Opinion
NOT TO BE PUBLISHED
Appeal from a judgment and order of the Superior Court of Orange County No. 05CC04257, Geoffrey T. Glass, Judge.
Buchalter Nemer, Robert M. Dato; Cooksey, Toolen, Gage, Duffy & Woog and David R. Cooksey for Defendant and Appellant.
Donna Bader; Prestininzi & Luebke and Thomas N. Luebke for Plaintiff and Respondent.
Tharpe & Howell, Shawn K. Elliott and Eric B. Kunkel for Defendant and Respondent George Armitage, Jr.
Horvitz & Levy, David M. Axelrad, Karen M. Bray; Halas, Muhar, Parish & Arnett and Marc H. Garber for Defendant and Respondent Mesa Contracting Corporation.
Law Offices of Sandra B. Stern and Sandra B. Stern for Intervener and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
George Armitage, Jr., drove a dump truck head-on into a parked pickup truck driven by Douglas C. Harp, thrusting the pickup truck back 25 to 30 feet into a ditch. After the collision, the dump truck lost traction on the gravel road, slipped backwards, then pulled forward and again struck the pickup truck. Harp suffered injuries from the collisions.
The collisions occurred on an oil field in Yorba Linda being converted to residential development. Armitage was employed by Leading Edge Trucking, Inc. (Leading Edge), which supplied dump trucks and drivers to Mesa Contracting Corporation (Mesa), a grading contractor responsible for soil remediation at the oil field. Harp worked as a foreman for the company responsible for dismantling the oil wells.
Harp sued Armitage, Leading Edge, and Mesa for negligent entrustment and general negligence. At trial, Harp asserted Leading Edge was liable under theories of (1) respondeat superior, (2) negligent entrustment, and (3) negligent hiring, training, and supervision of Armitage. The jury found Armitage was not acting in the course and scope of his employment when the collisions occurred and Leading Edge did not negligently entrust the dump truck to him, but found Leading Edge was negligent, and its negligence was a substantial factor in causing Harp’s injuries. The verdict form did not ask the jury to distinguish between negligent hiring, training, and supervision.
The jury awarded Harp over $1.8 million in damages. It assigned 70 percent fault to Armitage, 25 percent fault to Leading Edge, and 5 percent fault to Mesa, although the jury found Mesa’s negligence was not a substantial factor in causing Harp’s injuries. The trial court reallocated Mesa’s liability between Armitage and Leading Edge based on their respective degrees of fault found by the jury, and denied Leading Edge’s motion for judgment notwithstanding the verdict (JNOV).
On appeal, Leading Edge argues the evidence was insufficient to support liability for negligence under any theory, and, therefore, its liability is limited to $15,000 under Vehicle Code section 17151, subdivision (a). Leading Edge also argues it is entitled to a new trial because (1) the jury’s finding of negligence liability is inconsistent with the finding of no negligent entrustment, and (2) the findings as to Mesa are inconsistent, and the trial court could not resolve the inconsistency by reallocating Mesa’s fault to Leading Edge and Armitage.
We affirm. We conclude the evidence was sufficient to support liability against Leading Edge under a theory of negligent training. The finding of no negligent entrustment is not inconsistent as a matter of law with a finding of liability for negligence, as Leading Edge argues, because negligence is broader than negligent entrustment. Under the evidence in this case, any inconsistency between a finding of no negligent entrustment and negligent hiring can be reconciled by concluding the jury found negligence liability based on negligent training. In addition, we conclude Leading Edge waived its challenge to the trial court’s postverdict reallocation of Mesa’s liability.
FACTS
I.
Background
Aera Energy, Inc. (Aera), leased a large oil field in Yorba Linda and decided to convert it to residential development. Aera hired a subcontractor, The Industrial Company (TIC), to maintain and repair the oil field equipment and dismantle oil wells to prepare the site for development. Harp worked for TIC as a foreman of crews dismantling oil wells.
