Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIN039922, Yuri Hofmann, Judge. Affirmed.
HUFFMAN, Acting P. J.
Plaintiff William Heaton appeals from a judgment entered against him and in favor of defendant James Perron, after a jury returned a special verdict finding Perron was not negligent "in the use, maintenance, or management of his property," which was the subject of Heaton's unverified complaint alleging personal injury based on premises liability. Heaton had essentially claimed that Perron, as homeowner, was responsible for Heaton's shoulder and ankle injuries resulting from his fall off of Perron's "driveway (a bridge without handrails) into a ditch below. . . ."
Heaton contends "[t]he trial court and jury erred in finding that Perron was not negligent, as a matter of law, i.e., there is no substantial evidence to support the judgment . . ." and "Perron was negligent per se in violation of Uniform Building Code [UBC] section 1716, 1973 edition." Construed appropriately, Heaton's claims are essentially attacks on the sufficiency of the evidence to support the jury's verdict. Having thoroughly reviewed the record in such light, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
At about 11:30 p.m. on March 7, 2003, Heaton drove his friend Gregory Holliday to a residence on Bienvenido Lane in Escondido, California, that Holliday rented from Perron, to unload food trays they had left over from a church function. Because Holliday's van was already parked in the driveway, Heaton parked his Cadillac Seville behind the van on the portion of the driveway that formed a bridge over a drainage ditch or culvert. Because the bridged part of the driveway was about 14 feet two inches wide bordered by nine-inch curbs about 10 inches high, and the drop off from the bridged part was four feet four inches to the ditch, Heaton did his best to center the car on the bridged driveway to leave enough room for both Holliday and himself to safely get out of the car and take the food trays to the residence.
Holliday got out of the car first, taking a tray of food from the backseat to the house where he switched on the front porch light. When he went back outside, he "heard the oof" from the left-hand side of the driveway, as if somebody had had the wind knocked out of them, and called out for Heaton whom he could not see. Going in the direction of the sound, Holliday saw Heaton down in the ditch and went to help him. Heaton was in pain, could not talk much, but insisted on driving home. Heaton subsequently went to the hospital with his wife and was treated for injuries to his left shoulder and left ankle.
On September 28, 2004, Heaton filed his complaint for personal injury based on premises liability and negligence, in essence alleging that Perron was negligent for his failure to provide a guardrail on the driveway bridge, or otherwise keep his property in a reasonably safe condition.
At trial, the above evidence was presented via the testimony of Holliday, Heaton and Perron, as well as testimony from medical experts and opposing accident/safety liability experts. Additionally, Holliday testified that he, his wife and eight children had rented the house with a driveway bridge for over five years at the time of the accident and that to his knowledge no other person, either in his family or visitors to the property, had tripped and fallen from the curbed driveway into the ditch below. Although Holliday considered the curbed driveway bridge dangerous because it did not have guardrails and took precautions that his children were supervised while playing near it, he did not tell Perron that he considered it dangerous because he thought the dangers were obvious. Nor had Holliday ever asked Perron to add different exterior lighting to the house to more fully light up the concrete curbed driveway at night.
With regard to Heaton's accident, Holliday noted that although his house light had not been on at the time Heaton had driven into the driveway that night, he had his headlights and the car's dome light on when Holliday took the food to the house to turn on the porch light. Holliday did not learn what had caused the fall until several weeks later when Heaton told him he had been carrying food and did not see the curb and had tripped sideways over it and into the ditch. On cross-examination, Holliday conceded he had stated at his deposition that Heaton had told him that he had fallen backward into the ditch when he had backed out of the car with a tray of food and hit his ankle on the curb.
Perron was called as a witness in both Heaton's case and in his own defense. Perron explained that he had owned the subject property for over 20 years and had originally lived in the residence for 12 to 13 years with his wife and six children, and for seven of those years his family had also taken care of six mentally disordered adults at the residence. Perron had rented the property to Holliday in 1998. Although Perron recognized the potential that someone could theoretically trip and fall from the curbed driveway into the ditch, he did not consider it an unreasonably dangerous condition because neither he nor his family or anyone else visiting the property while he lived there had ever reported tripping or falling from that portion of the driveway. He did not consider putting guardrails on the area because of the attraction such would have to children who might climb on them and have an even greater fall into the ditch below.
