De Vera v. Long Beach Pub. Transportation Co.

• Decision Date: 06 May 1986
• Citation: 225 Cal.Rptr. 789,180 Cal.App.3d 782
• Court: California Court of Appeals Court of Appeals
• Parties: Federico DE VERA, Plaintiff and Respondent, v. LONG BEACH PUBLIC TRANSPORTATION COMPANY, Defendant and Appellant. B008866, B011615.

Page 789

225 Cal.Rptr. 789

180 Cal.App.3d 782

Federico DE VERA, Plaintiff and Respondent, v. LONG BEACH PUBLIC TRANSPORTATION COMPANY, Defendant and Appellant.

B008866, B011615.

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

May 6, 1986.

Raymond T. Kaiser and J. Rodney DeBiaso, Long Beach, for defendant and appellant

Joseph L. Shalant, Los Angeles, for plaintiff and respondent.

DANIELSON, Associate Justice.

Defendant Long Beach Public Transportation Company appeals from a judgment awarding plaintiff Federico De Vera $17,500 as damages for injuries he sustained when another motor vehicle ran into the rear end of defendant's bus. The fundamental question presented by defendant's appeal is whether a common carrier owes a duty to its passengers to investigate an accident caused by a third party for the purpose of facilitating a claim by the passenger against the third party tortfeasor. We hold that it does, and affirm the judgment.

In a consolidated appeal, plaintiff appeals from an order made after judgment denying his motion for relief pursuant to Code of Civil Procedure section 473 from an award of attorney fees made pursuant to Code of Civil Procedure section 128.5. We affirm the order.

FACTS

Plaintiff sustained injuries when a bus owned and operated by defendant was rear-ended by a vehicle owned and operated by a third party. He filed a complaint At the outset of the trial, and out of the jury's presence, the court ruled that "the bus company, as a common carrier and because [plaintiff] was a passenger on its bus, did have a special relationship with [plaintiff]." This ruling was thereafter treated by the court and both parties as establishing a duty on the part of defendant to investigate the accident and to preserve the fruits of its investigation for the purpose of assisting plaintiff in future civil litigation.

                alleging, inter alia, that defendant, through its employees, "negligently lost or failed to obtain the identity of the motor vehicle and its driver that rear-ended or otherwise collided with defendant's bus in which plaintiff was a passenger on September 7, 1982."   Plaintiff alleged that defendant "owed a legal duty to plaintiff to obtain and safekeep this information about the other vehicle and its driver in order that plaintiff could recover against said parties for his personal injuries and other losses sustained as a proximate result of the aforesaid collision.  Defendant's representatives had ample opportunity to obtain the needed identifying information and at all times knew or should have known that plaintiff was relying on defendants to obtain and safekeep this information.  As a proximate result of defendants' aforesaid negligence, plaintiff has been deprived of pursuing a claim against the driver of the other motor vehicle and other related parties involved in the collision....  Defendants are, therefore, legally liable to plaintiff for what plaintiff would have been entitled to receive from the other parties had defendants obtained the aforementioned information."
                

In the course of the trial, the parties presented conflicting evidence as to the events immediately following the collision. Plaintiff's witness, Jacqueline Lang, testified that she was seated toward the rear of the bus when it was rear-ended by a pick-up truck, that the bus driver left the bus and spoke with the driver of the pick-up, then returned to the bus and obtained a pen, following which he resumed his conversation with the other driver, apparently exchanging information with him. Plaintiff also testified that the driver left the bus and spoke with the truck driver.

The bus driver, Aubra Alan Cowell, testified that his investigation revealed only that the bus was struck by a large Buick, which failed to stop, and that he therefore failed to obtain any information as to the identity of its driver.

Cowell testified that he radioed his dispatcher to report the accident while still on the scene, and filled out an accident report describing the other driver as "unknown", upon his return to the yard. Cowell testified that he was not asked by any of the bus passengers to obtain information relating to the other driver, that he did not tell any of the passengers that he was collecting such information, and that none of the passengers stated that they were relying on him to obtain such information. He stated that he did obtain five or six courtesy cards from potential witnesses which he delivered to his dispatcher along with his accident report at the end of his shift.

Plaintiff testified that he did not perceive the bus driver as collecting information on plaintiff's behalf.

