding, for plaintiff-appellant.

Harry S. Fenton, Chief Counsel, Brelend C. Gowan, Sacramento, for defendant-respondent.

FRIEDMAN, Acting Presiding Justice.

This appeal requires evaluation of jury instructions where an injured plaintiff charges concurrent negligence of a vehicle driver and of the public entity responsible for maintaining a safe highway.

The injured plaintiff, a minor, was a passenger on a church bus carrying a group of teenagers on a recreational expedition. After the accident she brought suit against the bus operator and the State of California. The bus operator settled and the suit went to trial against the state alone. The trial culminated in a defense verdict and the plaintiff appeals.

The bus was traversing an S-curve on a downhill, two-lane state highway when its right-rear dual wheels left the pavement and slipped onto the sloping shoulder at the right side of the pavement. The bus started 'fishtailing.' The driver lost control. Along the shoulder, about six feet from the pavement, was a row of palm trees. The right rear of the bus slammed into these trees and the bus overturned, injuring a number of passengers.

The trial produced evidence from which the jury could have inferred negligence of the bus driver. As to the state, plaintiff produced evidence to establish that the highway was dangerous because of the following conditions: the lane in which the bus was traveling narrowed at the point of the accident; at the pavement edge there was an unsafe dropoff to an overly narrow shoulder which sloped away from the pavement; the nearby palm trees created a hazard; advisory speed signs at the Scurve were inaccurate. Expert witnesses commented on these conditions and gave conflicting opinions of the highway's safety. According to the state's evidence, school buses frequently traveled over the highway and had never had an accident.

In addition to the general verdict, the jury returned a special verdict finding, in effect, that the state highway was not in a dangerous condition at the time and place of the accident.

Like a private defendant, a public entity may become liable when its negligence in maintaining dangerous property and the negligence of another party concur as proximate causes of the injury. (Hayes v. State of California, 11 Cal.3d 469, 472, 113 Cal.Rptr. 599, 521 P.2d 855.) Government Code section 830, subdivision (a), defines a Dangerous condition of public property as one creating a substantial risk of injury when it is Used with due care in a reasonably foreseeable manner. ¹ The qualification that the property is dangerous only when Used with due care does not require the plaintiff to prove due care on the part of the third party (here, the bus driver) involved in the plaintiff's injury. Rather, the statute means that the condition is dangerous if it creates a substantial risk of harm when used with due care by the public generally, as distinguished from the particular person charged as concurrent tortfeasor. The leading case in point is Callahan v. City and County of San Francisco, 249 Cal.App.2d 696, 702--704, 57 Cal.Rptr. 639. (See also Jordan v. City of Long Beach, 17 Cal.App.3d 878, 883, 95 Cal.Rptr. 246; Holmes v. City of Oakland, 260 Cal.App.2d 378, 387, 67 Cal.Rptr. 197; Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar 1969 Supp.) p. 31.)

Crux of the appeal is plaintiff's charge of error in the rejection of two of its proposed jury instructions. Plaintiff proposed one jury instruction declaring that the exercise of due care by the bus driver was not relevant to the dangerous condition issue and another informing the jury that plaintiff was not required to prove that the bus driver was exercising due care. ² These instructions were necessary, plaintiff argues, because the court's instructions included the definitions of Dangerous condition in Government Code section 830, subdivision (a); this definition permitted the jury to infer erroneously that a dangerous condition would not exist unless the bus driver was using the highway with due care; to guard against that erroneous inference, it was necessary to inform the jury, in explicit terms, that a dangerous condition involved a risk of harm when the public generally--not the driver of the bus--was using the highway with due care.

