Opinion
F072267
10-23-2018
VICTOR GARAY et al., Plaintiffs and Respondents, v. GREYHOUND LINES, INC., Defendant and Appellant. EMILY MORENO, Plaintiff and Appellant, v. GREYHOUND LINES, INC., Defendant and Appellant.
Lewis Brisbois Bisgaard & Smith, Raul L. Martinez, Dana Alden Fox and Esther P. Holm for Defendant and Appellant Greyhound Lines, Inc. Stuart R. Chandler for Plaintiff and Appellant Emily Moreno. Fowler / Helsel / Vogt, John C. Fowler, Jason A. Helsel and Mark A. Vogt for Plaintiffs and Respondents Victor Garay et al.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10CECG03185)
OPINION
APPEAL from an order of the Superior Court of Fresno County. Donald S. Black, Judge. Lewis Brisbois Bisgaard & Smith, Raul L. Martinez, Dana Alden Fox and Esther P. Holm for Defendant and Appellant Greyhound Lines, Inc. Stuart R. Chandler for Plaintiff and Appellant Emily Moreno. Fowler / Helsel / Vogt, John C. Fowler, Jason A. Helsel and Mark A. Vogt for Plaintiffs and Respondents Victor Garay et al.
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Appellant Greyhound Lines, Inc. (Greyhound) appeals the trial court's decision to order a new trial following a verdict in Greyhound's favor. Respondents, Victor Garay and Olga Lopez Garay, along with Emily Moreno, Jose Gonzalez, Maria Ayda Cordoba, and Sienna Aguilar are family members of Sylvia Garay (Garay), Vanessa Gonzalez (Gonzalez), and Stephanie Cordoba (Cordoba). In July 2010, Garay, Gonzalez, and Cordoba were killed in a collision with a Greyhound bus driven by James Jewett (Jewett). Jewett and two bus passengers also died in the collision. A complex litigation followed, including a multi-week trial to determine any potential responsibility Greyhound had for Garay, Gonzalez, and Cordoba's deaths. The trial ended with a jury verdict answering "no" to the question, "Was Greyhound Lines, Inc. negligent?" The trial court subsequently ordered a new trial, resulting in the present appeal.
Our resolution of the issues raised in this appeal first considers the trial court's factual findings and Greyhound's objections to those findings. There is substantial discretion afforded a trial court judge in granting a new trial motion. Our role on appeal is not to determine the facts themselves, but to review the court's exercise of its discretion. While we take no position on the correctness of the jury's verdict, in our appellate review, we conclude that the factual determinations made by the trial court find support in the record. Thus, we recognize that the trial court could, within the scope of its discretion, determine the Greyhound bus was traveling faster than 65 miles per hour and that Jewett was not wearing his glasses at the time of the collision. We likewise recognize that, accepting the bus was traveling more than 65 miles per hour, the record contains evidence supporting the trial court's conclusion that Greyhound breached its duty of care because Jewett improperly entered and drove in the fast lane of the freeway.
We then consider whether the trial court correctly concluded it did not need to reach the issue of causation. Greyhound argues that the jury necessarily had to consider causation under the negligence per se instructions. The court, however, concluded the jury's failure to reach the issue of causation question on the jury verdict form meant the court should not consider causation issues when ordering a new trial. We ultimately conclude the trial court did not err because its general negligence finding does not require it to consider any specific causation issues determined under the negligence per se instructions.
Accordingly, for the reasons set forth below, we affirm the trial court's order.
FACTUAL AND PROCEDURAL BACKGROUND
The Collision
On July 22, 2010, following a birthday celebration for a friend, Garay, Gonzalez, and Cordoba got into an SUV owned by Garay's family. Garay and Cordoba had alcohol in their system. Gonzalez did not. Who was driving the SUV was a major point of contention in the litigation, but is not relevant to the issues on appeal. The three women travelled north on the 99 freeway in Fresno.
Traveling independently behind the women were three cars containing local DJ's who had finished their gig. Near the McKinley exit, the lead car of this group witnessed the SUV swerve while apparently attempting to exit, lose control, and crash head-on into the center median. The SUV came to rest primarily in the number one (fast) lane, on its side, with its all-black undercarriage facing oncoming traffic. Its lights turned off in the crash. The three cars avoided colliding with the SUV. At least one put their flashers on and called 911. They waited a few minutes, and then left the scene. They did not see any further collisions. Another witness to the initial collision, an IRS custodian, pulled over on the McKinley offramp and put his flashers on. He got out of his car and remained on the scene through the ultimate collision.
Around the same time, a Greyhound bus driven by Jewett was also traveling north on the 99 freeway, heading toward Sacramento. Traveling in front of the bus was a taxi driver named Michael Coupland (Coupland). Both vehicles were traveling in the center lane of the freeway. Coupland was traveling with his cruise control set at 65 miles per hour and, at a point prior to the relevant collision, had put his high beams on. He noticed the bus gaining on him slowly and estimated it was traveling no faster than 70 miles per hour. Near the McKinley exit, Coupland moved to the number three (slow) lane to allow the bus to pass. At the same time Coupland began changing lanes, the bus began moving into the fast lane.
As the bus moved into the fast lane, it collided with the overturned SUV. Coupland testified he did not see the SUV until he was approximately five feet away, as he passed it in the slow lane. Coupland also testified he did not see any other cars around and did not see a vehicle on the side with its flashers on. After striking the SUV, the bus travelled over 400 feet farther down the freeway until it collided with a tree.