Sometime before November 2003, Aera hired Mesa, a grading contractor, to perform soil remediation at the oil field. Mesa excavated soil that might have oil in it and used dump trucks to remove the soil. Mesa used a trucking broker, R Trucking, to obtain dump trucks and drivers to haul the soil. R Trucking, in turn, obtained trucks and drivers from trucking companies, including Leading Edge.
II.
Hiring, Training, and Supervising Armitage
Armitage was one of Leading Edge’s dump truck drivers assigned to the oil field. He was referred to Leading Edge by another trucking company in March 2003.
Leading Edge’s president and co owner, Christina Weems, interviewed Armitage, checked the endorsement on his driver’s license, reviewed his medical card, and ran a Department of Motor Vehicles check. He had the proper endorsements on his license, had a clean Department of Motor Vehicles record, and was enrolled in a random drug testing program. Weems’s husband, Leading Edge’s other co owner, had Armitage take a driving test in a dump truck on a local street, and Armitage passed. Weems did not check Armitage’s employment references or conduct a criminal background check. Weems did not know how much dump truck experience Armitage had when she hired him. When hired, he had had his truck driver’s license for two weeks.
After hiring Armitage, Leading Edge assigned him a large, 10 wheel dump truck, which he was allowed to drive home and to the oil field. Leading Edge arranged for Armitage to receive training at the oil field from an experienced driver named Greg Cooper. At trial, Weems could not remember whether Cooper worked for Leading Edge at the time. Weems testified, “[Armitage] drove with Greg Cooper on the dirt site and drove on the street with my husband.”
Leading Edge instructed Armitage to “be responsive to whoever [sic] is in charge of the site.” Dump truck drivers at the oil field were supervised by Alan Freas, Mesa’s on site foreman. Freas informed the drivers of their daily tasks, kept track of their hours, and patrolled the site to watch the drivers as they worked. Weems visited the oil field about once every two weeks to “make sure everything is going right, just follow the trucks, make sure all our trucks are there.” She instructed the truck drivers to be on time and to attend the morning safety meetings.
Armitage worked for Leading Edge at the oil field for eight months without incident or complaint. He was described as one of the better truck drivers.
III.
Armitage’s Behavior on the Day of the Collisions
On November 26, 2003, Freas learned that Armitage had his 10 year old son in the cab of his dump truck at the oil field. Neither Mesa nor Leading Edge had a formal policy concerning passengers in dump trucks at the oil field. When Freas told Armitage he was violating “the rules” by having his son ride in the truck with him, Armitage replied it would not happen again.
Around lunchtime that same day, Aera employee Al Duff was working inside a portable warehouse in a storage yard on the oil field when he heard a dump truck pull up. He stepped outside and saw a boy sitting in the dump truck’s passenger cab. A man, later identified as Armitage, approached Duff and claimed he was looking for a telephone. Duff said there was no telephone at the storage yard, but agreed to accompany Armitage as he searched for one.
After about five minutes of searching for the telephone, Duff returned to the warehouse to work. Becoming suspicious, he stepped outside the warehouse to check on Armitage and saw him trying to throw a 75 pound acetylene tank into the bed of the dump truck. Two other tanks were sitting on top of the truck’s wheels. When questioned by Duff, Armitage said a man who lived nearby (and had no relation to Aera or TIC) had told him to pick up the tanks.
Duff did not believe Armitage and telephoned Thomas Bjerkreim, Aera’s on site supervisor. Duff told Bjerkreim, who was with Harp at the time, that a man who was not supposed to be at the storage yard was trying to take acetylene tanks away in a dump truck. While Duff was talking to Bjerkreim, Armitage drove off in a northerly direction.
IV.
The Collisions
Harp drove his pickup truck to take Bjerkreim to the storage area to investigate. On the way, they stopped near the top of a hill, and from that spot saw Armitage’s dump truck to their left, driving away from them.
Bjerkreim and Harp watched Armitage drive the dump truck around aimlessly for five to seven minutes. Bjerkreim assumed Armitage had lost his way and “was trying to figure his way back.” Armitage suddenly turned the dump truck around and drove straight toward Harp’s pickup truck. Neither Harp nor Bjerkreim was concerned: Harp’s pickup truck was not blocking the road, and Harp believed Armitage was going to pull up alongside the pickup truck to talk.
