Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2007-00068272- CU-PL-CTL Jay M. Bloom, Judge.
HALLER, J.
Plaintiff Mark McFann was injured when his employer's heavy perimeter gate fell on him. McFann sued House of Automation, Inc. (Automation), which repaired the gate about 18 months before the accident. McFann also sued an entity that installed operating equipment for the gate about four years before the accident. The jury returned a special verdict finding McFann did not prove either defendant was negligent, and thus did not reach issues of causation, damages, or comparative negligence.
McFann appeals the judgment only with respect to Automation. He contends the trial court prejudicially erred in instructing the jury on the duty owed by an independent contractor repairer to an injured third party. We reject this contention and affirm.
SUMMARY OF RELEVANT FACTS
Because we are reviewing a defense judgment based on a jury's finding that the plaintiff did not prove negligence, we focus primarily on the evidence relating to Automation's alleged negligence, and omit the facts pertaining solely to causation, damages, and comparative negligence. Further, because we are reviewing an instructional error claim, we examine the evidence in the light most favorable to the appealing party. (See Alcala v. Vazmar Corp. (2008) 167 Cal.App.4th 747, 754.)
Coca-Cola employed McFann as a facilities maintenance supervisor. On Thursday, June 1, 2006, a security guard informed McFann of a problem with one of the facility's perimeter sliding gates. Five days later, McFann went to check on the gate. After inspecting the gate, McFann turned to walk away and the gate fell on him, causing him to suffer two vertebral fractures.
The gate that injured McFann was originally installed in 1979. The iron gate weighed about 2, 000 pounds and was operated by a motor that opened and closed the gate. The operation system had a limit switch that would stop the gate from traveling once it reached the closed position. When facing the gate from outside the facility, the gate opens from left to right.
On the left side, the receiving wall had two metal brackets (one upper and one lower) to stop the gate and provide lateral support when the gate was in the closed position. These brackets were a main focus of the trial. At trial, the top bracket was referred to as a "Z" bracket, and the lower bracket was referred to as an "L" bracket. The primary purpose of the Z bracket was to prevent the gate from falling over. The evidence showed the gate fell because the Z bracket had been knocked off and/or the bracket was not sufficiently affixed to the wall.
At trial, McFann's case against Automation concerned Automation's repair of the Z bracket about 18 months before the gate fell on McFann. The evidence showed that in January 2005, Coca-Cola personnel called Automation, a gate repair company, reporting that the gate was "slamming" and the alarm in the gate motor "goes off" when the gate opens. Automation technician Moises Flores responded to the call and found the top Z receiver bracket was bent. After straightening the Z bracket and confirming it was secure, Flores adjusted the limit switch inside the gate operator (which controls the gate-stopping distance) so the gate would come within two inches of the Z bracket. Flores also lubricated the chain that pulled the gate.
Automation offered a gate maintenance service contract to its customers, but Coca-Cola utilized Automation's services solely on an on-call, as-needed basis. Although regular maintenance on the brackets and other gate systems was necessary to maintain the reliability and safety of the gate, there was no evidence Automation worked on the gate after January 2005 or that Coca-Cola performed any other maintenance on the gate after this time. Eighteen months after Flores's repair, the gate fell down on McFann when he was in the process of evaluating reported problems with the brackets.
At trial, McFann claimed Automation's negligence arose from Flores's January 2005 service visit based on misfeasance (negligent repair) and nonfeasance (failure to act/warn). With respect to the misfeasance theory, McFann argued Flores negligently repaired the gate when he straightened the Z bracket and negligently adjusted the limit switch so that the gate would come too close to the end of the bracket. With respect to the nonfeasance theory, McFann argued Flores should have warned Coca-Cola that: (1) it was foreseeable the gate would continue to hit the Z bracket and thus the Z bracket would become dislodged causing the gate to fall; and (2) guide rollers were needed on the closed portion of the gate for added lateral support to prevent the gate from falling over.
On these theories, McFann's expert, Reuben Vollmer, a mechanical engineer, opined that Flores's actions in bending the Z bracket back into shape could have caused damage to the bracket and thus reduced its effectiveness as a lateral support mechanism. Vollmer also opined that Flores's actions in setting the limit switch so that the gate would come within two inches of the Z bracket was improper because it could cause the gate to hit and loosen the bracket. Vollmer further testified he would expect a prudent gate service company to provide written warnings that if the gate continued to hit the brackets, this action could loosen or knock off the brackets, causing the gate to fall over.
