Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of the County of Los Angeles No. VC039622, Philip H. Hickok, Judge.
Law Offices of Scott E. Schutzman, Scott E. Schutzman; Freeman, D’Aiuto, Pierce, Gurev, Keeling & Wolf and Thomas H. Keeling, for Plaintiff and Appellant.
Sedgwick, Detert, Moran & Arnold, Craig S. Barnes, Douglas J. Collodel, and Alison K. Beanum, for Defendant and Respondent.
MOSK, J.
INTRODUCTION
A pipe fell from overhead shelving and struck plaintiff and appellant David Jackson (plaintiff), an employee of Washington Inventory (Washington), while he was performing inventory services for defendant and respondent The Home Depot U.S.A., Inc. (Home Depot). He sued Home Depot for negligence and obtained a $937,000 jury verdict. Home Depot moved for a new trial under Code of Civil Procedure section 657 (section 657), contending that the trial court erred when it granted a directed verdict on the issue of plaintiff’s comparative negligence. The trial court agreed with Home Depot and issued an order granting a new trial.
On appeal, plaintiff contends that the trial court erroneously granted the new trial motion because, given the total lack of evidence showing that plaintiff acted unreasonably, the directed verdict on the issue of plaintiff’s comparative negligence was correct as a matter of law. Based on our independent review of the evidence, we hold that there was sufficient evidence from which a reasonable juror could have inferred that plaintiff acted unreasonably in light of a known risk. The directed verdict on the issue of plaintiff’s comparative negligence was therefore erroneous and that legal error warranted a new trial. Accordingly, we affirm the trial court’s order granting a new trial.
We set forth those facts that Home Depot contends constitute sufficient evidence to preclude a directed verdict.
In April 2002, plaintiff was employed as a production supervisor by Washington, a company that performed inventory services for large retail stores such as Home Depot. Based on safety meetings he had attended and conducted, plaintiff was aware of the dangers associated with working around ladders. Moreover, approximately six months earlier, plaintiff had been struck on the shoulder by a box that fell from an overhead shelf while performing inventory services at a Target store, an experience that caused him to pay greater attention to his surroundings when performing his job.
On April 2, 2002, plaintiff and about 30 other Washington employees were assigned to perform inventory services at Home Depot’s Lakewood store. Plaintiff was assigned as an “overhead counter,” counting inventory stocked in the overhead shelving.
Plaintiff was counting inventory stocked on shelving eight feet high and above.
At the time of the accident, plaintiff was counting inventory in the plumbing aisle using a three-step ladder, the only ladder readily available. Plaintiff faced the ladder toward the product he was counting and was positioned on the ladder’s platform. Because the tag number on the box he was counting was not being accepted by his hand-held electronic device, plaintiff called for an “SKU” check. A Home Depot employee in an orange vest approached plaintiff and asked him what he needed. Plaintiff explained that the SKU number on a box he was trying to count was not being accepted on his hand-held device. The employee told plaintiff to come down from the ladder. After plaintiff gave the employee the SKU number, the employee searched the bottom shelves for the item. The employee then ascended the ladder and stood on the rails of the ladder, rather than the platform. Plaintiff warned the employee that he was going to hurt himself or someone else. Plaintiff was standing behind the employee at the time, a “couple of steps” behind the ladder.
An “SKU,” or stock-keeping unit, is a six-digit number assigned to an item of merchandise that identifies the item when input into the company’s data base.
When the employee put his foot on a shelf, plaintiff moved away to his left with his back turned to the employee. He then spoke to a fellow Washington employee, Dena Kapanoske, while squatting next to her. He said, “I haven’t seen you in a long time.” Kapanoske replied, “Look out,” and plaintiff “got hit” with something “very, very hard.” It struck him between the neck and shoulder blade. Because plaintiff had his back to the Home Depot employee on the ladder, plaintiff did not see what struck him.
According to Kapanoske, she was counting items in the plumbing department when she noticed a Home Depot employee on a ladder with one foot on a shelf and the other foot on the rail of the ladder. She described what she observed as a “very dangerous” situation. Nevertheless, she knelt down on the floor and began her “pre-count” about three feet from the ladder. She remained in that position less than 10 minutes. While she was performing her count, plaintiff appeared over Kapanoske’s shoulder, squatted down next to her, and began talking to her. Plaintiff was to Kapanoske’s right, closer to the ladder. They remained in that position for less than five minutes.