Armitage drove slowly at first, but 50 feet from Harp’s pickup truck accelerated to about 20 miles per hour. The road surface consisted of loose soil and gravel. As the dump truck approached, Harp could see a boy in its passenger cab. Armitage was looking both forward and at the boy. Without honking, swerving, or braking, the dump truck hit the pickup truck head on, thrusting it back 25 to 30 feet, off the road, down the side of a hill, and into a ditch. The dump truck lost some traction on the loose gravel, then pulled forward and again struck the pickup truck. Harp saw the boy inside the dump truck fly forward and hit his shoulder against the dashboard.
Armitage backed up the dump truck, turned it around, and drove away. The dump truck was later found abandoned elsewhere on the oil field. It was later confirmed Armitage had his son with him in the dump truck.
As a result of the collisions, Harp suffered serious injuries to his neck and back, which ultimately required two surgeries. Bjerkreim was unhurt.
Carl Sheriff, Harp’s accident reconstructionist expert, concluded: “Armitage was the primary cause of this accident by driving the dump truck unsafely with a child in the truck, being inattentive, and driving too fast for the conditions on a loose gravel soil pathway nearing or making a turn, and with a dump truck that, although it was very heavy, unloaded has less traction than if it were in fact loaded.”
PROCEEDINGS IN THE TRIAL COURT
Harp sued Armitage, Leading Edge, Mesa, and Aera (not a party to the appeal) asserting four causes of action. Relevant here are the first, third and fourth causes of action.
In the first cause of action, for motor vehicle negligence, Harp alleged Armitage negligently operated the dump truck, Leading Edge and/or Mesa employed Armitage, Leading Edge and/or Mesa owned the dump truck he drove and entrusted it to him, and Armitage was acting in the course and scope of his employment.
In the third cause of action, for general negligence, Harp alleged Leading Edge and Mesa negligently hired, trained, and supervised Armitage. In the fourth cause of action, also for general negligence, Harp alleged Leading Edge and Mesa were liable under a respondeat superior theory, and, “[w]hen the incident occurred, Defendant Armitage was carrying out his main purpose of driving a dump truck for his employer at the job site during work hours.”
St. Paul Fire & Marine Insurance Company (St. Paul Insurance) asserted a complaint in intervention against Armitage, Leading Edge, and Mesa for recovery of workers’ compensation benefits paid to Harp.
The case was tried to a jury. The court gave two negligence instructions. The first was a general negligence instruction stating: “Negligence is the failure to use reasonable care to prevent harm to oneself or to others. [¶]... A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. [¶] You must decide how a reasonably careful person would have acted in Douglas C. Harp’s, Armitage, Jr.’s, Leading Edge Trucking, Inc.’s, and Mesa Contracting’s situations.”
The second was an instruction on negligent entrustment stating Leading Edge was liable if it knew or should have known that Armitage “was incompetent or unfit to drive the vehicle” but “permitted [him] to use the vehicle.”
The jury was also given an instruction on respondeat superior liability stating an employer is liable for the acts of its employee committed within the course and scope of employment.
On the special verdict form, the jury found (1) Leading Edge and Armitage were negligent, and their negligence was a substantial factor in causing Harp’s injuries; (2) Armitage was Leading Edge’s employee but was not acting in the course and scope of his employment; (3) Leading Edge was the owner of the dump truck and gave its unlimited permission to Armitage to use the dump truck; (4) Leading Edge was not negligent in entrusting the dump truck to Armitage; and (5) Mesa was negligent, but its negligence was not a substantial factor in causing Harp’s injuries. The jury also found Harp’s injuries caused St. Paul Insurance to make $330,000 of workers’ compensation payments.
The jury awarded Harp $1.425 million in economic damages and $400,000 in noneconomic damages. The jury assigned Armitage 70 percent fault, Leading Edge 25 percent fault, and Mesa 5 percent fault (even though the jury found Mesa’s negligence was not a substantial factor in causing Harp’s injuries.) After the jury was discharged, the trial court reallocated Mesa’s 5 percent fault, assigning 3.5 percent to Armitage and 1.5 percent to Leading Edge.
