Opinion
A100079.
10-24-2003
PATRICIA GALL, Plaintiff and Appellant, v. HEART CONSCIOUSNESS CHURCH, INC., Defendant and Respondent.
Appellant brought this action for personal injuries against respondent Heart Consciousness Church, Inc., the owner of the trailer she occupied, after she fell from its roof. A jury found respondent was negligent, but it also found that appellant was herself 90 percent negligent. Appellant contends the evidence was insufficient to support the jurys finding as to her negligence, and the trial court should have applied the "rescue doctrine" to bar any consideration of negligence on her part. These arguments are without merit, and the judgment will be affirmed.
I. FACTS AND PROCEDURAL HISTORY
Appellant was a tenant at Harbin Hot Springs, which is owned and operated by respondent. She resided in a trailer, which was also owned by respondent, on the hot springs property. On the morning of November 8, 1999, after an evening of rain, appellant discovered water coming through the ceiling of the trailer into her bedroom. She reported this to the respondents maintenance manager, who sent out handyman Jim Morby to spread "visqueen" plastic sheeting on the roof as a temporary repair. After inspecting the roof, however, Morby decided such a temporary patch would not be effective since it had been tried before on this particular roof. He instead proceeded to apply tar paper that afternoon.
As he was applying the tar paper, Morby told appellant twice not to come up onto the roof. She came up to assist him anyway. While on the roof, appellant talked on her cordless telephone to a friend, who likewise advised her to get down. Appellant also called her boyfriend, Khristoph Schaub, during which conversation she started crying. Morby and appellant were very good friends, and he tried to comfort her.
As appellant was on her knees applying tar paper to the roof, Morby approached the edge of the roof. In applying the tar paper, he stepped too close to the edge and fell off. Morby testified that he simply fell, and appellant then fell also. She did not hold out her hand to rescue him: "Q. Okay. What — and did Ms. Gall hold out her arm for you to grab ahold of? [& para;] A. No." Morby also testified he did not grab for appellant as he fell: "Q. You told Mr. Massa that you do not know exactly what [appellant] did at the moment that you started to go off the roof; do you know whether you grabbed for her? [¶] A. I did not. [¶] Q. Okay. So youre sure about that? [¶] A. Yes."
On the other hand, appellant recounted that while she was on her knees laying tar paper, she cried out in surprise when she saw Morby near the edge. She put out her left arm and Morby grabbed it: "I saw where he stepped . . . . his heels were hanging out past the edge of the roofing that was hanging over the edge. [¶] So when I saw that, I said, oh, my God, Jim. . . . And [s]o I put my arm out and started to get up. And he was going like this, and he grabbed my arm, and catapulted me off the roof." Appellant was seriously injured from the fall.
At the close of evidence appellant moved for a directed verdict in which she sought to preclude the jury from considering the issue of her own negligence, on the grounds that appellant was assertedly trying to rescue Morby when she fell. The trial court denied her motion. Appellant had submitted jury instructions covering the rescue doctrine. However, after the motion was denied, appellant withdrew her request that these instructions be given.
The jury found that respondent was negligent, assessing aggregate damages of $454,062.36. However, the jury by special verdict also found appellant was herself 90 percent negligent, and damages were therefore assessed in the amount of $45,406.24.
II. DISCUSSION
A. THERE IS SUBSTANTIAL EVIDENCE OF APPELLANTS OWN NEGLIGENCE.
Appellant first maintains that the jurys special verdict on the issue of her own negligence is not supported by substantial evidence.
In reviewing the propriety of a jury verdict, we do not resolve factual issues de novo, as appellant invites us to do. When an appellate court is resolving attacks on the sufficiency of the showing made in the trial court, the reviewing court must consider the entire record to determine if substantial evidence supports the verdict. (See Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874 (Bowers).) We must resolve all conflicts in favor of the respondent, and indulge all legitimate and reasonable inferences to uphold the judgment. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) The resolution of these factual determinations is to be upheld, so long as the record contains substantial evidence to support it. (See Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)
So viewed, the record supports the jurys verdict. The jury could certainly conclude appellant should not have been up on the roof, and that her fall was largely her own fault. For instance, the record shows she had been told not to go up on the roof and not to remain there, and she had been carrying on a distracting conversation on her cell phone while up on the roof. There was also evidence that appellants fall was not caused by Morby, who testified he never touched her. This constitutes substantial evidence the fall may have resulted, at least in part, from appellants own lack of care or inattention. (See Bowers, supra, 150 Cal.App.3d at p. 874.)
B. THE RESCUE DOCTRINE IS NOT APPLICABLE.
Appellant also seeks to avoid the jurys conclusion as to her own negligence by invoking the "rescue" doctrine, i.e., she claims she only fell because she was trying to "rescue" Morby as he was falling. Appellant contends the trial court should have granted her motion for a directed verdict on liability, so as to bar the jurys consideration of her own negligence, because she was assertedly engaged in such a rescue attempt when she fell. (See Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 368 [Although its precise limits are not yet fully developed, the rescue doctrine restricts the defendants ability to raise the issue of contributory negligence in a rescue attempt.]; Bryant v. Glastetter (1995) 32 Cal.App.4th 770, 784 [finding rescue doctrine inapplicable, because there was no rescue]; cf. also Sears v. Morrison (1999) 76 Cal.App.4th 577, 579-580.)
The flaw in appellants contention is that there was only very weak evidence that appellant was trying to "rescue" Morby when she fell. Certainly appellant did not go up on the roof, leaving a place of safety down below, as part of any rescue attempt. She came up to the roof to assist her friend with his work, after having been told not to do so. According to appellant, she extended her left arm—although it was unclear from the record whether this was to help Morby—and Morby then grabbed her arm, so that she was "catapulted" off the roof. Morby by contrast testified that he simply fell, appellant did not put out her hand in an attempt to rescue him, and he did not grab her hand.
In short, while there was some conflicting testimony, appellant did not testify she was attempting to rescue Morby at the time of her fall, and the testimony of Morby was certainly to the contrary. At a minimum, the record contains substantial evidence from which one could conclude there was no rescue attempt. Thus, we conclude the trial court did not err in denying appellants motion for a directed verdict as to this issue. (See Atlas Vegetable Exchange, Inc. v. Bank of America (1970) 10 Cal.App.3d 868, 872-873 [A directed verdict as to negligence liability should not have been granted, because substantial evidence existed to justify a contrary finding by the jury.].)
Finally, we would point out that appellant withdrew her proposed instruction on the rescue doctrine. The question of "rescue" was simply never presented to the jury. She therefore cannot be heard to complain, for the first time on appeal, that the jury should have rejected the defense of her own negligence based on the rescue doctrine, when the jury was never instructed on this topic. (See North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29.)
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P.J. SIMONS, J.