Opinion
B223999
08-16-2011
ROBERT CHRISTOPHER et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, Defendant and Appellant; RESIDENCE MUTUAL INSURANCE COMPANY, Intervener and Respondent.
Carmen A. Trutanich, City Attorney, Amy Jo Field and Blithe S. Bock, Deputy City Attorneys for Defendant and Appellant. Geragos & Geragos, Shelley Kaufman and Pat Harris for Plaintiffs and Respondents Robert Christopher and Patricia Freiling. Brown, Brown & Klass, Delos E. Brown and John J. Stumreiter for Intervener and Respondent Residence Mutual Insurance Company.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC399524)
APPEAL from a judgment of the Superior Court of Los Angeles County, Conrad Aragon, Judge. Affirmed.
Carmen A. Trutanich, City Attorney, Amy Jo Field and Blithe S. Bock, Deputy City Attorneys for Defendant and Appellant.
Geragos & Geragos, Shelley Kaufman and Pat Harris for Plaintiffs and Respondents Robert Christopher and Patricia Freiling.
Brown, Brown & Klass, Delos E. Brown and John J. Stumreiter for Intervener and Respondent Residence Mutual Insurance Company.
In January 2008, respondents Robert Christopher and Patricia Freiling were injured when a dump truck hauling dirt for a nearby construction project toppled and slid into their home. The loaded truck caused an explosion and fire that destroyed a significant portion of the house and its contents. After a jury trial, respondents obtained recovery against multiple defendants, including appellant City of Los Angeles (the City). Their claim against the City was based on the dangerous condition of public property -- the steep and narrow street on which the truck was driving ending in a "T" intersection and requiring a sharp turn to navigate. Their recovery included damages for emotional distress. On appeal, the City contends substantial evidence did not support the jury's finding that the dangerous condition was a substantial cause of respondents' injuries and that the trial court abused its discretion in failing to utilize a special verdict. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
Several months after the incident, Christopher and Freiling filed a lawsuit. They raised a claim of negligence against the truck driver, Alfredo Medina, his employer, Jose Antonio Salmeron, doing business as Akantinflaso Trucking (jointly referred to as the Trucking Defendants), and Temple Hill Investments, LLC (Temple Hill), the legal entity behind the construction project. The complaint included a claim against the City for a dangerous condition of public property.Prior to trial, the Trucking Defendants admitted liability.
The defendants cross-claimed against each other. Respondent Residence Mutual Insurance Company (Residence Mutual), Christopher's homeowner insurer, intervened to recover sums expended under its policy and to enforce an equitable lien.
Separate claims in the complaint for trespass and negligent infliction of emotional distress were dismissed at trial or merged into other claims.
B. Evidence at Trial
Respondent Christopher owned a home on Alcyona Drive in the Hollywood Hills, where he lived with respondent Freiling. At the time of the incident, Christopher was 86; Freiling was 61. Their home was located near the junction where Primrose Avenue dead-ended and curved into Alcyona. Both Primrose and Alcyona were narrow streets. Primrose had a steep grade -- 13 percent. The transition between Primrose and Alcyona was at nearly a 90-degree angle. There was no stop sign on Primrose at Alcyona, nor any traffic signs indicating a sharp curve or dictating a slow speed zone.
On January 17, 2008, Medina was driving west down Primrose toward Alcyona, hauling a load of dirt from a nearby home construction site. The route had been chosen by Salmeron and Julian Sahagun, the owner of Temple Hill. The truck was a "super 10" dump truck. It had 12 wheels, was 33 feet long, and held 15 tons or eight to ten cubic yards of dirt. Akantinflaso was hauling two or three loads per day and had been involved in the project since sometime in December.
The trucks used Primrose and Alcyona to leave the area after being loaded. They used Gower Street, a bigger road, to get to the construction site. When asked why they did not use the same route going out as when they went in, Salmeron explained that the trucks were too big to turn around. When asked why they did not reverse the route and use Gower on the way out after being loaded, Salmeron explained the trucks could not make the sharp turn from Primrose to Alcyona when they were unloaded due to the lack of traction. When asked why he did not implement an alternate route which would have taken the trucks east (left) on Primrose and back to Gower, Salmeron stated that the turn was "too sharp for a big truck."