Kapanoske gave an estimate of less than ten minutes on cross-examination. On direct examination, she estimated that only a minute or two elapsed between the time she first observed the Home Depot employee on the ladder and the accident.
Kapanoske then told plaintiff, “Let’s get up, . . . this is a dangerous situation.” She got up and moved “over to the aisle before he did . . . .” Kapanoske reached the entrance to the aisle, turned around, and saw plaintiff facing away from the Home Depot employee on the ladder. As the employee was reaching for a box, Kapanoske observed a pole fall from the top shelf. Kapanoske saw the object hit plaintiff “by the neck and the shoulder blade.” She “saw the heavy thing come at his back and he, he fell to the ground.” Plaintiff appeared to be hurt. Kapanoske asked plaintiff if he was “all right,” and plaintiff told her to advise their supervisor, Ruben Vega. Vega instructed another Washington employee to take plaintiff to the hospital.
No one other than Kapanoske and plaintiff testified as witnesses to the incident. The Home Depot employee described by Kapanoske and plaintiff was never identified.
Plaintiff, a former collegiate football player, had surgeries on his neck in December 2002, June 2005, and December 2005, each of which he attributed to the incident at Home Depot.
PROCEDURAL BACKGROUND
Plaintiff filed a complaint against Home Depot for negligence and premises liability. Home Depot’s answer to the complaint asserted, inter alia, an affirmative defense based on plaintiff’s comparative fault. Washington’s workers’ compensation insurer, State Compensation Insurance Fund, filed a complaint in intervention seeking reimbursement from Home Depot for workers’ compensation benefits it had paid to plaintiff. Home Depot’s answer to the complaint in intervention also asserted an affirmative defense based on plaintiff’s comparative fault.
The action proceeded to a jury trial. At the close of evidence, plaintiff moved for a directed verdict on liability, but the trial court denied that motion. Plaintiff also moved for a directed verdict on Home Depot’s comparative negligence defense, arguing that there was no evidence of plaintiff’s own negligence or of any conduct on his part that caused his injury. After hearing argument from Home Depot’s counsel concerning which facts showed plaintiff’s negligence, the trial court granted the motion and ordered that all references to plaintiff’s fault should be removed from the verdict form and that Home Depot could not make reference to plaintiff’s negligence during argument. Although the trial court gave a comparative negligence instruction concerning Washington, the trial court did not instruct the jury concerning plaintiff’s negligence.
The trial court denied Washington’s motion for a directed verdict on Home Depot’s comparative negligence defense against Washington.
Notwithstanding the trial court’s order granting a directed verdict, Home Depot’s attorney stated during oral argument: “I submit to you what you heard was the person that had control over this risk was [plaintiff] himself.” The trial court sustained plaintiff’s objection to that comment.
On the issue of comparative negligence, the jury was provided with the following question on the special verdict form: “Question No. 6: [¶] 100% represents the sum of negligence, if any, of (1) [Home Depot], including its employees; (2) plaintiff’s employer, [Washington]. [¶] What proportion, if any, of the combined negligence is attributable to the following: (1) [Home Depot], including its employees; (2) [Washington] whose negligence was a cause of plaintiff’s injury.” Below the question was a blank space for recording Home Depot’s portion of liability and a separate blank space for recording Washington’s portion. But, because of the directed verdict, there was no space for assigning any portion of the total liability to plaintiff.
During deliberations, the jury submitted a handwritten question to the trial court: “On Question No. 6—Instead of % as to Washington Inventory may we put % specific to [plaintiff] or is [plaintiff] Washington Inventory?” Over an objection from plaintiff’s attorney, the trial court provided the following handwritten response: “To Question #6, add [plaintiff’s] name and assign to him and the other parties whatever %, if any, you feel is appropriate.”
The jury returned a special verdict that found (i) Home Depot was negligent; (ii) Home Depot’s negligence was a substantial factor in causing plaintiff’s injury; (iii) Washington was not negligent; (iv) plaintiff had suffered economic damages in the amount of $96,289.14 (for past medical expenses), $35,000 (for future medical expenses), and $5,754 (for past lost wages); and (v) plaintiff had suffered past and future noneconomic damages of $800,000. In response to Question No. 6, the jury found Home Depot 65% negligent, Washington 0% negligent, and plaintiff 35% negligent.
