Opinion
A151781
06-15-2018
JOHN W. GROTENHUIS, Plaintiff and Appellant, v. GOLDEN GATE BRIDGE, HIGHWAY AND TRANSPORTATION DISTRICT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. CGC-15-545562)
Defendant Golden Gate Bridge, Highway and Transportation District (district) appeals a judgment entered in favor of plaintiff John W. Grotenhuis on his complaint for the wrongful death of his mother, Lori Helmer. At trial, the parties painted very different pictures of the accident that led to Helmer's death. Plaintiff presented evidence that Helmer was crossing an intersection with the right of way when a speeding district bus failed to yield while making a left turn, cut in front of her, knocked her to the ground and ran over her with its back wheels. The district presented evidence that the bus was not speeding and had already entered the intersection and begun its left turn when Helmer ran across the intersection with her head down and collided with the side of the bus. The jury found that the driver's negligence was the sole cause of the accident. On appeal, the district does not challenge the jury's finding that the driver was negligent, but contends the trial court erred in denying its motion for a new trial to redetermine Helmer's comparative negligence. We find no error and therefore shall affirm the judgment.
Plaintiff has filed a cross-appeal in which he argues that the court abused its discretion in denying his motion for costs under Code of Civil Procedure section 2033.420, based on the district's refusal to admit it was solely liable for the accident. We see no reason to disturb the trial court's finding that the district had a reasonable, good-faith belief that it could prevail at trial and therefore shall affirm the denial of plaintiff's motion.
All statutory references are to the Code of Civil Procedure.
Factual and Procedural History
At trial, testimony was received from a bystander, from bus passengers and from accident reconstruction experts. There was testimony as to the following facts:
On November 6, 2014, around 6:00 a.m., Helmer was jogging southbound on the western sidewalk of Van Ness Avenue in San Francisco, approaching the intersection with Lombard Street. As she approached the intersection, the light was green for her to cross to the other side of Van Ness, from the west to the east side of the street. The white pedestrian "Walk" signal in that direction was illuminated. She stopped briefly at the corner before entering the crosswalk. About the same time, the district's bus was traveling eastbound on Lombard, preparing to turn left onto Van Ness. Helmer was more than halfway across the intersection when the bus crossed her path, midway through the left turn.
According to the only witness that saw the impact, he noticed the bus "shortly after" or "almost immediately after" he saw Helmer. A "moment before the impact" Helmer expressed surprise. The witness explained, "Her head was down, and she looked up, and there was this bus in front of her. [¶] . . . [¶] . . . [S]he tried to raise [her arms] to block, but I don't know how — maybe she had a moment to react." The bus collided with Helmer "a few feet behind" the front wheel well. The collision caused her to fall "flat on her back [¶] . . . [¶] . . . like she bounced off the bus." Helmer was rushed to the hospital for emergency treatment, but died about an hour later.
Witnesses estimated that the bus was traveling at a range of speeds, from "slightly faster" than Helmer to 25 miles per hour. The driver admitted that, shortly after the accident, he told his union representative that he was traveling at 15 miles per hour when he made the left turn. District policies require that a bus slow to three to five miles per hour when making a left turn.
Plaintiff's expert testified that if the bus was traveling at 15 miles per hour and Helmer was jogging at six miles per hour, Helmer necessarily entered the intersection first. He explained that Helmer and the bus likely collided at a point on the side of the bus, just behind its left-front wheel well. The collision knocked Helmer to the ground and as the bus completed the turn, the rear wheels ran over her body. The expert clarified that the accident did not happen because Helmer ran into the bus. The bus had a lateral velocity of about 12 miles per hour when it struck Helmer. He added, "this bus is swinging and translating — it's kind of like a big barn door, and it comes around and gets her, and even with no motion on her part, she's still going to be struck by the bus."
The jury returned a verdict for plaintiff, finding that the district's bus driver was negligent and that Helmer was not negligent. The jury awarded damages of $4 million.
Both the district and plaintiff filed posttrial motions. The district moved for a new trial to redetermine Helmer's comparative negligence. The court denied the motion, finding that there was substantial evidence to support the jury's verdict. Plaintiff filed a motion for attorney fees as cost-of-proof sanctions based on the district's refusal to admit that the bus driver's negligence was the sole cause of the accident. The trial court denied the motion, finding that the district had a reasonable, good-faith belief that it could prevail on the issues it refused to admit.