After trial, Leading Edge moved for JNOV. Leading Edge argued the evidence was insufficient to support the jury’s finding of negligence or the finding that such negligence was a substantial factor in causing Harp’s injuries, and asserted it was subject only to ownership liability under Vehicle Code section 17151, subdivision (a).
The trial court denied the motion, stating: “There is sufficient evidence to support the verdict of negligent supervision, which would not invoke the limitations under Vehicle Code § 17151. Although the jury found that Leading Edge did not negligently entrust the truck to Armitage, the jury found that Leading Edge was negligent. The plaintiff argued that Leading Edge was negligent in training and supervising Armitage and there is substantial evidence to support the jury’s finding of negligence on those claims.”
Under the judgment, Leading Edge and Armitage are jointly and severally liable to Harp for $1,092,500, Armitage alone is liable to Harp for $294,000, Leading Edge alone is liable to Harp for $106,000, and Armitage and Leading Edge are liable to St. Paul Insurance for $330,000. Leading Edge timely appealed from the judgment and from the order denying its JNOV motion. (See Code Civ. Proc., § 904.1, subd. (a)(4).)
This amount reflects a credit for Aera’s settlement.
ANALYSIS
I.
Sufficiency of the Evidence
The jury found Armitage was not acting within the course and scope of his employment with Leading Edge when the collisions occurred; therefore, liability against Leading Edge must have been based on its own negligence rather than vicarious liability. The verdict form asked the jury if Leading Edge was “negligent.” The jury responded, “[y]es.” The three theories of negligence presented at trial were negligent hiring, negligent training, and negligent supervision.
Leading Edge argues the trial court erred by denying its motion for JNOV because the evidence was insufficient to support liability under any theory of negligence. We conclude the evidence was sufficient to support liability under a theory of negligent training.
A. Standard of Review
“‘“A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.” [Citation.]’” (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 878, italics added.)
In reviewing an order denying a motion for JNOV, we determine whether substantial evidence supports the verdict, viewing the evidence in the light most favorable to the party who obtained the verdict. (Sole Energy Co. v. Petrominerals Corp.(2005) 128 Cal.App.4th 212, 227.) We resolve all conflicts in the evidence and draw all reasonable inferences in favor of the verdict, and do not weigh the evidence or judge the credibility of witnesses. (Murray’s Iron Works, Inc. v. Boyce (2008) 158 Cal.App.4th 1279, 1285.) To be substantial, evidence must be credible and of solid value. (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1144.)
B. Negligent Training
“[I]n order to prove facts sufficient to support a finding of negligence, a plaintiff must show that defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292 293.)
The Restatement Third of Agency, section 7.05, subdivision (1) states: “A principal who conducts an activity through an agent is subject to liability for harm to a third party caused by the agent’s conduct if the harm was caused by the principal’s negligence in selecting, training, retaining, supervising, or otherwise controlling the agent.” Court of Appeal opinions have followed section 7.05 of the Restatement Third of Agency or its predecessor section in the Restatement Second of Agency. (See Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815; Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139 1140; Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836.) “Liability under this rule also requires some nexus or causal connection between the principal’s negligence in selecting or controlling an actor, the actor’s employment or work, and the harm suffered by the third party.” (Rest.3d Agency, § 7.05, com. c, illus. 5.)
The evidence was sufficient to support a finding that Leading Edge was liable for negligently training Armitage. When hired by Leading Edge, Armitage had had his truck driver’s license for only two weeks. While that fact alone would not make Leading Edge negligent for hiring Armitage, it would suggest additional on site training would be necessary. Although Weems’s husband tested Armitage in operating the dump truck, the test occurred on a paved street, while the roads at the oil field were dirt and loose gravel. The only on site training offered by Leading Edge was conducted by Cooper, but he did not testify, and there was no evidence as to what Cooper did or whether he trained Armitage to operate the dump truck unloaded on dirt or loose gravel roads. The fact Leading Edge had Cooper train Armitage shows that Leading Edge acknowledged the need and accepted responsibility for on site training.