Consistent with the trial court’s direction, plaintiff’s name appeared on the verdict form as a handwritten insert next to the 35% figure.
Home Depot moved for a new trial, citing several grounds, including the trial court’s order directing a verdict on the issue of plaintiff’s comparative negligence and its corresponding refusal to instruct the jury on plaintiff’s comparative negligence. After hearing oral argument, the trial court granted the motion and set a new trial date. The initial minute order stated only that, “Court grants a new trial in this case as to all parties.” The trial court later issued a modified minute order that read, “The court grants the defendant’s motion for new trial based on the grounds relied upon in C.C.P. section 657, subsections 1 and 7 and C.C.P. section 660.” Then, in response to Home Depot’s ex parte application, the trial court issued a third minute order that stated, “The court grants the ex parte application for a supplemental order. The court grants the new trial to Home Depot under CCP section 657, subsections 1 and 7, in that the court improperly granted a directed verdict in favor of plaintiff, David Jackson, and additionally, that the court refused to allow a comparative negligence instruction as requested by Home Depot to be given to the jury.”
Plaintiff filed an appeal from the trial court’s order granting a new trial. In response, Home Depot filed a protective cross-appeal to preserve its right to challenge any judgment in favor of plaintiff that might result if the appellate court reversed the new trial order on appeal.
DISCUSSION
A. Standard of Review
Although ordinarily an order granting a new trial is reviewed for abuse of discretion, an order lacking an adequate specification of reasons is subject to independent review. (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 628 (Raiders).) “When the trial court provides a statement of reasons as required by section 657, the appropriate standard of judicial review is one that defers to the trial court's resolution of conflicts in the evidence and inquires only whether the court’s decision was an abuse of discretion. (See, e.g., Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 409, 412 [93 Cal.Rptr.2d 60, 993 P.2d 388]; In re Marriage of Beilock (1978) 81 Cal.App.3d 713, 728 [146 Cal.Rptr. 675].) But when there is no statement of reasons, an appellate court’s use of an abuse of discretion standard of review would subvert the purposes that this court has identified as underlying section 657’s statement-of-reasons requirement.” (Raiders, supra, 41 Cal.4th at p. 636.) Thus, the absence of a statement of reasons “calls for independent review of the trial court’s order granting a motion for a new trial.” (Id. at p. 640.)
The parties disagree about the standard of review that governs plaintiff’s challenge to the trial court’s new trial order. Citing Raiders, supra, 41 Cal.4th 624, plaintiff argues that the propriety of the new trial order is determined under an independent standard of review because the supplemental minute order failed to specify the reasons for the order as required under section 657. Home Depot, on the other hand, contends that the trial court’s order adequately set forth the reasons for granting a new trial and therefore that an abuse of discretion standard should apply. As explained below, we do not need to resolve this dispute because, under either standard of review, the trial court’s order granting a new trial was correct.
B. Section 657
“The authority of a trial court in this state to grant a new trial is established and circumscribed by statute. (See Diamond v. Superior Court (1922) 189 Cal. 732, 736 [210 P. 36.) Section 657 sets out seven grounds for such a motion: (1) ‘Irregularity in the proceedings’; (2) ‘Misconduct of the jury’; (3) ‘Accident or surprise’; (4) ‘Newly discovered evidence’; (5) ‘Excessive or inadequate damages’; (6) ‘Insufficiency of the evidence’; and (7) ‘Error in law.’” (Raiders, supra, 41 Cal.4th at p. 633.)
“Section 657 provides for the situation in which an order granting a new trial is not supported by a specification of reasons. [S]ection 657 states: ‘On appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons . . . .’ Consequently, when as here an order granting a new trial states the ground as jury misconduct, but the trial court fails to specify the reasons for that conclusion, the order is not void. [Citations.] The order may still be sustained if a new trial should have been granted upon any ground set out in section 657 except the grounds of insufficiency of the evidence or inadequate or excessive damages. [Citation.].” (Raiders, supra, 41 Cal.4th at p. 636.)
