Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS024322
Pollak, Acting P. J.
Plaintiff Eric Van Scoy appeals from a judgment in favor of defendant Valero Oil Company (Valero) in his action seeking to recover damages for personal injuries allegedly suffered when inhaling fumes from a fire on Valero’s property. He contends that the trial court erroneously (1) sustained a demurrer eliminating causes of action for battery and nuisance, (2) granted a summary adjudication motion removing his claim for punitive damages, and (3) denied his motion for a new trial on the grounds that the evidence was insufficient to support the jury’s finding that Valero was not negligent, and that he should be entitled to allege additional causes of action for nuisance and strict liability. We conclude that plaintiff’s second amended complaint failed to state a cause of action for battery or nuisance and that substantial evidence supports the finding that defendant was not negligent. Moreover, the trial court did not abuse its discretion in denying plaintiff’s motion for a new trial to allege additional causes of action. Because we affirm the judgment imposing no liability, it is unnecessary to consider the court’s ruling striking the punitive damage allegations.
Factual and Procedural Background
Plaintiff’s second amended complaint alleged causes of action for battery, nuisance, and negligence resulting from a fire that occurred at Valero’s refinery in Benicia. Plaintiff alleged that on June 25, 2005, a fire at the refinery emitted smoke that caused him coughing and breathing problems, pain and suffering, and medical expenses. Plaintiff alleged that on the afternoon of the fire, while at work approximately three-eighths to one-half mile east of the refinery, he smelled burning plastic. Around 2:30 p.m., he observed a large smoke plume rising from the refinery. Around 3:45 p.m. he left work, experiencing coughing, burning eyes, and soar throat. Plaintiff claimed and Valero disputed that his symptoms were caused by smoke inhalation, but because the judgment that we affirm ascribes no fault to Valero, it is unnecessary to summarize the precise allegations or the evidence concerning plaintiff’s alleged injury and causation.
According to testimony at trial, on June 25, 2003, a fire burned at Valero’s refinery from approximately 2:00 p.m. to 4:00 p.m. The fire was caused by the ignition of styrene block copolymer (SBS), a thermoplastic rubber material used to produce asphalt. Valero employees testified that Valero purchased about 1.5 million pounds of SBS in March 2003and stored the material in large cardboard boxes in an outdoor parking lot, covered with tarps. Plaintiff alleged that Valero stored the SBS negligently and in a manner that the manufacturer’s material safety data sheet (MSDS) warned was likely to cause a fire which, he asserted, was in conscious disregard of his rights.
Valero demurred to the second amended complaint on the ground that it failed to allege facts constituting battery, nuisance or negligence. The court sustained the demurrer to the battery and nuisance causes of action, without leave to amend. Following trial, a jury returned a special verdict finding Valero not negligent. Plaintiff filed motions for a new trial and for judgment notwithstanding the verdict, contending there was insufficient evidence to justify the verdict and seeking leave to amend the complaint to include additional causes of action for strict liability and nuisance. The court denied the motions and plaintiff has timely appealed the judgment in Valero’s favor.
Plaintiff’s motion for a new trial was based on several additional grounds, but we discuss only those grounds that plaintiff asserts on appeal.
Discussion
1. Battery
Plaintiff contends that the court erroneously sustained Valero’s demurrer to the cause of action for battery. A battery is generally defined as “any intentional, unlawful and harmful contact by one person with the person of another.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 612.) To establish a battery, one must prove, among other elements of the tort, that the defendant touched the plaintiff, or caused the plaintiff to be touched, “with the intent to harm or offend” him. (CACI No. 1300; Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 872-873.) Although we have been cited to no California authority directly on point, we assume, along with decisions in other jurisdictions, that causing a person to inhale noxious smoke involves sufficient personal contact to support a battery. (DeNardo v. Corneloup (Alaska 2007) 163 P.3d 956, 960; Leichtman v. WLW Jacor Communications, Inc. (Ohio Ct.App. 1994) 634 N.E.2d 697, 699; Richardson v. Hennly (Ga. Ct.App 1993) 434 S.E.2d 772, 775, reversed on other grounds by Hennly v. Richardson (Ga. Ct.App. 1994) 444 S.E.2d 317.) The trial court considered plaintiff’s allegations to be insufficient, however, because, in his third pleading, plaintiff failed to allege that Valero or its agents intended to harm him.
