Following a jury trial, the trial court entered judgment in favor of plaintiff Ciara Vollaro for damages sustained in an automobile accident. In this appeal from the judgment, defendant Maureen Lispi challenges the trial court's evidentiary rulings and rejection of her proposed special verdict form that would have required the jury to consider nonparty Noel Meredith's proportionate fault in allocating liability for noneconomic damages. Although we find no evidentiary error, we conclude that the error as to the special verdict form requires a partial new trial on apportionment of noneconomic damages.
This action involves a January 9, 2007 automobile accident in which Lispi, the owner and driver of a Mitsubishi Galant, rear-ended a Honda Civic in which Vollaro was a passenger. The Honda's other occupants — owner Ann Reed and driver Meredith — are not parties to this action.
When the accident occurred, Lispi stopped to inquire if anyone was injured and to exchange the required information. At the time, Lispi was not informed of any personal injuries, but saw that the Honda's rear bumper and trunk were damaged. Lispi saw no damage to her own vehicle.
On January 8, 2009, Vollaro sued Lispi for personal injury damages. The complaint alleged that on January 9, 2007, Vollaro was riding in the back seat of a Honda Civic "travelling northbound on I-405. After exiting the freeway at Atlantic Ave., the vehicle came to a stop at a yield sign at the bottom of the off-ramp prior to merging right. While stopped, the vehicle was struck from behind by [Lispi's] vehicle, which was being operated by [Lispi] in a negligent, careless, and reckless fashion. As a direct and proximate cause of [Lispi's] negligence, [Vollaro] has suffered physical and emotional injuries and subsequent loss of wages."
At trial, the only eyewitness accounts of the accident were provided by Vollaro and Lispi. Consistent with the allegations of her complaint, Vollaro testified that the Honda was stopped at a yield sign at the bottom of the off-ramp when it was suddenly rear-ended by Lispi's vehicle. She denied that the driver of the vehicle in which she was riding made a sudden, unexpected stop.
Lispi testified that when she exited the northbound 405 freeway at Atlantic Boulevard, the Honda was stopped at a yield sign at the bottom of the off-ramp, where it was waiting to merge onto the street. Lispi stopped behind the Honda. When the Honda moved forward, Lispi moved forward and stopped at the yield sign. Lispi looked over her shoulder and saw no oncoming traffic. Lispi looked forward and saw that the Honda was moving forward. As Lispi began accelerating, however, the Honda "stopped suddenly" in front of her for no apparent reason. Lispi stated, "After I accelerated I hit my brakes to stop my car and I was unable to avoid hitting the car in front of me."
Based on Lispi's theory that both drivers were at fault in causing the accident, she submitted a proposed special verdict form that would have required the jury to consider the fault of each driver for purposes of allocating liability for Vollaro's noneconomic damages. Lispi requested special verdict findings as to (1) whether Lispi was negligent and, if so, whether her negligence was a cause of injury to Vollaro; (2) whether Meredith was negligent and, if so, whether his negligence was a cause of injury to Vollaro; and (3) if both drivers were found to be negligent, the percentage of fault attributable to each driver.
Vollaro objected to Lispi's proposed special verdict form, claiming that California law prohibits the apportionment of liability for noneconomic damages to a nonparty. Vollaro also argued that the sole evidence of Meredith's alleged negligence — Lispi's testimony that the Honda stopped suddenly for no apparent reason — was legally insufficient to support an allocation of fault to Meredith.
In response, Lispi argued that California law permits the apportionment of noneconomic damages to a nonparty. Lispi further objected that, unless the jury made special verdict findings on Meredith's proportionate fault, her arguments to the jury "that there is a minimum speed law, and that the car stopped for no reason" would be pointless.
Although the trial court rejected Lispi's proposed special verdict form, it instructed the jury on the minimum speed law (Veh. Code, § 22400), and Lispi's counsel read the minimum speed law in her closing argument.
The jury returned special verdict findings that (1) Lispi was negligent; (2) her negligence was a cause of injury to Vollaro; and (3) Vollaro had suffered $661,000 in damages, comprised of $22,000 for past economic loss, $64,000 for future economic loss, $75,000 for past noneconomic loss, and $500,000 for future noneconomic loss. After the trial court entered judgment in accordance with the jury's findings, Lispi filed a timely appeal. Additional facts relevant to the issues on appeal are discussed below.
