Opinion
F083331
06-29-2023
DAQUAN JONES, Plaintiff and Respondent, v. CITY OF FIREBAUGH, Defendant and Appellant.
Suzanne M. Nicholson; Litigation Engineered and Chester E. Walls for Defendant and Appellant. Miles, Sears &Eanni, Richard C. Watters and Lyndsie N. Russell for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. 18CECG04044. Rosemary T. McGuire, Judge.
Suzanne M. Nicholson; Litigation Engineered and Chester E. Walls for Defendant and Appellant.
Miles, Sears &Eanni, Richard C. Watters and Lyndsie N. Russell for Plaintiff and Respondent.
OPINION
DETJEN, Acting P. J.
Plaintiff and respondent Daquan Jones-a former truck driver-brought an action against defendant and appellant the City of Firebaugh (City) for personal injuries caused by a dangerous condition of public property. He alleged he was driving a tractor trailer on M Street when the road unexpectedly terminated in front of the private property of Hiller Aircraft Corporation (Hiller). Unable to turn around due in large part to concrete barricades on the road, Jones and his codriver John Cheatham entered Hiller's property. Hiller's general manager Steven Palm refused to let Jones and Cheatham leave until they paid $50. Thereafter, Jones and Palm got into a physical altercation. While being restrained by Palm on the ground, Jones was run over by Cheatham, who was driving off the property.
Following trial, the jury returned a special verdict finding, among other things: (1) City controlled M Street; (2) M Street was in a dangerous condition at the time of Jones's injuries; (3) the dangerous condition created a reasonably foreseeable risk of these kinds of injuries; (4) City had sufficient notice of the dangerous condition to have taken measures to protect against it; (5) the negligent and/or wrongful conduct of a City employee acting within the scope of his employment created the dangerous condition; and (6) the dangerous condition was a substantial factor in causing harm to Jones. The jury awarded Jones over $9 million in damages: $1,182,877.69 in total past economic damages; $5,145,446 in total future economic damages; $1,500,000 in past noneconomic damages; and $1,500,000 in future noneconomic damages. Liability was apportioned as follows: 45 percent to Palm, 25 percent to Hiller, 25 percent to City, and 5 percent to Cheatham. After factoring in Cheatham's share of fault as well as prior settlements, the superior court adjudged Hiller and City jointly and severally liable for $5,743,907.51 in economic damages and City severally liable for $750,000 in noneconomic damages. An amended judgment on the special verdict was entered June 22, 2021.
The jury found Jones negligent but concluded his negligence was not a substantial factor in bringing about his injuries.
On appeal, City makes four contentions. First, "the public property at issue was not a dangerous condition" "on this record and as a matter of law." Second, the trial court "abused its discretion when it allowed [an expert witness] to testify to the ultimate issue to be determined by the jury," i.e., whether "City's property was a dangerous condition." (Some capitalization omitted.) Third, CACI No. 1125 (Conditions on Adjacent Property) and Special Instruction No. 1 were "erroneous" and "contributed to the jury's erroneous finding of a dangerous condition." (Capitalization omitted.) Fourth, "[t]he court abused its discretion when it denied the City's motion for leave to amend its answer to conform to proof and instruct the jury on intentional or criminal conduct as a superseding cause." (Boldface &some capitalization omitted.)
We conclude: (1) substantial evidence supported the jury's finding of public entity liability; (2) the court did not abuse its discretion when it allowed an expert witness to testify about M Street's condition; (3) the challenged jury instructions were proper; and (4) the court's denial of City's request for leave to amend its answer was justifiable and its decision not to give City's requested instructions was not prejudicial.
FACTUAL AND PROCEDURAL HISTORY
I. Trial testimonies
a. Daquan Jones
On July 2, 2018, Jones and Cheatham arrived at the loading dock of Red Rooster, a tomato packing operation located near the intersection of M Street and 12th Street. This was Jones's "first time in Fresno" and he was unfamiliar with the area. After picking up tomatoes, Jones needed to move his vehicle-an 80-foot-long "sleeper berth" tractor trailer-to accommodate "other drivers that was getting in the docks." He saw smaller "day cab" tractor trailers parked along M Street and "figured that that was someplace for trucks." Jones drove northbound on M Street and passed both 12th Street and 11th Street.
Jones testified he is from Philadelphia, Pennsylvania.
M Street dead-ended at 10th Street and in front of Hiller's property. Before Jones reached Hiller's "magnetic" gate, he had not seen any signs indicating M Street would terminate. Once there, he noticed concrete barricades on the road. Because of these barricades, Jones "could not make a safe U-turn" and deemed a three-point turn "impossible." In addition, based on his training, he felt "[i]t was unsafe to back up that far."
Jones "popped [the] parking brakes." Cheatham got out of the tractor trailer and asked "one of the [Hiller] employees outside" "if it was okay to make a U-turn." That individual-Cory Hornsby-"said, yes, of course." After Cheatham returned to the truck, Jones passed through the open gate and made a U-turn. Before the pair could leave, however, Palm "came out of nowhere" yelling, "Stop, Stop" and "jumped on" "the steps" on "[t]he driver's side." Jones stopped the truck and both he and Cheatham disembarked. Palm insisted the men had to pay $50 for making a U-turn on Hiller's property. Jones replied, "You don't have any signs out indicating that it's $50. So, at this point, can you just call the police? If I'm at fault, I will pay you the $50. But can you please call the police?" Palm refused to call the police.