McFann also relied on Flores's testimony that when he repaired the gate in January 2005, he knew that if the gate traveled too far it could loosen the brackets, which could result in insufficient lateral support and cause the gate to fall over in the future. Flores confirmed that when he was called for a service repair (including in 2005), he would evaluate the entire gate, "the whole system, " including the operator and the various fixtures to ensure the gate was operational and safe.
McFann also presented undisputed evidence that the gate manufacturer recommended against using the Z and L type of brackets on the gate, and instead recommended using guide rollers for lateral support. Although Flores knew about this recommendation, he did not install or recommend installing guide rollers at the closed end of the gate.
At the close of McFann's case, Automation moved for a nonsuit on the ground that as a matter of law Automation, an occasional repairer, owed no duty to warn of alleged design defects (e.g., the need for guide rollers). Automation argued the case was factually similar to Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193 (Seo), in which the court held a gate repairer had no duty to warn a property owner about design defects in the gate system where the design defects were unrelated to the repairs made by the defendant. McFann's counsel responded that the Seo case was distinguishable because: (1) McFann presented evidence that Automation negligently repaired the gate; and (2) McFann's arguments pertaining to Automation's duty to warn about the need for guide rollers was directly related to Automation's alleged negligent repair of the brackets.
After considering these arguments, the court denied the nonsuit motion, concluding the question whether Automation was negligent was a factual issue for the jury's determination. However, the court indicated its willingness to instruct the jury on the scope of Automation's duty owed to McFann based on a theory that Automation failed to take actions to prevent alleged foreseeable injuries.
Thus, after the parties completed the presentation of the evidence, each party submitted jury instructions on this issue. Automation (and its codefendant) submitted an instruction based on a concluding paragraph in the Seo case which stated:
"An independent contractor repairer may owe a duty to a third party injured by the equipment repaired if: (1) the repairer negligently performs the repair causing the third party's injury; (2) the repairer negligently fails to make a requested repair causing the third party's injury; (3) the repairer has contracted with the owner to inspect and maintain the equipment and fails to do so or to do so properly; (4) the repairer has voluntarily assumed the owner[']s duty to inspect and maintain the safety of the equipment or undertaken a systematic inspection of the equipment and fails to do so or to do so properly. The independent contractor repairer owes no duty to a third party injured by the equipment repaired by the contractor when the injury does not arise out of the repair and is unrelated to the repair. Such a repairer owes no duty to a third party to inspect the equipment and advise the owner of any design defects of the equipment. The responsibility for such design defects properly lies with the manufacturer and installer of the equipment and the owner to the extent the owner is on notice of the design defect."
When the court asked whether there were any objections, McFann's counsel responded: "I did have an objection on the ground that the language that is taken directly from the case is potentially misleading to the jury in terms of the first sentence, ... 'may owe a duty.' And I don't think it sufficiently instructs the jury." (Italics added.)
The court rejected this objection and found the instruction was appropriate. The court stated the word "may" did not require a jury to reach a particular determination and instead permitted the jury to exercise its discretion as to whether there was a breach of duty.
The court also rejected McFann's alternate proposed instruction, which read: "A contractor that repairs a gate has a duty to exercise reasonable care to adequately warn foreseeable users of the gate about a risk of harm that arises out of and is related to the repair of the gate performed by the contractor about which the contractor knew or reasonably should have known. Failure to do so is negligence." The court found the instruction was improperly based on products liability law and was an incorrect statement of the law as applied to the facts of the case.
The court thus gave defendants' requested instruction from the Seo decision (hereafter referred to as the Duty instruction). The court also gave the standard jury instructions pertaining to McFann's burden to prove negligence and the meaning of negligence, including CACI No. 401, which states: "[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"; and a "person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation." (Italics added.)
During closing arguments, McFann's counsel argued at length that Automation, as an expert repairer, had the obligation to act reasonably under the circumstances, which included the duty to inform Coca-Cola about problems with the design and placement of the brackets and the likelihood the gate would fall over because of these problems. McFann's counsel also urged the jury to "look" at the Duty instruction, and argued that under this instruction, Automation breached a duty under the first factor (negligent repair of the bracket) and fourth factor (Automation voluntarily assumed a duty to ensure the gate's safety). Counsel argued: "what [Automation] did was rather than eliminate the risk in its repair, [Automation] reset the trap. It reset the risk. It put the gate in a position to knock the bracket off that it repaired. And in the absence of adequate lateral support at the closed end, meaning the guide rollers, the gate was ready to fall. It was just a matter of time."