Salmeron's trucks continued to haul dirt from the construction site after the incident. The project required 100 to 150 trips in all.
At the time of the incident, Medina was coming down Primrose, attempting to turn right onto Alcyona. The truck fell on its side and slid into Christopher's home. When the truck struck, Christopher and Freiling were in the dining room located in the back of the house. They heard a crash "the worst noise [Freiling] had ever heard in [her] life." Smoke and flames began to spread through the house. They tried to flee, but the door nearest them had been damaged by the impact and was jammed shut. They tried another door, which was also stuck fast. They yelled for help, but no one heard them. After 15 or 20 minutes of pounding on a sliding door, they were able to dislodge it enough to create a narrow opening through which they could escape. By the time they got out, the fire department had arrived and was putting out the fire.
Christopher hurt his back while pushing and pulling on doors and windows in the attempt to escape. Freiling chipped a tooth and re-injured a previously broken wrist. After the incident, Christopher fell into a deep depression for seven or eight months. He rarely left the house the couple had rented in the aftermath of the incident. He had difficulty sleeping. Freiling felt fearful and unsafe, even in the couple's new home. She would "never forget" the noise of the collision.
Respondents presented evidence concerning other accidents that had occurred at or near the location when vehicles coming down Primrose had failed to successfully navigate the turn onto Alcyona. Christopher testified that when he first moved to the area years earlier, a car attempting to turn the corner knocked down a brick wall and a fence in front of his home. Similar incidents had occurred four to seven times over the years. In an effort to protect his home, Christopher planted trees and installed cement cylinders. Approximately 30 years prior to the incident, the City put in a guardrail. A year or two earlier, a car had come through the guardrail and hit one of Christopher's trees. He called the City many times to repair the guardrail. He also talked to his councilman's office, asking for a warning sign or stop sign.
Respondents presented two documents from the files of the City's Bureau of Street Services. The first, dated July 2004, indicated that there had been a request from Christopher's neighbor to repair the curb and guardrail, which had reportedly been "hit by a truck." The second, dated May 2006, indicated that there had been a request from Christopher to repair the curb and guardrail because it had been hit and damaged by a car.
Terrence Brown, who lived across the street from Christopher, testified that a similar accident had occurred a year earlier. In May 2006, a car coming down the hill on Primrose went out of control, bounced off the guardrail and the trees on Christopher's property, and hit a wall on Brown's property, breaking his water main. Tamara Hoffman, who lived next door to Christopher, testified that in late 2007 or early 2008, a truck hauling dirt hit the corner of her house. A neighbor who lived on Primrose, Frank Sinatra, recalled that some years earlier, the house next door to Christopher's located directly where Primrose intersected with Alcyona -- had been hit by a Bekins truck coming down the hill. Sinatra testified that he had called the City and the police many times in connection with incidents at the intersection.
Sinatra also testified that he saw the Akantinflaso trucks going down Primrose several times a day prior to the incident.
Although Medina (the driver) was not called to testify, several witnesses testified concerning their observations at the time of the accident and afterward. Brown heard the crash and called 911. He did not recall hearing the sound of braking. He looked out his window and saw the truck turned on its side, essentially on top of the front portion of Christopher's home. A fire had broken out. David Suh, a collision investigator for the Los Angeles Police Department, arrived at the scene and saw the truck on its side with the front part of the house collapsed around it. He explained that the explosion was the result of the truck hitting the house's gas line. After completing his investigation, Suh concluded that the truck had slid into the house. He attributed fault to the driver. Salmeron, asked by the court whether he knew the cause of the accident, stated that the driver attempted to blame it on the truck's brakes but that accident investigators determined the driver had been negligent and that the accident had not been caused by a brake problem.
Respondents' counsel sought to read into evidence the portion of Medina's deposition at which he testified concerning the speed he was driving when he attempted to make the turn onto Alcyona. Counsel for the Trucking Defendants objected on the ground of relevance, pointing out his clients had stipulated to liability. Respondents' counsel represented that the evidence would show that Medina was driving fairly slowly and contended that the evidence would support his clients' dangerous condition claim against the City. The court sustained the objection on the ground of relevance. Counsel for respondents asked if the defendants would be permitted to argue that Medina was speeding. The court stated that Medina's speed was irrelevant and that it would instruct the jurors they were not required to determine what specific conduct of Medina constituted negligence.