Per Jones's instructions, Cheatham went back inside the tractor trailer. After Jones told Palm they "were going to leave," Palm "shut the gate." Jones reopened the gate and told Cheatham to "drive out." As Cheatham "drove slow out of the gate," Jones headed toward the truck. When he "got to the front of the truck," Palm "started pushing" him. They were at the side of the vehicle when Palm said, "You're gonna get hurt." Jones and Palm "got into a pushing match." Palm placed Jones in a headlock and the two "fell to the ground" "underneath the trailer." Jones implored, "Hey, man, just let me up. I'm gonna get ran over." Palm did not release him. Jones's "whole left side" was then crushed by the trailer's right rear tires.
As a result of the accident, Jones sustained a large left buttock avulsion; a left shoulder fracture dislocation; a neck fracture; severe damage to the anterior cruciate and lateral collateral ligaments of the left knee; damage to the left peroneal nerve leading to functional left foot drop; mild to moderate traumatic brain injury; permanent memory and cognitive deficits; posttraumatic stress disorder; and major depressive disorder. He underwent numerous surgeries at various medical facilities.
b. Gary Maslanka
In July 2017, Maslanka-Hiller's materials manager-purchased 10 concrete barricades measuring "five feet by two feet by 18 inches thick" at Palm's behest. The purpose of these barricades "was to prevent the trucks from doing U-turns next to the property, or on the property" because "trucks tended to create a lot of dust" and Hiller was "producing a part that does not like any dust in the tooling."
c. Cory Hornsby
Hornsby, a Hiller aircraft mechanic, was one of the employees Palm tasked with placing the barricades on M Street. Vehicular access to eastbound 10th Street was blocked by a line of seven barricades, the farthest of which was approximately 88 feet south of Hiller's fence. Access to westbound 10th Street was blocked by a line of three barricades.
At Palm's direction, Hornsby stenciled the phrase "Truck Turn Around $50 Cash" on some of the barricades.
Jones testified he never saw the "Truck Turn Around $50 Cash" warnings because he was "sitting up high" in the tractor trailer and "it's impossible to see anything low."
d. John Borboa
Approximately two weeks before the July 2, 2018 accident, Borboa-City's fire chief-observed a Hiller employee "on a backhoe placing power poles across" "the 10th Street driveway." Worried these poles would "negate[] [a fire engine's] ingress and egress to the property that's on the north side of Hiller," Borboa spoke with the employee, who remarked "his boss wasn't going to be happy." At the same time, Borboa noticed the barricades but believed they were on private property. Later, after a land survey was performed, he learned the barricades were actually on City's property.
The record indicates nine out of 10 barricades were on City's property.
On the day of the accident, Borboa returned to the site and saw the barricades again. He contacted Palm and expressed concern about them, i.e., "if [Hiller] had something behind [its] property [the fire department] would not be able to get fire apparatus to the back side of [the] property." A few days later, Palm informed Borboa the barricades were removed.
e. Salvador Raygoza
Raygoza, City's police chief, testified the police department was responsible for enforcement of the municipal code. On or around June 20, 2018, sometime after Borboa advised him Hiller's barricades may be on City's property, Raygoza sent a code enforcement officer to Hiller's location. According to the officer, Palm maintained Hiller placed the barricades on its own property after conducting a survey. Raygoza instructed the officer "to work with the building department at city hall and check and see if truly, in fact, those cement barricades were on private property."
On July 2, 2018, the day of the accident, Raygoza arrived on the scene and spotted the barricades along M Street. Thereafter, City commissioned a survey. Raygoza learned barricades were on City's property. (See ante, fn. 4.)
f. Benjamin Gallegos
Gallegos, City's public works director and manager, testified M Street was a designated truck route at the time of the accident. It was paved between 12th Street and 11th Street but became a "[d]irt road" past 11th Street. Before a business can put anything on a public roadway, it must first obtain an encroachment permit.
Prior to July 2, 2018, Gallegos was made aware of Hiller's barricades by Borboa and asked Raygoza to investigate. Gallegos subsequently visited the site and saw the barricades. At trial, he confirmed Hiller did not have an encroachment permit.
g. Dalene Whitlock
Whitlock, a registered civil and traffic engineer, visited the scene of the accident and reviewed photographs, video footage, deposition transcripts, and other pertinent materials. Documents showed City abandoned a portion of M Street and 10th Street in 1988 but retained an easement in M Street between 12th Street and 10th Street. Whitlock detailed measures City should have implemented prior to the accident:
"Design standards require that . . . if you terminate a street, you are supposed to have a cul-de-sac bulb on it for the specific purpose of drivers being able to then turn around. This street did not have a cul-de-sac bulb, and because of the barricades placed by Hiller Aircraft it was of insufficient width for a truck to make a turn-around unless they were expecting to do so and they were traveling way far to the right side of the road so that they had a little more space. If you were driving down the middle of the road, it would be quite difficult to make that turn-around. [¶] . . . [¶]
The record indicates the normal width of M Street is at least 60 feet, but the barricades decreased this distance to 56 feet.