Garay, Gonzalez and Cordoba died in the collision as well as Jewett and two others on the bus. The present lawsuit asserted, in part, that Greyhound, through Jewett's actions that night, was negligent in its operation of the bus.
Evidence from the Highway Patrol Reconstruction
California Highway Patrol Sergeant Robert Krider was part of the team that investigated the collision. Sergeant Krider provided extensive testimony on the Highway Patrol's investigation into the cause and its reconstruction of the collision. Based on witness interviews, accident reconstruction efforts, and independent testing, Sergeant Krider testified that Jewett was not at fault in causing the collision.
With respect to the speed of the bus at the time of the collision, Sergeant Krider testified he could not identify a specific speed for the bus. However, he was able to determine that the bus was traveling between 50 and 70 miles per hour and certain braking tests suggested the speed was slightly below 65 miles per hour. Regardless, Sergeant Krider concluded that speed was not a relevant factor in the collision, and that the collision was ultimately unavoidable, because the investigation determined that the SUV was not visible to a driver approaching the scene and, thus, there was insufficient time between when one could identify the SUV and apply the brakes to stop without a collision.
Sergeant Krider reached his conclusions in part through braking and visualization testing done after the collision. In one of these tests, Sergeant Krider placed the overturned SUV back onto the 99 freeway and had 10 people individually ride on a bus looking for the SUV on the road under conditions similar to those the night of the collision. When the SUV was spotted, each person would instruct the bus to stop and the distance from the stopping point to the SUV was measured. The result of this test showed the SUV was visible from 384.6 feet, on average. Sergeant Krider explained that, based on accepted formulas and the results of the braking test, a bus traveling at 65 miles per hour would require 326.66 feet to come to a complete stop. Further, Sergeant Krider explained that, under perfect conditions, a person normally needed 1.5 seconds to recognize and react to a road hazard. This reaction time added another 143 feet to the total stopping distance. However, Sergeant Krider explained that a more realistic response time was in the 2.25 to 2.5 second range, further increasing the distance. Accordingly, while a bus traveling at 55 miles per hour could stop in roughly 230 feet, Sergeant Krider believed the additional probable response time would make a collision unavoidable even at that speed.
For similar reasons Sergeant Krider concluded that any claim Jewett was overdriving his headlights or should have slowed for flashing lights on the side of the road would not have prevented the collision. Sergeant Krider's visibility testing utilized the low beams of the test bus. Sergeant Krider found that factors such as the reduction in visibility from oncoming traffic, the lights being off on the SUV, and the dark portion of the SUV facing oncoming traffic meant that no driver could reasonably expect to see and avoid the SUV regardless of the lighting conditions. In further support of his decision not to test greater light sources, Sergeant Krider noted Coupland's recounting that, even with his high beams on, he was unable to see the SUV on the night of the collision until immediately upon the vehicle. With respect to the presence of flashers, Sergeant Krider believed that flashers on the right side of the highway would not warn a driver of dangers in the fast lane and could cause a greater risk of drivers turning their attention to the right side of the road in such a situation.
Sergeant Krider also noted there was no evidence at the scene that Jewett hit the brakes or otherwise engaged in evasive maneuvers prior to the collision. Sergeant Krider, could not, however, determine whether Jewett ever saw the SUV prior to the collision.
Evidence Regarding Jewett's Glasses
Another of the bases for the negligence assertion was that Jewett was not wearing his glasses while driving the bus. It was established that Jewett's driver's license required him to wear glasses. The on-site coroner who attended to Jewett's body after the collision testified that he did not observe glasses on Jewett's face when he was completing his work and that he did not recall finding Jewett's glasses when processing the scene. The coroner further testified that part of his duties was to collect the personal property of victims at the scene and that all items found on the person's body or accurately attributed to that person would be placed in a brown bag and catalogued on a property receipt. Further testimony established that a pair of glasses was recorded on Jewett's property receipt and ultimately provided to his widow.
Relevant to the glasses issue, Sergeant Krider testified that, based on his experience and his view of the damage to the frames, the glasses recovered were damaged in a manner consistent with being on Jewett's face at the time of the collision. Taken with the fact Jewett was required to wear glasses when driving, Krider opined Jewett was wearing his glasses at the time of the collision.
Respondents offered their own expert testimony, from Optometrist David Eidal, concerning the nature of the damage to the frames. Dr. Eidal testified to significant experience repairing broken frames as part of his job. Based on his experience and education in evaluating damaged frames, Dr. Eidal opined that the damage shown in images of the frames occurred when the glasses were folded. Dr. Eidal conceded he could not identify when the damage occurred or whether Jewett was wearing the glasses at the time of the collision.
Additional Liability Evidence Related to the Collision
In addition to evidence from the Highway Patrol investigation, respondents presented a number of general and expert witnesses to elicit additional evidence related to their liability theories, some of which we recount below.
With respect to the responsibilities of Greyhound bus drivers, Greyhound director of safety and security, Alan Smith, testified that Greyhound has a policy not to speed or overdrive their headlights and that, while there is no policy against being in the fast lane, Greyhound bus drivers are trained to stay in the safest lane, either the center or number one lane depending on the circumstances. On issues relating to overdriving one's headlights, Smith testified that low beams generally illuminate up to about 300 feet and high beams up to 500 feet. A driver who cannot stop in the distance lit, which can take into account other lights on the roadway, is overdriving their headlights.