Sheriff opined, “Leading Edge failed to adequately train and supervise Mr. Armitage, especially in consideration that Mr. Armitage only had his truck driver’s license for two weeks prior to being hired by Leading Edge.” Sheriff concluded operating the dump truck at the oil field for six to seven months without incident did not mean Armitage had been driving the truck safely and properly.
Sheriff testified Armitage caused the collisions by driving the dump truck too fast while making a turn on a loose gravel soil pathway. The dump truck was unloaded and therefore had less traction on gravel than if it were fully loaded. Armitage also might have been distracted by having his son in the dump truck. Leading Edge had no policy regarding whether dump truck drivers could carry passengers on the job site.
Relying on Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1116 1117 (Jennings), Leading Edge argues Sheriff’s testimony was based on assumptions of fact lacking evidentiary support or based on speculation or conjecture. The plaintiff’s expert in Jennings opined that bacteria growing around a retractor (a metallic surgical device) placed in the plaintiff’s abdominal cavity during surgery caused an infection. (Id. at pp. 1112, 1119.) The expert offered an ipso facto explanation: “[B]ecause the retractor was left in place and was probably contaminated, and a nearby area later became infected, ‘[i]t just sort of makes sense.’” (Id. at p. 1115.)
The Court of Appeal concluded the expert’s opinion that the retractor was a cause-in-fact of the infection was inadmissible because it was conclusory and was unaccompanied by reasoned explanation. (Jennings, supra, 114 Cal.App.4th at pp. 1119 1120.) An expert does not have “carte blanche” to express any opinion in his or her area of expertise, and cannot base opinions on assumptions of fact. (Id. at p. 1117.) “[W]hen an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than the reasons upon which it rests.’” (Ibid.)
Sheriff’s testimony is distinguishable from the expert’s testimony in Jennings. Sheriff conducted a thorough review of the facts giving rise to the collisions. He visited the site and reviewed depositions, photographs, vehicle specifications, and weather conditions. He performed a collision analysis using software developed by the National Highway Traffic Safety Administration. He explained Leading Edge was negligent in training Armitage because he had his truck license for only two weeks when he was hired, and explained that Armitage caused the collisions by driving an unloaded dump truck too fast on a loose gravel and soil pathway. An unloaded dump truck, Sheriff explained, had less traction than a loaded one.
No evidence was presented showing whether Armitage received onsite training in driving an unloaded dump truck on loose gravel. The conclusion that Armitage caused the collisions because he had not been properly trained to drive an unloaded dump truck on loose gravel and soil pathways arises reasonably from the evidence at trial.
Leading Edge argues the only reasonable conclusion to be drawn from the evidence is Armitage intentionally rammed the dump truck into Harp’s pickup truck. We disagree. The jury could reasonably have drawn the inference from the evidence at trial that the collisions would not have occurred if Leading Edge had properly trained Armitage in operating the dump truck in all conditions present at the oil field, and had instructed him not to have passengers in the truck. By finding Leading Edge was negligent, the jury declined to draw the inference Armitage acted intentionally.
Because the jury found an independent basis for negligence liability against Leading Edge, the statutory limit of $15,000 for vehicle owner liability under Vehicle Code section 17151, subdivision (a) is inapplicable. (Fremont Comp. Ins. Co. v. Hartnett (1993) 19 Cal.App.4th 669, 676.)
II.
Asserted Inconsistency in the Jury Verdict Against Leading Edge
The jury found Leading Edge was negligent, but responded, “[n]o” to the separate question, “[w]as defendant Leading Edge Trucking Inc negligent in its entrustment of the dump truck to defendant, George Armitage Jr.?” Leading Edge argues the jury’s finding of no negligent entrustment is inconsistent with the finding of negligence.
Inconsistent verdicts are against the law. (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1344.) The remedy for inconsistent verdicts is a new trial. (Ibid. [“The jury’s finding that there was no breach of contract is irreconcilable with its finding that [the defendant] did breach the implied covenant of good faith, so both claims must be retried”].)