". . . Further, the [C]ity didn't provide any guidance to drivers that there was such a restriction on their ability to make a turn-around. A sign as simple as something that indicated that there was no outlet or no turnaround would easily have notified drivers of a truck that they weren't going to be able to make a turn-around at the end, which is what they would normally expect to be able to do."
Whitlock testified a cul-de-sac bulb would have to be: (1) about 80 feet in diameter to allow tractor trailers the size of the one driven by Jones to perfom a three-point turn; and (2) about 90 feet in diameter to allow said vehicles to perform a U-turn. On the other hand, as a "relatively inexpensive" option, City could have converted the segment of M Street between 12th Street and 10th Street into a "non-truck route" (boldface omitted) via "[i]nstallation of a sign saying trucks prohibited" and "a minor change to [City's] code." Whitlock recognized some of the barricades bore the phrase "Truck Turn Around $50 Cash" but doubted these warnings were visible:
"From the height of a driver's eye in a truck, the barricades would be well below their sight lines. And normally the signs are posted such that they're perpendicular to the travelway so that you can see them. They're in front of your eyes. These were parallel to the travelway, so they would be quite difficult to see from - especially from a truck." (See ante, fn. 3.)
On cross-examination, Whitlock added the "notice[s] on the barricades" "were painted in white on [sic] red on the sides of the barricades," "were not very large," "would be difficult to see," and "were, in fact, in conflict with the town's municipal code which requires that signs be of certain standards."
On the issue of whether M Street was in a dangerous condition at the time of the accident, the following exchange took place:
"Q. And then as to a dangerous condition of public property, do you have an opinion as a traffic engineer that works for small cities as to whether or not this area of M Street at or about 12th as it proceeded up to 10th and [sic] Firebaugh, California, as of July 2nd of '18, whether this was a dangerous condition which is a condition of public property that creates a substantial risk of injury to members of the general public when the property is used with reasonable care and in a reasonably foreseeable manner . . . ? Do you have an opinion on that?
"MR. WALLS: Objection. Ultimate fact.
Chester Walls represented City at trial.
"THE COURT: Overruled.
Richard Watters and Lyndsie Russell represented Jones at trial.
"Q. Do you have an opinion on that?
"A. The condition of the road in and of itself was not necessarily unsafe because the problem wasn't the road so much as it was that it could not be used in the right way. Because Mr. Jones couldn't turn his truck around he was essentially forced to go onto the Hiller property, which is -public traffic must be able to use and stay on public roads, and he was not able to do that.
"Q. And in your opinion was that a dangerous condition of public property as I just read to you from the [CACI No.] 1102 [Definition of Dangerous Condition] jury instruction?
"A. It became dangerous to him.
"Q. And would it have been dangerous to a member of the general public exercising due care?
"MR. WALLS: Objection. Ultimate fact. Foundation.
"THE COURT: Sustained.
"BY MR. WATTERS:
"Q. I can read it again to you. Would the area of roadway at 12th as you are proceeding northbound on M Street, 12th, 11th, 10th, in the condition it was in, was it a dangerous condition of public property that created a substantial risk of injury to members of the general public when the property or adjacent property is used with reasonable care in a reasonably foreseeable manner[?]
"MR. WALLS: Objection. Ultimate facts. Foundation.
"THE COURT: Overruled.
"BY MR. WATTERS:
"Q. Was this a dangerous condition?
"A. It was for Mr. Jones.
"Q. And was it for the general public?
"MR. WALLS: Objection. Ultimate fact. Foundation.
"THE COURT: Overruled.
"BY MR. WATTERS:
"Q. Was it for the general public?
"A. No. Someone in a Volkswagen would make that turn.
"Q. Was it for the general public operating a semi tractor trailer?
"A. Not for someone in a semi tractor, no. It was unsafe.
"Q. It was unsafe. Was it a dangerous condition of public property as per the instruction I read to you for a member of the general public on 7-2 of '18?
"A. Yes." (Boldface omitted.)
When asked whether City "had a proper inspection system in place of their roadways and their signage" (boldface omitted) at the time of the accident, Whitlock responded:
"It appears that they did not. The responsibility for signing and striping appears to have been left to the police chief, who - while they have tremendous knowledge about what those signing and striping installations means and how to enforce them, they're not trained in where they should be used and when they should be used. So they really had no ability to ensure that the road was properly signed.
"The [C]ity manager also had some responsibility. And, again, the [C]ity manager is not an engineer, doesn't have any training. The only engineering personnel that was involved at all was a contract engineer, and he was apparently brought in only to address the specific situations when requested and was never given the latitude to survey or review conditions in the field to ensure that they were correct.
"The fire chief indicated that he had been out there just previously, and yet it was turned over to the code compliance, but it doesn't appear that it was fixed or it wasn't fixed."
When asked whether City "act[ed] reasonably in their response through Fire Chief Borboa and/or the code enforcement inspector on or about June 20th of '18" (boldface omitted), Whitlock responded:
"No. [¶] . . . [¶] . . . The code enforcement should have required that they remove the barricades and the telephone poles immediately to allow a turn-around right in front of the gate so that if the gate were closed someone could still turn around. The code enforcement officer from their deposition appears to have taken the Hiller Aircraft employee's word for it that everything was on private property, which even if it were on private property a private driveway is still required to have a turn-around at the end of it under the fire code."