During her closing argument, Automation's counsel countered the evidence did not support that Automation was liable under any of the four elements of the Duty instruction. She argued the evidence showed Flores properly made the requested repair on the bracket, the parties had no contract under which Automation agreed to maintain the gate, and Automation never voluntarily assumed the duty to ensure the safety of the gate. Automation's counsel also argued there was no liability for Automation's failure to warn Coca-Cola "about the need for rollers or inadequate brackets, " relying on the portion of the Duty instruction stating there is " 'no duty to a third party to inspect the equipment and advise the owner of any design defects of the equipment.' " McFann's counsel did not object to this latter argument.
At the conclusion of the arguments, the jury began their deliberations. Less than one hour later, the jury sent a note asking for "all large blowup evidence, photos." About two hours later, the jury sent a note stating, "We require Jury Instruction Form 1(A), " referring to the Duty instruction. Both counsel agreed with the court's suggestion that the bailiff should "pull the [instruction] notebook out and make sure it's in there." The record does not reflect what occurred next with respect to the jury instruction.
About 45 minutes later, the jury returned its special verdict finding McFann did not prove negligence with respect to either defendant.
McFann's sole appellate contention is that the court erred in giving the Duty instruction.
DISCUSSION
I. The Fact the Instruction Came from the Seo Case Did Not Make it Improper
In challenging the Duty instruction, McFann does not contend the instruction incorrectly stated the law or that it was improper to give a specific instruction on the duty issue. Instead, the focus of McFann's appellate arguments is that the instruction was improper because it was taken from a Court of Appeal decision that is factually distinguishable.
This argument is unavailing. We recognize that numerous courts have disapproved the practice of lifting language verbatim from an appellate opinion to use in instructing a jury. (See McKeon v. Lissner (1924) 193 Cal. 297, 305; Williams v. Carl Karcher Enterprises, Inc. (1986) 182 Cal.App.3d 479, 487; Fierro v. International Harvester Co. (1982) 127 Cal.App.3d 862, 867; Ernest W. Hahn, Inc. v. Sunshield Insulation Co. (1977) 68 Cal.App.3d 1018, 1023.) We agree with this cautionary view. An appellate opinion often contains language not directly applicable to the factual circumstances at issue and/or that can be misinterpreted if read outside the context of the entire decision. Thus, whenever possible, trial judges should adhere to standard approved jury instructions and avoid using excerpts from appellate opinions.
But we disagree with McFann's suggestion that it is always wrong to use language from an appellate decision to instruct the jury. An instruction is not improper merely because it was contained in an appellate opinion, even if the case was factually dissimilar. (See Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1049.) On appeal, the critical inquiry is whether the challenged instruction was an accurate statement of the law and provided appropriate guidance to the jury under the particular facts of the case. If an instruction correctly stated the law and was not misleading or otherwise objectionable, it is not an improper instruction because it was a quotation from an appellate decision.
In examining McFann's appellate contentions under this standard, we conclude there was no reversible instructional error. To explain this conclusion, we first briefly review the legal principles governing a repairer's duty owed to an injured third party. We then evaluate whether the instruction was consistent with these legal principles and whether the instruction provided appropriate guidance to the jury. In this analysis, we apply a de novo review. (See Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.)
II. Duties Owed by Repairer to Injured Third Party
Generally, a defendant owes a duty to a third party if the defendant has engaged in affirmative conduct creating a foreseeable risk, but a defendant owes no duty for nonfeasance, i.e., " 'when the defendant has failed to aid plaintiff through beneficial intervention.' " (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716.) " 'A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another....' " (Eric J. v. Betty M. (1999) 76 Cal.App.4th 715, 727.) An exception to this rule exists when the defendant has a statutory or contractual obligation to protect or has otherwise assumed a voluntary obligation to take affirmative action, or when there is a special relationship between the parties. (Ibid.; see Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1835, 1838.)
The Seo court applied these well-settled rules in the context of a gate repair company's alleged failure to warn its customer of design defects. (Seo, supra, 97 Cal.App.4th at pp. 1205-1206.) In Seo, the plaintiff's arm was caught in an electronic sliding gate after he manually activated a toggle switch on the other side of the gate. (Id. at pp. 1198-1199.) The plaintiff sued an entity that had repaired the gate, alleging the repairer was negligent because it had not warned that the toggle switch was located in a place where manual operation could cause a person's arm to be caught in the electronic sliding gate. (Id. at p. 1199.) In moving for summary judgment, the defendant repairer presented undisputed evidence that it had not made any repairs related to the toggle switch, had not contracted with the owner to inspect and maintain the gate, and had not voluntarily undertaken a systematic inspection of the gate. (Id. at pp. 1203-1205.) The plaintiff opposed the summary judgment, arguing the defendant repairer nonetheless had a duty to warn of the design defect based on the special relationship between a customer and a repair company arising from the repairer's superior knowledge of, and ability to detect, a design defect. (Id. at p. 1205.)