The jury instructions in this case consisted largely of pattern instructions gleaned by the parties from California Jury Instructions, Civil (BAJI) and submitted to the judge. We summarize the principal instructions as follows: The plaintiff was not responsible for any act or omission of the bus driver (extracted from BAJI 3.70); the plaintiff had the burden of proving certain issues, among them that the state highway was in a dangerous condition (based upon BAJI 2.60); the state had the burden of proving the bus driver's negligence and that his negligence was the sole proximate cause of the accident; a dangerous condition meant a condition creating a substantial (and not a minor or trivial) risk of injury when the property was used with due care in a foreseeable manner (BAJI 11.54); a vehicle driver must exercise ordinary care (BAJI 5.00) a violation of the basic speed law is negligence (BAJI 5.30 and 5.31 combined); the negligence of two persons may concurrently cause an injury, and the concurrent negligence of an absent party supplies no defense (BAJI 3.77); if the bus driver's negligence was the sole proximate cause of the accident, the verdict should be for the state (see Akins v. County of Sonoma, 67 Cal.2d 185, 200, 60 Cal.Rptr. 499, 430 P.2d 57); if the jury found that a dangerous condition of the state's property was a substantial factor in causing the injury but the bus driver's reasonably foreseeable negligence was the immediate cause, the state (in effect) was not relieved of liability (a modification of BAJI 3.79). ³

The trial court cannot be charged with error in rejecting the two instructions set out in footnote 2, Ante. Both were formula instructions; both were defective; both shared a vice endemic to formula instructions by failing to recite all the legal prerequisites to the verdict. (4 Witkin, Cal. Procedure, Trial, § 212.) Plaintiff nevertheless argues that the instructions as given distorted the meaning of section 830, subdivision (a).

None of the jury instructions specifically explained the Used with due care clause of section 830, subdivision (a), in terms of the difference between two kinds of use--general public use and use at the time and place of the accident. As construed, Government Code section 830, subdivision (a), refers to the former kind of use, not the latter; it does so only in veiled terms; thus an instruction which simply repeats the verbiage of the statute tends to veil the statute's true meaning from the jury. Where, as here, the concurrent negligence of a third party is a focal issue, the jury should be told expressly what the statute only implies.

None of the trial court's instructions--and none of the BAJI instructions--was designed to meet that need directly. A set of instructions would be erroneous which gave the jury the impression that a third party's negligent use would negate existence of a 'dangerous condition' and exonerate the public entity from liability. (Callahan v. City and County of San Francisco, supra.) Had the trial judge supplied the jury with an instruction distinctly explaining the Used with due care clause, the instructions would have been improved. Nevertheless, the trial court cannot be charged with error at this point because the instructions, in composite, succeeded in conveying the requisite information to the jury.

Jury instructions are sufficient which in composite supply the jury with a well-balanced statement of the necessary legal principles. (City of Los Angeles v. Frew, 139 Cal.App.2d 859, 872, 294 P.2d 1073.) The court's instructions made the jury aware that the bus driver's negligent use of the highway would not relieve the state of liability for the condition of its highway. One instruction distinctly told the jury that the state would be exonerated if the bus driver's negligence were the sole proximate cause of the accident. That instruction would cause any reasoning juror to recognize that findings of dual negligence and dual causation would vary the result. At that point, the jury instructions on the duty of the vehicle driver and on concurrent causation would come into play.

In particular, the instruction quoted in footnote 3 of this opinion conveyed awareness that the state might be liable even if the negligence of the bus driver were the immediate cause of the accident. That instruction, to be sure, dealt with proximate causation. The statutory elements of 'dangerous condition' form a declaration of duty rather than a rule of proximate cause. The instruction, nevertheless, let the jury know that there were conditions under which the state and the bus driver might both be liable for plaintiff's injuries. Although phrased in causational rather than duty parlance, this particular instruction firmly informed the jury that the bus driver's negligence, that is, his negligent Use of the highway, need not exonerate the state.

Plaintiff's tactical needs called for jury awareness that the bus driver's negligence would not impede a finding of 'dangerous condition.' The array of instructions conveyed that notion, but with a generality falling short of plaintiff's tactical desires. When instructions are abstractly correct but too...