"[A] special verdict is that by which the jury find the facts only, leaving the judgment to the Court. The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the Court but to draw from them conclusions of law." (Code Civ. Proc., § 624.)
Lispi contends the trial court erred in rejecting her proposed special verdict form that would have required the jury to consider Meredith's proportionate fault for purposes of apportioning Vollaro's noneconomic damages. Lispi
In DaFonte v. Up-Right, Inc., supra, 2 Cal.4th 593, the California Supreme Court considered the effect of Proposition 51 on a defendant's joint and
The trial court rejected Lispi's special verdict form based on Vollaro's argument that the evidence failed to support a finding of negligence against Meredith. We conclude, however, that Lispi's testimony was sufficient to create disputed issues of fact as to Meredith's violation of the minimum speed law and, therefore, the trial court erred in rejecting Lispi's proposed special verdict form.
In Seaton v. Spence (1963) 215 Cal.App.2d 761 [30 Cal.Rptr. 510] (Seaton), the appellate court concluded that the testimony of defendant Darrell Spence, the owner and driver of a vehicle that rear-ended plaintiff Robert Seaton's truck, was sufficient to establish that Seaton was driving at such a low speed that he was obstructing traffic in violation of the minimum speed law.
Spence testified that he was driving on the highway at 60 to 62 miles per hour when he briefly took his eyes off the road. (Seaton, supra, 215 Cal.App.2d at pp. 764-765.) During that short interval, the car in front of Spence changed lanes. When Spence returned his attention to the road, he saw that he was quickly approaching Seaton's truck, which was going 10 to 20 miles per hour and was only "75 to 100 feet in front of him." (Id. at p. 764.) Although Spence immediately applied the brakes, he was unable to avoid rear-ending Seaton's truck.
Spence argued at trial that Seaton's dangerously slow speed was impeding the normal and reasonable movement of traffic, in violation of the minimum speed law. Spence contended that Seaton's slow driving constituted contributory negligence, which at the time operated as a complete bar to an injured plaintiff's recovery.
In his appeal from the judgment, Seaton argued that Spence's testimony was insufficient to prove that Seaton had violated the minimum speed law. The appellate court disagreed, stating that Spence was "a competent witness to testify to the speed of [Seaton's] truck," and the fact that Spence's "observation was momentary goes to the weight of the evidence rather than its admissibility. [Citations.]" (Seaton, supra, 215 Cal.App.2d at p. 766.)
The appellate court further stated: "The implied finding of the jury that [Seaton's] slow driving was contributory negligence is supported by section
Vollaro cites Wilson v. Ritto (2003) 105 Cal.App.4th 361, 367 [129 Cal.Rptr.2d 336], for the principle that "unless there is substantial evidence that an individual is at fault, there can be no apportionment of damages to that individual." (Italics added.) However, Vollaro does not explain why Lispi's percipient testimony concerning the Honda's unsafe stop was insufficient to establish a violation of the minimum speed law. Vollaro relies on the language quoted above without addressing the fact that a different standard of care applies to medical malpractice cases such as Wilson. Wilson stands for the proposition that "a nonparty medical doctor cannot be found comparatively at fault in a personal injury action unless the defendant proves with expert testimony the doctor failed to meet the applicable standard of care." (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1561 [141 Cal.Rptr.3d 362].) Because this is not a professional malpractice action, Wilson sheds no light on whether Lispi's testimony provided substantial evidence of Meredith's violation of the minimum speed law.
If a jury were to find, based on Lispi's testimony, that Meredith had violated the minimum speed law, such violation would give rise to a presumption of negligence. (Seaton, supra, 215 Cal.App.2d at p. 765.)
The next question is whether the incomplete special verdict findings were prejudicial. In answering that question, we find the court's discussion in Falls, supra, 194 Cal.App.3d 851, 855, concerning the prejudice resulting from an incomplete special verdict, to be instructive.