Pictures were presented to the jury depicting the house and the truck after the accident. Some of the pictures showed the truck's tire tracks. In addition, the jury was shown a video recording of the route used by the truck, including the hill and the sharp turn.
After the close of evidence, the City moved for a nonsuit, contending that because no expert witness had testified to define the dangerous condition or explain how it contributed to the accident, there was "no evidence of what the dangerous condition [was]" and there could be no finding of culpability on the City's part. The court asked the City's counsel "[w]hy [it was] not a question of fact for a jury to say that a steep hill terminating in a „T' intersection is not [sic] a dangerous condition of public property?" The court stated there was no reason a lay person could not ascertain a dangerous condition. Noting that the jury had been shown visual evidence of conditions at the location of the accident, the court further stated that a juror might reasonably say "if I was driving this roadway, I think that even if I were being reasonably careful and using due [care], [I] still might have an accident because it's dangerous to come down a steep hill and be met with a very sharp angle."
C. Jury Instructions
The jury was given the standard instruction (based on CACI No. 1100) on dangerous conditions of public property: "Plaintiffs claim that they were harmed by a dangerous condition of the City's property. To establish this claim, plaintiffs must prove all of the following: [¶] 1. That the property was in a dangerous condition at the time of the incident; [¶] 2. That the dangerous condition created a reasonably foreseeable risk of the kind of incident that occurred; [¶] 3. That the City had notice of the dangerous condition for a long enough time to have protected against it; [¶] 4. That plaintiffs were harmed; and [¶] 5. That the dangerous condition was a substantial factor in causing plaintiffs' harm."
"Dangerous condition" was defined, pursuant to CACI No. 1102, as "a condition of public property that creates a substantial risk of injury to members of the general public who are using the property with reasonable care and in a reasonably foreseeable manner. A condition that creates only a minor risk of injury is not a dangerous condition."
The jury was told that respondents were seeking both economic and noneconomic damages. With respect to noneconomic damages, the jury was given the following instruction based on CACI No. 3905A: "The following are the specific items of noneconomic damages claimed by Christopher and Freiling: [¶] Past and future physical pain/mental suffering, loss of enjoyment of life, inconvenience, grief, anxiety, humiliation, emotional distress. [¶] To recover for future pain/mental suffering, loss of enjoyment of life, inconvenience, grief, anxiety, humiliation, emotional distress, Christopher and Freiling must prove that they are reasonably certain to suffer that harm. [¶] No fixed standard exists for deciding the amount of these damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense. [¶] For future pain/mental suffering, loss of enjoyment of life, inconvenience, grief, anxiety, humiliation, emotional distress, determine the amount in current dollars paid at the time of judgment that will compensate Christopher and Freiling for future pain/mental suffering, loss of enjoyment of life, inconvenience, grief, anxiety, humiliation, emotional distress[.] This amount should not be further reduced to present cash value."
Residence Mutual, joined by the other defendants, asked the court to instruct the jury that a plaintiff could not recover for emotional distress based on loss of property. The instruction was refused. The court later explained that the instruction was unnecessary because "nobody was claiming emotional distress for property loss." The City does not assign error to this ruling.
D. Verdict Form
The City asked the court to give the jury a special verdict on dangerous condition containing three questions: (1) "[W]as the condition dangerous?" (2) "Did it create a reasonabl[y] foreseeable risk?" (3) "[W]as the dangerous condition a substantial factor?" Counsel argued that unless the court provided a special verdict with these interrogatories the City would be "denied having a decision that [the location] may be dangerous but it didn't cause [the incident]." The court rejected that proposition, explaining: "The instructions are going to guide the jury[;] . . . if the instructions aren't clear enough to guide the jury's verdict, then there's something wrong with the instructions." The court gave the jury a verdict form which asked the jury to find in favor of or against respondents on their claims for negligence and dangerous condition and, if it found in favor, to then determine economic and noneconomic damages separately for Christopher and Freiling.
E. Pertinent Argument
In closing, counsel for respondents urged the jury to award damages for emotional distress based on the evidence that Christopher and Freiling were trapped in their home following a horrific explosion, threatened by rapidly spreading smoke and flames, frantically trying to pry open a door to escape, and fearing they were going to die. He noted that upon their escape, their trauma was exacerbated by watching their personal possessions burn.