On the day following the accident, and again approximately two weeks later, the passenger, Lang, was told by defendant's representatives that the company had not received an accident report.

Plaintiff's daughter-in-law took him to defendant's office the day following the accident. The person they spoke with suggested that plaintiff see a doctor, and gave him the name and either the telephone number or the address of a person to contact concerning the accident.

Defendant's answers to certain interrogatories were read to the jury. Asked whether the accident was reported to defendant or its agents or employees by persons other than plaintiff or those acting on his behalf, defendant responded that the occurrence was reported by one Jackie Brusard A letter of May 23, 1983 from Carl Warren and Company to plaintiff's counsel, regarding the subject accident, was read to the jury, as follows: "Since our last correspondence with your office, we have conducted an exhaustive effort with regard to locating any information on the above-captioned incident. [p] We have again been in contact with [defendant] and have been advised they can find no record of this incident ever occurring. We have also checked with regard to the description of the bus driver, but they find they have no record of a driver fitting this description driving in the accident area at that time. Furthermore, we have been advised that [defendant] cannot even place a bus in the accident location at the time indicated. [p] In an effort to assist you in this matter, we subsequently were in contact with the RTD, OCTD and Torrance Transit System, all of whom [sic ] sometimes operate buses in the Long Beach area, but have found none have a record of this incident. After a careful review of this matter, we are of the opinion that it is a case of no legal liability on the part of [defendant]. In the absence of legal liability, we would not be justified in recommending any settlement and we hereby respectfully deny the claim in its entirety. [p] As you know, we have been attempting to locate information on this matter since September 1982. Unless your client can provide additional information, such as a bus driver, plus vehicle number, et cetera, we have no alternative but to stand firm on our denial, since we have no evidence to connect [defendant] to the incident. We are sorry we cannot be of more assistance to you in this matter."

(Lang) to defendant's agent, Carl Warren and Company, on September 9, 1982. Asked whether one of its buses traveled a route including Pacific Avenue at 21st Street in September 1982, and to furnish the names of all drivers who drove the route during that month, defendant objected to the interrogatories on the grounds that they were not reasonably calculated to lead to the discovery of admissible evidence, were too broad in terms and scope, unduly burdensome, oppressive, annoying, and called for information of little or no practical benefit to plaintiff.

The jury was instructed, in part, as follows:

"In this action, the plaintiff has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues:

"1. That the defendant, the Long Beach Public Transportation Company, or its employee bus driver, were negligent in conducting an investigation to obtain information relating to the driver and vehicle that rear ended the bus, or

"2. That the defendant, Long Beach Public Transportation Company and/or its employees were negligent in that after obtaining the information [they] either lost, misplaced, destroyed or refused to disclose the information to the plaintiff.

"3. The nature and extent of plaintiff's damages." (BAJI No. 2.60.)

The jury was also instructed that the defendant was a common carrier operating a bus on which the plaintiff was a passenger for hire (BAJI No. 6.50), and that "a common carrier's duty to investigate is one of ordinary and reasonable care."

On June 12, 1984, the jury returned its verdict awarding plaintiff damages in the amount of $17,500. Following denial of its motion for new trial on September 6, 1984, defendant filed a timely notice of appeal on September 25, 1984.

On October 9, 1984, plaintiff served a writ of execution on defendant. Defendant's ex parte application to quash the writ on the ground that defendant is a public entity against which a writ of execution may not issue was granted on November 20, 1984. Defendant was awarded attorney fees in the amount of $1,000 pursuant to the provisions of Code of Civil Procedure section 128.5.

Thereafter, plaintiff sought relief from the order granting attorneys fees on the ground that it resulted from surprise, mistake, and excusable neglect on the part of plaintiff's counsel. (Code Civ.Proc., § 473.) This motion was denied on February 5, 1985. Plaintiff's notice of appeal was timely filed on February 22, 1985.

The appeals have been consolidated.

DISCUSSION

Defendant's Appeal

The Common Carrier's Duty

Defendant contends the judgment must be reversed because defendant is a public corporation and plaintiff failed to establish a statutory basis for imposition of liability upon it. It is settled that the liability of a common carrier to its passengers is the same whether the carrier is a public or a private...