Victor v. Hedges

• Citation: 77 Cal.App.4th 229,91 Cal.Rptr.2d 466
• Decision Date: 28 December 1999
• Docket Number: No. B125251.,B125251.
• Parties: Stephani Lynn VICTOR, Plaintiff and Appellant, v. Michael Allen HEDGES et al., Defendants and Respondents.
• Court: California Court of Appeals

91 Cal.Rptr.2d 466

77 Cal.App.4th 229

Stephani Lynn VICTOR, Plaintiff and Appellant, v. Michael Allen HEDGES et al., Defendants and Respondents.

No. B125251.

Court of Appeal, Second District, Division 4.

December 28, 1999.

Rehearing Denied January 18, 2000.

Review Denied March 22, 2000.^*

Pierry & Moorhead, Joseph P. Pierry, Wilmington, and Steven M. Zimmerman, Pasadena, for Plaintiff and Appellant.

O'Connor, Schmeltzer & Rose, Lee P. O'Connor, Irvine, and Timothy J. O'Connor, Sacramento, for Defendants and Respondents Michael Allen Hedges and Thermtech, Inc.

DAU, J.^*

Plaintiff Stephani Victor appeals from the judgment entered in favor of defendants Michael Hedges and Thermtech, Inc. (collectively, "Hedges"), following the grant of defendants' motion for summary judgment, and from the denial of her motion for new trial. Michael Hedges parked his auto on the sidewalk in front of his apartment building. Plaintiff and Hedges were standing on the sidewalk behind the car, when an inattentive motorist drove over the curb and into plaintiff, seriously injuring her. We are required to decide whether a statute prohibiting the parking of a vehicle on a sidewalk may be employed to fix upon Hedges the presumption of negligence in the circumstances of this case and whether reasonable people could conclude that he subjected plaintiff to an unreasonable risk of harm. We hold the statute in question was not designed to prevent the type of occurrence that resulted in plaintiffs injury, and plaintiff has failed to raise a triable issue of fact that an ordinarily prudent person in Hedges's place would have foreseen an unreasonable risk of harm to plaintiff. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff brought an action for damages alleging that on the day in question defendant Thermtech owned a certain Ford Explorer and defendant Hedges was driving that vehicle with the owner's consent, that defendant Mark Williams was driving a Ford Aerostar van, and that defendants negligently operated and controlled these vehicles so as to cause a collision with plaintiff, who was lawfully upon the sidewalk in the City of Hermosa Beach.

The undisputed facts showed that at approximately 10:00 p.m. Hedges had parked his Ford Explorer on the sidewalk in front of his apartment building, parallel to, and with the driver's side tires three to four feet from, the curb line of Hermosa Avenue in Hermosa Beach. Hedges did this to show plaintiff his new compact disk player, which was located in the rear of the Explorer. Due to construction, northbound traffic along Hermosa Avenue was routed into a single lane along the east curb. There was some gravel on the road, and the surface was rough with bumps and potholes. Immediately before the accident Williams was northbound on Hermosa Avenue, approaching the intersection with First Street, in his Aerostar van. He looked down at the tape deck and, with his right hand, fast forwarded a cassette for approximately two seconds. The steering wheel jostled about an inch each way, Williams's van drifted to the right, and the front and rear passenger side tires hit the First Street curb, causing them to blow out; the van continued in its path. Hedges and plaintiff were standing at the rear of the Explorer, with plaintiff nearer the curb and Hedges to her right, when Williams's van ran into plaintiff and the Explorer about 30 feet from the First Street curb.

The trial court granted summary judgment to defendants and denied plaintiffs motion for new trial. On neither motion did the trial court allow counsel to present argument at the hearing.

DISCUSSION

Plaintiffs claim against Hedges and Thermtech is based on theories of negligence per se and common law negligence. Defendants argued in the court below that a necessary element of plaintiffs case under either theory—proximate cause— could not be established. We will first identify the standard of review appropriate to summary judgment. Then we will address the negligence per se issue before coming to that of ordinary negligence. We do this, even though the proximate cause argument (which is focused on foreseeability) made by the parties is common to both, for the following reason: If Hedges is not to be presumed negligent, and we will conclude that he is not, the ordinary negligence analysis may proceed uncontaminated by the infraction charge.

