Ballard v. Uribe

In this personal injury case, which was bifurcated to permit separate determinations of liability and damages, the jury found defendant liable and rendered a verdict in favor of plaintiff for $200,000. Defendant seeks to overturn the finding of liability on the basis of instructional error. Plaintiff, by cross-appeal, seeks to overturn the damages verdict on the basis of instructional error and juror misconduct. We find no error requiring reversal, and therefore affirm.

I.

Plaintiff was injured in December 1975 while using an “aerial manlift” owned by defendant. At the time of the injury, plaintiff was employed by Guy F. Atkinson Company (Atkinson), a general contractor engaged in the construction of a freeway interchange. Several months before the injury, defendant had been hired by Atkinson as a subcontractor to perform concrete work on the project and defendant brought the lift to the construction site to use in his work.

The lift, which rested on a truck bed, consisted of a basket mounted on an extension or boom ladder; the basket had three sides but was open at the back to permit entry and exit. A stabilizing cable was connected to the ladder to keep the basket level as the ladder was raised or lowered.

In late November or early December 1975, defendant noticed that the stabilizing cable was frayed and broken. Since defendant intended to be away from the construction site for several weeks and did not plan on using the lift over that period of time, he asked Atkinson’s project manager, Peter Boli, for permission to leave the lift in Atkinson’s fenced equipment yard for a few weeks until defendant’s mechanic could repair it.

Although all parties agreed that Boli gave defendant permission to leave the lift in Atkinson’s yard, there was some dispute as to an additional discussion between the two men. Boli testified that because he believed that Atkinson workers might have some use for the lift in their own work on the project, he asked defendant if Atkinson could borrow or rent the lift. When defendant informed Boli that some sort of cable on the lift was broken, Boli offered to have Atkinson’s master mechanic make whatever repairs were necessary. Boli testified that defendant agreed that Atkinson could use the lift after repairing it.

Defendant gave conflicting accounts of these events. At his deposition and at one point in his trial testimony, defendant stated that he had never given Boli permission to use the lift; at other points in his testimony, however, he admitted that he may have told Boli that Atkinson could use the machine but only after it was repaired.

Defendant acknowledged that his usual practice was to remove the keys to both the truck engine and the lift engine before leaving the lift at a job site, as a precaution against unauthorized use of the equipment by others. There was also evidence that it was customary in the construction industry— in dealing with defective equipment—to remove the equipment’s keys, to lock existing control boxes and to use warning tags to protect against unauthorized use. When defendant parked the lift in Atkinson’s yard, however, he left the keys to both engines in the truck and did not lock the control box or post any warning signs.

Boli testified that on the day defendant left the lift in Atkinson’s yard, he asked William McAnally, Atkinson’s master mechanic, to inspect the lift and make necessary repairs. After examining the lift, McAnally removed the broken stabilizing cable and ordered a replacement cable.

On December 11, 1975, plaintiff was sandblasting a bridge column with another Atkinson employee, Bruce Duren. The equipment they were using would not lift them high enough to finish the job, and a supervisor, Ramon Lopez, told them to use defendant’s lift. Plaintiff and Duren began using the lift, unaware that its stabilizing cable had broken and had been removed.

After plaintiff entered the basket, Duren, operating the ladder controls from the truckbed, raised the basket into position next to the bridge column. When Duren attempted to move the basket away from the column, the basket began to rise and flipped backwards; plaintiff was tossed out, falling approximately 35 feet to the ground. He suffered serious injuries as a result of the fall.

Plaintiff thereafter instituted this action against defendant, claiming he had taken inadequate precautions to prevent injuries from the foreseeable use of his lift. As noted above, the issues of liability and damages were bifurcated. After an initial jury found in favor of plaintiff on the question of liability, a second jury set plaintiff’s damages at $200,000. Both parties appeal from the judgment.

II.

