Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LC080048 Michael B. Harwin, Judge.
Carmen A. Trutanich, City Attorney, Richard M. Brown, General Counsel, Department of Water and Power, Lisa S. Berger, Deputy City Attorney, for Defendant and Appellant.
Effres & Associates, Steven B. Effres, Rene J. Kern, Jr.; Law Offices of Robert H. Pourvali and Robert H. Pourvali for Plaintiff and Respondent.
DOI TODD, J.
The City of Los Angeles, acting by and through the Los Angeles Department of Water and Power (DWP), appeals from a judgment entered on a jury verdict awarding $1,313,355.20 for personal injuries to respondent Yevgeniy Pinchuk. Respondent was injured when struck by an automobile whose driver lost control of her car after water that had been leaking onto the street for more than two months turned to ice. DWP contends the judgment must be reversed because there was no substantial evidence of a dangerous condition or that DWP knew the water would freeze, and the damages award was excessive. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Water Leak
In his first amended complaint filed against DWP in January 2008, respondent alleged that DWP created and maintained a dangerous condition of public property in the form of “the presence of water bubbling through the asphalt as a result of a water main leak which turned to ice on the roadway, ” and that he was injured as a result of the dangerous condition. A year and a half later, when respondent was 22, the case proceeded to trial. The parties stipulated to the following statement of the case that was read to the jury:
“Yevgeniy Pinchuk was traveling southeast on Ventura Boulevard nearing the intersection of Ventura and La Maida on [Saturday] January 13, 2007, at approximately 8:30 p.m. when he unexpectedly encountered ice on the roadway.
“At this location a Department of Water and Power water valve had been leaking for approximately over two months. The temperature for that night had dipped below 32 degrees causing the water to freeze.
“When Yevgeniy Pinchuk made contact with the ice, he lost traction and spun out of control. He was able to bring his vehicle to a complete stop without hitting cars or property.
“Mr. Pinchuk was getting out of his vehicle when he was hit by another vehicle driven by Sally Asgharzadeh who had also made contact with the ice causing her to lose control. The force of the impact caused Mr. Pinchuk to be lunged 18 feet before he hit the road. Mr. Pinchuk alleges he sustained injuries to his spine and lumbar discs as well as other areas of his body.
“The Department of Water and Power denies it had constructive or actual notice of a dangerous condition.”
The following evidence was undisputed at trial: DWP knew of the water leak and its source for more than two months prior to respondent’s accident and that there were already plans to replace the main line; DWP regularly sent employees to monitor the site, including the day before the accident; a number of people had complained to DWP about the presence of water on the street; there were no reports of any traffic accidents at the site prior to respondent’s accident; and water leaked at the site until DWP performed a “cut-and-plug” procedure in late February 2007.
The jury heard testimony from eight DWP employees, many of whom had decades of experience. Two of these employees, Jon Billesbach, former district superintendent who been employed by DWP for 43 years before retiring, and David Bennett, senior water utility supervisor who had been employed by DWP for 35 years, both testified that they believed water on a street is a hazard. Billesbach first became aware of the leak and its source in early November 2006, and went to the site to investigate. He saw a “small wet spot” in the street coming from a two and a half inch drill hole that had been made to check the main. The water coming out was probably an inch at the most and was running toward the gutter. He previously acknowledged in his deposition that the leak was becoming more severe over time, and that he did not take immediate steps to fix it, in part because he had other things to do. Billesbach testified at trial that had he known in January 2007 that freezing temperatures were forecasted, he would have considered the leak to be an emergency.