With respect to the dangerous condition, counsel focused on the evidence concerning the steep slope of Primrose, the sharp, nearly 90-degree turn onto Alcyona, the size and weight of the truck, the number of previous accidents at that location -- particularly the car that had struck Christopher's wall and trees a year earlier -- and the number of complaints the City had received. With respect to the element of causation, counsel stated: "We know the truck came down . . . a dangerous hill with a sharp turn and overturned" and argued that it was obvious the dangerous condition was "a substantial factor." He asked the jury to award $940,000 in economic damages to Christopher. He asked for awards of non-economic damages of $1.2 million for Christopher and $1.5 million for Freiling. He recommended the jury allocate 45 percent of the responsibility to the Trucking Defendants; 30 percent to the City; and 15 percent to Temple Hill.
In closing, counsel for the City argued primarily that there was no dangerous condition because the hill and intersection were not dangerous if driven with due care, and that respondents' injuries were attributable solely to the negligence of the truck driver. He contended at one point that respondents were seeking emotional distress damages for "a property loss that can be repaired." Counsel for respondents objected to that characterization of his argument; the objection was overruled.
In discussions with counsel outside the presence of the jury, the court opined that the argument of respondent's counsel was not as characterized by counsel for the City: "[H]e [respondents' counsel] never once said that either plaintiff was distressed emotionally or upset emotionally because of the loss of property. What he did say, . . . was . . . that every time they saw their property they were reminded of the incident." The court then cautioned respondents' counsel not to suggest in his final summation "that [respondents'] emotional distress stems from witnessing the loss of property or, the loss of property." Respondents' counsel complied.
E. Verdict/Judgment
The jury found in favor of respondents on both negligence (with respect to Temple Hill) and dangerous condition of public property (with respect to the City). They awarded Christopher $600,000 for economic damages. They awarded Freiling $75,000 for economic damages. They awarded respondents $280,000 each for noneconomic damages/emotional distress. The jury allocated liability as follows: to the Trucking Defendants, 45 percent; to Temple Hill, 30 percent; to the City, 25 percent.
Judgment was entered jointly and severally against all defendants for the $675,000 in economic damages awarded. Noneconomic damages were allocated as follows: the Trucking Defendants: $126,000 each to Christopher and Freiling; Temple Hill: $84,000 each to Christopher and Freiling; the City: $70,000 each to Christopher and Freiling.
DISCUSSION
A. Causation
1. Substantial Evidence
"A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute. ([Gov. Code,] § 815.) [Government Code] [s]ection 835 is the sole statutory basis for a claim imposing liability on a public entity based on the condition of public property. [Citation.]" (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 438.) Under Government Code section 835, the plaintiff must prove the following elements: "[T]hat 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 forseeable risk of the kind of injury which was incurred, and 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 [defining actual and constructive notice] a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." (Gov. Code, § 835; Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129.)
"Dangerous condition" is defined in Government Code section 830 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." "'Protect against' includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition." (Gov. Code, § 830, subd. (b).)
Pointing out that neither the driver nor any eyewitness to the truck's impact with the house testified at trial, the City contends that "nothing in the record shows that the supposed [dangerous condition] in fact, had anything to do with the accident" and that, therefore, substantial evidence did not support the jury's finding that the injury to respondents was proximately caused by the dangerous condition. We disagree.
To establish causation, the plaintiff must present evidence that "the defendant's conduct was a 'substantial factor' in bringing about his or her harm." (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 312, quoting Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752.) "When a party contends insufficient evidence supports a jury verdict, we apply the substantial evidence standard of review. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1188.) A party contending the evidence was insufficient to establish causation or any other element of the plaintiff's claim on which the jury made a favorable finding "'assumes a "daunting burden."'" (Id. at p. 1188, quoting Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 678.) "'"[T]he power of [the] appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the [verdict]." [Citations.]'" (Wilson v. County of Orange, supra, at p. 1188, italics deleted, quoting Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503.) "We must '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 . . . .'" (Wilson v. County of Orange, supra, at p. 1188, quoting Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) "The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633, italics deleted.)