The Seo court rejected this argument. (Seo, supra, 97 Cal.App.4th at pp. 1205-1206.) The court held that absent facts showing a contractual obligation or voluntary undertaking, there is no duty to warn of design defects as a matter of law, at least where there is no connection between the negligent repairs and the design defect. (Ibid.) The court reasoned that expanding liability would impose substantial costs far beyond those contemplated by the parties and the public: "The cost of simple repairs would increase significantly, as every repairer would factor into the charge for a service call the additional cost of inspection, advisement, insurance, and liability. An automobile mechanic could not perform a simple oil change without a complete inspection for any design defect of the automobile and the preparation of a complete advisement of defects to the owner. A plumber could not fix a leaky faucet without inspecting the entire fixture and advising the owner of any ways in which the fixture might be defective. It is possible that repairs of certain high-risk mechanical devices could not be obtained in light of the increased potential for liability on the part of the repairer. Thus, the creation of a new category of special relationship for repairers and third parties... does not appear to be based on sound public policy." (Ibid.)
At the end of the opinion, the Seo court summarized its analysis and conclusions in a single paragraph. (Seo, supra, 97 Cal.App.4th at p. 1206.) This paragraph is identical to the Duty instruction given in this case, with one minor exception that will be discussed below.
III. There Was No Instructional Error
McFann does not contend the Seo concluding paragraph was an incorrect statement of the law. Instead, he argues the court erred in instructing the jury in the language of the Seo paragraph because the instruction improperly confused and misled the jury under the facts of this case. We disagree.
A. The First Part of the Instruction Provided Proper Guidance to the Jury
The Duty instruction had two parts. First, the instruction identified four circumstances under which an independent contractor repairer owed a duty to a third party: "An independent contractor repairer may owe a duty to a third party injured by the equipment repaired if: (1) the repairer negligently performs the repair causing the third party's injury; (2) the repairer negligently fails to make a requested repair causing the third party's injury; (3) the repairer has contracted with the owner to inspect and maintain the equipment and fails to do so or to do so properly; (4) the repairer has voluntarily assumed the owner[']s duty to inspect and maintain the safety of the equipment or undertaken a systematic inspection of the equipment and fails to do so or to do so properly."
This was a correct statement of the law as applied to the facts of the case and was helpful to McFann because it was consistent with McFann's theories at trial. At trial, McFann argued that Automation breached a duty owed to him based on the first and fourth factors. With respect to the first factor, McFann argued that Automation was liable for his injuries because Flores negligently made the repairs to the bracket and the limit switch in 2005, and that Automation acted negligently in failing to warn Coca-Cola that despite its repair to the brackets, the use of the brackets created a safety hazard and would not prevent the gate from falling down in the future. With respect to the fourth factor, McFann argued that in performing the bracket repair in 2005, Automation voluntarily assumed the duty to inspect and maintain the safety of the equipment and/or agreed to undertake a systematic inspection of the equipment, but failed to perform these obligations in a proper manner. McFann also argued that Automation should have properly installed guide rollers or warned of the need for guide rollers on the closed end to make the gate safe.
Automation presented contrary evidence, including that: Flores's repairs to the bracket and the limit switch met applicable standards of care; Automation did not voluntarily assume a duty to investigate the entire gate system; and a reasonable repairer would not have recommended guide rollers because they were not standard in the industry and because the addition of this equipment would have required substantial and expensive modifications to the gate. In finding in Automation's favor on the negligence issue, the jury necessarily credited some or all of this evidence.
McFann does not challenge the sufficiency of the evidence to support the jury's conclusion, or identify any ground for finding the jury was improperly instructed with respect to these four factors for imposing a duty.
McFann contends only that this first portion of the instruction was improper because the court erred in modifying the Seo paragraph to omit the word "or" between the third and fourth factors. However, McFann waived his right to assert this error because he did not raise the issue below. The omission of the word appears to have been inadvertent because the court repeatedly stated it intended to instruct in the precise language of the last concluding paragraph of the Seo decision. But the omission would have been obvious to counsel at trial because the word was not included when the instruction was read to the jury or on the written instruction provided to the jury. Thus, McFann had an obligation to assert this objection at that time. (See Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750, 760; see also Agarwal v. Johnson (1979) 25 Cal.3d 932, 948-949.) It would be unfair and a waste of judicial resources to hold that a party may wait until an appeal to assert error based on a missing word, when the error could have been easily corrected in the trial court proceedings. (See Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.)