A. No Forfeiture
Pursuant to Code of Civil Procedure section 619, no objection is required to preserve the issue of inconsistent verdicts for review. (See Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1182.) St. Paul Insurance argues Leading Edge drafted the verdict form and therefore forfeited any claim based on inconsistencies in the jury verdict. Although Leading Edge drafted the verdict form, counsel for all parties, including St. Paul Insurance, agreed to its form and content. (See id. at p. 1183 [no invited error where all parties jointly prepared the verdict form].)
St. Paul Insurance also argues Leading Edge forfeited any claim based on inconsistencies in the jury verdict by asserting in closing argument that negligent entrustment and negligent training were two separate and distinct theories of liability. In support of that argument, St. Paul Insurance cites a passage from the reporter’s transcript in which Leading Edge’s trial counsel argued: “You’ve heard about negligent entrustment of the vehicle and negligent training. I assert there is no basis for either of those two claims. [Armitage] was trained. He could operate the truck and did so up until November 26 when he went on a lark on his own.” Nothing in that statement constitutes a forfeiture of a challenge to inconsistencies in the verdict.
B. No Inconsistency as a Matter of Law
Leading Edges argues we should treat the findings on negligence and negligent entrustment as two findings within a special verdict. Armitage, Harp, and St. Paul Insurance argue we should treat the negligence finding as a general verdict and the negligent entrustment finding as a special finding. Either way, the claimed inconsistency in the verdict does not compel a new trial.
The standard we use to determine whether a verdict is inconsistent depends on the type of verdict form used. For a special verdict, correctness is determined as a matter of law, and the reviewing court does not infer findings in favor of the prevailing party. (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 678.) A different standard applies for inconsistencies between special findings of fact and a general verdict. (Id. at p. 679.) If a special finding is inconsistent with a general verdict, the general verdict will not be set aside unless “there is no possibility of reconciling the general and special verdicts under any possible application of the evidence and instructions.” (Ibid.)
A special verdict “is that by which the jury find[s] the facts only, leaving the judgment to the Court.” (Code Civ. Proc., § 624.) The verdict form used here was entitled “special verdict” and asked the jury to make findings on the ultimate facts, not to find in favor of any particular party or parties. The verdict form left to the court the task of drawing legal conclusions from the findings.
The jury’s finding that Leading Edge was negligent is not inconsistent as a matter of law with the jury’s finding of no negligent entrustment because the verdict did not distinguish between theories of liability. The verdict asked only for a finding on negligence, and general negligence is broader than negligent entrustment, which is an independent tort. (Blake v. Moore (1984) 162 Cal.App.3d 700, 707.) Negligent entrustment arises when “‘one who places or entrusts his [or her] motor vehicle in the hands of one whom he [or she] knows, or from the circumstances is charged with knowing, is incompetent or unfit to drive.’” (Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 708.)
The negligence asserted in this case broadly encompassed negligent hiring, training, supervision, maintenance of the vehicle, or breach of any duty of care leading to liability. Thus, it is legally possible for an employer to be liable for negligence but not liable for negligent entrustment. Here, for example, the jury’s finding on negligent entrustment would not be inconsistent with liability for negligently training Armitage in operating the dump truck at the oil field, or for negligently supervising him.
Leading Edge relies on Dixon v. City of Livermore (2005) 127 Cal.App.4th 32 (Dixon), as supporting the proposition a finding of no negligent entrustment is inconsistent with a finding of negligence. In Dixon, the plaintiffs suffered injuries from a helicopter crash at an air show held at a municipal airport. (Id. at p. 34.) They sued the company that managed the air show and the city that owned the airport. (Id. at p. 35.) The complaint included a cause of action for negligence and a separate cause of action for negligent entrustment alleging the company and the city negligently hired and supervised the helicopter operator. (Id. at pp. 35, 45.) Before trial, the city obtained summary adjudication of the negligent entrustment cause of action. (Id. at p. 45.) After a bench trial, the court found the company that managed the air show was negligent in the management of the helicopter operation and the city was vicariously liable for the company’s negligence. (Id. at p. 35.)