A plaintiff need not establish his or her claim entirely by direct evidence. "[S]ubstantial evidence may consist of inferences." (Kuhn v. Department of General Services, supra, 22 Cal.App.4th at p. 1633.) "If reason and logic admit an inference to be drawn of the existence of the material facts in issue, the proponent has adduced sufficient evidence to present his [or her] case to the jury." (Dimond v. Caterpillar Tractor Co. (1976) 65 Cal.App.3d 173, 181.) The plaintiff "'must show that the inferences favorable to [him or her] are more reasonable or probable than those against [him or her].'" (Bowman v. Wyatt, supra, 186 Cal.App.4th at p. 312, quoting Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483.) "[I]nferences that are the result of mere speculation or conjecture cannot support a finding." (Kuhn v. Department of General Services, supra, at p. 1633.) However, "[w]here an inference has support in established facts and is a reasonable deduction or extension of that evidence, it cannot be condemned as speculative." (Dimond v. Caterpillar Tractor Co., supra, 65 Cal.App.3d at pp. 184-185.)
The City first notes that no witness testified to having seen the truck driving on Primrose or attempting the turn onto Alcyona prior to the collision. No eyewitness to the truck's route was necessary; the jury was able to draw the necessary inferences from the evidence presented. Salmeron's testimony established not only that the drivers of the loaded trucks had been directed to go west on Primrose and right on Alcyona, but that this was the only route his trucks were physically able to take. Sinatra testified that he had observed numerous Akantinflaso trucks passing by his house on that route prior to the incident. That the truck came to rest on its side embedded into Christopher's home can only be explained by the driver's losing control on the turn from Primrose to Alcyona. There can be no serious dispute that the truck had been proceeding down Primrose or that it toppled over after unsuccessfully attempting to turn onto Alcyona.
The City further contends that because "no [witness] ever took the time to explain to the jury how the crash occurred," that there was "no evidence from which anyone could conclude that the hill played a role." The evidence amply supported respondents' theory that the dangerous condition of the intersection -the narrowness and steepness of Primrose, ending in a "T" and requiring a sharp turn onto Alcyona -- when combined with the foreseeable presence of large trucks hauling heavy loads was a substantial factor in causing their injuries. Several witnesses testified that the grade on Primrose was steep and the turn onto Alcyona very sharp, facts which were confirmed by the video recording shown to the jury. Numerous witnesses testified to seeing the truck on its side in the immediate aftermath of the collision, having slid into the front of Christopher's home. Numerous witnesses also testified to observing other drivers lose control of their vehicles at that location. No expert witness was needed to explain that a large truck driving down a steep road and making a sharp turn from one narrow street to another could fall over. Any person familiar with driving a motorized vehicle, basic physics and the law of gravity could make the necessary connection. Jurors are permitted to "draw upon their own experience to determine the proper inferences to be deduced insofar as matters within the realm of common experience are concerned." (Spolter v. Four-Wheel Brake Serv. Co. (1950) 99 Cal.App.2d 690, 694-695 [noting that "the ownership and operation of automobiles has become an almost indispensable commonplace of our normal life"]; see also Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 720 ["in evaluating the evidence and applying the definition of 'dangerous condition' contained in the judge's instructions," jurors were "free to draw upon their own common driving experiences"].) The evidence, when viewed in light of the average person's experience and knowledge, allowed the jurors to reasonably conclude that in following the route prescribed by Salmeron and Sahagun and attempting to make the difficult turn from Primrose to Alcyona, Medina lost control of the truck, sending it sliding into the front of Christopher's home.
The City cites a number of cases where, unlike here, the necessary inference of causation and culpability could not reasonably have been drawn from the evidence presented. (See, e.g., Bowman v. Wyatt, supra, 186 Cal.App.4th at pp. 310-314 [plaintiff established that city-controlled truck had defective brakes, but not that driver had applied or attempted to apply the brakes prior to hitting plaintiff's motorcycle]; Leslie G. v. Perry & Associates, supra, 43 Cal.App.4th at p. 482-486 [plaintiff could not establish that rape was caused by landlord's failure to repair broken security gate because no evidence established how assailant had gained entry and it was equally plausible he had been admitted by another tenant]; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 776 [where plaintiff's unidentified assailant could have been fellow tenant with key to gates, plaintiff could not establish that landlord's deficient security caused her assault]; Padilla v. Rodas, supra, 160 Cal.App.4th at pp. 752-753 [where side gate to defendants' pool lacked self-latching and self-closing mechanism, but probabilities were "evenly balanced" that child gained entrance to pool from one of two other available doors, plaintiff could not establish that defect in side gate was a substantial factor in causing child's drowning]; Milligan v. Golden Gate Bridge Highway (2004) 120 Cal.App.4th 1, 8-9 [where plaintiff contended bridge's safety railing constituted dangerous condition, plaintiff could not establish causation where it was undisputed that her daughter deliberately climbed over railing to commit suicide].) This is not such a case. Here, respondents presented ample evidence that conditions at the location could cause -- and had caused -- drivers to lose control of their vehicles and damage nearby homes and property. It was reasonable for the jury to infer that Medina had done the same. The City presented no plausible alternative cause. The jurors were free to draw the inference that favored respondents.