Defendant contends that the trial court erred in instructing the jury on the applicable principles of liability. The trial court initially gave the jury a modified BAJI instruction with regard to the duty of care that must be exercised by a bailor of property. At plaintiff’s request, and over defendant’s objection, the court additionally gave an instruction—“special instruction number 5”—which informed the jury that if an owner of a vehicle knows or should have known “of special circumstances which create a reasonable risk of harm from the use or operation of a vehicle, if the keys are left in the vehicle,” then the owner has a duty to use reasonable care to protect third persons from harm arising from such conduct. The principal issue presented by this case is whether the giving of this latter instruction constituted prejudicial error.

Defendant initially contends that on the facts of this case the bailment instruction fully covered all aspects of defendant’s liability and that no additional instruction should have been given at all. The bailment instruction (see fn. 2, ante), however, defined bailment to include only situations in which “one gives possession and the right to use personal property to another.” (Italics added.) Although much of the evidence did suggest that defendant had authorized Atkinson to use the lift if Atkinson first made the necessary repairs, the record also contains statements by defendant—largely, but not completely, recanted at trial—to the effect that he had never authorized Atkinson to fix or use the lift. In light of that evidence, plaintiff was entitled to have the jury instructed on the general principles that would apply if it found that defendant had not authorized the use of its lift. Plaintiff’s special instruction No. 5 was intended to address that situation, and plaintiff’s counsel, in closing argument, explained to the jury that the principles of the special instruction were to be applied if it found that defendant had not authorized the lift’s use.

Defendant next contends that even if the plaintiff was entitled to some instruction applicable outside of the authorization-of-use context, the trial court erred in framing the instruction in terms of the “special circumstances” doctrine embodied in a line of decisions emanating from Richardson v. Ham (1955) 44 Cal.2d 772 [285 P.2d 269] and Hergenrether v. East (1964) 61 Cal.2d 440 [39 Cal.Rptr. 4, 393 P.2d 164].

Defendant contends that Richardson and Hergenrether establish an analysis to guide courts in determining when a duty arises on the part of a vehicle owner to protect third parties from the unauthorized use of the vehicle by another, and that the trial court erred in leaving the question of duty—a question which is generally for the court—to the jury.

Although defendant is correct in suggesting that the trial court should properly have resolved the duty issue itself, defendant could not have been prejudiced by the instruction in this case, because it is clear under past authorities that here defendant did bear a duty to use due care even if he had not authorized Atkinson or its employees to use his machinery. The Richardson decision itself—the first case to apply the “special circumstances” exception in recognizing duty—establishes that the significant danger posed by the unauthorized use of heavy construction machinery warrants recognition of a duty on the part of machinery owners to use due care to prevent the injurious misuse of the machinery by others. The Richardson court concluded that in light of the dangers involved, the imposition of liability on the machinery owner for negligence in controlling unauthorized use might have a salutary effect on public safety and would not impose an undue burden on the machinery owner. That conclusion is as applicable to the owner of an aerial manlift as it was to the owner of the bulldozer involved in Richardson.

Defendant maintains, however, that because the machinery in this case was left in a fenced-in area in the possession of Atkinson, rather than in an unenclosed, unguarded location as in Richardson, Richardson does not support the imposition of a duty of care. Although the location in which defendant left his machinery, as well as the other steps which defendant may have taken to minimize the danger of injury—for example, notifying Atkinson’s foreman and other supervisory employees of the lift’s dangerous condition—could well have been found by the jury to render defendant nonnegligent in controlling his machinery, those factors, in themselves, did not negate defendant’s general duty—as the owner of a piece of heavy construction machinery—to use due care to prevent injurious misuse. That general duty applies wherever the machinery may be found.

