Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2007-00065044- CU-PO-CTL, Ronald L. Styn, Judge.
McCONNELL, P. J.
INTRODUCTION
A jury found Xtra Storage Limited Partnership, now known as AAA Alliance Self Storage of California, L.P. (Self Storage), Kevin Kutzbach (K. Kutzbach), and Edward Christian did not act negligently in connection with injuries William O. Guffey sustained when he purportedly fell down a stairway leading from a second floor office he leased from Self Storage. Guffey appeals, contending the trial court prejudicially erred by refusing to give a negligence per se instruction he requested. We affirm the judgment.
BACKGROUND
Parties
Self Storage is primarily a storage facility, but it also rents out offices on the second floor of one of its buildings. Guffey rented an office from Self Storage, which he accessed by stairways located at the west and east ends of the office building. Albert Kutzbach (A. Kutzbach) is Self Storage's sole general partner. Christian is Self Storage's manager. K. Kutzbach is A. Kutzbach's son and supervises Christian.
Guffey's Injury
Around 2:00 a.m. on October 15, 2005, Guffey went to his office after leaving a bar. Once in his office, Guffey drank one or two shots of tequila. He claims he did not drink any alcohol at the bar.
Around 4:30 a.m., he went downstairs to retrieve something from his van. According to him, he could not see and misjudged the location of the bottom landing. He tripped and fell forward, hitting his head on a concrete block wall. He subsequently developed a subdural hematoma, which required surgical evacuation.
Guffey sued Self Storage, A. Kutzbach, and K. Kutzbach (collectively, defendants) for multiple causes of action based on negligence, including negligence per se. A key issue at trial was whether the office building's perimeter lights were on when the incident occurred.
Lighting Evidence
The office building's exterior lights include perimeter lights, balcony lights, and landing lights. Self Storage controls the exterior lights by a timer. For safety reasons, Guffey and other tenants asked Christian and K. Kutzbach to ensure the exterior lights are on when it is dark. One tenant testified K. Kutzbach told him he was not going to adjust the lights because he wanted to show A. Kutzbach he could save money on the electric bill. Another tenant testified Christian adjusted the lights after the tenant asked Christian to do so.
Guffey testified that the office building's exterior lights were off when he arrived. Guffey also testified that after the incident and before his surgery, A. Kutzbach approached him and told him the lights had been turned off at midnight on the date of the incident. A. Kutzbach denies Guffey's claim.
Another tenant testified at trial that the exterior lights were off when he arrived at his office sometime after dark and before midnight on the evening of the incident. At his deposition, however, the tenant testified he did not know whether the exterior lights were on or off when he arrived.
Christian testified that, before the incident, he adjusted the office building's perimeter lights, including the light above the lower landing of the stairway, to be on from dusk until dawn. He further testified that, after the incident, he checked the light timers and they were still set this way. Therefore, he testified that at the time of the incident, the light above the lower landing of the stairway should have been on.
Ramon Bennett, a licensed electrician, took light readings of the stairway under conditions similar to those Guffey claims existed when he fell. Bennett testified the City of San Diego's building code requires a minimum illumination of one foot of candle light for all areas used for ingress and egress. He testified that, when all of the overhead lights are out, there is zero candle foot of illumination on the stair steps and the bottom landing. He further testified that, when the light above the lower landing of the stairway is on, the illumination on the bottom six stair steps and the bottom landing exceeds one candle foot.
Based on this evidence, defense counsel argued to the jury that if the jury determined the perimeter lights were off, then it should find against defendants on the negligence issue. Conversely, if the jury determined the perimeter lights were on, then it should find for defendants on the negligence issue.
Negligence Per Se Instruction
At the commencement of trial, Guffey and defendants submitted all their proposed jury instructions to the trial court as a single group. Among the instructions offered by Guffey was an instruction on negligence per se based on CACI No. 418. The instruction informed the jury that if Self Storage was a place of employment constructed prior to May 26, 1983, the building's exit stairways must have not less than one candle foot of illumination at the floor level. The instruction further informed the jury that if Self Storage violated this requirement and the violation was a substantial factor in causing Guffey's harm, then the jury must find that Self Storage was negligent.
Guffey also offered a related assumption of the risk instruction. This instruction informed the jury that if Self Storage violated the lighting requirement, then Self Storage could not raise Guffey's assumption of the risk as a defense to its liability.
Before the trial commenced, the trial court asked the parties if they waived "the reporting of the jury instructions when they are read." Defense counsel immediately agreed to a waiver. The trial court then explained to Guffey, "What that means is then the jury instructions will be deemed to have been read so that your record will be the printed jury instructions, and we don't have a - the reporter doesn't have to then write them all out. The only obligation that puts on you is if I skip an instruction or misread an instruction, you need to bring it to my attention so that I'll correct it." (Italics added.) After hearing this explanation, Guffey also agreed to a waiver.
Before closing arguments, the trial court and the parties met to discuss the proposed jury instructions. The trial court immediately noticed the CACI instructions submitted by defense counsel were outdated. Initially, the trial court attempted to work with the outdated instructions by modifying them as needed to bring them current. However, while the trial court was reviewing the proposed instructions from the CACI 400 series, which should have included Guffey's proposed negligence per se instruction, the trial court determined this approach was unworkable. The trial court ordered defense counsel to submit revised instructions and recessed the conference.