On cross-examination, Whitlock specified the "insufficient width for the turn around," "[t]he lack of notification that [M Street] was a dead-end street," and "[t]he lack of notification that there was anywhere to turn around that would accommodate a tractor trailer, essentially forcing them on to private property where they were not welcome" constituted a dangerous condition of public property. She reiterated tractor trailers the same size as the one driven by Jones would not have had enough space on M Street to U-turn because of the barricades. Whitlock also pointed out while "drivers that are local to the area and realized that the barricades were there would have approached on the far right side of the road, giving them more space to make the turn," or "might know they needed to perform the three-point turn at 11th Street," Jones was from out of town and did not know "he wasn't going to be able to turn around ahead" and "may have been assuming that he could make the U-turn at the end of the road."
h. Dr. Robert Post
Post, a psychologist specializing in human factors, visited the scene of the accident and reviewed photographs thereof. He likewise acknowledged some of the barricades bore the phrase "Truck Turn Around $50 Cash." Asked whether "that particular signage would have been conspicuous to a semi truck driver driving through those barricades" (boldface omitted), Post opined:
"So essentially the letters were printed on the sides of things running alongside the path of travel of the truck and not perpendicular to the truck as normal signs are presented. So these signs would likely not be noticed. They would only become legible when one is fairly close up to the cement blocks, and at that point there are other demands on the visual system. And . . . the blocks to the east side of the truck may not have been visible at all owing to the driver's side being on that [opposite] side. So I arrived at the decision that these signs were not conspicuous to drivers."
Post further opined: (1) a "no outlet" sign should have been at the intersection of M Street and 12th Street at the time of the accident; and (2) a "sign indicating dead-end" should have been at the intersection of M Street and 11th Street at the time of the accident. The presence of such signs "would be desirable for . . . someone exercising care and was concerned about whether or not that represented a potential truck outlet" and "would have been informative to that individual as to the possibility that that road down M Street was not an option available."
DISCUSSION
I. City's liability for injuries caused by a dangerous condition of its property
"Under the Government Claims Act (Gov. Code, § 810 et seq.), there is no common law tort liability for public entities in California ...." (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897.) Instead, such liability must be "provided by statute." (§ 815; accord, Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1348 (Cerna).) In the instant case, the pertinent statute is section 835, which reads:
Unless otherwise indicated, subsequent statutory citations refer to the Government Code.
"Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
"(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
"(b) The public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." (Accord, Cerna, supra, 161 Cal.App.4th at p. 1347.)
On appeal, City challenges the jury's finding of public entity liability on three grounds. First, M Street "was not a dangerous condition" "on this record and as a matter of law." Second, the alleged dangerous condition "was not a proximate cause of plaintiffs' [sic] injuries." Finally, "not only were the kind of injuries suffered by Plaintiff unforeseeable, so too was the manner in which they occurred." We address each point below.
a. Dangerous condition
" 'Dangerous condition' means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used." (§ 830, subd. (a); accord, Cerna, supra, 161 Cal.App.4th at p. 1347.) "As this definition implies, not every defect on a property constitutes a dangerous condition; this reflects the reality that it is impossible for a public entity to keep its property free of all defects." (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 518.)" 'As to what constitutes a dangerous or defective condition no hard-and-fast rule can be laid down, but each case must depend upon its own facts.' [Citation.]" (Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1069; see ibid. ["A dangerous condition of public property can come in several forms and may be based on an 'amalgam' of factors."].)
"The question as to whether the condition of a public street is dangerous and a menace to those travelling upon it is usually one of fact for the determination of the trier of fact, whose conclusion, if supported by any substantial evidence, will not be disturbed on appeal." (Barker v. Los Angeles (1943) 57 Cal.App.2d 742, 747; see Ogundare v. Department of Industrial Relations (2013) 214 Cal.App.4th 822, 830 [" 'In general, substantial evidence has been defined in two ways: first, as evidence of"' "ponderable legal significance . . . reasonable in nature, credible, and of solid value" '" [citation]; and second, as" 'relevant evidence that a reasonable mind might accept as adequate to support a conclusion'" [citation].' "].)"' "Where findings of fact are challenged on a civil appeal, we are bound by the 'elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court." [Citation.]' [Citations.]" (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) For instance, "when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874, italics omitted.) "The substantial evidence standard of review is generally considered the most difficult standard of review to meet, as it should be, because it is not the function of the reviewing court to determine the facts." (In re Michael G. (2012) 203 Cal.App.4th 580, 589.)
