Opinion
A163121
05-24-2022
STEVEN BENSON, Plaintiff and Appellant, v. EVANS AIRPORT SERVICE, INC. et al., Defendants and Respondents.
NOT TO BE PUBLISHED
(Solano County Super. Ct. No. FCS053460)
Miller, J.
Can a driver who was uninjured in a motor vehicle collision recover damages from the driver and owner of the other vehicle for injuries he sustained when, more than a week after the collision, he "misstepped" out of the SUV he had rented while his car was in the shop for repairs? We conclude the answer is no, and will affirm the grant of summary judgment in favor of defendants.
FACTUAL AND PROCEDURAL BACKGROUND
The essential facts of this appeal are undisputed, as reflected in the parties' separate statements of undisputed material facts and responses.
On July 8, 2018, plaintiff Steven Benson was driving a Volkswagen sedan heading eastbound on Interstate 80 when he was in a motor vehicle accident with an MCI bus. The bus was driven by Charlene Marie Haines in the course of her employment with California Wine Tours, Inc. Benson alleged that Haines made an unsafe lane change and caused the accident, and that Benson's car sustained damage that required repair.
Benson did not feel any pain or other symptoms on the day of the accident or in the two to three days following the collision. Sometime after July 8, he took his car in for repair and rented an Infiniti SUV from Enterprise Rent-a-Car so he could have transportation while his car was in the shop. After Benson drove the Infiniti SUV for the afternoon, he decided it was "too large and unwieldy" for him. So Benson drove the Infiniti SUV back to the Enterprise rental agency the next morning (July 17), where he "misstepped" out of the SUV, from about three feet off the ground. In Benson's description, "he thought he was placing his foot on the running board," but "missed the running board due to its location and thus misstepped resulting in hitting the ground hard. As a result of the problem with the placement of the running board, [Benson] misstepped and was injured."
At his deposition, Benson described the damage to his car as a "crushed front bumper, crushed over the wheel, scrapes back beyond the wheel and crushed, but no impact to the wheel . . . [¶] . . . that impacted driving."
Benson filed a complaint for damages against Haines, California Wine Tours, Inc., and Evans Airport Service, Inc., alleging a single cause of action for personal injury. In response to discovery, he claimed injury from the July 8 collision, as follows: "Due to the auto accident, plaintiff was forced to rent a car. As a result, he missed a step coming out causing injury resulting in severe cellulitis and near amputation."
The two business entities were alleged to be the owners of the vehicle, described as a 1999 MCI bus.
Defendants moved for summary judgment on the grounds that Benson's negligence claim failed as a matter of law because he could not establish proximate cause, and therefore causation; and that he could not establish that defendants owed him a duty "in the context of his 'misstep' from the rental vehicle." The trial court granted summary judgment, finding that "undisputed material facts establish that Plaintiff's own conduct was an intervening, superseding cause of the only injury claimed by Plaintiff." The court noted that while the issue of whether an intervening force is superseding is usually for a jury to decide, the issue can be decided as a matter of law "when only one reasonable conclusion may be reached from undisputed facts." (Citing Brewer v. Teano (1995) 40 Cal.App.4th 1024, 1035 (Brewer).) This appeal followed.
The trial court got it exactly right.
DISCUSSION
Summary judgment is proper "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 473c, subd. (c).) A defendant moving for summary judgment "must show that the plaintiff has not established, and reasonably cannot be expected to establish, one or more elements of the cause of action in question." (Patterson v. Domino's Pizza, LLC (2014) 60 Cal.4th 474, 499-500 (Patterson).)
"In reviewing a grant of summary judgment, we independently evaluate the record, liberally construing the evidence supporting the party opposing the motion, and resolving any doubts in his or her favor. [Citation.]" (Patterson, supra, 69 Cal.4th at pp. 499-500.) We may affirm the judgment" 'if it is correct on any theory of law applicable to the case, including but not limited to the theory adopted by the trial court, providing the facts are undisputed.'" (Leyva v. Crockett & Co., Inc. (2017) 7 Cal.App.5th 1105, 1108.)
I.
Benson's argument boils down to this: "What could be a more foreseeable act than renting a car following damage to a vehicle? The question is: Did the Respondent's conduct put Appellant in a position to be damaged further? Here, the only answer is YES. Accordingly, the judgment must be reversed."
And he elaborates: "To reiterate, Appellant would never have rented a car but for the Respondent's negligence." Benson argues, "[h]ere, it is not that [Benson] made a misstep on a running board or that his foot slipped off the brake pedal, it's that he was injured as a result of unfamiliarity with a vehicle that was configured differently."
Benson contends that the trial court was "misled by a blend of Tort concepts and theory which lead to confusion." Benson's abbreviated analysis is that respondents' conduct was a "cause in fact" of Benson's injury, and "superseding cause plays no role" because there is no third party. He continues, "[a]s a general rule, the issue of foreseeability and proximate cause are questions of fact," and "[f]or that reason alone, the judgment should be reversed."
II.