Considering bus driving generally, respondents utilized John Berkstresser as their primary expert. Berkstresser opined Jewett was operating the bus inappropriately by being in the number one lane and traveling at an unsafe speed given the conditions. Berkstresser further opined that Jewett was overdriving his headlights if only his low beams were on and that, in general, the collision was avoidable. With respect to traveling in the number one lane, Berkstresser opined it was below a reasonable standard of care for a commercial bus to be in the number one lane without a proper reason. Accepting the premise that Jewett was speeding, Berkstresser opined that entering the number one lane was improper because speeding does not justify needing to enter the fast lane to overtake a vehicle under commercial driving standards. Berkstresser acknowledged that if Jewett was not speeding it would be acceptable for the bus to be in the number one lane. With respect to the speed the bus was traveling, in addition to accepting evidence the bus was speeding, Berkstresser opined that the presence of visible flashing lights from other vehicles should have led the bus to slow its speed. Considering overdriving, Berkstresser opined Jewett was overdriving his headlights if only the low beams were on, but could not say whether that assumption was factually true. Berkstresser noted that one could rely upon Coupland's lights to extend the visibility distance and accepted Coupland could not see the SUV with his lights until it was immediately before him.
Respondents also called an expert witness that opined on the reliability of the Highway Patrol's accident reconstruction activities and conclusions and another to discuss how commercial bus drivers should typically drive. In addition, respondents played several video depositions, although the record on those playbacks is contested.
Greyhound then provided evidence in its defense from several witnesses including Coupland, the coroner, and an expert on human factors such as speed recognition and reaction time, and the case proceeded to the jury.
Jury Instructions , Verdict Form , and Verdict
Prior to deliberations, the trial court provided the jury with substantial instructions on how to proceed. The court began by explaining the nature of the overall claim against Greyhound, stating:
"The plaintiffs claim that they were harmed by Greyhound's negligence. To establish this claim, the plaintiffs must prove all of the following:
"One, that Greyhound was negligent. Two, that plaintiffs were harmed; and, three, that Greyhound's negligence was a substantial factor in causing plaintiffs' harm."
Following instructions on Greyhound's own assertions of negligence, the court instructed the jury on the general meaning of negligence and what it means to be a substantial factor in causing harm:
"Negligence is the failure to use reasonable care to prevent harm to one's self or to others. A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.
"You must decide how a reasonably careful person would have acted in the situation of Greyhound, its driver, the driver of the SUV, and the passengers in the SUV.
"A person is not necessarily negligent just because he or she used alcohol. However, people who drink alcohol must act just as carefully as those who do not.
"A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm."
The court then instructed the jury on the general expectation that people will not violate the law before providing several negligence per se instructions based on alleged violations of law on the part of Greyhound, including on speeding, the basic speed law, and the need to wear required glasses, all of which mirrored the following:
"California Vehicle Code section 22349 subsection (a) states: 'No person may drive a vehicle upon a highway at a speed greater than 65 miles per hour.'
"If you decide, one, that the Greyhound bus driver violated this law and, two, that the violation was a substantial factor in bringing about the harm, then you must find that Greyhound Lines, Inc., was negligent unless you also find that the violation was excused.
"If you find that the Greyhound bus driver did not violate this law or that the violation was not a substantial factor in bringing about the harm or if you find the violation was excused, then you must still decide whether Greyhound Lines, Inc., was negligent in light of the other instructions."
Next, after instructing on when a violation of law is excused, how negligence by multiple actors does not excuse one's individual negligence, and how to consider assertions there were unexpected emergency situations involved, the court provided the following instructions on negligence and the general speed law:
"A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles and other vehicles. They must also control the speed and movement of their vehicles. The failure to use reasonable care in driving a vehicle is negligence.
"A person must drive at a reasonable speed. Whether a particular speed is reasonable depends on the circumstances such as traffic, weather, visibility, and road conditions. Drivers must not drive so fast that they create a danger to people or property.
"If plaintiffs have proved that the Greyhound bus driver was not driving at a reasonable speed at the time of the accident, then Greyhound was negligent.
"The speed limit where the accident occurred was 65 miles per hour. The speed limit is a factor to consider when you decide whether or not Greyhound was negligent.
"A driver is not necessarily negligent just because he or she was driving faster than the speed limit. However, a driver may be negligent, even if he or she was driving at or below the speed limit."
The court then proceeded through its remaining instructions and sent the jury to deliberate. To record the results of their deliberations, the jurors were provided with a special verdict form, consisting of 11 questions the jury must answer to find in respondents' favor. Relevant to this appeal, the first question on the form asked, "Was Greyhound Lines, Inc. negligent?" and instructed the jury to proceed to the second question if their answer was "yes" and to "stop here, answer no further questions, and have the Presiding Juror sign and date this form" if their answer was "no." The second question asked, "Was Greyhound Lines, Inc.'s negligence a substantial factor in causing the death of the following" and listed Garay, Gonzalez, and Cordoba. Again, the form told the jurors to proceed to the next question if they answered "yes" and to stop if they answered "no." The jury ultimately answered only the first question. They checked the box for "no" and proceeded no further in their answers. Upon polling, the jurors confirmed there were 10 votes for "no" and two votes for "yes" on the question.