The record-viewed in the light most favorable to the verdict-demonstrates Jones decided to drive his 80-foot-long tractor trailer on M Street on July 2, 2018, because he saw other tractor trailers parked along that road and "figured that that was someplace for trucks." City's public works director and manager Gallegos confirmed M Street was a designated truck route at the time. Nothing suggests Jones operated his vehicle in an unsafe fashion. Thus, a rational trier of fact could find Jones utilized M Street "with due care in a manner in which it is reasonably foreseeable that it will be used." (§ 830, subd. (a).) Jones proceeded northbound past 12th Street and 11th Street, but there were no signs indicating M Street would terminate at 10th Street and the entrance of Hiller's property. At the dead end, he noticed the 10 concrete barricades, nine of which were placed on City-controlled property by Hiller without permission. These barricades were meant "to prevent . . . trucks from doing U-turns next to [Hiller's] property" and-in fact-curtailed Jones's ability to make either a U-turn or a three-point turn. Jones also felt "[i]t was unsafe to back up that far" based on his training. In order to turn around, he needed to go onto Hiller's private property. (Cf. Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 754, 759-760 [physical characteristics of public property induced motorists to leave road and enter graveled strip where the plaintiff was struck by a car].) After Jones and codriver Cheatham were allowed on the property, however, they were told by Hiller's general manager Palm they could not leave until they paid $50 for making a U-turn. Although some of the barricades displayed the phrase "Truck Turn Around $50 Cash," Jones did not see these warnings. According to expert witnesses Whitlock and Post, the warnings would not have been visible to other similarly situated truck drivers as well. Moreover, Hornsby-the Hiller employee who stenciled the phrase on the barricades-made no mention of the fee when he let Jones and Cheatham pass through the gate. Jones refused to pay and held the gate open so Cheatham could drive off the property. Thereafter, Jones and Palm came to blows over the money, which led to Palm restraining Jones on the ground and Jones getting run over by Cheatham.
"[T]he location of public property, by virtue of which users are subjected to hazards on adjacent property, may constitute a 'dangerous condition' under sections 830 and 835 ...." (See Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 154, italics omitted (Bonanno).) Additionally, "[a] public entity may be liable for a dangerous condition of public property even where the immediate cause of a plaintiff's injury is a third party's negligent or illegal act . . . if some physical characteristic of the property exposes its users to increased danger from third party negligence or criminality." (Cerna, supra, 161 Cal.App.4th at p. 1348; see Bonanno, supra, at pp. 149, 154.) As noted, M Street's lack of appropriate signage and the barricades left undisturbed by City ultimately compelled Jones to enter the private property of a company-unbeknownst to him-averse to the presence of tractor trailers. On Hiller's behalf, Palm threatened to impound Jones's vehicle unless a $50 charge was settled. Jones, who had not been forewarned about any monetary penalty, indicated he would not pay. He and Cheatham, who could have plausibly believed they were being unfairly detained, attempted to leave. Given these circumstances, one could reasonably anticipate a scuffle over the money and injuries therefrom. (See Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 47 ["If the likelihood that a third person may react in a particular manner is a hazard which makes the actor negligent, such reaction whether innocent or negligent does not prevent the actor from being liable for the harm caused thereby."].) Thus, a rational trier of fact could conclude the physical deficiencies of M Street" 'increased or intensified' the risk of injury from [a] third party's conduct" (Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 754, quoting Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1137) "on adjacent property" (Bonanno, supra, at p. 154) and the risk "posed to an ordinary foreseeable user" (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 992) was not "minor, trivial or insignificant" (§ 830, subd. (a)). (See Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1346; Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466, 14741475 [absence of prior incidents not dispositive].)
Because substantial evidence supported the finding M Street was in a dangerous condition at the time of Jones's injuries, we necessarily reject City's suggestion the road "as a matter of law" was not in a dangerous condition. (See Huffman v. City of Poway, supra, 84 Cal.App.4th at p. 991 ["The issue of a dangerous condition becomes a question of law only where reasonable minds can come to only one conclusion."].)
b. Proximate cause
The California Supreme Court "ha[s] recognized that proximate cause has two aspects.' "One is cause in fact. An act is a cause in fact if it is a necessary antecedent of an event."' [Citation.] This is sometimes referred to as 'but for' causation. [Citation.]" (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 352, fn. omitted (State Hospitals).) "In cases where concurrent independent causes contribute to an injury, we apply the 'substantial factor' test of the Restatement Second of Torts, section 423, which subsumes traditional 'but for' causation." (Id. at p. 352, fn. 12.) "Under that standard, a cause in fact is something that is a substantial factor in bringing about the injury." (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969.)" 'The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual case be more than negligible or theoretical.' [Citation.] Thus, 'a force which plays only an "infinitesimal" or "theoretical" part in bringing about injury, damage, or loss is not a substantial factor' [citation], but a very minor force that does cause harm is a substantial factor [citation]." (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79; see Milligan v. Golden Gate Bridge Highway &Transportation Dist. (2004) 120 Cal.App.4th 1, 9 ["' "If the conduct which is claimed to have caused the injury had nothing at all to do with the injuries, it could not be said that the conduct was a factor, let alone a substantial factor, in the production of the injuries."' "].)