In addition, Perron did not consider that the lighting on the property created a dangerous condition on the bridged portion of the driveway. He originally had a two-headed 300-watt sensor floodlight on the front porch, which was there when he rented the house to Holliday, but it had subsequently been replaced by Holliday after it quit working. Even though Perron did not currently live in Escondido, he came to town to inspect his property for necessary repairs several times each year.
Heaton testified he had been to the subject property at least 10 times, two or three of those visits at night, before the night of his accident, and was aware of the curbed, bridged driveway over the ditch without guardrails to protect from a fall. He also noted that he had his car's headlights on when he pulled into and centered his car on the bridged driveway that night, which lighted up the driveway and its curbs. He remembered getting out of the car, closing the front door and going to the back seat area on his driver's side where he pulled out a food tray and set it on the trunk of the car. He then shut the back door, used both hands to pick up the food tray from the trunk, moved "slightly backward . . . to square [himself] toward the front of the car" and began walking forward. The next thing he remembered was "flying or floating" through the air and landing on his back toward the bottom of the slope of the ditch closest to the house with his feet in the ditch. Heaton did not recall tripping on anything and denied he had told doctors or Holliday afterward that he had tripped on the curb while backing up from the car to pick up a food tray. Heaton did not know what caused the accident, but had mentioned to Holliday several times that the bridge/curb driveway with drop off was dangerous.
Heaton and a doctor who had reviewed the medical reports and depositions of Heaton's treating physicians also provided testimony concerning Heaton's injuries, treatment, various surgeries and the lasting effects of the accident on Heaton's employability and activities.
Carl Andre Beels, an accident investigator, testified as an expert for Heaton, and after reviewing the depositions of the parties and Holliday, as well as conducting a site inspection, opined that: (1) the driveway on Perron's property created a dangerous condition, which was exacerbated by the low lighting on the house, at the time of Heaton's fall and caused his fall; (2) the condition of the driveway was not in compliance with multiple codes and standards; and (3) the "idea of using lack of reported incidents to illustrate that a condition is safe, is misleading and an inadequate method of risk analysis." In his moonless night site visit, Beels used a light meter to determine the area where Heaton got out of his car on a similar moonless night would only have had .001 foot candles light, making it basically "pitch black."
Beels had taken photographs of Heaton's attorney's car in the driveway in a position based on Holliday's direction at the time of his site visit to show that the curbs of the driveway and the ditch below could not be distinguished in the darkness. Although Beels conceded that Heaton would have been able to see the driveway curbs while pulling his car into the driveway with its headlights on, he explained there would be insufficient light to see any difference between the curbs and driveway concrete surfaces in the darkness once Heaton got out of the car.
Additionally, because the driveway bridge was used for both vehicular and pedestrian access to the house, Beels testified that it was essentially a pedestrian walkway of egress from a building, as well as a "dispersal area," for which the codes required guardrails as it was more than 30 inches above the ground. In particular, Beels had used the 1973 version of section 1716 of the UBC to form the opinion that guardrails were mandated for the driveway bridge in this case. Although he recognized the UBC did not specifically mention driveways, he maintained that the "spirit of the code" was that it should be read broadly to include such structures.
On cross-examination, Beels's testimony was greatly discredited. Among other things, he conceded a 50 watt bulb on the front porch had been used for his site visit instead of the 100 watt one at the time of the accident, a different car had been parked in the driveway farther left of center than Heaton's car had been parked, and he did not know the settings of his camera to verify it was appropriately set so as not to manipulate the photographs to make them darker than actually appeared. Beels also agreed that Perron's driveway was not "an unenclosed floor" for purposes of UBC section 1716, and conceded that the outdoor lighting on Perron's house was adequate under the code.
Perron's safety expert, Peter Jim Zande, testified in defense that the UBC was code specific to buildings and structures, that it did not apply to driveways, and that its reference to a "dispersal area" was not applicable to residences, but rather to public buildings such as stadiums. Zande specifically noted that the code on which Heaton relied for his assertion that guardrails were required on Perron's driveway was not applicable because it only addressed the need for guardrails for "unenclosed floor and roof openings." Zande also agreed with Beels that the porch light already in place on Perron's home at the time of the accident complied with the UBC.
Zande, who had also conducted a site inspection of the driveway on Perron's property at night, opined that based on his inspection, as well as on the evidence in the record, the curbs alongside the driveway were not dangerous conditions because they were barriers that reflected light and functioned as signposts or visual cues to vehicles and pedestrians of where the driveway ends and the culvert begins. He also opined that lighting was not an issue if Heaton were backing up when the accident occurred. It was Zande's opinion that the accident was caused by Heaton's own failure to use due care to watch where he was going.