Moreover, viewed in context, a reasonable juror would not have interpreted the instruction to mean that all four factors were necessary for McFann to prevail on his negligence claim against Automation. The jury was told McFann had the burden to prove negligence and was properly instructed on the meaning of negligence. Thus, the Duty instruction was merely a supplemental (pinpoint) instruction explaining certain circumstances under which the jury "may" find a duty was owed. In this vein, the four factors would have been understood as alternate grounds for finding a duty was owed. During his argument, McFann's counsel discussed the factors in the disjunctive, explaining that McFann was relying on the first or fourth factors in arguing that Automation owed a duty under the circumstances. Based on the instruction and the argument, the jury would have understood each factor was a separate (and sufficient) ground for imposing a duty, and a reasonable juror would not believe each factor must be found to support a duty finding.
B. The Second Part of the Instruction Provided Proper Guidance to the Jury
The second part of the Seo instruction pertained to the circumstances under which an independent contractor repairer owes no duty to a third party. This portion of the instruction stated: "The independent contractor repairer owes no duty to a third party injured by the equipment repaired by the contractor when the injury does not arise out of the repair and is unrelated to the repair. Such a repairer owes no duty to a third party to inspect the equipment and advise the owner of any design defects of the equipment. The responsibility for such design defects properly lies with the manufacturer and installer of the equipment and the owner to the extent the owner is on notice of the design defect."
Again, this portion of the instruction was a correct statement of the law. The first sentence states the obvious and noncontroversial proposition that a repairer has no liability for an injury that did not arise out of the repair. The second and third sentences state the principle that "such a repairer" owes no duty to inspect the equipment and advise the owner of any design defects, and instead the manufacturer and installer are responsible for design defects. (Italics added.) This principle is a proper statement of the law pertaining to an injury resulting from a repairer's alleged failure to act or warn where the alleged design defect did not arise from the repair. (Seo, supra, 97 Cal.App.4th at pp. 1205-1206.) McFann does not challenge the correctness of this legal principle.
McFann argues, however, that this portion of the instruction was misleading and confusing because it failed to provide the jury sufficient guidance under the circumstances of this case where Automation (unlike the repair company in Seo) actually worked on the component part of the gate (the Z bracket) which the plaintiff claimed had caused his injuries and about which McFann claimed Automation should have warned.
However, reading the first and second portions of the instruction together, the instruction provided sufficient information of the applicable legal principles to assist the jury in evaluating this evidence. Based on the instructions and argument, the jury would have understood that Automation's duty potentially included a duty to warn about (or fix) alleged defects that were related to, and/or encompassed within, the actual bracket repair performed by Automation, but that Automation had no duty to warn about defects that were unrelated to the repair. Because McFann sought to impose liability based on nonfeasance that related to specific repairs (the brackets and limit switch) and nonfeasance that arguably did not relate to specific repairs (the guide rollers), the court did not err in instructing the jury on both subjects.
In reaching this conclusion, we agree the instruction could have been written more clearly to state these principles. For example, it would have been helpful if the court had explained the relationship between the first portion of the instruction and the second portion of the instruction, i.e., that Automation owed no duty to McFann for failing to act (or to warn) absent circumstances imposing an affirmative duty as set forth in the first four elements in the instruction. However, McFann never proposed an instruction that would have clarified this issue. To prevail on an argument that the trial court failed to instruct on a particular issue or that an instruction was incomplete, confusing, or misleading, the aggrieved party must have requested "specific proper" instructions on the particular issue. (See Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335.) In the proceedings below, McFann agreed the jury should be instructed on the duty issue (in addition to the standard negligence instructions), but McFann's proposed instruction was not correct because it too broadly stated the duty owed by Automation, nor did McFann suggest specific modifications that would have clarified the Duty instruction.
Generally, parties have the right to have the jury instructed in specific terms on all theories of their case supported by the pleadings and evidence. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572; Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 582.) In civil cases, it is counsel's duty to propose reasonable and proper jury instructions on all legal theories advanced in the case. (Code Civ. Proc., § 607a.) A trial court's duty to instruct the jury is discharged if its instructions embrace all points of law necessary to a decision. (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 553.) A party is not entitled to have the jury instructed in any particular fashion or phraseology, and may not complain if the court correctly gives the substance of the applicable law. (Ibid.)
DISPOSITION
The judgment is affirmed. Appellant to pay respondent's costs on appeal.
WE CONCUR: BENKE, Acting P.J., McINTYRE, J.