In Falls, a personal injury action, the jury received a special verdict form similar to the one that was requested by Lispi in this case, requiring the jury to apportion negligence. However, the jury failed to answer all of the questions in the special verdict form and found only that the defendant was negligent and that such negligence was a cause of the plaintiff's injuries. The jury left unresolved the disputed issues of the plaintiff's comparative negligence, if any, and the negligence of another defendant who had settled with the plaintiff. Based on the jury's failure to answer all of the questions presented in the special verdict form, the trial court declared a mistrial.
The plaintiff petitioned for a writ of mandate to compel the trial court to enter a partial verdict against the defendant on the issues of liability and proximate cause. Division Five of this district denied the petition, stating, "The jury reached a verdict on only two of [six] ultimate facts. While the jury may have resolved the issue of defendant's negligence, it did not `resolve the
The jury's partial verdict, the court stated, "`was not dispositive of the liability issue and percentage of fault,' and therefore the jury had not determined sufficient ultimate facts upon which the court could render the `partial verdict' requested by plaintiff. [¶] Although we appreciate plaintiff's frustration at losing an advantage fairly won, such a loss is an inherent risk of the special verdict. To award plaintiff a `partial verdict' based upon a special verdict form which is fatally deficient would be contrary to the requirement that the jury must resolve all the ultimate facts presented. It would also severely prejudice defendant at the time of retrial, since the jury would be instructed that defendant's negligence was a fait accompli. The record presented here demonstrates that respondent court weighed all of these issues in concluding that a mistrial must be granted. There was no abuse of discretion." (Falls, supra, 194 Cal.App.3d at p. 855.)
Vollaro also relies on Lispi's verified interrogatory responses — her failure to identify anyone else who had caused the accident and her failure to list Meredith's comparative negligence as an affirmative defense — as evidence of waiver. However, this contention ignores Lispi's interrogatory response that Meredith was partly at fault for making a sudden stop for no apparent reason.
Finally, Vollaro relies on Lispi's failure to depose Meredith before trial as evidence of waiver. As we previously discussed, however, Lispi's testimony, if believed by the jury, was sufficient to establish the alleged violation of the unsafe speed law without eliciting any testimony from Meredith. (See Minikin v. Hendrix, supra, 15 Cal.2d at p. 341 ["the testimony of one witness entitled to credit is sufficient to establish a fact in a civil case"].) We conclude there was no waiver.
In her respondent's brief, Vollaro argues that any error with regard to the special verdict form was rendered moot by Lispi's failure to request an instruction on apportionment. Vollaro's contention, as we understand it, is that because Lispi did not request an instruction on apportionment, no instruction on apportionment was given, and therefore, any apportionment of liability would have rendered the verdict erroneous on the ground that it was contrary to the instructions.
Vollaro's reliance on Sherwood is unavailing. Significantly, the defendant in that case conceded the plaintiff's injuries were sustained in the car accident, the defendant did not contest liability for those damages, and the jury was instructed accordingly. Under those circumstances, the verdict of zero was directly contrary to the court's instructions.
In this case, the jury was not instructed that Lispi accepted complete responsibility for the accident. There were no jury instructions regarding apportionment of liability. Therefore, unlike Sherwood, an apportionment of liability by the jury could not have been contrary to the instructions. Presumably, had the trial court agreed to include apportionment of liability on the verdict form, either party could have requested an instruction regarding apportionment. However, the trial court did not, and Lispi's failure to request an instruction did not constitute waiver.
The jury's special verdict findings are affirmed, but the judgment is reversed and the matter is remanded for a new trial on the following issues only: (1) whether Meredith was negligent and, if so, (2) whether his
Epstein, P. J., and Willhite, J., concurred.
Although the term "highway" is not defined in Vehicle Code section 22400, it is defined elsewhere in the Vehicle Code as "a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street." (Veh. Code, § 360.)
As will be discussed later in this opinion, the first sentence of the minimum speed law, which was not read to the jury, provides: "No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic unless the reduced speed is necessary for safe operation, because of a grade, or in compliance with law." (Veh. Code, § 22400, subd. (a).)
"(b)(1) For purposes of this section, the term `economic damages' means objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities.
"(2) For the purposes of this section, the term `non-economic damages' means subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation."