"The second aspect of proximate cause 'focuses on public policy considerations. Because the purported [factual] causes of an event may be traced back to the dawn of humanity, the law has imposed additional "limitations on liability other than simple causality." [Citation.] "These additional limitations are related not only to the degree of connection between the conduct and the injury, but also with public policy." [Citation.] Thus, "proximate cause 'is ordinarily concerned, not with the fact of causation, but with the various considerations of policy that limit an actor's responsibility for the consequences of his conduct.'" [Citation.]' [Citation.]" (State Hospitals, supra, 61 Cal.4th at p. 353.) "One policy consideration subsumed within the broad concept of proximate cause is the extent to which a defendant should be held liable for unforeseeable consequences." (Novak v. Continental Tire North America (2018) 22 Cal.App.5th 189, 196.) "[A] defendant's 'conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's . . . conduct, it appears . . . highly extraordinary that it should have brought about the harm.' [Citation.] For liability to attach, there must be 'some reasonable connection between the original negligence and its consequences, between the harm threatened and the harm done.' [Citation.]" (Id. at p. 197.) "The question of foreseeability of result merely looks to the 'likelihood of injury.' [Citation.] 'Neither the particular injuries sustained, the manner by which they were inflicted, nor the circumstances under which they were received are factors included within the foreseeability test. [Citation.]' [Citation.]" (Hardison v. Bushnell (1993) 18 Cal.App.4th 22, 27-28 (Hardison).)
We review a jury's finding of proximate cause for substantial evidence. (Hardison, supra, 18 Cal.App.4th at pp. 25-26; see Bigbee v. Pacific Tel. &Tel. Co. (1983) 34 Cal.3d 49, 56 ["Ordinarily, foreseeability is a question of fact for the jury."]; Milligan v. Golden Gate Bridge Highway &Transportation Dist., supra, 120 Cal.App.4th at pp. 8-9 [whether dangerous condition of public property was a substantial factor in causing harm "usually presents a question of fact"].)
The record-viewed in the light most favorable to the verdict-establishes M Street's lack of appropriate signage and barricades did not" 'play[] only an "infinitesimal" or "theoretical" part in bringing about injury, damage, or loss ....'" (Bockrath v. Aldrich Chemical Co., supra, 21 Cal.4th at p. 79.) Rather, because these defects led Jones to enter what may be accurately described as hostile territory, they constituted"' "a necessary antecedent" '" (State Hospitals, supra, 61 Cal.4th at p. 352) of the accident. Given the totality of the circumstances (see ante, at pp. 14-16), it was not" 'highly extraordinary that [M Street's condition] brought about the harm.'" (Novak v. Continental Tire North America, supra, 22 Cal.App.5th at p. 197.)
Because substantial evidence supported the finding M Street's condition proximately caused Jones's injuries, we necessarily reject City's suggestion such causation "as a matter of law" was absent. (See Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354 ["[T]he issue of proximate cause ordinarily presents a question of fact. However, it becomes a question of law when the facts of the case permit only one reasonable conclusion."].)
c. Reasonable foreseeable risk of the kind of injury incurred
" 'Before the enactment of the Government Claims Act, the only requirement was that the dangerous or defective condition be a proximate cause of the injury. [Citation.] However, after the enactment of [section ]835, the plaintiff was also required to establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred. The fact that the Act included both requirements suggests that the [L]egislature intended to change the former law from requiring only a showing of general foreseeability to requiring a showing that the precise manner in which the injury occurred was reasonably foreseeable.' [Citation.]" (Fuller v. Department of Transportation (2019) 38 Cal.App.5th 1034, 1040; cf. Hardison, supra, 18 Cal.App.4th at pp. 27-28.) We review a jury's finding of this particular foreseeability for substantial evidence. (See Fuller v. Department of Transportation, at p. 1041.)
The record-viewed in the light most favorable to the verdict-establishes Hiller did not want tractor trailers anywhere near its premises. The company purchased 10 barricades and placed them outside its entrance along M Street. The phrase "Truck Turn Around $50 Cash" was stenciled on some of the barricades, but these warnings would have been inconspicuous to any tractor trailer driver. On the day of the accident, as a result of M Street's lack of appropriate signage and the barricades, Jones was compelled to drive his vehicle onto Hiller's private property. A predictable, far from preposterous conflict emerged. Palm-on behalf of Hiller-demanded payment from Jones and Cheatham for their intrusion or else the men could not exit. Jones, who never saw the warnings on the barricades and heard about the fee for the first time from Palm, was reluctant to comply and wanted to leave. With the matter far from resolved, Palm confronted Jones after the latter held open the gate for Cheatham to drive through. A fight erupted while the tractor trailer was in motion. Moments later, Palm had Jones in a headlock, the men ended up underneath the trailer, and the trailer's right rear tires crushed Jones's "whole left side." Substantial evidence supported the finding that the precise manner in which Jones's injuries occurred was reasonably foreseeable.
II. Whitlock's opinion on M Street's condition
"Under Evidence Code section 801, subdivision (a), for an expert witness' opinion testimony to be admissible, it must relate to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 692.)" '[T]he admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would "assist" the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness" [citation].'" (Ibid.)
"A trial court's determination that expert testimony is admissible is reviewed for an abuse of discretion." (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1168; see Westbrooks v. State of California (1985) 173 Cal.App.3d 1203, 1210 [" 'It is fundamental that a trial judge has wide discretion to admit or reject opinion evidence, and that a [C]ourt of [A]ppeal has no power to interfere with the ruling unless there is an obvious and pronounced abuse of discretion on his part ....' "]; Kennemur v. State of California (1982) 133 Cal.App.3d 907, 926 [" 'Under general principles of evidence law, . . . the admissibility of expert evidence regarding the dangerous character of a property condition appears to be a discretionary matter for the trial court, to be evaluated in light of the facts of the particular case and the usefulness of the expert's opinions in arriving at the truth.' "].) "A ruling that constitutes an abuse of discretion has been described as one that is 'so irrational or arbitrary that no reasonable person could agree with it.' [Citation.]" (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.)