The elements of a negligence cause of action are" '" 'a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.'" '" (Novak v. Continental Tire North America (2018) 22 Cal.App.5th 189, 195 (Novak).)
As Witkin explains, "Where, subsequent to the defendant's negligent act, an independent intervening force actively operates to produce the injury, the chain of causation may be broken. It is usually said that if the risk of injury might have been reasonably foreseen, the defendant is liable, but that if the independent intervening act is highly unusual or extraordinary, not reasonably likely to happen and hence not foreseeable, it is a superseding cause and the defendant is not liable. [Citations.] [¶] In Premo v. Grigg (1965) 237 Cal.App.2d 192, the court quoted Prosser: 'The virtually unanimous agreement that the liability must be limited to cover only those intervening causes which lie within the scope of foreseeable risk, or have at least some reasonable connection with it, is based upon a recognition of the fact that the independent causes which may intervene to change the situation created by the defendant are infinite, and that as a practical matter responsibility simply cannot be carried to such lengths.' (237 Cal.App.2d. 197.)" (6 Witkin, Summary of Cal. Law (11th ed. 2021) Torts, § 1348, pp. 656-657.)
The court in Brewer, supra, 40 Cal.App.4th 1024, aptly stated that causation in negligence cases is "not determined by a linear projection from a 'but for' premise. Instead, it is expressed in terms of 'foreseeability' and is limited by the policy that cause must be 'proximate.' The problem is complex, and has bedeviled many." (Id. at p. 1030.)
Here, as in Brewer, determining foreseeability involves the "interplay of intervening and supervening causes." (Brewer, supra, 40 Cal.App.4th at p. 1030.) As Brewer explains, relying on the Restatement Second of Torts," '[a]n intervening force is one which actively operates in producing harm to another after the actor's negligent act or omission has been committed.' (Rest. 2d Torts, § 441, subd. (1).) . . . Whether it prevents an actor's antecedent negligence from being a legal cause of harm to another is determined by other rules (§ 441, subd. (2)), chiefly those governing the related concept of superseding cause.
" 'A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.' . . . (§ 440.) Section 442 sets out six considerations that are important in determining whether an intervening force is superseding, of which three are significant to our analysis.
" '(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence;
" '(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation;
" '(c) the fact that the intervening force is operating independently of any situation created by the actor's negligence, or, on the other hand, is or is not a normal result of such a situation.' (Italics added.)" (Brewer, supra, 40 Cal.App.4th at pp. 1030-1031.)
Finally, Brewer notes that "[i]n many cases, the issue whether an intervening force is superseding or not is a question of fact for the jury to decide. But, like proximate cause generally, it is a matter of law where only one reasonable conclusion may be reached." (Brewer, supra, 40 Cal.App.4th at p. 1035.)
For example, in Novak, supra, 22 Cal.App.5th 189, our colleagues in Division Three considered the issue of causation in affirming summary judgment for defendant in a wrongful death action resulting from negligence. In Novak, plaintiff's decedent (his daughter) contended that defendants' failure to warn about the dangers of rubber degradation in old tires led to a tire blowout in 2005 that injured her father, and that his injuries required him to use a motorized scooter with limited maneuverability, and led to his death in 2011 when his scooter was struck by a vehicle in a crosswalk. The Court of Appeal found that the causal connection between defendants' initial conduct, which allegedly caused the 2005 accident, and the injury suffered in the 2011 accident was too tenuous as a matter of law; there was "in the words of Prosser, no 'reasonable connection between the original negligence and its consequences, between the harm threatened and the harm done.'" (Id. at pp. 199-200.)
Here, that Benson would misstep out of an SUV at the rental agency and allegedly severely injure his leg was not a reasonably foreseeable consequence of the vehicle collision that had taken place more than a week earlier. The driver's unsafe lane change and any dangerous condition it created at the scene of the accident on Interstate 80, were long over.
The Restatement factors confirm this conclusion. Benson claimed "cellulitis and near amputation" after stepping out of the SUV, although he had suffered no injury in the collision with the bus. His misstep was an "extraordinary rather than normal" consequence of the bus driver's unsafe lane change that caused a collision the previous week. The misstep was entirely independent of the collision. Indeed, Benson emphasizes in his reply brief that the "cause of the misstep" was "[t]he configuration and size of the rental vehicle and [his] inability to successfully negotiate it," thus effectively conceding intervening cause by implicating the design of the SUV itself. In sum, although it may have been foreseeable that Benson would seek alternative transportation while his car was being repaired and that he might rent a car, it is unreasonable as a matter of law to conclude that respondents are liable for injury theorized by Benson to result from his renting a vehicle that was too big for him (and perhaps poorly designed) and misstepping while exiting the vehicle.