Discussion
1. Motion for New Trial
The district moved for a new trial under section 657 on the ground that there was insufficient evidence to support the jury's finding that Helmer was not contributorily negligent. The district does not dispute that the jury was properly instructed on the law regarding comparative negligence. The district argued, however, that "[t]he fact that the jury assigned [Helmer] no fault is impossible to reconcile with the evidence and warrants a new trial on apportionment of fault."
The jury was instructed, pursuant to CACI No. 407 that "The Golden Gate Bridge Highway & Transportation District claims that Lori Helmer's own negligence contributed to her death. To succeed on this claim, the district must prove both of the following: [¶] 1. That Ms. Helmer was negligent; and [¶] 2. That Ms. Helmer's negligence was a substantial factor in causing her death. [¶] If the district proves the above, John Grotenhuis's damages are reduced by your determination of the percentage of Ms. Helmer's responsibility." Pursuant to CACI No. 411, the jury was instructed that "Every person has a right to expect that every other person will use reasonable care and will not violate the law, unless he or she knows, or should know, that the other person will not use reasonable care or will violate the law." The jury was instructed pursuant to CACI No. 701 that "When the law requires a driver or pedestrian to 'yield the right-of-way,' this means that the driver or pedestrian must let the other vehicle or pedestrian go first. [¶] Even if someone has the right-of-way, that person must use reasonable care to avoid an accident." Finally, the jury was instructed, pursuant to CACI No. 710, that "A driver of a vehicle must yield the right-of-way to a pedestrian who is crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection. When approaching a pedestrian who is within any marked or unmarked crosswalk, a driver must use reasonable care and must reduce his or her speed or take any other action necessary to ensure the safety of the pedestrian. [¶] A pedestrian must also use reasonable care for his or her own safety. A pedestrian may not suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard. A pedestrian also must not unnecessarily stop or delay traffic while in a marked or unmarked crosswalk. [¶] The failure of a pedestrian to exercise reasonable care does not relieve a driver of a vehicle from the duty of exercising reasonable care for the safety of any pedestrian within any marked crosswalk or within any unmarked crosswalk at an intersection."
Under section 657, "A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision . . . 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 or decision." "When a trial court rules upon a motion for a new trial made upon the ground of insufficiency of the evidence, the judge is required to weigh the evidence and judge the credibility of witnesses. [Citation.] 'While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the court, on motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict.' [Citation.] [¶] In ruling on the motion, the trial judge does not disregard the verdict, or decide what result it would have reached if the case had been tried without a jury, but instead '. . . it should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.' " (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 413.)
In support of its motion, the district argued that the jury ignored the "overwhelming evidence that Ms. Helmer's inattention was at least partially responsible for the accident that resulted in her death." The district emphasized the witness's testimony that Helmer's "head was down" as she crossed the intersection and looked up only moments before being struck by the side of the bus.
The court was not convinced that the weight of the evidence required the jury to reach a different conclusion. The court explained, "Defendant's motion makes three arguments, none of which demonstrated convincingly that the 'jury clearly should have reached a different verdict' by finding Helmer comparatively negligent. [¶] First, defendant says Helmer 'violated her duty of care' because 'the bus had already entered the intersection and started its turn when Ms. Helmer ran' into it. The jury could reasonably have concluded that Helmer could not see the bus because it was approaching from her rear. In any event, a person with the right-of-way in a signalized crosswalk 'has a right to expect' that a bus coming from her rear will yield as the law requires and not cut directly in front of her. [Citation.] [¶] Second, it is claimed that Helmer 'suddenly' left the curb and ran into the bus's path, but the trial evidence did not establish that. Rather, Helmer ran past an eyewitness's stopped vehicle and more than halfway across the six-lane street — some 50 feet — before contacting the bus. [¶] Third, defendant argues that Helmer failed to make careful observations before 'entering a highway.' The weight of the evidence does not support this either. Again, Helmer was in the crosswalk in the intersection, with the signals in her favor, for several seconds before impact. The bus failed to yield the right-of-way, not Helmer."