Whitlock, a registered civil and traffic engineer who observed the accident site and reviewed relevant materials, testified "[t]he condition of [M Street] in and of itself was not necessarily unsafe ...." Rather, she pointed out: (1) the width of that road did not allow long tractor trailers-such as the one driven by Jones-to turn around and said width was further narrowed by Hiller's concrete barricades (see Harland v. State of California (1977) 75 Cal.App.3d 475, 485 [expert testified safe travel on bridge compromised in part by narrow shoulders and median areas]); and (2) there were no signs indicating M Street would dead-end (see Cameron v. State of California (1972) 7 Cal.3d 318, 323 [civil engineer's testimony regarding uneven highway superelevation in" 'S'" curve without warning signs]; Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 87 [civil engineer's declaration detailed absence of signs, striping, or other indicators alerting motorists of difficulty negotiating approaching curve]). Whitlock opined City should have either installed a cul-de-sac bulb 90 feet in diameter, redesignated M Street as a non-truck route, and/or removed the barricades. When asked whether M Street was in a dangerous condition at the time of the accident, she answered in the affirmative over City's objections, explaining the lack of signage and the inability to turn around "essentially forced [Jones] to go onto the Hiller property" "where [he and Cheatham] were not welcome."
We cannot find the court's ruling was" 'so irrational or arbitrary that no reasonable person could agree with it.' [Citation.]" (Sargon Enterprises, Inc. v. University of Southern California, supra, 55 Cal.4th at p. 773.) Here, the accident did not involve a clear-cut road hazard, e.g., a collapsed bridge (see Westbrooks v. State of California, supra, 173 Cal.App.3d 1203). A court could reasonably believe "the evidence [in the instant case] was of such a character as to indicate the necessity of and require an interpretation for the benefit of the jury" (Wells Truckways, Ltd. v. Cebrian (1954) 122 Cal.App.2d 666, 677) and Whitlock's "particular knowledge and experience" "could aid the jury in drawing correct inferences" (id. at p. 678). While City argues "the trial court abused its discretion when it allowed Plaintiff's expert Whitlock to offer her opinion on [an] ultimate fact," "[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact" (Evid. Code, § 805).
III. CACI No. 1125 and Special Instruction No. 1
a. Background
Counsel for Jones, who recognized one of Hiller's 10 barricades was on property adjacent to the City-controlled segment of M Street (see ante, fn. 4), asked the trial court to issue CACI No. 1125 (Conditions on Adjacent Property), which read:
"City of Firebaugh's property may be considered dangerous if conditions on adjacent property contributes to exposing those using City of Firebaugh's property to a substantial risk of injury.
"Daquan Jones claims that the following conditions on adjacent property contributed to making the City of Firebaugh's property dangerous: one cement barricade with cables connecting the barricades across 10th Street. You should consider these conditions in deciding whether City of Firebaugh's property was in a dangerous condition."
City's objection to this instruction was overruled.
Counsel for Jones also proposed Special Instruction No. 1, which read:
"A public entity may be liable for a dangerous condition of public property even where the immediate cause of plaintiff's injury is a third party's negligent or illegal act if some physical characteristic of the property exposes its users to increased danger from third party negligence or criminality. But it is insufficient to show only harmful third party conduct, like the conduct of a motorist.
"Third party conduct, by itself, unrelated to the condition of the property, does not constitute a 'dangerous condition' for which a public entity may be held liable. There must be a defect in the physical condition of the property and that defect must have some causal relationship to the third party conduct that injures the plaintiff.
"Public liability lies only when a feature of the public property has increased or intensified the danger to users from third party conduct."
Special Instruction No. 1 lifted language nearly verbatim from Cerna, supra, 161 Cal.App.4th at page 1348. City's objection to this instruction was overruled.
Prior to closing arguments, the court read CACI Nos. 1100 (Dangerous Condition on Public Property-Essential Factual Elements) and 1102 (Definition of Dangerous Condition) to the jury:
"[CACI No. 1100:] Daquan Jones claims that he was harmed by a dangerous condition of City of Firebaugh's property. To establish this claim, Daquan Jones must prove all of the following: That City of Firebaugh owned or controlled the property, that the property was in a dangerous condition at the time of the injury, that the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred, that City of Firebaugh had notice of the dangerous condition for long enough to have protected against it, that Daquan Jones was harmed, and that the dangerous condition was a substantial factor in causing Daquan Jones'[s] harm. [¶] . . . [¶]
"[CACI No. 1102:] A dangerous condition is a condition of public property that creates a substantial risk of injury to members of the general public when the property is being used with reasonable care and in a reasonably foreseeable manner. A condition that creates only a minor risk of injury is not a dangerous condition. Whether the property is in a dangerous condition is to be determined without regard to whether Daquan Jones, Steven Palm and/or John Cheatham exercised or failed to exercise reasonable care in his/their use of the property."