Finally, defendant contends that if the jury found that he had not authorized Atkinson to use the lift—the premise on which special instruction No. 5 was based—the evidence was insufficient to support a finding that he was negligent in controlling the machinery; he therefore argues that the trial court should not have left this issue to the jury. But if the jury concluded that defendant had not authorized Atkinson’s use of the lift under any circumstances, it may have concluded that defendant did not act with due care in leaving the keys to the defective lift with the machinery where it could be used by unknowing employees or in failing to attach warning tags to the vehicle. Although the jury was not compelled to find that defendant’s conduct with respect to the lift was negligent, the trial court acted properly in leaving the issue of negligence to the jury.

Accordingly, the giving of special instruction No. 5 does not warrant reversal of the judgment in favor of plaintiff.

III.

As noted, plaintiff has also appealed from the judgment. After the jury returned its verdict awarding plaintiff $200,000, plaintiff moved for a new trial or additur, claiming that misconduct on the part of two jurors had resulted in an inadequate damage award, and claiming also that the trial court erroneously instructed the jury that it could not consider as an element of plaintiff’s damages the medical expenses paid by Atkinson’s workers’ compensation insurance carrier. In support of his misconduct claim, plaintiff filed declarations of four jurors, reporting that two other jurors had made a number of statements during jury deliberations which plaintiffs contended amount to misconduct and evidence of concealed bias. The trial court rejected plaintiff’s objection and refused to grant a new trial or order an additur.

Although plaintiff challenges the court’s ruling on appeal, he has not provided an adequate record to permit us to determine whether reversal of the judgment on either ground is appropriate. The record on appeal does not contain a transcript of the hearing of the new trial motion; thus, we do not know the basis of the trial court’s denial. Nor does the record contain a transcript of the voir dire proceeding; thus, we cannot evaluate the significance of the statements attributed to the jurors against the claim of concealed bias. Finally, and most significantly, plaintiff has failed to include either a transcript or a settled statement of the portion of the trial relating to the issue of damages. In the absence of such a record, we have no way of ascertaining whether it is reasonably probable that either the alleged juror misconduct or the instructional error affected the damages awarded in this case.

It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record. (See, e.g., Cosenza v. Kramer (1984) 152 Cal.App.3d 1100, 1102 [200 Cal.Rptr. 18]; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 418, pp. 415-416 and cases cited.) Because plaintiff has failed to provide such a record, we have no occasion to consider further the merits of his cross-appeal.

The judgment is affirmed.

Broussard, J., and Reynoso, J., concurred.

After the accident, defendant inspected the lift and discovered that someone had “tied down” the basket with chains and wire. Lopez testified that McAnally had attached the chains and wire to compensate for the missing stabilizing cable, but McAnally denied that claim, stating that he had simply removed the broken cable.

The bailment instruction read as follows: “When one gives possession and the right to use personal property to another and the latter agrees to return the same property to him at a future time, the transaction is known in law as a bailment. The person who gives possession is known as a bailor. The person who takes possession is known as a bailee. When the bailment is for the benefit of both parties or for the sole benefit of the bailor, the bailor has a duty to those whom he should expect to use the property, or be endangered by its probable use, to use reasonable care to make it safe for use in a manner for which, and by a person for whose use, it is bailed, or to disclose its actual condition to those who may be expected to use it. A failure to fulfill that duty is negligence.”

Plaintiff’s special instruction No. 5 read as follows: “The duty of the owner of a vehicle is to use due care in the operation and control of the vehicle. In the absence of special circumstances an owner of a vehicle has no duty to control the conduct of third persons resulting from the keys having been left in the vehicle, [f] However, where the owner knew or should have known of special circumstances which create a reasonably foreseeable risk of harm from the use or operation of the vehicle, if the keys are left in the vehicle, then the owner of the vehicle has a duty to use reasonable care to protect the general public from such risks, [fl Evaluation of the evidence to determine if special circumstances exist should include a consideration of the foreseeability of the chance of someone intermeddling with the vehicle, as well as the magnitude of potential harm or injury from use of the vehicle. You may take into consideration the type of vehicle, the location where the vehicle was left, the condition of the vehicle, and all other factors which are established by the evidence. [K] If from your consideration of the evidence you find that the owner of the vehicle knew or should have known of the existence of special circumstances which created a reasonably foreseeable risk of harm or injury from the potential use of the vehicle, then you shall find that the owner had a duty to use due care to protect third persons from harm arising from its operation, [t] The failure to fulfill such duty is negligence. ”