On cross-examination, Zande conceded that a guardrail would have prevented Heaton from going into the culvert and that he had not used exact measurements during his site visit to recreate similar conditions as on the night of the accident. On redirect, Zande said his opinion that Heaton caused his own accident and injuries was also based on his review of the medical records in evidence in which Heaton had told doctors that he had "backed up and tripped over a low cement bridge and fell backwards approximately [four] feet into a gully. . . ."
The jury was subsequently instructed on the definition and elements of negligence, including the basic duty of care of a landowner under CACI No. 1001, on the presumption of negligence per se under CACI No. 418 based on the 1973 version of the UBC section 1716 and given a special jury instruction requested by Heaton that told the jury that "[a] person who owns or controls property has a nondelegable duty to keep the property in a reasonably safe condition. This means that the owner cannot delegate or assign that duty to someone else. If you find the property to be in an unsafe condition, it is no defense that the owner had charged another person or entity to maintain and/or inspect the property." The jury was also given instructions on how to view evidence and to consider expert testimony and the credibility of witnesses.
The jury was specifically instructed under CACI No. 400 that "Plaintiff William Heaton claims that he was harmed by defendant James Perron's negligence. To establish this claim, . . . Heaton must prove all of the following: [¶] 1. That . . . Perron was negligent. [¶] 2. That . . . Heaton was harmed; and [¶] 3. That . . . Perron's negligence was a substantial factor in causing . . . Heaton's harm. The jury was also instructed under CACI No. 1000 that "Heaton claims that he was harmed because of the way . . . Perron managed his property. To establish this claim, . . . Heaton must prove all of the following: [¶] 1. That . . . Perron was negligent in the use or maintenance of the property; [¶] 2. That . . . Heaton was harmed; and [¶] 3. That . . . Perron's negligence was a substantial factor in causing . . . Heaton's harm."
CACI No. 1001, as given the jury, provided: " A person who owns, leases, occupies, or controls property is negligent if he fails to use reasonable care to keep the property in a reasonably safe condition. A person who owns, leases, occupies, or controls property must use reasonable care to discover any unsafe conditions and to repair or replace anything that could be reasonably expected to harm others. [¶] In deciding whether . . . Perron, used reasonable care, you may consider, among other factors, the following: [¶] (a) The location of the property; [¶] (b) The likelihood that someone would come on to the property in the same manner as . . . Heaton did; [¶] (c) The likelihood of harm; [¶](d) The probable seriousness of such harm; [¶] (e) Whether . . . Perron knew or should have known of the condition that created the risk of harm; [¶] (f) The difficulty of protecting against the risk of such harm; and [¶] (g) The extent of . . . Perron's control over the condition that created the risk of harm; and [¶] (h) Other relevant factor(s).
The CACI No. 418 given in this case, provided that "The 1973 Uniform Building Code section 1716 states: [¶] Guardrails [¶] All enclosed floor and floor openings; open and glazed sides of landings; balconies or porches which are more than 30 inches above grade; and roofs used for other than service of the building, shall be protected by a guardrail. Guardrails shall not be less than 42 inches in height. Open guardrails and stair railings shall have intermediate rails or an ornamental pattern such that a 9-inch diameter sphere cannot pass through. The height of stair railings may be as specified in Section 3305(i). [¶] Exception: Guardrails need not be provided on the loading side of loading docks. [¶] If you decide: [¶] 1. That . . . Perron, violated this code section, and [¶] 2. That violation was a substantial factor in bringing about the injury, damage or harm, then you must find that . . . Perron, was negligent. [¶] If you find that . . . Perron, did not violate this law or that the violation was not a substantial factor in bringing about the injury, damage or harm, then you must still decide whether . . . Perron, was negligent in light of the other instructions.
The jury returned a special verdict that read: "We, the jury in the above-entitled action, answer the questions submitted to us as follows: [¶] 1. Was defendant, JAMES PERRON, negligent in the use, maintenance, or management of his property? NO." The remaining questions were left blank pursuant to the special verdict instructions. Judgment was subsequently entered for Perron in this case.