Plaintiff argues that the trial court’s failure to specify the reasons for its order granting a new trial leaves the basis for the order open to speculation. In doing so, plaintiff seems to suggest that the perceived defect prevents us from performing a meaningful review of the order. Even assuming, arguendo, that the trial court’s order granting a new trial failed to specify the reasons underlying the order, that defect would not render the order void or otherwise beyond our review on appeal. At best, that procedural defect would merely trigger a less deferential standard of review on appeal. (Raiders, supra, 41 Cal.4th at p. 640, fn. 4 [“In this context, we use the term ‘independent review’ to mean a form of review that does not defer to the trial court’s inferred resolution of conflicts in the evidence”].) Therefore, for purposes of the following analysis, we will assume the independent review standard applies and review the new trial order accordingly.
C. New Trial Order
The trial court specified two grounds for its new trial order: (i) the directed verdict in favor of plaintiff on Home Depot’s contributory negligence defense was improperly granted; and (ii) the refusal to instruct the jury on comparative negligence was improper. According to plaintiff, neither ground was valid because there was total lack of evidence that plaintiff acted negligently. Thus, plaintiff contends he was entitled to the directed verdict as a matter of law and that no jury instruction on his comparative negligence was warranted. Home Depot argues that there was sufficient evidence to allow the jury to determine whether and to what extent plaintiff acted negligently, and therefore the directed verdict was legally erroneous. To resolve this issue, we apply the rules pertaining to directed verdicts.
“The rules governing the power of the trial court to direct a verdict are the same as those applicable to the granting of a nonsuit. They are stated in the case of Estate of Lances [(1932)] 216 Cal. 397, 400 [14 P.2d 768]: ‘A nonsuit or a directed verdict may be granted “only when, disregarding conflicting evidence and giving to plaintiff’s evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given.” (Citations) Unless it can be said as a matter of law, that, when so considered, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury.’” (Vinson v. Ham Bros. Constr., Inc. (1970) 7 Cal.App.3d 990, 993 (Vinson).)
“More recently, the rules have been stated in the following manner: ‘A case can be taken from the jury because of insufficient evidence only when, disregarding all questions of credibility, and all unfavorable evidence, and indulging all rational inferences to help the resisting party, there is still a total lack of substantial evidence to support a verdict in his favor. The issue is then one of law, with nothing for the jury to decide, since the evidence will support only one possible verdict and that against him.’ (Grafton v. Mollica, [(1965)] 231 Cal.App.2d 860, 862 [42 Cal.Rptr. 306], quoting from Stansbury, Cal. Trial and Appellate Practice, p. 760.)” (Vinson, supra, 7 Cal.App.3d at p. 993; see Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629-630.)
Under the appropriate standard, the evidence did not establish that plaintiff was free of negligence as a matter of law. Prior to the accident, plaintiff was generally aware from his training and experience of the dangers inherent in working around ladders, and he was specifically aware of the hazard posed by objects falling from overhead shelving based on his similar accident at a Target store six months earlier. Moreover, he was aware of the risk posed by the Home Depot employee standing on the railing of the three-step ladder because he admonished the employee about the risk of injury to the employee or someone else. He also knew taller ladders could be obtained upon request. Nevertheless, according to Kapanoske, he paused three feet from the ladder, squatted down, and engaged her in conversation for at least a minute or two—and perhaps longer—before finally attempting to move away from the danger.
That evidence was sufficient to allow a juror to infer that plaintiff acted unreasonably in light of the known risk presented by the Home Depot employee’s reckless conduct on the ladder. Although plaintiff testified that he was only in the danger zone 10 to 20 seconds, Kapanoske gave longer estimates, creating a conflict in the evidence for the jury to resolve. Assuming, as we must, that Kapanoske was correct, it was arguably unreasonable for plaintiff to pause and converse with Kapanoske prior to moving to a safer location in the aisle. That inference of negligence on plaintiff’s part is further supported by plaintiff’s general knowledge of the dangers inherent in working around ladders and his firsthand knowledge of the risks posed by objects falling from overhead shelving. A juror could have inferred from that knowledge and experience that plaintiff knew or should have known better than to linger, even for a short period of time, near a ladder on which an employee is engaging in an obviously dangerous activity.
Because we have concluded that the order granting the new trial was correct, we do not reach the other issues raised by Home Depot in support of its protective cross-appeal.
DISPOSITION
The order of the trial court granting a new trial is affirmed, and Home Depot is awarded its costs on appeal.
We concur: TURNER, P. J., KRIEGLER, J.