In the course of his argument, Benson asserts that "[t]here is no 3rdparty. Accordingly, Respondent is liable as a matter of law." Benson's only authority for this proposition is a form jury instruction (CACI No. 432) entitled "Affirmative Defense - Causation: Third-Party Conduct as Superseding Cause." This simplistic approach cannot withstand scrutiny. Benson does not take into account the legal consequences of his own conduct. To paraphrase Witkin, where "subsequent to [respondent driver's] negligent act [on July 8], an independent intervening force [Benson's misstep out of the SUV] actively operates to produce the injury [cellulitis and near amputation], the chain of causation may be broken." (6 Witkin, Summary of Cal. Law, supra, § 1348, p. 656.) And where, as here, the independent intervening act [Benson's misstep out of the SUV at a rental agency] is "highly unusual or extraordinary, not reasonably likely to happen and hence not foreseeable, it is a superseding cause and the defendant is not liable." (Ibid.; see also Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1022 [" '[T]he defense of "superseding cause[]". . . absolves a tortfeasor, even though his conduct was a substantial contributing factor, when an independent event [subsequently] intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible.' (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573, fn. 9.)"].)
Finally, the handful of cases that Benson relies on are distinguishable from the facts in this case. For example, in two of those cases, Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49 (Bigbee) and Jackson v. Ryder Truck Rental (1993) 16 Cal.App.4th 1830 (Jackson), summary judgments were reversed on appeal where, as Benson characterizes it, "the subsequent personal injury arose from Defendants' neglect in dealing with or creating a problem with property," which he contends is "the same circumstance here," but with personal injury.
In Bigbee, the plaintiff was severely injured when a car crashed into the enclosed telephone booth in which he was standing, located in a parking lot 15 feet from the side of a major thoroughfare and near a driveway close to a highly trafficked boulevard. The telephone booth door jammed and stuck and trapped plaintiff inside. In addition to suing the driver and the companies alleged to be responsible for selling the driver alcoholic beverages, Bigbee sued the companies responsible for the design, location, installation and maintenance of the phone booth. Defendants moved for summary judgment arguing they had no duty to protect a phone booth user from the risk of a car veering off the street and crashing into a phone booth, and that the driver's intervening negligent driving was a "superseding cause" of plaintiff's injuries. Viewing both contentions as raising the same questions as to whether the risk that a car might crash into the phone booth and injure plaintiff was reasonably foreseeable, our Supreme Court concluded that foreseeability remained a triable issue, particularly where there was evidence that a phone booth in the same location had previously been struck. (Bigbee, supra, 34 Cal.3d 49, 56, 58.) In so holding, the Supreme Court found other courts considering cases with similar facts had reached the same conclusion, even citing an American Law Reports annotation on the liability of telephone companies for injury resulting from the condition or location of telephone booths. (Id. at p. 59.) The Bigbee court observed that the injury was not unforeseeable as a matter of law, and "in light of the circumstances of modern life, it seems evident that a jury could reasonably find that defendants should have foreseen the possibility of the very accident which actually occurred here. Swift traffic on a major thoroughfare late at night is to be expected. Regrettably, so too are intoxicated drivers. [Citation.] Moreover it is not uncommon for speeding and/or intoxicated drivers to lose control of their cars and crash into poles, buildings, or whatever else may be standing alongside the road they travel . . . ." (Id. at p. 58.) None of these observations can be made about the foreseeability of a driver misstepping from a rented SUV 10 days after a non-injury vehicle collision.
In Jackson, a negligent wrongful death action, the driver of a service truck (Jackson) pulled over to the side of the highway in the dark, got out of the truck, and was then struck and seriously injured by a driver who may have fallen asleep at the wheel. The service truck had a history of many problems with its electrical system, problems that had been reported to Ryder Truck Rental, which had exclusive responsibility with Jackson's employer to inspect, maintain, service and repair the employer's service vehicles. The trial court granted Ryder's motion for summary judgment, finding its negligence was not the proximate cause of the accident. Reversing the trial court and following Bigbee on the "question of foreseeability," the Court of Appeal held that "as in Bigbee, the defendant is alleged to have negligently placed the victim in a position in which he was exposed to the danger of an intoxicated or otherwise out-of-control driver veering off course on a highway in darkness and crashing into whatever lay in her path." (Jackson, supra, 16 Cal.App.4th at pp. 1039-1840.) In Jackson, Ryder had a duty of care to plaintiff with respect to the condition of the truck that was involved in the accident, and it could not be said as a matter of law that the driver's negligence was an intervening and superseding cause which cut off liability for Ryder. (Id. at p. 1848.) None of these observations can be made about respondents foreseeably placing Benson in a position of danger at a rental car agency.
Benson also relies on Hastie v. Handeland (1969) 274 Cal.App.2d 599, a completely inapposite wrongful death case involving a decedent with preexisting medical conditions who suffered aggravating injuries in a car accident, received treatment, had surgery, and eventually died. In reversing a judgment entered on a directed verdict in a wrongful death action, the Court of Appeal cited the "applicable rule" in section 457, Restatement Second of the Law of Torts that if the" 'negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or negligent manner.'" (Hastie at p. 605.) To state the applicable rule in Hastie demonstrates its complete inapplicability to Benson's case where there was no bodily injury and there is no third party negligence from a medical treater or anyone else.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: STEWART, ACTING P.J. MAYFIELD, J. [*]
[*] Judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.