Defense counsel revised the instructions and submitted a copy of them to the trial court and to Guffey. The trial court and the parties then resumed their discussion where they had left off, with the CACI No. 406 instruction. After ruling on this instruction, the trial court ruled on the CACI No. 430 instruction and the remaining proposed CACI 400 series instructions in numerical order, except that the trial court and the parties did not discuss and the trial court did not rule on Guffey's proposed negligence per se instruction. The trial court and the parties also did not discuss and the trial court also did not rule on Guffey's related proposed assumption of risk instruction. Nonetheless, the copies of these proposed instructions contained in the record have a stamped signature block with a stamped signature of the trial judge indicating the trial court refused to give the instructions.
This suggests Guffey's proposed instructions were not included in the revised instruction packet the trial court reviewed.
When the trial court read the instructions to the jury, Guffey did not inform the trial court it had omitted his requested negligence per se instruction. Guffey also did not inform the trial court it had omitted the instruction when the trial court called the jury back in briefly to resolve a concern about another instruction.
However, after the jury returned to their deliberations, the following exchange occurred:
"[GUFFEY]: Your Honor, just one question. And it's not really relevant now, but I thought the first time we looked at jury instructions, my request for negligence per se was in. (Italics added.)
"THE COURT: That's - I think that may be right, but you're not to tell the jury that.
"[GUFFEY]: I'm sorry, what?
"THE COURT: You're not supposed to tell the jury that.
"[GUFFEY]: Oh, you don't?
"THE COURT: You don't tell the jury about things that were rejected.
"[GUFFEY]: Oh, no. I said I thought it was in. That it was going to be read. And I kept
"THE COURT: I don't
"[GUFFEY]: Apparently not.
"THE COURT: I don't recall that.
"[GUFFEY]: Okay. It's not - it's - if they can't figure out negligence in this case, they don't need that one, and it only went to the assumption of the risk, and - it's fine, I just really honestly thought it was going to be in. (Italics added.)
"THE COURT: And the assumption of the risk was not raised as a defense.
"[GUFFEY]: That's correct. So there's really no big deal." (Italics added.)
The jury subsequently rendered a special verdict finding that defendants had not been negligent. Because of this special verdict, the jury was not required to and did not decide any other contested issues, such as whether defendants' conduct was a substantial factor in causing Guffey's harm, and the amount of Guffey's damages.
Motion for New Trial
Guffey moved for a new trial, arguing among other points of error that the trial court improperly refused to give his requested negligence per se instruction. The trial court denied the motion for new trial, finding Guffey never requested the instruction be given during the jury instruction conference, the trial court did not recall refusing the instruction, and the trial court did not know why there was a "refused" stamp on the instruction. In addition, the trial court found Guffey effectively withdrew his request for the instruction by not requesting it be given after realizing it had been omitted. The trial court also found the instruction was not necessary since defense counsel had conceded in his arguments to the jury that if the jury found that the perimeter lights were off, then the jury should find defendants were negligent.
DISCUSSION
Guffey contends the trial court prejudicially erred in refusing his requested negligence per se instruction as there was overwhelming evidence to support the giving of the instruction. In addition, he contends the error was preserved because, under Code of Civil Procedure section 647, a party is deemed to have excepted the trial court's refusal to give an instruction without the need for an objection.
Code of Civil Procedure section 647 provides in part, "All of the following are deemed excepted to:... an order... refusing to give an instruction...."
Defendants contend the record does not show Guffey actually requested the instruction or that the trial court actually refused to give it. Defendants also contend Guffey is estopped from raising the claimed instructional error on appeal because he did not request the trial court give the instruction within a reasonable time after realizing the trial court had not done so. Defendants further contend Guffey has not established that the claimed instructional error prejudiced him.
We need not decide whether the claimed instructional error occurred or whether Guffey is estopped from raising the error on appeal as we agree with defendants that Guffey has not established the error, if any, prejudiced him. "[I]nstructional error requires reversal only ' "where it seems probable" that the error "prejudicially affected the verdict" ' [Citation.] The reviewing court should consider not only the nature of the error, 'including its natural and probable effect on a party's ability to place his full case before the jury, ' but the likelihood of actual prejudice as reflected in the individual trial record, taking into account '(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled.' [Citation.]" (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983.)
In this case, the record does not show the claimed instructional error affected Guffey's ability to put his full case before the jury. He introduced evidence that the lighting on the stairway was inadequate if the perimeter lights were off. He also introduced evidence a lack of adequate lighting violates the City of San Diego's building code requirements. Although the parties' settled statement does not describe Guffey's closing arguments, the settled statement also does not show Guffey was prevented from arguing a violation of the building code requirements demonstrates negligence.
Moreover, the state of the evidence was such that the jury's determination of defendants' negligence turned entirely on whether the perimeter lights were on or off at the time of the incident. Guffey's proposed instruction on negligence per se would not have offered the jury any additional information to resolve this factual dispute.
Further, by finding defendants were not negligent, the jury implicitly found either that the perimeter lights were on or that Guffey had not established the perimeter lights were off. The necessary implication of these findings is that Guffey failed to establish the stairway lighting was inadequate in violation of the City of San Diego's building code requirements. Accordingly, we conclude there is "no reasonable probability the jury was misled or the verdict affected" by the trial court's failure to give the negligence per se instruction. (Soule v. General Motors, Corp. (1994)8 Cal.4th 548, 582.)
DISPOSITION
The judgment is affirmed. Respondents are awarded their appeal costs.
WE CONCUR: HUFFMAN, J.IRION, J.