The court then read CACI No. 1125 and Special Instruction No. 1 to the jury.
b. Analysis
On appeal, City contends CACI No. 1125 and Special Instruction No. 1 were improperly given to the jury. "The propriety of jury instructions is a question of law that we review de novo." (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.) "When a party challenges a particular jury instruction as being incorrect or incomplete, 'we evaluate the instructions given as a whole, not in isolation.' [Citation.]" (Ibid.)
Here, the court issued CACI Nos. 1100 and 1102, which referred to a dangerous condition of property owned or controlled by City. There is no dispute these instructions were appropriate as to nine of Hiller's barricades, which were placed on City's property without an encroachment permit. However, CACI Nos. 1100 and 1102 did not apply to the remaining barricade, which was not placed on City's property. To account for this outlier, the court correctly issued CACI No. 1125, which "is for use when a plaintiff's claim involves conditions on property adjacent to the public property" (Directions for Use for CACI No. 1125) and "should be given with, and not instead of, the applicable basic instructions for dangerous conditions on public property" (ibid.). (See Bonanno, supra, 30 Cal.4th at p. 148 [public property" 'may be considered dangerous if a condition on the adjacent property exposes those using the public property to a substantial risk of injury' "].) The court also approved Special Instruction No. 1, the wording of which was "taken almost verbatim from language in [Cerna]" (K. G. v. County of Riverside (2003) 106 Cal.App.4th 1374, 1385) and "serve[d] as a proper statement of the law as applied to the facts in the instant case" (ibid.). (See Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 ["A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party's theory to the particular case."].) The challenged instructions were proper.
IV. City's request for leave to amend answer
a. Background
On April 28, 2021, following close of evidence and during a jury instruction conference, City requested an "intentional torts" instruction and CACI No. 433 (Affirmative Defense-Causation: Intentional Tort/Criminal Act as Superseding Cause), citing the factual allegations of the operative complaint. Counsel for Jones countered: (1) the complaint "ha[d] no cause of action for an intentional tort"; and (2) City's answer contained "no affirmative defense of intentional tort or penal code section violation by anybody." The trial court acknowledged City "had not raised the affirmative defense of an intentional tort by some third party actor ...." City asked for "leave to amend according to proof." The court denied the request and refused to give the aforementioned instructions.
b. Analysis
"Leave to amend a pleading, including an answer, is entrusted to the sound discretion of the trial court." (Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 488.) "We will not disturb the trial court's exercise of discretion unless there is a clear showing of abuse." (Ibid.) Ultimately, a reviewing court is "required to uphold [a discretionary] ruling if it is correct on any basis, regardless of whether such basis was actually invoked." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32, citing Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.)
The record demonstrates Jones filed the operative complaint on March 19, 2019, and City filed its answer thereto on April 16, 2019. Trial commenced on April 12, 2021. City's request for leave to amend its answer was made on April 28, 2021, the 11th day of trial. City did not explain why it could not act earlier. "[U]nwarranted delay in seeking leave to amend may be considered by the trial court when ruling on a motion for leave to amend [citation], and appellate courts are less likely to find an abuse of discretion where, for example, the proposed amendment is' "offered after long unexplained delay . . . or where there is a lack of diligence"' [citation]." (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280; accord, Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175.) Hence, we uphold the court's denial. (See City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1564 ["A party who waits 18 months before attempting to amend, and then does so only after trial has commenced, and who offers no excuse for the failure, can hardly complain when the request to amend is denied."]; Bedolla v. Logan &Frazer (1975) 52 Cal.App.3d 118, 135-136 [trial court's denial of motion to amend cross-complaint to conform to proof did not constitute an abuse of discretion because said motion was filed on fourth day of trial and no excuse was offered for the tardiness of the application].)
City argues the court "placed form over substance in denying [its] requested instruction based on its failure to include the affirmative defense in its answer" and should have issued CACI No. 433, which "would have instructed the jury that the City is not responsible for Plaintiff's harm where that harm is caused by a superseding intentional tort or criminal act of another." Assuming, arguendo, CACI No. 433 should have been given, "there is no rule of automatic reversal or 'inherent' prejudice applicable to any category of civil instructional error ...." (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 580.) "Instructional error in a civil case is prejudicial 'where it seems probable' that the error 'prejudicially affected the verdict.' [Citations.]" (Ibid.) Here, by virtue of its finding of public entity liability (see ante, at pp. 12-20), the jury necessarily concluded the purported "intentional tort or criminal act" committed by Palm was reasonably foreseeable and not a superseding cause. (See Landeros v. Flood (1976) 17 Cal.3d 399, 411 ["[A]n intervening act does not amount to a 'superseding cause' relieving the negligent defendant of liability [citation] if it was reasonably foreseeable ...."]; Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1504 [" '[I]n some cases, intentional torts or criminal acts may be foreseeable and, therefore, within the scope of the risk defendant created, and in such a case the defendant may still be liable for the harm to the plaintiff resulting from the intentional or criminal act.' "].) Thus, it is not probable the court's refusal to issue CACI No. 433 prejudicially affected the verdict.
DISPOSITION
The judgment is affirmed. Costs are awarded to plaintiff and respondent Daquan Jones.
WE CONCUR: SMITH, J. DE SANTOS, J.