The City also attempts to rely on cases that involved not causation but whether a dangerous condition existed. (See, e.g., City of San Diego v. Superior Court (2006) 137 Cal.App.4th 21, 30-31 [where road was straight, level, had few intersections and no sight line obstructions, fact that drivers were encouraged by safeness of conditions to engage in illegal street racing did not support dangerous condition claim]; Avedon v. State of California (2010) 186 Cal.App.4th 1336, 1342-1344 [where plaintiffs whose homes were burnt after individuals built fire inside cave located in state park claimed that State created dangerous condition by allowing public parking within quarter mile of cave and keeping entrance to cave open, court found no defect in cave or vehicular access to support claim]; Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 483-485 [no dangerous condition where engineering study found no need for pedestrian or traffic control, no pedestrian accident had occurred in the location before, visibility was good and high volume of traffic alone was not a contributing factor to plaintiffs' injury].) On appeal, the City does not contest the existence of a dangerous condition.
The City's briefs state that "for all we know" the truck crashed into Christopher's house because "a cat jumped into the driver's path"; "[the driver's] cell phone rang"; "he was speeding" or "[the] brakes . . . failed." None of these alternatives finds support in the evidence. Salmeron testified only that Medina claimed the brakes did not work properly, a claim investigators established was untrue. No one testified the driver was speeding, and the court ruled irrelevant the evidence respondents attempted to introduce concerning his speed. Moreover, assuming the accident occurred under one of the circumstances posited, the City would not be relieved of responsibility. "[I]f the condition of its property creates a substantial risk of injury even when the property is used with due care, the state gains no immunity from liability simply because, in a particular case, the dangerous condition of its property combines with a third party's negligent conduct to inflict injury." (Ducey v. Argo Sales Co., supra, 25 Cal.3d at p. 719.)
2. Special Verdict
As discussed, the City asked the court to give the jury a special verdict containing questions related to the dangerous condition cause of action: (1) "[W]as the condition dangerous?" (2) "Did it create a reasonabl[y] foreseeable risk?" (3) "[W]as the dangerous condition a substantial factor?" Conceding that the decision to utilize a special verdict or give special interrogatories is a matter for the trial court's discretion, the City contends the court abused its discretion in refusing its request. We perceive no error.
No party has a right to a special verdict. "[T]he giving of special interrogatories to the jury is addressed to the sound discretion of the trial judge" and the determination will not be reversed on review "in the absence of a clear abuse of discretion." (Masonite Corp. v. Pacific Gas & Electric Co. (1976) 65 Cal.App.3d 1, 11-12; accord, Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 364.) Moreover, if "[o]ur examination of the evidence along with the applicable legal principles convinces us that all facts necessary to support the general verdict . . . were adequately present" and, as a result, "a favorable answer or answers to the special interrogatories would not have yielded a different or inconsistent general verdict," there is "no cause for reversal." (Masonite Corp v. Pacific Gas v. Electric Co., supra, at p. 11.)