A. Standard of Review

The granting of a summary judgment motion by the superior court is subject to independent review. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60, 65 Cal.Rptr.2d 366, 939 P.2d 766.) We consider "all of the evidence set forth in the [supporting and opposition] papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence...." (Code Civ. Proc., § 437c, subd. (c).) "To succeed, the defendants] must ... demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46, cert. den. (1989) 490 U.S. 1084, 109 S.Ct. 2110, 104 L.Ed.2d 670.) "We apply the same three-step analysis required of the trial court: `First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond.... [¶] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor.... [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.'" (Zuckerman v. Pacific Savings Bank (1986) 187 Cal.App.3d 1394, 1400-1401, 232 Cal.Rptr. 458, quoting AARTS Productions, Inc. v. Crocker Nat. Bank (1986) 179 Cal.App.3d 1061, 1064-1065, 225 Cal.Rptr. 203.)

B. Negligence Per Se

Plaintiff argues that Hedges must be presumed negligent because he violated Vehicle Code section 22500, subdivision (f),¹ which prohibits parking on a sidewalk.

Section 669, subdivision (a) of the Evidence Code provides: "The failure of a person to exercise due care is presumed if: [¶] (1) He violated a statute .. [¶] (2) The violation proximately caused death or injury to person or property; [¶] (3) The death or injury resulted from an occurrence of the nature which the statute ... was designed to prevent; and [¶] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute ... was adopted." With respect to paragraphs (3) and (4), the Law Revision Commission Comments state: "Whether the death or injury involved in an action resulted from an occurrence of the nature which the statute ... was designed to prevent ... and whether the plaintiff was one of the class of persons for whose protection the statute ... was adopted are questions of law. Nunneley v. Edgar Hotel, 36 Cal.2d 493, 225 P.2d 497 (1950) (statute requiring parapet of particular height at roofline of vent shaft designed to protect against walking into shaft, not against falling into shaft while sitting on parapet)...."

At the time of the accident, section 22500 provided: "No person shall stop, park, or leave standing any vehicle whether attended or unattended, except when necessary to avoid conflict with other traffic or in compliance with the directions of a peace officer or official traffic control device, in any of the following places: [¶] ... [¶] (f) On a sidewalk, except electric carts when authorized by local ordinance, as specified in Section 21114.5."²

We are required to determine the nature of the occurrence that section 22500, subdivision (f) was designed to prevent.³ Although substantially identical provisions exist in many states,⁴ we have found no case addressing this issue.

Section 22500 designates twelve categories of locations where stopping, standing or parking a vehicle is prohibited. The Legislature specified certain of these with pedestrians obviously in mind. "On a sidewalk" (id,, subd. (f)), which the Code defines as "that portion of a highway, other than the roadway, set apart by curbs, barriers, markings or other delineation for pedestrian travel" (§ 555), is one of these.⁵ Others are: "[o]n a crosswalk" (§ 22500, subd. (b)); "[b]etween a safety zone and the adjacent right-hand curb" (id., subd. (c)); "[a]longside curb space authorized for the loading and unloading of passengers of a bus engaged as a common carrier in local transportation" (id., subd. (i)); and "[i]n front of that portion of a curb that has been cut down, lowered, or constructed to provide wheelchair accessibility to the sidewalk...." (Id., subd. (l).)⁶ With the exception of "on a sidewalk" (id., subd. (f)), vehicles normally operate within each of these designated categories, and, for these, the section's prohibition appears designed both to prevent vehicular obstruction of pedestrian traffic and to lessen the danger of vehicle-pedestrian collision. Thus pedestrians finding it necessary to walk around a vehicle that is illegally parked, stopped or left standing may be put at increased risk of injury from unsure footing,⁷ from another vehicle in the roadway,⁸ or from the sudden movement of the vehicle that had been at rest.⁹ Hedges's parked automobile did not obstruct plaintiffs way and increase her risk of injury in this fashion.

Injury to a pedestrian on a sidewalk, resulting from contact with a vehicle that has been parked, stopped or left standing there, can also occur when the vehicle is at rest or when it is again put in motion. The Legislature's 1998 amendment to subdivision (f) appears to reflect an awareness that a vehicle at rest, even if partially on the sidewalk, can cause injury to a passing pedestrian.¹⁰ In this situation, the pedestrian insufficiently aware of the presence of the vehicle, walks into...