Motion for a New Trial and the Trial Court's Ruling
Judgment was entered on March 30, 2015, and the notice of entry of judgment was filed on April 7. On April 22, respondents filed their notices of intention to move for new trial and briefing began shortly thereafter.
Following briefing, the trial court issued its ruling on respondents' request for a new trial. The court began by detailing the requirements for granting a new trial under California Code of Civil Procedure section 657. It noted a new trial shall not be granted unless the "jury clearly should have reached a different verdict or decision" and cited extensively from Perry v. Fowler (1951) 102 Cal.App.2d 808, 810-811 concerning the standards it should apply in considering the motion. The court further expounded that the clear language of the statute "means more than just the existence of some imbalance in the relative weights of the parties' respective cases; [it] means instead without equivocation or decidedly."
The court then proceeded to consider the evidence supporting respondents' allegations of negligence, considering the evidence supporting each contention separately. The court began with the theory that Jewett was driving at an excessive rate of speed. The court referred to the testimony from two video deposition witnesses and from Coupland to conclude "the bus was travelling in excess of 65 miles per hour at and immediately before the impact." The court noted there was little eyewitness testimony and no expert testimony contradicting this finding.
The court next considered the theory Jewett was negligent because he was not wearing his glasses. The court noted testimony on this point was contradictory, but found "the most credible evidence came from the Fresno County Coroner's office," which listed Jewett's glasses in his inventory, "indicating they were located on his person and had not flown off his face in the impact ... but were rather in his pocket." The court buttressed this finding by referring to another video deposition witness who saw Jewett without his glasses and the expert testimony from Dr. Eidal concluding damage to the glasses "was not consistent with the glasses being worn at the time of the impact." The court specifically found this later expert testimony more persuasive than that presented by Sergeant Krider, who testified in his expert opinion the glasses were worn at the time of impact. Based on these findings the court found "the driver was not wearing his glasses at and immediately before the impact."
Third, the court recounted what it considered "additional evidence related to the driver's negligence." These facts were that Jewett "was operating in the number two, and then the number one lane, even though he was not passing a vehicle, that he was overdriving his headlights, and that he failed to slow when confronted with flashers on the side of the road near the overturned SUV." In doing so, the court specifically credited expert testimony "that travelling in the number one lane under the circumstances presented at the time was below the standard of care for a professional bus driver." Based on this evidence, the court found "the weight of the evidence supports a finding of negligence on the part of the bus driver because he was travelling in the number one lane at the time of impact and immediately before."
After making these three conclusions, the court noted Greyhound's reliance on the sudden emergency doctrine to support the jury's verdict. The court rejected this theory as a basis to sustain the jury's verdict because "for the reasons stated above, the court cannot find on this record that the driver was not negligent or that he did not, at least in part, cause the emergency." The court also rejected the theory on the ground Jewett "failed to take any action to avoid the SUV" and thus cannot be said to have taken "a course of action that in hindsight was not the better choice."
Finally, the court explained its decision was based partly on its view of the limited nature of the jury's verdict. The court explained that since "the jury only addressed the question of whether defendant was negligent, and the verdict form instructed it to go no further, it did not reach the issue of causation." To the trial court, although "evidence of [Greyhound's] negligence was relatively strong, evidence of causation was relatively weak." Despite this, "because the jury made no finding regarding that issue ... the court has no way to evaluate whether the jury should have reached a different result." In the court's mind, therefore, it was obligated to order a new trial because on the sole question the jury answered, whether Greyhound was negligent, "the evidence does not support the verdict."
Although Emily Moreno, the mother of Vanessa Gonzalez, filed a cross-appeal, she elected not to pursue it. We therefore dismiss the cross-appeal.
DISCUSSION
The primary focus of this appeal is the justification and support for the trial court's decision to grant respondents' requests for a new trial. In considering the issues raised by Greyhound, we consider the legal standards for granting a new trial, the underlying legal theories of liability (here negligence and the related doctrine of negligence per se), the trial court's view of the facts supporting those theories, and certain defenses raised by Greyhound. Ultimately, we find support in the record for the trial court's determination that Greyhound was negligent under a general negligence theory, as the jury was instructed on that issue, and that under this general theory of negligence the court need not specifically determine issues of causation before ordering a new trial. Standard of Review and Applicable Law
The authority to grant a new trial is statutory in nature and is set forth in California Code of Civil Procedure section 657. Relevant to this case, this statute permits a trial court to vacate a verdict and grant a new trial where the evidence is insufficient to justify the verdict or the verdict is against the law. (Code Civ. Proc., § 657, subd. (6).) When granting a new trial, "the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated." (Code Civ. Proc., § 657.) "A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict ... unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the ... jury clearly should have reached a different verdict." (Ibid.)
" 'A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. " 'The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.' " ' " (Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 623.) "[T]he trial court, in ruling on a motion for new trial, has the power 'to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to those of the trier of fact.' " (Barrese v. Murray (2011) 198 Cal.App.4th 494, 503.) It "sits as 'an independent trier of fact' " and "must 'independently assess[ ] the evidence supporting the verdict.' " (Ibid.) We presume the trial court's order is correct and must sustain the order " ' "unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court's] theory." ' " (Buckner v. Milwaukee Electric Tool Corp. (2013) 222 Cal.App.4th 522, 530.)