Bennett became aware of the leak on November 6, 2006 and observed it that day. He saw water in the number two eastbound lane running south toward the gutter. He estimated that the water coming out of the drill hole was a quarter to half an inch deep, and observed that cars splashed it 15 to 30 feet when they hit it. The Los Angeles Police Department called him numerous times to advise of the leak, and both the police and the public referred to the leak as “flooding.” Though Bennett did not believe the leak constituted a flood or that it was hazardous when he first saw it, he did report it to DWP’s “trouble board, ” as well as Billesbach, and wanted it fixed as soon as possible. Bennett testified at his deposition that if a driver unexpectedly encountered water and had to stop suddenly, the driver could lose control of the vehicle and go into a skid. He testified at trial that even a quarter of an inch of water could make it unsafe for a driver to attempt to brake. Had he been informed that temperatures would reach freezing levels, he would have placed barricades at the site.
A city moratorium precluded major work on city streets from November 20, 2006 to January 2, 2007, to avoid interfering with businesses during the holiday period. During that time, work would be approved only if the situation was an emergency. Ali Nahass, a civil engineer for the Los Angeles Department of Public Works, testified that DWP could have applied for a waiver of the moratorium. Had DWP reported that there was a leak on Ventura Boulevard, there had been complaints about it, there was a concern about a drop in temperature that could result in ice on the road, and it was a public safety emergency, a waiver would have been granted. DWP never requested a waiver.
Respondent’s civil and traffic engineering expert, Harry Krueper, testified that the presence of continuously running water on a roadway creates a hazard. He explained that water on a roadway surface lessens the friction of tires on the road, and that it is “particularly dangerous” for drivers to go from a dry condition to a wet one unexpectedly because drivers will generally step on the brakes and might lose the ability to steer and slow down. He understood that the amount of water leaking onto the street was one quarter of an inch to one and a half inch, and stated that hydroplaning can occur in that amount of water. He believed that DWP should have placed warning signs at the site and barricaded the lane to guide drivers around the water, and that its failure to do so was a breach of the standard of care.
DWP’s traffic and highway engineering expert, David Royer, testified that tires are designed to tolerate large amounts of water and that roadway design takes into account the braking time on wet surfaces. He did not believe the leaking water was hazardous for motorists.
Samuel White, respondent’s accident reconstructionist, explained that a wet road has a diminished friction value, making it harder to stop, and that an icy road has an even lower friction value, making it much harder to stop as well as to steer. Michael Varat, DWP’s accident reconstructionist, testified that he did not believe water on the street with a 35 miles per hour speed limit was “remotely hazard[ous], ” but that “ice is different” and “we can’t drive our normal way on ice.”
Weather Forecasts
Respondent’s expert meteorologist, Richard Dickert, who is both a consulting and broadcast meteorologist, testified that freezing temperatures were forecast at the time of the accident. Beginning January 8, 2007, print and broadcast media, the National Weather Service, Internet Web sites and Dickert himself were issuing warnings, watches and special advisories to the public for the coming cold snap expected to last from January 11 through 14, 2007, and predicting a widespread “hard freeze” (when the temperature drops below 28 degrees for two or more hours) for the San Fernando Valley. The coldest temperatures were predicted for and recorded on the day of the accident. Dickert identified at trial an article he had printed from the Los Angeles Times’ Web site on January 12, 2007 summarizing the coming freeze, and one from The Los Angeles Daily News on January 13, 2007, the date of the accident, discussing the freeze. He also explained that anyone can access the National Weather Service Web site and other Internet Web sites, such as weather.com.
The cold snap that took place was unusual in that record low temperatures were reached in the San Fernando Valley, but Dickert’s research indicated that record cold snaps could be expected there every eight and a half years. He testified that “freezing temperatures in the San Fernando Valley are common every December and January, ” and that it would be “unusual for the temperature not to fall below freezing during the wintertime in the San Fernando Valley.” His research indicated that for 15 of the 18 Januarys from 1990 through January 2007, temperatures in the San Fernando Valley dropped to 32 degrees, the point at which water freezes. His research was based on data from the weather station at Pierce College in Woodland Hills. Though it was not the closest weather station to the accident site, in Dickert’s professional judgment the topography of the two locations was the most similar.