The appellate court reversed the judgment against the city on the ground there was not substantial evidence to support a finding the accident was due to the negligence of the company that managed the air show. (Dixon, supra, 127 Cal.App.4th at p. 44.) The appellate court held the trial court’s conclusion that the accident might not have occurred if the helicopter had been flown by a more experienced pilot was inconsistent with summary adjudication of the plaintiffs’ negligent entrustment cause of action. (Id. at p. 45.)
Dixon does not hold that negligence and negligent entrustment are inconsistent as a matter of law. The negligent entrustment cause of action in Dixon was broader than the one here, and alleged that the defendants knew or should have known the helicopter pilot was incompetent and unfit to fly the helicopter and that the defendants negligently hired and supervised the pilot. (Dixon, supra, 127 Cal.App.4th at p. 45.) Because the negligent entrustment cause of action, as alleged in Dixon, subsumed the negligence cause of action, summary adjudication against the plaintiffs on negligent entrustment precluded recovery at trial for negligence.
C. Reconciliation of Asserted Inconsistency Under the Evidence
As Armitage, Harp, and St. Paul Insurance argue, the finding on negligence could be construed as a general verdict because the verdict form simply asked the jury to find whether Leading Edge was negligent without asking for special findings on each theory of negligence asserted. “Where, as here, there is no special finding on what negligence is found by the jury, the jury’s finding is tantamount to a general verdict.” (Jonkey v. Carignan Construction Co. (2006) 139 Cal.App.4th 20, 26; see also Shaw v. Hughes Aircraft Co., supra, 83 Cal.App.4th at p. 1347, fn. 7 [“When a jury is asked to pronounce generally in favor of the plaintiff or defendant on all or any of the issues, they render a general verdict”].)
A general verdict on negligence will not be set aside unless it cannot be reconciled with the finding on negligent entrustment. (City of San Diego v. D.R. Horton San Diego Holding Co., Inc., supra, 126 Cal.App.4th at p. 679.) In this case, a finding of no negligent entrustment is inconsistent with a finding of liability based on a theory of negligent hiring, but can be reconciled by concluding the jury found Leading Edge liable under a theory of negligent training.
Armitage argues there is no inconsistency because negligent hiring concerns “the actor’s use of a third person to accomplish an end of his own,” while negligent entrustment concerns the actor’s granting permission to a third person to use “for the third person’s own purposes.” (Rest.2d Torts, § 308, com. c, pp. 100 101.) California law does not appear to make that distinction (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395 [negligent hiring]; (Jeld Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 863 864 [negligent entrustment]), and the jury was not instructed on it.
The jury’s finding of no negligent entrustment means the jury necessarily found at least one of the following: (1) Armitage was not negligent in operating the dump truck, (2) Leading Edge was not the owner of the dump truck, (3) Leading Edge did not know, or should not have known, Armitage was incompetent or unfit to drive the dump truck, (4) Leading Edge did not permit Armitage to drive the dump truck, or (5) Armitage’s incompetence or unfitness to drive was not a substantial factor in causing harm to Harp. (Jeld Wen, Inc. v. Superior Court, supra, 131 Cal.App.4th at pp. 863 864.) It was undisputed Leading Edge owned the dump truck and permitted Armitage to drive it. If the jury found (1) or (5), then Leading Edge could not be held liable under any theory of negligence.
Thus, to reach its finding of no negligent entrustment, the jury must have found that Leading Edge did not know, or should not have known, Armitage was incompetent or unfit to drive the dump truck. That finding is at odds with negligent hiring. Under California law, an employer may be liable for negligent hiring of an incompetent or unfit employee, or for failure to use reasonable care to discover the employee’s unfitness before hiring him or her. (Evan F. v. Hughson United Methodist Church, supra, 8 Cal.App.4th at p. 836; Underwriters Ins. Co. v. Purdie (1983) 145 Cal.App.3d 57, 69.) If the employer did not know and should not have known that the employee was incompetent or unfit to operate a vehicle, then the employer could not have been negligent for hiring the employee to operate the vehicle.