DISCUSSION
Initially, we note that it is well established that "[t]he trial court's judgment is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citation.]" (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 670.) Because of this presumption, a party challenging such judgment has the burden of providing an adequate record to overcome the presumption and to show reversible error. (Ballad v. Uribe (1986) 41 Cal.3d 564, 574-575.) Moreover, to the extent that an attack is made upon the sufficiency of the evidence, it is necessary "to set forth a fair and adequate statement of the evidence which is claimed to be insufficient." (Hickson v. Thielman (1956) 147 Cal.App.2d 11, 14.) A fair statement of all the evidence includes the evidence supporting the judgment. (Valentine v. Read (1996) 50 Cal.App.4th 787, 796.) When an appellant has not provided a fair statement, we may view such failure as " 'tantamount to a concession that the evidence supports the findings' " or deem the issue waived. (Brown v. World Church (1969) 272 Cal.App.2d 684, 691; Valentine, supra, 50 Cal.App.4that p. 796.)
Here, we note that Heaton has failed to set out a fair statement of the facts, basically citing only the evidence favoring his position and ignoring that favoring Perron. Nor has Heaton provided a full record of the trial that includes closing arguments of counsel, the court's oral instructions to the jury, and the jury's rendering of the verdict before the court. This failure to fully set forth the evidence and record can be considered a concession that the evidence supports the findings.
Further, Heaton's contentions, framed as legal issues, essentially ask us to reweigh the evidence. His claim that the jury erred in concluding Perron was not negligent because a de novo review of the evidence in light of CACI No. 1001 would show negligence as a matter of law merely calls upon this Court to substitute our judgment for that of the jury, which we cannot do. When we review challenges to the sufficiency of the evidence, we must review the entire record and view all factual matters in the light most favorable to the prevailing party and the judgment. (Washington v. Farlice (1991) 1 Cal.App.4th 766, 771-772.) " ' "[W]e have no power to judge . . . the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom." ' " (White v. Inbound Aviation (1999) 69 Cal.App.4th 910, 927.) When, as here, a factual determination is based on live witness testimony, " 'there is every reason to believe [the jury's] resolution will be more accurate than that of an appellate court which received no firsthand exposure to the evidence.' " (Leiserson v. City of San Diego (1986) 184 Cal.App.3d 41, 52.) " 'All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity, to be accepted by the trier of fact.' " (Buehler v. Sbardellati (1995) 34 Cal.App.4th 1527, 1542.) When the record contains substantial evidence, "no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) A limited exception to these rules may apply when evidence is inherently incredible. (See Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 413, fn. 1.) However, this is not such a case. Thus, to the extent Heaton's arguments rest on a reweighing of the evidence, they fail.
Moreover, there was abundant evidence to support the jury's finding that Perron was not negligent. As noted in the factual background, the jury was presented with conflicting evidence as to the dangerousness of the condition created by the curbed driveway bridge on Perron's property and as to whether the UBC required guardrails on the driveway. The jury was then instructed on all theories of negligence and negligence per se based on the UBC upon which Heaton relied to claim that Perron was negligent in his maintenance of the driveway on his property. The jury was entitled to reject Heaton's expert's testimony and opinion that the UBC applied to the driveway and that the driveway even without the code was a dangerous condition per se day or night. Based on the evidence in favor of the judgment, which included the facts that the driveway had existed in its present configuration for over 20 years without any prior accidents, that Perron had never been notified that the driveway was a concern to anyone, and that Perron's expert opined the UBC did not apply and it was Heaton's own lack of due care that caused the accident, a reasonable jury could have determined that the UBC did not apply to the driveway, and that Perron used reasonable care in maintaining his property and had acted reasonably in not putting guardrails on the driveway.
Because Heaton did not call upon the trial court to make any legal determination concerning whether the UBC applied to Perron's driveway, whether the court erred in permitting the jury to decide that question based on the plain wording of the statute and the expert testimony is not properly before this court for de novo review as Heaton contends.
Heaton has not identified any evidentiary or instructional error, or presented any evidence that the jury or trial court abdicated their respective duties. Because Heaton has not affirmatively shown any error, he has failed to meet his burden of establishing any legal or factual basis for reversal of the judgment against him and in favor of Perron.
DISPOSITION
The judgment is affirmed. Perron is entitled to costs on appeal.
WE CONCUR: HALLER, J., O'ROURKE, J.
The jury was then instructed under CACI No. 401 that "[n]egligence is the failure to use reasonable care to prevent harm to oneself or to others. [¶] A person can be negligent by acting or by failing to act. A person is negligent if he 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 . . . Perron['s] situation."