"The essential elements of a cause of action for negligence are: (1) the defendant's legal duty of care toward the plaintiff; (2) the defendant's breach of duty—the negligent act or omission; (3) injury to the plaintiff as a result of the breach—proximate or legal cause; and (4) damage to the plaintiff." (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)
Historically, the breach of a legal duty has been considered synonymous with negligence. (See Casson v. Atchison, Etc. Ry. Co. (1931) 119 Cal.App. 222, 225 [" 'Negligence is a breach of duty. Where there is no duty or no breach, there is no negligence.' "].) If such negligence exists, the burden falls on the plaintiff to establish causation. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968 (Rutherford).) Causation determinations have two aspects, the first considers "cause in fact" while the second "focuses on public policy considerations." (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 352-353.) For cause-in-fact determinations, California utilizes the substantial factor test, where "a cause in fact is something that is a substantial factor in bringing about the injury." (Rutherford, supra, 16 Cal.4th at pp. 968-969.)
"Evidence Code section 669, subdivision (a) codifies the common law doctrine of negligence per se under which statutes and regulations may be used to establish duties and standards of care in negligence actions ...." (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1350; see Elsner v. Uveges (2004) 34 Cal.4th 915, 927, fn. 8 ["Statutes may be borrowed in the negligence context for one of two purposes: (1) to establish a duty of care, or (2) to establish a standard of care."].) The doctrine is not a separate cause of action. (Millard, supra, 156 Cal.App.4th at p. 1353, fn. 2.) The Trial Court's Analysis and Greyhound's Objections
We begin by reviewing the trial court's analysis subject to Greyhound's primary objections on appeal. Greyhound raises concerns that the trial court's new trial order contained multiple legal flaws and was generally unsupported by the record. We thus identify the negligence theories relied upon by the trial court when concluding the jury should have found Greyhound negligent and resolve the objections raised to those theories. Upon completing this task, we then move to considering whether the trial court's decision to cease its analysis without reaching the issue of causation was proper.
The trial court identified three specific facts related to its determination that the evidence does not support the jury's no negligence verdict. First, that the bus was traveling "in excess of 65 miles per hour at and immediately before the impact." Second, that Jewett "was not wearing his glasses at and immediately before the impact." And third, that Jewett was "travelling in the number one lane at the time of impact and immediately before." Upon review of the evidence supporting these conclusions, the trial court concluded "evidence of defendant's negligence was relatively strong." Greyhound disputes this conclusion and argues the trial court could not grant a motion for a new trial on the evidence generally. We do not agree.
Greyhound's Challenges to the Speed Determination
With respect to the trial court's focus on the speed of the bus, Greyhound argues that the trial court erred by applying the wrong legal standard to determine negligence. According to Greyhound, the court was required to apply the basic speed law to determine whether Jewett was driving negligently. Greyhound also challenges the evidence demonstrating the bus's speed, arguing respondents failed to perfect the record by submitting transcripts of depositions played in open court and therefore the record lacks actual evidence to support a conclusion the bus was traveling greater than 65 miles per hour.
The basic speed law is codified at Vehicle Code section 22350 and provides that no person shall drive "upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property." The jury was instructed under a negligence per se theory consistent with this law and no challenge to those instructions has been raised.
The parties offered this instruction based on CACI No. 418. The instruction is generally similar to BAJI No. 3.45. Of note, the use notes for BAJI No. 3.45 state that a negligence per se theory is not appropriately based on the basic speed law. Rather, BAJI No. 5.32 utilizes the negligence per se instruction only in the case of a violation of a maximum speed limit such as that set forth in Vehicle Code section 22349. Contrarily, the use notes for CACI No. 706, on the basic speed law, state a violation is evidence of negligence per se. We need not resolve this difference here.
Greyhound's argument presupposes that to find negligence with respect to the speed of the bus, the court had to refer to the basic speed law and utilize that as the sole factor in determining negligence. But this is not so. As the court instructed the jury with respect to finding negligence generally, "A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation." Such negligence can arise whether or not a person is complying with the basic speed law based upon factors rendering conduct at that speed negligent. If a reasonably careful person would not drive at the speed Jewett drove, regardless of whether that speed broke the general speed law, then negligence exists. Here, while Greyhound focuses upon the individual facts noted by the court, the court's overall opinion appears to contemplate a negligence conclusion predicated not just on the speed of the bus but on all of the facts discussed by the court in its order. Accordingly, the trial court did not utilize an improper legal analysis by failing to mention the general speed law when considering the speed of the bus in its negligence analysis.
Nor do Greyhound's evidentiary challenges affect this determination. Greyhound correctly notes that respondents failed to lodge transcripts of video deposition testimony played in court from several witnesses. Such transcripts are required to be filed pursuant to California Rules of Court, rule 2.1040(a)(2). Greyhound argues this error creates a failure of proof on the issues discussed in those transcripts. Respondents counter by noting that deposition transcripts were included in the new trial papers and not objected to when placed before the trial court. We need not decide which potential forfeiture applies because the trial court's ruling is supported by sufficient evidence outside of the deposition testimony to survive an abuse of discretion review. With respect to the speed of the bus, the trial court cited directly to Coupland's testimony, offered by Greyhound, that he had set his cruise control to 65 miles per hour and yet the bus was gaining on him at the time of the collision. It further noted the expert testimony, that provided range estimates of 50 to 70 and 60 to 70 miles per hour for the bus, was not credible to the extent it suggested the speed was less than 65 miles per hour. Given the deference afforded the trial court in evaluating the evidence it heard, we see no abuse of discretion in its decision to credit Coupland's percipient witness testimony and discredit contradictory expert ranges for the speed of the bus. (See Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412 ["[T]he trial court's factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury's factual determinations."].)