Here, the only issues presented to the jury were Temple Hill's culpability for negligence, the City's culpability for a dangerous condition of public property, and damages. The jury was properly instructed that to find the City liable, it must find: (1) that the property was in a "dangerous condition" at the time of the incident -defined as "a condition . . . that creates a substantial risk of injury to members of the general public who are using the property with reasonable care and in a reasonably foreseeable manner"; (2) that "the dangerous condition created a reasonably foreseeable risk of the kind of incident that occurred"; that (3) "the City had notice of the dangerous condition for a long enough time to have protected against it"; (4) that the plaintiffs were harmed; and (5) that "the dangerous condition was a substantial factor in causing plaintiffs' harm." The City had an opportunity to argue all these points, including whether that the condition and layout of the streets was a dangerous condition or whether it caused respondents' damages. "We presume that the jury followed the instructions it was given." (Red Mountain, LLC v. Fallbrook Public Utility Dist., supra, 143 Cal.App.4th at p. 364.) The jury made its findings pursuant to clear instructions, which were supported by the evidence presented. The special verdict the City requested was not required to aid or guide the jury in its deliberations, and the court's refusal to submit such a verdict form to the jury was not an abuse of discretion.
B. Emotional Distress Damages
The City contends that the verdict form used by the court "forced the jury" to award emotional distress damages based on loss of property. We disagree.
Preliminary, we note that the City did not submit a special verdict form related to the emotional distress damage claimed by respondents. Accordingly, this issue was forfeited. (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 550; see Cal. Rules of Court, rule 3.1580 ["Whenever a party desires special findings by a jury, the party must, before argument, unless otherwise ordered, present to the judge in writing the issues or questions of fact on which the findings are requested, in proper form for submission to the jury, and serve copies on all other parties."].)
As noted, the City joined with respondent Residence Mutual's request for a jury instruction that emotional distress damages were not awardable for property loss. Because the City raises no issue of instructional error, any such claim is forfeited.
Moreover, were we to reach the merits, we would not find reversible error. As we have said, the determination whether to utilize a special verdict is within the discretion of the trial court. The City did not present a proposed special verdict form to the trial court, and does not explain how a special verdict would have guided or aided the jury in resolving the issues related to emotional distress damages. Accordingly, we have no basis for concluding the trial court abused its discretion in using a general verdict.
The City does suggest that respondents were not entitled to any emotional distress damages whatsoever because "[their] emotional distress arose exclusively out of their loss of their home and valuables." Courts have consistently held that emotional distress arising solely out of property damages or economic loss caused by negligence are not recoverable. (See, e.g., Erlich v. Menezes (1999) 21 Cal.4th 543, 554-555; Lubner v. City of Los Angeles (1996) 45 Cal.App.4th 525, 533-534; Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012.) But respondents did not rely on property damage or economic loss to support their emotional distress claim. Respondents testified they were physically hurt by defendants' tortious conduct and placed in fear of imminent death or serious injury. Under the traditional rule, emotional distress damages are recoverable where the plaintiff was in the danger zone and suffered physical injury. (Cook v. Maier (1939) 33 Cal.App.2d 581, 583 [plaintiff's claim could go forward where complaint alleged she was fearful for her safety and suffered physical injury when defendant's automobile collided with objects located near her and caused rocks and parts of a fence to impact her].) Under the modern rule, physical injury is not required, but there must be "some guarantee of genuineness in the circumstances of the case." (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 987-988.) Under that standard, emotional distress damages are recoverable where the plaintiff is placed in reasonable fear of death or serious injury. (Wooden v. Raveling (1998) 61 Cal.App.4th 1035,1036 [applying modern rule and finding emotional distress damages recoverable where collision caused defendant's car to be "propelled, at high speed, onto plaintiff's property 'so that it appeared that [defendant's car] would strike plaintiff" and plaintiff was "'placed in fear of being severely injured or killed by [defendant's car]'".) The plaintiff may also seek damages for the continuing effect of the original trauma. (See Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1067-1068 [amount awarded for emotional distress not excessive where plaintiff suffered "lingering effects from his ordeal" of being falsely accused and arrested].)
Here, it is undisputed that respondents suffered physical injury. Moreover, the circumstances of the case clearly established the genuineness of their claim to have suffered severe emotional distress. Respondents were trapped in their home after a deafening collision, explosion, and fire; they struggled desperately to escape before the fire could reach them, and reasonably feared serious injury or death. Respondents testified both to the trauma they suffered as a result of the incident and to its lingering psychological effects. Their counsel did not ask the jury to award damages for lost property, but sought damages for the immediate impact and ongoing effects of the trauma. The damages awarded -- $280,000 each -- were clearly in line with the emotional distress suffered. There is no basis to reverse the award.
DISPOSITION
The judgment is affirmed. Respondents shall have their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J. We concur: EPSTEIN, P. J. SUZUKAWA, J.