The finding on negligent entrustment is not inconsistent, however, with the theory Leading Edge negligently trained Armitage to operate the dump truck under the conditions present at the oil field. As we have determined, the evidence was sufficient to support liability against Leading Edge for negligent training. Thus, under the evidence presented at trial, the negligence verdict and the finding on negligent entrustment can be reconciled by concluding the jury found Leading Edge liable under a theory of negligent training.
III.
Asserted Inconsistency in the Jury Verdict Against Mesa
Leading Edge contends that when the jury inconsistently assigned Mesa 5 percent fault notwithstanding its determination that Mesa’s negligence was not a substantial factor in causing Harp’s injuries, “[t]he trial court should have ordered the jury to conduct further deliberations after instructing that such an allocation was improper.” Mesa does not argue the verdict is not inconsistent or the court’s manner of addressing the inconsistency is correct. Instead, Mesa argues Leading Edge is barred from asserting error because it agreed to the trial court’s decision reallocating Mesa’s liability.
When the jury returned its verdict, Mesa’s counsel immediately called to the court’s attention the inconsistency in the jury’s responses regarding Mesa’s liability. This discussion then took place:
“[Mesa’s counsel]: But the law—they may have done that because of the question, but they might not have understood that by putting ‘no’ to [question] number 2, that meant that there should have been a zero
“The Court: That’s because the verdict form was not properly drafted.
“[Mesa’s counsel]: It may be a numerical problem is what
“[Leading Edge’s counsel]: I think that has to be taken care of in post verdict
“The Court: I think we’ll take care of that in the post verdict. I don’t want to at this point change the verdict form and send them back.” (Italics added.)
After the court discharged the jury, it decided to allocate Mesa’s 5 percent liability to Armitage and Leading Edge in proportion to their respective percentage of fault. Armitage’s percentage of fault increased from 70 percent to 73.5 percent, and Leading Edge’s percentage of fault increased from 25 percent to 26.5 percent. Mesa’s counsel did not object to the court’s decision to reallocate Mesa’s liability.
Although Leading Edge was not required to object to the inconsistent verdict (see Lambert v. General Motors, supra, 67 Cal.App.4th at p. 1182), it was incumbent upon Leading Edge to object to the trial court’s proposal to reallocate fault to avoid waiver. An appellant may waive a claim of error by affirmative conduct or by failing to take the proper steps at trial to avoid or correct the error (Telles Transport, Inc. v. Workers’ Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1167) or by acquiescing in the error (Electronic Equipment Express, Inc. v. Donald H. Seiler &Co. (1981) 122 Cal.App.3d 834, 856 857).
When Mesa brought the inconsistency in the verdict to the trial court’s attention, Leading Edge’s counsel stated, “I think that has to be taken care of in post verdict.” Leading Edge did not object to the court’s decision to reallocate Mesa’s liability between Leading Edge and Armitage. If Leading Edge had informed the court the verdict had to be sent back to the jury for further deliberation or had objected to the court’s decision to reallocate Mesa’s liability, any error could have been avoided.
Leading Edge argues it did not invite the error because the trial court had made up its mind to address the inconsistency postverdict and nothing its counsel said influenced the court’s decision. According to the reporter’s transcript, Leading Edge first mentioned addressing the inconsistency postverdict. But it does not matter who spoke first because we are dealing with waiver, not invited error. Invited error arises when the appellant deliberately misled the trial court into committing error in order to gain a tactical advantage. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) Waiver does not require deliberate inducement of the error or the desire to reap a technical advantage. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶¶ 8:245 to 8:261, pp. 8 161 to 8 165 (rev. # 1, 2009).)
“[F]airness is at the heart of a waiver claim.” (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.) It would be unfair to permit Leading Edge to challenge the trial court’s decision for redressing the inconsistency in the Mesa verdict because Leading Edge stated the inconsistency should be resolved postverdict and failed to object to the court’s decision to reallocate Mesa’s liability.
DISPOSITION
The judgment and the order denying Leading Edge’s motion for JNOV are affirmed. Respondents to recover costs incurred on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.