On appeal, the district again suggests that the "undisputed evidence introduced at trial show[ed] that Ms. Helmer was negligent — evidence no reasonable jury could ignore." It writes, "The district's argument rests on simple and undisputed facts. Ms. Helmer jogged through the wide and busy intersection in dim light. There is no evidence from which a jury could find that she looked up, forward, or in the direction of turning traffic from the moment she left the curb to the moment before she and the bus collided. To the contrary, the undisputed evidence established that she was looking down. By failing to look up or take any measures to safeguard against injury in the crosswalk, Ms. Helmer was at least somewhat negligent." The district argues, "Each of the trial court's stated rationales demonstrates that the court fundamentally misconstrued the law and the duty of care it imposes on pedestrians like Ms. Helmer." We disagree.
It was the district's burden at trial to establish that Helmer failed to exercise reasonable care in crossing the street. (See Hernandez v. County of Los Angeles (2014) 226 Cal.App.4th 1599, 1614 ["Generally, the defendant has the burden of establishing that a percentage of fault is properly attributed to the plaintiff . . . ."].) Contrary to the district's argument, the undisputed evidence does not establish that Helmer was negligent. The evidence establishes that Helmer was crossing the street, on a green light, in the crosswalk, with the right of way. At best, the district's evidence establishes that Helmer was looking down and failed to notice before it was too late that a bus was approaching from behind her and was not going to yield the right of way. Reasonable care does not, as a matter of law, require looking backwards and proceeding with the expectation that others will not follow the law. The district does not dispute that the jury was properly instructed that "Every person has a right to expect that every other person will use reasonable care and will not violate the law." Thus, the jury could reasonably have concluded that Helmer was not negligent in failing to observe the bus approaching from the rear into the crosswalk in which she was properly crossing. Contrary to the district's argument, nothing in the court's comments suggests that it believed Helmer did not have an ongoing duty to exercise reasonable care after leaving the curb.
2. Motion for Costs
Prior to trial, plaintiff submitted a request for admissions pursuant to section 2033.010 requesting the district to admit that the bus driver was negligent at the time of the incident, that his negligence was a substantial factor in causing the incident, that his negligence was a substantial factor in causing Helmer's death, and that Helmer bore no comparative fault for the incident. The district denied each of the requested admissions.
Under section 2033.420, if a party fails to admit the truth of any matter when requested to do so and the party requesting that admission thereafter proves the truth of that matter, "the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees." (§ 2033.420, subd. (a).) The court must make an order awarding the requested expenses unless it finds, among other things, that "The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter." (§ 2033.420, subd. (b)(3).)
The trial court denied plaintiff's motion on the ground that the district " 'reasonably entertained a good faith (albeit ultimately mistaken) belief that [it] could prevail.' " The court explained that the district "had several lay and expert witnesses" to support its theory that the accident was caused by Helmer's negligence and not the negligence of the bus driver. We find no abuse of discretion in the trial court's decision. (Miller v. American Greetings Corp. (2008) 161 Cal.App.4th 1055, 1066 [court did not abuse its direction in denying motion for costs where "appellants could have reasonably entertained a good faith (albeit ultimately mistaken) belief that they could prevail"].)
Contrary to plaintiff's argument, we do not agree that the trial court's use of "could prevail" instead of "would prevail" reflects an improper understanding of the district's burden under section 2033.420. In Miller v. American Greetings Corp., supra, 161 Cal.App.4th at page 1066, quoted by the trial court in its ruling, the court used could and would interchangeably, citing the requirement that the party who denied the request for admission hold good faith belief it "would prevail" on the issue at trial and applying that requirement to the facts to conclude, as quoted above, that appellants entertained a good faith belief that they "could prevail" at trial. --------
The district's defense was based primarily on two assertions: that the bus entered the intersection and began to turn left well before Helmer jogged into the intersection and that Helmer ran into the bus because she failed to exercise reasonable care while crossing the intersection. The defense was based on statements by witnesses to police shortly after the accident (repeated at trial) and the opinions of the district's accident reconstruction expert. While ultimately unsuccessful, this evidence if accepted would have supported a finding that Helmer was responsible for the accident. Even if one assumes that the district should have admitted its driver's negligence and causation, there certainly was a good faith basis to dispute Helmer's comparative fault. And since that issue would have required producing the evidence of the driver's negligence, to make an apportionment of fault, such a partial admission would not have reduced plaintiff's burden or expenses. Accordingly, the trial court did not abuse its discretion in denying plaintiff's motion.
Disposition
The judgment is affirmed. Plaintiff shall recover his costs on appeal.
/s/_________
Pollak, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.