The second amended complaint alleges that defendant “knew or should have known of the abilities of certain styrene polymer product to self-ignite due to static electricity under certain conditions, but intentionally did not take the proper precautions, in conscious disregard of the safety of others including plaintiff.” Plaintiff claimed that Valero “intentionally, negligently, and/or improperly discharged noxious and injurious substances, fumes, particles, and/or smoke from the refinery in the vicinity of Benicia, CA,” and that Valero acted with “reckless [or wanton] disregard of the consequences” and with “conscious disregard of the rights or safety of others including plaintiff.” Plaintiff does not dispute the trial court’s observation that what he alleged was not an intent to harm him, but conduct in conscious disregard of safety standards. He argues that conscious disregard is sufficient but cites no authority for this proposition. The authority disclosed by our own research that comes closest to supporting this view is distinguishable. (Ashcraft v. King, supra, 228 Cal.App.3d at p. 613 [physician given consent to use only family-donated blood in surgery but who instead used blood from hospital’s general supply could be found to have acted with “an intent to willfully disregard plaintiff’s conditional consent.” Such willful disregard of plaintiff’s rights is sufficient to support civil battery]; Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318 [intent to harm not necessary if defendant’s act is unlawful].) The Restatement Second of Torts section 13 provides explicitly that the commission of a battery requires the person to act “intending to cause a harmful or offensive contact” and that is the view of current California authority. (CACI No. 1300; Austin B. v. Escondido Union School Dist., supra,149 Cal.App.4th at p. 872.) We adopt that view.
Thus, we conclude that the trial court properly sustained the demurrer to the battery cause of action. Moreover, even if this ruling was erroneous, the error was harmless. As discussed infra, plaintiff’s negligence claim went to the jury on three distinct theories, each of which was rejected. Having found that Valero did not act negligently, there is no possibility under the circumstances of this case that the jury would have found that it acted with conscious disregard of the rights of others.
2. Nuisance
Plaintiff contends that the trial court erred in sustaining Valero’s demurrer to the nuisance cause of action. A nuisance is “[a]nything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” (Civ. Code, § 3479.) California recognizes both public and private forms of nuisance. (See Civ. Code, §§ 3480, 3481.)
Under Civil Code section 3480, “a public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” To state a cause of action for a public nuisance, one must allege facts showing “special injury to himself in person or property of a character different in kind from that suffered by the general public.” (Venuto v. Owens-Corning Fiberglas Corp. (1971)22 Cal.App.3d 116, 124 [plaintiffs claiming that pollution aggravated allergies and respiratory disorders failed to state public nuisance cause of action because injury was different only in degree from injury to health of general population].) As in Venuto, the second amended complaint here failed to allege special injuries to plaintiff different in kind from those likely to be suffered by any member of the general public near the refinery at the time of the fire.
Every nuisance not a public nuisance is a private nuisance. (Civ. Code, § 3481.) Although one may recover for personal harm based on a public nuisance, “a private nuisance can support recovery only for harm to a property interest, not for personal injury.” (Institoris v. City of Los Angeles (1989) 210 Cal.App.3d 10, 20 [no private nuisance because no interference with the use and enjoyment of land].) Plaintiff alleged no invasion of any property interest, and thus stated no claim based upon a private nuisance.
The demurrer to the nuisance cause of action therefore was properly sustained.