DWP’s expert on weather conditions, Edward Aguado, a professor and assistant dean at San Diego State University and the director of its weather station, did not believe the Woodland Hills area was similar in topography to the accident site because Woodland Hills is wind sheltered and the accident site is not. He did agree with Dickert that on the day of the accident, the temperature measured at the Van Nuys Airport weather station, the one closest to the accident site, was 39 degrees, and that temperatures on the ground tend to be six to seven degrees cooler than those reported. He also agreed that every day from January 8, 2007 until the date of the accident, the National Weather Service announcements talked about the potential for a hard freeze on Friday and Saturday, though he stated the predictions were limited to wind-sheltered areas. He also agreed that the print media on the day before and the day of the accident were announcing that freezing temperatures were expected. He previously testified in his deposition that an agency which supplies energy or power to the public should probably be aware of changes in weather conditions for the areas they supply.
Damages
Following the accident, respondent was taken by ambulance to the emergency room at Encino Hospital, where he received stitches. He felt sore all over and was sent home with a prescription for painkillers. Three days later he returned to the hospital with complaints of pain throughout his body, especially in his leg and lower back. For the next five or six weeks, he received treatment from a chiropractor. He then switched to a pain management specialist, who ordered an MRI, which revealed a pinched nerve.
Board certified radiologist John Crues reviewed respondent’s MRI and found a focal disc protrusion, which is a well-recognized cause of pain radiating into the hip and thigh. He also noted indications of chronic degenerative disc disease, which is separate from a disc protrusion, and which is a common condition in competitive athletes (respondent was a competitive wrestler in high school). Though he could not say definitely, Dr. Crues believed it was more likely than not that the accident was the cause of respondent’s disc protrusion.
Respondent also saw board certified orthopedic surgeon Jacob Tauber, who also noted respondent’s degenerative disc disease and protruded or herniated disc, which was pinching the nerve root. Like Dr. Crues, Dr. Tauber believed that respondent’s herniated disc was the result of trauma suffered in the accident. Dr. Tauber felt the most effective way to relieve respondent’s nerve pain would be a surgical procedure known as a laminectomy and fusion, but there was no guarantee that such a surgery would be successful. Additionally, a fusion causes degeneration at adjacent levels of the spine, even if they were previously normal, “because once you eliminate a motion segment in the spine, there’s more stress on the adjacent segments.” Given respondent’s preexisting degenerative disc condition, his young age and his size, Dr. Tauber believed the likelihood that respondent would need additional surgeries over his lifetime was “enormous.” Dr. Tauber explained that if respondent could “delay the surgery until he was 30, within 10 or 15 years he’s likely to need another surgery. That puts him at 45. Then you have another 15 years, and so on.” The procedure generally takes about ten hours and costs approximately $120,000 to $130,000. If artificial discs are used, the cost is even higher.
Dr. Tauber stated, “Let me put it this way, you don’t do high school wrestling with symptomatic disc herniations.” Respondent’s high school teacher and wrestling coach testified that respondent did not suffer any injuries while wrestling in high school, and that respondent did not display any injuries when he returned as an alumnus to help train students in the fall of 2006. Both respondent and his mother also testified that he never suffered any injuries while wrestling in high school.
Respondent’s weight increased from 220 pounds as a wrestler to 285 pounds as a result of not being physically active.
Dr. Tauber described injections and other procedures that could help postpone surgery, including one known as a rhizotomy that basically “fries” the nerves, but usually provides relief only for 6 months to 2 years. Dr. Tauber had not seen a rhizotomy work more than five times, and the cost of the procedure was $8,000 to $10,000, sometimes more. Dr. Tauber believed that ultimately respondent would need surgery.
Respondent took Dr. Tauber’s advice to postpone back surgery. He underwent nerve facet blocks that addressed his everyday dull pain, but not the acute episodes of pain he suffered. At the most, the relief would last a week. There has never been a time since the accident when respondent has not been in some pain, and he plans to eventually have surgery.