Greyhound's argument also relates to testimony from various witnesses relating to whether Jewett was wearing his glasses while driving, a point discussed further below. We note that our conclusion with respect to the testimony concerning the speed of the bus is equally applicable to the glasses issue, as there is independent evidence exclusive of the deposition testimony upon which the trial court could properly rely. This evidence is discussed in detail below. --------
Greyhound's Challenges to the Glasses Determination
With respect to the trial court's conclusion Jewett was not wearing his glasses immediately prior to the accident, Greyhound argues the evidence supporting this conclusion was speculative and the result of a misunderstanding of respondents' expert testimony on the nature of the damage to the glasses. Related to this position, Greyhound argues Eidal's testimony should have been excluded in its entirety as it was speculative and not based on a reasonable methodology.
"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) Such expert witnesses may present opinions that are "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact" and are based on matter "that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates." (Evid. Code, § 801.)
"The trial court's preliminary determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness. The court must not weigh an opinion's probative value or substitute its own opinion for the expert's opinion. Rather, the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture." (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 772.) "In short, the gatekeeper's role 'is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.' " (Ibid.) We review such decisions for an abuse of discretion. (Id. at p. 773.)
Considering, first, the evidence offered in this case, Greyhound argued Jewett was wearing his glasses at the time of the accident. In support of this position, it relied upon the testimony of Sergeant Krider and certain witnesses who claimed to see Jewett wearing his glasses at various points prior to the accident. Sergeant Krider offered his opinion on whether Jewett was wearing glasses based on the fact Jewett was required to wear them and upon review of damage to the glasses that Sergeant Krider, in his experience as an accident investigator, attributed to forces acting upon the glasses when they were on a person's face.
Respondents argued the contrary position. They relied on evidence offered by Deputy Coroner Gentry that he did not find glasses on Jewett when he located the body but that glasses were collected and logged as belonging to Jewett under a policy that attributed them to Jewett if they were found on his person. They buttressed this testimony with Eidal's expert testimony that the damage shown in images of the frames occurred when the glasses were folded. Eidal based this opinion on his years of personal experience repairing glasses and his inspection of images showing the damage. Eidal admitted his opinion did not consider when the damage actually occurred or whether Jewett was, in fact, wearing his glasses at the time of the accident.
Greyhound argues Eidal's testimony was legally improper because his experience and training failed to qualify him "to testify as to how or when the glasses were damaged, and specifically, whether they were in the bus driver's pocket when they were damaged." Greyhound argues the trial court erred factually by accepting Eidal's testimony as evidence supporting its conclusion that Jewett's glasses were in his pocket. As noted above, however, Eidal never actually opined on when or where the glasses were damaged. Eidal's only opinion was that the damage observed in the images of the glasses was consistent with damage occurring when the glasses were folded, based on his experience repairing glasses and his view of the damage. We have no doubt Eidal was qualified to render such a limited opinion, and Greyhound does not meaningfully challenge that aspect of the testimony.
Eidal's testimony was a direct rebuttal to Sergeant Krider's opinion that, in his experience, the relevant damage was caused not when the glasses were folded but occurred through pressure forces consistent with being on one's face when damaged. The court's determination that Jewett was not wearing his glasses came from a combination of the testimony suggesting Jewett's glasses were found on his body, not his face, and Eidal's opinion that the visible damage to the glasses occurred when they were folded. The court found this combination more credible than the theory presented by Greyhound. Given we review such determinations for an abuse of discretion, we find no error in the trial court's determination that this presentation of the evidence was more compelling than Greyhound's or in the trial court's determination that Eidal's special knowledge and experience in repairing glasses qualified him to testify as to his opinion on the type of damage the glasses sustained.
Greyhound's Challenges to the Other Negligence Findings
The trial court's order also considered the theory that Jewett was negligent for traveling in the fast lane under the conditions present in this case. In this analysis, the court pointed to additional evidence of negligence supporting its conclusions. Greyhound raises challenges to both of these aspects of the court's ruling.
Traveling in the fast lane
Greyhound challenges the trial court's conclusion that Jewett was negligent for traveling in the fast lane on the ground such a conclusion is incorrect as a matter of law. With respect to this issue, the court heard extensive expert testimony from Berkstresser. Berkstresser opined that a reasonably prudent professional bus driver would normally not enter the fast lane unless utilizing the lane for a specific purpose. Moreover, Berkstresser opined that in no instance should such a driver enter the fast lane while speeding, even if to pass a vehicle. Berkstresser emphasized that traveling in the fast lane was acceptable if the bus was not speeding, but that it reduced available outlets in an emergency and thus was not preferred. Ultimately, when presuming Jewett was speeding, Berkstresser opined Jewett's conduct was negligent because there was no valid reason to be in the fast lane, traveling above the speed limit, in this case.