3. Substantial Evidence Supports the Finding that Defendant Was Not Negligent
The thrust of plaintiff’s case was that Valero was negligent in storing SBS outdoors in the sun, and not in a covered area as recommended by the MSDS from the manufacturer. The court’s instructions included three theories on which the jury could have found Valero negligent. The jury was given the standard instruction that “[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.” The jury was also instructed on the theory of res ipsa loquitur. And finally, the jury was also instructed on the theory of negligence per se, based on plaintiff’s contention that Valero failed to establish a workplace hazard communication program and communicate to its employees the information contained in the MSDS concerning the proper storage methods and safety hazards of the SBS, as required by federal regulations (29 C.F.R. § 1910.1200). The court instructed: “If you decide that Valero Oil Company violated [title 29 Code of Federal Regulations part 1910.1200] and that the violation was a substantial factor in bringing about the harm then you must find that Valero Oil Company was negligent unless you also find that the violation was excused.” The special verdict form asked simply whether Valero was negligent, to which the jury responded “No.”
The jury was instructed: “In this case Eric Van Scoy may prove that Valero Oil Company’s negligence caused his harm if he proves all of the following: 1, that Eric Van Scoy’s harm ordinarily would not have happened unless someone was negligent. 2, that the harm was caused by something that only Valero Oil Company controlled. And, 3, that Eric Van Scoy’s voluntary actions did not cause or contribute to the events that harmed him. If you decide that Eric Van Scoy did not prove one or more of these three things, then your verdict must be in favor of Valero Oil.”
Plaintiff moved for a new trial on the ground that there was no substantial evidence to support the jury’s finding, and on appeal challenges the trial court’s denial of the motion. He contends the MSDS instructed that the SBS be stored in a covered area and that Valero’s failure to follow this instruction must be regarded as negligence. However, the relevant portion of the MSDS reads as follows: “As a general indication, exposure of the product to a temperature over 70°C (160°F) for more that 10 days could start a degradation process that could create local overheating followed by self-ignition. [¶] It is therefore suggested to store the product (in the original packaging) in a covered area, not exposed to sunlight and/or heat sources. Proper ventilation of the storage area must be ensured.” As appears, storing the product in a covered area is only a suggestion. What the MSDS indicates is essential is that the SBS not be exposed to a temperature over 160°F for more than 10 days. The instructions recommend that that the product not be exposed to the sunlight and that proper ventilation “must be ensured.”
Defendant’s employees testified that Valero followed the MSDS guidelines by storing the SBS material in its original packaging without ever exposing it to 160°F temperatures for 10 consecutive days. According to the testimony of three employees, Valero employees checked to ensure proper tarp coverage over the SBS boxes twice a day. Valero’s in-box tests revealed that the temperature was within 5 degrees of ambient temperature, and the high temperature recorded on the day of the fire was 97°F, well below the MSDS 160°F temperature warning. The employees in charge of purchasing and storing SBS believed that there was no risk of fire from storing SBS outside on a gravel parking lot. The asphalt plant unit team leader, Robert Yarbrough, testified that he had multiple contacts with the manufacturer’s sales representative, who expressed no concerns or criticism about the manner in which Valero was storing the SBS. The manager of technical services for asphalt products, Robert Rivers, testified that Valero had purchased SBS over the past decade and stored it under similar conditions without incident. The day after the fire the manufacturer’s sales representatives stated that Valero’s storage methods did not cause the fire. Thus, there is substantial evidence to support the jury’s finding that Valero acted reasonably and did not disregard the MSDS instructions.
Appellate review of a jury’s determination of a factual issue “ ‘begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and 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.’ ” (Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 652.) Substantial evidence qualifies as any evidence which is not “unbelievable per se.” (Andrade v. Jennings (1997) 54 Cal.App.4th 307, 328.) The reviewing court grants all inferences in favor of the non-moving party and may not “reweigh the evidence, redetermine the credibility of witnesses, or resolve conflicts in the evidence.” (Hiser v. Bell Helicopter Textron Inc., supra, at p. 652.)
The jury’s rejection of plaintiff’s negligence per se theory is also supported by the evidence. Plaintiff’s argument is based largely on the premise that failure to observe safety requirements specified in the MSDS would constitute a per se violation of federal regulations, a proposition neither embraced in the court’s instructions nor supported by any authority that plaintiff has cited. In all events, as indicated above, there is substantial evidence that Valero did comply with the MSDS recommendations.