DWP had a board certified orthopedic surgeon examine respondent on August 8, 2008 and later review his MRI. He could not say when respondent’s disc protrusion occurred, but he believed it was prior to the accident because otherwise respondent would have felt immediate radiating pain at the time of the accident. DWP also had neurologist Stephen Rothman review respondent’s MRI. He concluded the probability of the disc protrusion having been caused by the accident was small, and that in his experience disc herniations caused by trauma are rare in the lumbar spine.
The Verdict and Postverdict Motions
After nine days of trial, the jury returned a special verdict, including the findings that the property was “in a dangerous condition at the time of the incident, ” DWP had notice of the dangerous condition for a long enough time to have protected against it, and that DWP’s failure to take corrective steps was not reasonable under the circumstances. The jury found DWP 100 percent responsible, and awarded the following damages to respondent: Past medical expenses of $43,179.20; future medical expenses of $450,000; past nonecomonic losses, including pain and suffering of $53,676; and future noneconomic losses, also including pain and suffering, of $766,500, for a total of $1,313,355.20.
DWP filed motions for a new trial and for judgment notwithstanding the verdict, which the trial court denied on the basis that “there was sufficient evidence which was considered by the jury to support both the verdict and the issues of causation, notice and damages.” This appeal by DWP followed.
DISCUSSION
I. Standard of Review.
When the finding of a trier of fact is attacked as not being based on substantial evidence, “the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874, italics omitted.) We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. (Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 514.) “‘It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact.’ [Citation.]” (Ibid.) “Defendants raising a claim of insufficiency of the evidence assume[] a ‘daunting burden.’ [Citation.]” (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 678.)
II. Government Code.
“The general rule in California is sovereign immunity. Public entities have liability for injury only when that liability has been assumed by statute.” (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 703.) Pursuant to Government Code section 835, a public entity is liable for injuries caused by a dangerous condition of its property. “Dangerous condition” is defined as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a).)
Government Code section 835 provides in full: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”
“Ordinarily the existence of a dangerous condition is a question of fact.” (Davis v. City of Pasadena, supra, 42 Cal.App.4th at p. 704.) Under Government Code section 830.2, however, a condition is not dangerous “if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.”
III. Substantial Evidence Supports the Jury’s Finding of Liability.
DWP contends that while “[i]t is undisputed that DWP was aware of water bubbling up onto the roadway, ” respondent presented “no substantial evidence to support an inference the water created a substantial hazard to motorists engaged in the customary, reasonably foreseeable use of the road.”
While the jury heard DWP employees describe the leak as a small leak or wet spot that ran toward the gutter, as well as evidence that no traffic accidents had taken place at the site before respondent’s accident, the jury also heard the following evidence: Numerous complaints were made to DWP from the public and the Los Angeles Police Department describing the water as “flooding”; DWP’s district superintendent at the time of the accident, Billesbach, testified that “all leaks” posed a hazard for motorists; Billesbach also testified that had he known the weather was forecasted to drop below freezing in January 2007, he would have considered the leak to be not only a hazard, but an emergency as well; DWP’s senior water utility supervisor at the time, Bennett, also testified that a motorist who unexpectedly encounters water on a roadway can lose control of the vehicle and go into a skid; respondent’s civil and traffic engineering expert, Krueper, testified that the presence of continuously running water on a roadway creates a hazard for motorists because it lessens the frictional characteristics of tires on the pavement, that hydroplaning can occur in as little as one quarter of an inch of water, and that barricades should have been posted to warn of the water and guide motorists out of the way.
Thus, to the extent the jury based its unanimous finding of the existence of a dangerous condition on the presence of continuously running water on a major boulevard, we are satisfied that such a finding was supported by substantial evidence.
