Schrimscher v. Bryson

• Decision Date: 25 May 1976
• Citation: 130 Cal.Rptr. 125,58 Cal.App.3d 660
• Court: California Court of Appeals Court of Appeals
• Parties: Ronnie J. SCHRIMSHER, Plaintiff and Appellant, v. Thomas K. BRYSON, Defendant and Respondent, State Compensation Insurance Fund, Plaintiff in Intervention and Appellant. * Civ. 47641.

Page 125

130 Cal.Rptr. 125

58 Cal.App.3d 660

Ronnie J. SCHRIMSHER, Plaintiff and Appellant, v. Thomas K. BRYSON, Defendant and Respondent State Compensation Insurance Fund, Plaintiff in Intervention and Appellant. ^*

Civ. 47641.

Court of Appeal, Second District, Division 2, California.

May 25, 1976.

Hearing Denied July 21, 1976.

Greenberg & Panish by Joel Dwork, Los Angeles, for plaintiff and appellant.

Early, Maslach, Boyd & Leavey by Harry Boyd, Los Angeles, for defendant and respondent.

Groezinger, Vonk, Hershenson & Bjornsen by Louis L. Fayne, Los Angeles, for plaintiff in intervention and appellant.

COMPTON, Associate Justice.

Plaintiff appeals from a summary judgment in favor of defendant. The ruling on the motion for summary judgment was based on a stipulation of the following facts.

Defendant, while traveling on Interstate 405 (San Diego Freeway) was involved in a collision with another vehicle. Defendant was intoxicated and his negligence was the cause of the accident.

Shortly after the accident, plaintiff, who was on duty as a member of the California Highway Patrol, spotted defendant's damaged car sitting partially off the 10-foot wide shoulder. Plaintiff parked his patrol vehicle on the shoulder and proceeded to investigate. At plaintiff's direction defendant moved his vehicle to a position where it was completely off the freeway. In response to plaintiff's inquiry, defendant indicated that he had been in a collision and as a result another car had gone over the embankment.

Plaintiff went down the embankment to determine if there were any injuries to the occupants of the other vehicle. Upon determining that there were no such injuries he returned to the shoulder of the freeway. Defendant was at this time in the back seat of a highway patrol car, handcuffed and under arrest.

Plaintiff went to his patrol car to call for a two truck. After completing that call and within twenty minutes of the original accident, a car driven by a Mr. Shelton veered off the freeway and struck defendant's car, which was still parked on the shoulder. Mr. Shelton was also under the influence of an alcoholic beverage. As a result of this latter impact defendant's car was knocked into plaintiff injuring him severely.

The trial court concluded as a matter of law that because defendant had been physically removed from the scene and handcuffed, his previous negligence was not a proximate cause of plaintiff's injuries.

Summary judgment may be entered only when no triable issue of fact is presented. If any triable issue of fact exists, it is error for the trial court to grant a party's motion for summary judgment. (Robinson v. City and County of San Francisco, 41 Cal.App.3d 334, 116 Cal.Rptr. 125; Hicks v. Bridges, 152 Cal.App.2d 146, 313 P.2d 15.) Because of the drastic nature of summary judgment procedure it should be used with caution. (Whaley v. Fowler, 152 Cal.App.2d 379, 313 P.2d 97.) We conclude, however, that no triable issue of fact exists here and the question presented is one of law. Hence, summary judgment was the proper procedure for resolution of the issue. (Hardy v. Hardy, 23 Cal.2d 244, 143 P.2d 701; Reiner v. Hermann, 79 Cal.App.2d 543, 180 P.2d 385.)

The direct and efficient cause of plaintiff's injury was the action of Shelton in negligently, and while intoxicated, driving his car into defendant's vehicle. Plaintiff's theory, of course, is that defendant's antecedent negligence caused plaintiff to be in the situation which exposed him to the peril of Shelton's action, and thus, plaintiff contends, defendant's negligence was also a 'cause' of the injury.

An intervening cause which breaks the chain of causation from the original negligent act is itself regarded as the proximate cause of the injury and relieves the original negligent actor of liability. (65 C.J.S. Negligence § 111(1); 2 Restatement of Torts 2d, § 440.)

The general test of whether an independent intervening act, which operates to produce an injury, breaks the chain of causation is the foreseeability of that act. (Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463.)

An act is not foreseeable and thus is a superseding cause of the injury 'if the independent intervening act is highly unusual or extraordinary, not reasonably likely to happen. . . .' (Witkin Summary of California Law (8th ed) Torts, § 628, citing cases.)

Generally speaking the determination of whether the intervening act is foreseeable is a question of fact unless under the undisputed facts there is no room for a reasonable difference of opinion. (2 Restatement of Torts 2d, § 453, comment b; also see Prosser, Law of Torts (4th ed.) § 45; Klopfenstein v. Rentmaster Trailer Co., 270 Cal.App.2d 811, 76 Cal.Rptr. 126.)

We conclude that under the undisputed facts here there can be no reasonable difference of opinion as to the foreseeability of the intervening act. The action of Shelton could not reasonably have been anticipated by defendant at the time of his initial negligence and as a matter of law the chain of causation was broken.

Liability cannot be predicated on a prior and remote cause which merely furnishes the condition or occasion for an injury resulting...