The federal regulation plaintiff asserts Valero violated, 29 Code of Federal Regulations part 1910.1200(b)(1) instructs “all employers to provide information to their employees about the hazardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training.” This is the provision that the trial court instructed might establish per se liability here, and plaintiff argues that the acknowledgement of two employees that they had not read the MSDS necessarily established his claim. However, Valero’s evidence showed that copies of the MSDS were maintained in its operations office, the laboratory and in its computer files and that other employees, including Doug Byrone, the modified asphalt plant foreman, had read the document. Several employees testified that Valero conducted training sessions to update its employees on MSDS requirements, maintained a “Management of Change” procedure to inform employees of modifications to materials used at the refinery, and enforced strict security requirements. Substantial evidence therefore supports the finding that defendant did not violate the federal regulation.
Thus, the trial court did not err in denying the new trial motion insofar as it was based on the asserted insufficiency of the evidence (much less in denying judgment notwithstanding the verdict).
4. Motion for New Trial
Plaintiff also contends that the trial court erroneously denied his motion for a new trial based on the ground of accident or surprise and seeking leave to amend the pleadings to allege a strict liability cause of action. Plaintiff argued that “defendant first advised the court that it would not argue the SBS material was somehow defective, but then changed its position at closing argument” and that he therefore should be permitted to allege a new cause of action alleging strict liability based on the product defect. When the trial court has denied a motion for a new trial, “we must determine whether the court abused its discretion by examining the entire record and making an independent assessment of whether there were grounds for granting the motion.” (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832; City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 872.) Reversal is appropriate only “ ‘where no reasonable basis for the action is shown.’ ” (Williams v. City of Los Angeles (1988) 47 Cal.3d 195, 204.)
Plaintiff also sought to re-allege a nuisance claim, but makes no argument on appeal why the court erred in denying that request.
There are multiple reasons for which plaintiff’s motion on this ground was properly denied. Plaintiff provided no compelling excuse for failing to assert a cause of action based on a product defect until almost three years after filing the original complaint. (See Bernstein v. Financial Indem. Co. (1968) 263 Cal.App.2d 324, 328 [denying right to amend because there was no showing why additional cause of action not brought until almost three years after commencement of the action].) The fact that plaintiff did not expect Valero to contend that the SBS was defective provides no explanation for his failure to consider such a claim and include it in the initial complaint if there were a basis for doing so. Moreover, it seems clear that plaintiff has no supportable claim against Valero based on a defect in the SBS because, among other reasons, Valero was not in the chain of distribution of the SBS. Valero was not the manufacturer of the SBS product. Plaintiff asserted that “defendant would still be liable to plaintiff as a bystander because defendant was in the chain of manufacture of a consumer product.” (See Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 250-251.) California law extends strict liability to retail dealers (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262-263), as well as to component manufactures and suppliers (Jimenez v. Superior Court (2002) 29 Cal.4th 473, 479; Gonzalez v. Autoliv ASP, Inc. (2007) 154 Cal.App.4th 780, 788) under conditions of “normal storage and movement of the product while it is still on the market” (Stein v. Southern Cal. Edison Co. (1992) 7 Cal.App.4th 565, 570). Moreover, “a sale is not an absolute prerequisite to a finding that a product has been placed in the stream of commerce.” (Ibid.) However, plaintiff made no showing, either in the evidence at trial or in support of the new trial motion, that Valero either resold the SBS or incorporated it into a product that it resold. There was, in short, no showing that Valero placed SBS “on the market” and, thus, no basis for the imposition of strict liability based on a product defect. (Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 129-130; Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63 -64; Nelson v. Superior Court (2006) 144 Cal.App.4th 689, 695; Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 415.) Hence, plaintiff’s desire to plead such a cause of action provided no basis for granting the new trial motion.
Disposition
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.
Plaintiff makes no argument on appeal that the evidence established the elements necessary to prove his claim on this theory.