But even assuming that the presence of the running water, by itself, was insufficient to create a dangerous condition under the circumstances of this case, DWP concedes that “the condition became dangerous once the water froze.” The key issue then is whether DWP had actual or constructive notice that the water would turn to ice.
A public entity had “actual notice” of a dangerous condition “if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” (Gov. Code, § 835.2, subd. (a).) A public entity had constructive notice of a dangerous condition “only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” (Gov. Code, § 835.2, subd. (b).) “The precise nature of the accident need not be foreseeable, only the general character of the event or harm.” (Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466, 1474.)
Government Code section 835.2, subdivision (b) goes on to state: “On the issue of due care, admissible evidence includes but is not limited to evidence as to: [¶] (1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property. [¶] (2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.”
DWP contends there was no substantial evidence that it knew, or should have known, of the risk of the water freezing in sufficient time to take protective matters, because none of the DWP employees who testified “had ever seen or heard of the water from such a leak freezing on the streets of the San Fernando Valley.” We disagree.
Respondent produced evidence that: DWP was aware that water had been continuously flowing on the roadway for more than two months, and at least two DWP employees testified that water leaking on a roadway is a hazard; beginning January 8, 2007-five days before the water turned to ice-the local media and several other outlets were continuously predicting a cold snap and freezing weather for the weekend during which respondent’s accident occurred; respondent’s expert meteorologist explained that freezing temperatures in the San Fernando Valley are common every December and January and that it would be unusual for the temperature not to fall below freezing during the winter in the valley; and two DWP employees stated that they would have considered the leaking water on the roadway to be an emergency and would have placed barricades at the site had they known freezing temperatures were predicted.
Questions of whether a dangerous condition could have been discovered by reasonable inspection and whether there was adequate time for preventive measures are properly left to the jury. (Straughter v. State of California (1976) 89 Cal.App.3d 102, 110–111.) In Straughter, a jury returned a verdict in favor of the plaintiff, impliedly finding that the defendant public entity had constructive notice of the existence of ice on a highway. The judgment was upheld, despite testimony by the defendant’s witnesses that they had not seen ice on the highway prior to the accident, and expert testimony indicating that the icy conditions had begun developing less than four hours before the accident.
DWP could have easily determined that freezing conditions were forecast, and could have taken steps to warn of the potential danger with minimal effort such as the placement of barricades and warning signs, in light of the great likelihood that such a dangerous condition could cause substantial injury to motorists. We are satisfied that there was sufficient evidence from which the jury could have reasonably concluded that DWP had constructive notice of a dangerous condition and failed to take the requisite precautionary measures.
IV. Damages.
DWP also contends that the jury’s award of damages was excessive because (1) respondent failed to show that his future medical damages were reasonably certain, and (2) the future damages award was not discounted to present value.
“The determination of damages is primarily a responsibility of the trier of fact. On review, we must examine the particular circumstances involved in order to determine whether the designation of tort damages is supported by substantial evidence. [Citation.] We are obligated to uphold the designation of damages whenever possible and “‘all presumptions are in favor of the judgment.”’” (Bonner v. Workers’ Comp. Appeals Bd., (1990) 225 Cal.App.3d 1023, 1037–1038.) When a damages award is attacked as being excessive, we can interfere only when “‘the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.’” (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078.)
1. Excessive Damages
DWP contends that the jury’s award of $450,000 for future medical expenses was excessive because respondent’s supporting evidence that he would need future surgeries was “speculative.” (Civ. Code, § 3283 [Damages may be awarded when “certain to result in the future”].) We find no merit to this contention.