Greyhound argues that "as a matter of law, it is simply not negligence for a commercial bus to be in the number one lane." But this is not what the trial court held. As the court noted, the expert testimony showed "that travelling in the number one lane under the circumstances presented at the time was below the standard of care for a professional bus driver." The expert evidence supporting the court's conclusion was that entering the fast lane while speeding was below the relevant standard of care, even if that action was taken to pass a vehicle. Additional evidence showed that Coupland's taxi ceded the right of way in the middle lane at the same time Jewett, who was speeding, moved into the fast lane. The trial court thus had evidence in the record supporting its conclusion that Jewett's overall conduct satisfied Berkstresser's negligence opinion under the general instruction that negligence is where one "does something that a reasonably careful person would not do in the same situation." In accepting this evidence as showing the jury should have found Greyhound negligent, the court did not, as Greyhound argues, create a strict liability offense when a bus is in the fast lane or otherwise incorrectly apply the law of negligence.
Additional evidence of negligence
Greyhound further challenges the court's "additional evidence" of negligence that Jewett was overdriving his headlights and failed to slow when confronted by flashers, arguing both conclusions lacked substantial evidence and that the overdriving theory only arose because the court failed to apply the basic speed law. Greyhound's assertions similarly fall short of requiring reversal. As an initial matter, while the trial court flagged the fact that evidence of overdriving one's headlights and failing to slow for flashers on the side of the road were related to Jewett's negligence, unlike the other factors considered the court made no specific finding relevant to its analysis of the new trial motion. While Greyhound challenges whether the evidence required the court to find negligence, it does not challenge the fact that some evidence existed upon which the court could rely in a negligence analysis—claiming instead that the evidence was not sufficient to sustain a determination that the jury should have found for respondents. Ultimately, though, Greyhound ties both of its arguments to the assertion that the trial court did not consider the basic speed law with respect to either the overdriving or need to slow analyses and, therefore, applied an incorrect legal standard. We have already rejected the argument that the trial court necessarily had to consider the basic speed law to determine negligence and, accordingly, Greyhound's attempts to demonstrate error by mandating the use of that law to determine the standard of care and subsequent breach for a negligence finding in this case is flawed.
Greyhound's Challenge to the Trial Court's Sudden Emergency Defense Ruling
After reviewing the factors leading the court to conclude the jury should have concluded Greyhound was negligent, the court noted that Greyhound relied "heavily on the sudden emergency doctrine ... in support of its argument that the driver was not negligent." The court rejected this theory on multiple grounds, including that "the court cannot find on this record that the driver was not negligent or that he did not, at least in part, cause the emergency" and that it "cannot be said that he took a course of action that in hindsight was not the better choice." Greyhound contends the trial court wrongly applied the sudden emergency defense and therefore failed to recognize a legitimate basis for the jury's findings. We do not agree.
The sudden emergency defense is one of many names for the premise that "a person who, without negligence on his part, is suddenly and unexpectedly confronted with peril, arising from either the actual presence, or the appearance, of imminent danger to himself or to others, is not expected nor required to use the same judgment and prudence that is required of him in exercise of ordinary care in calmer and more deliberate moments." (Leo v. Dunham (1953) 41 Cal.2d 712, 714.) Also called the doctrine of imminent peril, it "is properly applied only in cases where an unexpected physical danger is presented so suddenly as to deprive the driver of his power of using reasonable judgment." (Pittman v. Boiven (1967) 249 Cal.App.2d 207, 216 (Boiven).) Cases where the premise is applicable " 'involve situations where at least two courses of action are present after the danger is perceived and where no negligence is chargeable to the person to whom those courses of action are open.' " (Staggs v. Atchison, Topeka & S.F. Ry. Co. (1955) 135 Cal.App.2d 492, 502-503, italics omitted.) Thus, the "doctrine applies where a nonnegligent person is confronted with a situation of imminent danger to himself or to others, in which case he is not required to exercise the same standard of care otherwise required." (McShane v. Cleaver (1966) 247 Cal.App.2d 260, 268.) "Whether an individual has been suddenly confronted with imminent peril is a question of fact to be submitted to the jury." (Boiven, supra, 249 Cal.App.2d at p. 216.)
The crux of Greyhound's arguments on appeal is that Jewett could not be said to have created the emergency of a darkened, overturned SUV on the road before him and, thus, all of his decisions preceding the collision should be subject to the standard of care of one in an emergency situation. The core flaw in this position, properly captured by the trial court's ruling in this case, is one of timing. The trial court's three identified bases for its negligence determination—a speeding bus, failure to wear glasses, and improperly entering the fast lane—are similar with respect to the sudden emergency defense in that the relevant fact or negligent act occurred at a point well before Jewett could or actually did perceive the danger present in the overturned SUV. Indeed, the only evidence presented on these three bases at trial demonstrate that each occurred prior to the point Jewett attempted to pass Coupland on the freeway and thus before any evidence suggests even the most astute observer could recognize the upcoming danger on the road.