In beginning his discussion of special instruction No. 5, plaintiff’s counsel told the jury: “I want to go to an issue that— . . . let’s assume you believe it was an unauthorized use as Mr. Uribe says—that nobody ever asked me to use it. Nobody. [^[] I never gave permission . . . I have to take ten minutes to cover this subject so you understand I’m taking two theories. [f| . . . [B]ranch one of that river is a bailment. And we just kind of discussed that duty there, [t] Branch two is no permission. [H] What if Atkinson took it without permission and if you believe that. Let me cover the law on it briefly and also go into it factually.”

At the conclusion of his discussion of this point, he repeated: “We have gone through the foreseeability issues because you approach this issue if you get to it, if you get to the unauthorized use, you have to back through that issue of negligence. ”

The Richardson and Hergenrether cases recognized exceptions to the rule embodied in this court’s earlier decision in Richards v. Stanley (1954) 43 Cal.2d 60 [271 P.2d 23], In Richards, the court held that the owner or bailee of an ordinary motor vehicle who leaves the keys in the ignition of the car when parked on a public street does not owe a duty of care to a person injured by a thief’s negligent operation of the vehicle. (Id., at p. 66.) In Richardson and Hergenrether, each of which involved a factual situation substantially different from Richards, our court concluded that the owner of a vehicle could be held liable for injuries resulting from the unauthorized use of the vehicle where “special circumstances” were present. (See generally Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 183-186 [203 Cal.Rptr. 626, 681 P.2d 893]; Enders v. Apcoa, Inc. (1976) 55 Cal.App.3d 897, 901-904 [127 Cal.Rptr. 751].) Because this case clearly falls within the “special circumstances” exception, we have no occasion to consider the continued vitality of Richards. (See Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d 171, 186, fn. 13.)

Some confusion has arisen over the respective roles played by the court and the jury in determining liability in the Richards v. Stanley, Richardson, and Hergenrether context. The confusion may stem, at least in part, from the fact that the “foreseeability” concept plays a variety of roles in tort doctrine generally; in some contexts it is a question of fact for the jury, whereas in other contexts it is part of the calculus to which a court looks in defining the boundaries of “duty.”

The question of “duty” is decided by the court, not the jury. (See 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 493, p. 2756 and cases cited; Prosser & Keeton on Torts (5th ed. 1984) p. 236.) As this court has explained, “duty” is not an immutable fact of nature “ ‘but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. ’ ” (Dillon v. Legg (1968) 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316] [quoting Prosser, Law of Torts, (3d ed. 1964) pp. 332-333].) In California, the general rule is that all persons have a duty “ ‘to use ordinary care to prevent others being injured as the result of their conduct. . . .’” (Rowland v. Christian (1968) 69 Cal.2d 108, 112 [70 Cal.Rptr. 97, 443 P.2d 561] (citations omitted); Civ. Code, § 1714.) Rowland enumerates a number of considerations, however, that have been taken into account by courts in various contexts to determine whether a departure from the general rule is appropriate: “the major [considerations] are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Italics added.) (69 Cal.2d at p. 113.) The foreseeability of a particular kind of harm plays a very significant role in this calculus (see Dillon v. Legg, supra, 68 Cal.2d 728, 739), but a court’s task—in determining “duty”—is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.

The jury, by contrast, considers “foreseeability” in two more focused, fact-specific settings. First, the jury may consider the likelihood or foreseeability of injury in determining whether, in fact, the particular defendant’s conduct was negligent in the first place. Second, foreseeability may be relevant to the jury’s determination of whether the defendant’s negligence was a proximate or legal cause of the plaintiff’s injury.