Respondent’s orthopedic surgeon, Dr. Tauber, testified that respondent suffered a focal protrusion or herniated disc that resulted from the trauma of the accident. Although he recommended that respondent postpone back surgery for as long as possible and proceed first with conservative treatments, such as injections, he believed that respondent would ultimately need surgery to relieve his nerve pain. Dr. Tauber described one possible nonsurgerical procedure known as a rhizotomy, that costs at least $8,000 to $10,000 per treatment. But Dr. Tauber testified that he had never seen this procedure work more than five times. Respondent testified that the injections he had undergone so far had provided only temporary relief, and that he planned to eventually have surgery. Dr. Tauber testified that the kind of surgery respondent would require (a laminectomy and fusion) costs approximately $120,000 to $130,000, and more if artificial discs are used. Dr. Tauber explained that if he performed such a surgery on respondent, the likelihood of respondent needing another fusion or disc replacement at one or more adjacent levels over his lifetime was “enormous, ” and that the probability of someone respondent’s age with his preexisting conditions requiring more surgeries over his lifetime becomes “overwhelming.” Dr. Tauber testified that even if respondent’s initial surgery had the best-case outcome, respondent would still likely need another surgery in 10 to 15 years: “So let’s say even if he could delay the surgery until he was 30, within 10 or 15 years he’s likely to need another surgery. That puts him at 45. Then you have another 15 years, and so on.” As DWP notes, it can be inferred from the verdict that the jury awarded respondent the value of three to four surgeries, as was suggested by respondent’s attorney in closing argument.
“It was not required that the doctor testify that he was reasonably certain that the plaintiff would be disabled in the future. All that is required to establish future disability is that from all the evidence, including the expert testimony, if there be any, it satisfactorily appears that such disability will occur with reasonable certainty.” (Paolini v. City & County of S. F. (1946) 72 Cal.App.2d 579, 591.) Dr. Tauber’s testimony established with reasonable certainty that respondent would require future surgeries every 10 to 15 years. Accordingly, the evidence was sufficient to support the jury’s award of future medical expenses.
2. Present Value Reduction
DWP also contends that the jury’s award of future medical expenses cannot stand because it was not reduced to present value. (Fox v. Pacific Southwest Airlines (1982) 133 Cal.App.3d 565, 569–570 [award of future damages must be reduced to its present value].) DWP acknowledges that it never requested the trial court to instruct the jury to discount its award to present value, or the manner in which the jury was to calculate present value. Instead, DWP argues that it was respondent’s burden to propose such an instruction as part of his burden of proving each element of his claim, and that failing to do so, the trial court was obligated to sua sponte issue such an instruction.
Once again, there is no merit to DWP’s argument. As explained by our Supreme Court in Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121: “‘“‘In a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion.’ [Citations.]” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 950–951.) Neither a trial court nor a reviewing court in a civil action is obligated to seek out theories plaintiff might have advanced, or to articulate for him that which he has left unspoken.’ (Finn v. G. D. Searle & Co. (1984) 35 Cal.3d 691, 701–702.).... ‘Where, as here, “the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed.” [Citations.]’ (Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 520.) Plaintiff’s failure to request any different instructions means he may not argue on appeal the trial court should have instructed differently. (Agarwal v. Johnson, supra, at p. 951; Conservatorship of Gregory, supra, at pp. 520–521.)” (Metcalf v. County of San Joaquin, supra, at pp. 1130–1131.)
Because DWP did not request or propose a more specific or complete instruction on the measure of future medical expenses, or an instruction explaining to the jury how to calculate the present value of these future losses, DWP has forfeited its claim of error based on the omission of such instructions.
In any event, the state of the evidence and the jury’s verdict indicates that the award for future medical expenses is based on the present costs associated with the treatment respondent will require. Dr. Tauber testified that the surgical procedure (laminectomy and fusion) “is well over $100,000, probably closer to $120,000 to $130,000, ” and that “the cost of the rhizotomy, you’re dealing with 8–to $10,000 per time.... and I’ve seen expenses higher than that....” Dr. Tauber was clearly speaking in present value terms. The reasonable inference is that the jury understood that it was arriving at an amount in current dollars.
DISPOSITION
The judgment is affirmed. Respondent is awarded his costs on appeal.
We concur: BOREN, P. J., CHAVEZJ, J.