As the various recitations of the principle above show, one is not entitled to the protections of the sudden emergency defense when the emergency is preceded by their own independent negligent conduct. (Boiven, supra, 249 Cal.App.2d at p. 216 ["A party will be denied the benefit of the doctrine of imminent peril where that party's negligence causes or contributes to the creation of the perilous situation."].) That pre-existing negligence potentially contributes, even if it does not cause, the resulting collision in that non-negligent conduct occurring before a recognition of the danger could result in a fair opportunity to avoid the emergency situation altogether. Greyhound's overall defense certainly warranted an instruction on the sudden emergency defense, as it proffered a theory of conduct preceding the events that had Jewett traveling at or below the speed limit while wearing his glasses and only moving into the fast lane at a proper speed in order to pass a vehicle. Under such a scenario, conduct taken by Jewett after perceiving any sudden emergency in the roadway would, potentially, be subject to the lower standard of care triggered by the defense. However, the trial court found the jury clearly should have found Greyhound negligent for conduct arising before any evidence exists showing Jewett could have perceived any sudden emergency. In such a context, Jewett's own negligence precludes an application of the doctrine and the proper remaining inquiry is whether causation can be shown. (Damele v. Mac Trucks, Inc. (1990) 219 Cal.App.3d 29, 36 ["The doctrine of imminent peril applies not only when a person perceives danger to himself, but also when he perceives an imminent danger to others."].) In other words, the trial court's ruling on the nature of the evidence on Greyhound's negligence precludes any further application of the sudden emergency defense because the sudden emergency defense only applies to one who is not acting negligently at the time they perceive the relevant danger.
The Trial Court's Overall Determination
Ultimately, the trial court's order identified and applied the appropriate standards for a new trial motion while viewing the negligence question in the context of the general definition of negligence. In this context, the court identified two specific factual findings—first that Jewett was traveling at a speed greater than 65 miles per hour and second that Jewett was not wearing his glasses—that it felt were proven by the evidence. It further identified one negligent act—driving in the fast lane under the specific circumstances of the case—that it again felt the evidence required the jury to accept. It fairly supported these findings with references to evidence presented at trial and explained that it had rejected certain contrary evidence for lacking credibility in light of the overall trial.
The Trial Court's Decision Not to Consider Causation
Resolving Greyhound's challenges to the negligence theories and evidence relied upon by the trial court, we next consider the court's decision not to consider causation issues in granting the new trial motion. The trial court's order granting a new trial focused exclusively on whether the evidence presented compelled a conclusion that Jewett was negligent in his operation of the bus. In considering whether the evidence on this issue warranted a new trial and to justify not addressing the issue of causation directly, the trial court stated that because the "jury only addressed the question of whether defendant was negligent, and the verdict form instructed it to go no further, it did not reach the issue of causation."
Greyhound contends the negligence per se instructions placed causation issues before the jury in the context of the negligence question and argues "[t]he jury either found that the bus was not exceeding the posted speed limit, or if it found a violation of the posted speed limit, that this was not a substantial factor in causing the collision with the SUV" when it answered "no" to the negligence question on the verdict form. Greyhound posits that the trial "court could not avoid this implicit finding by the jury on the issue of causation." Neither brief from respondents tackles this contention. Rather, both respondents argue in unrelated positions that the trial judge "was not addressing causation," "such causation evidence is not relevant for purposes of this appeal," and causation "is not before this Court." At oral argument, Greyhound expressed the view that the trial court was not considering negligence per se in its new trial order, and argued this court should focus on what the judge said in its statement of reasons, as opposed to what the jury may have been required to do under the negligence per se instructions.
We agree the court was considering the case in the context of a general negligence finding. The jury was instructed on both negligence and negligence per se theories. The court's order discussed negligence in general terms despite reviewing several facts that would trigger a negligence per se finding and the court expressly noted the jury had not reached the causation question under the theory warranting a new trial. "We also presume the court knew and properly applied the law absent evidence to the contrary." (McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1110.) In this case, there is no evidence suggesting the court adopted any theory other than general negligence. As discussed further, below, the negligence per se instructions thus did not prevent the trial court from ordering a new trial.
It is important to note that if the trial court decided it must order a new trial only on either the fact that the bus was travelling faster than 65 miles per hour or that Jewett was not wearing his glasses, it would likely have to consider whether the jury necessarily concluded such facts were not substantial factors in the collision under the negligence per se instructions. However, the court did not make such a specific finding of negligence. The court's overall order shows that it was considering many facts that it concluded, as a whole, demonstrated Jewett's conduct fell below the applicable standard of care. Thus, the court first identified two specific facts, that "the bus was travelling in excess of 65 miles per hour" and that "the driver was not wearing his glasses at and immediately before the impact" it determined the jury must accept. It then identified additional evidence relating to the driver's negligence, including that Jewett "was operating in the number two, and then the number one lane, even though he was not passing a vehicle, that he was overdriving his headlights, and that he failed to slow when confronted with flashers on the side of the road near the overturned SUV" that were all supported in the record. Following this evidentiary review, the court found "the weight of the evidence supports a finding of negligence on the part of the bus driver because he was travelling in the number one lane at the time of impact and immediately before." In this way, the court adopted a general negligence theory predicated on finding that traveling in the fast lane under the conditions at the time was below the relevant standard of care.
Moreover, the record does not demonstrate the jury necessarily reached the causation question on any specific facts presented. To the contrary, if the jury considered all the facts together and determined those facts did not show Jewett acted in a manner below the applicable standard of care, it could have answered "no" to the negligence question on the verdict form without ever reaching causation. Such a finding appears to be the basis for the trial court's order.
Ultimately, the court was correct in stating the jury did not reach the causation question with respect to the trial court's general negligence analysis. Accordingly, the court did not abuse its discretion by granting the new trial motion.
DISPOSITION
The order is affirmed. The cross-appeal filed by Emily Moreno is dismissed. Costs on appeal are awarded to respondents.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
FRANSON, J.