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In Vollaro, the defendant in a personal injury action arising from an automobile accident sought to apportion liability to a nonparty, the driver of the car she rear-ended.
Summary of this case from Soto v. Borgwarner Morse Tec Inc.Opinion
B242544
2014-02-26
Ciara VOLLARO, Plaintiff and Respondent, v. Maureen LISPI, Defendant and Appellant.
See 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 52 et seq. APPEAL from a judgment of the Superior Court of Los Angeles County, Judith A. Vander Lans, Judge. Affirmed in part and reversed in part with directions. (Los Angeles County Super. Ct. No. NC052344)
See 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 52 et seq. APPEAL from a judgment of the Superior Court of Los Angeles County, Judith A. Vander Lans, Judge. Affirmed in part and reversed in part with directions. (Los Angeles County Super. Ct. No. NC052344) Winet, Patrick & Weaver, Randall L. Winet and Marilyn Perrin, Glendale, for Defendant and Appellant.
Cohen Law Group, H. Jason Cohen; The Kaufman Law Firm and Martin J. Kaufman, Los Angeles, for Plaintiff and Respondent.
EDMON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Following a jury trial, the trial court entered judgment in favor of plaintiff Ciara Vollaro for damages sustained in an automobile accident. In this appeal from the judgment, defendant Maureen Lispi challenges the trial court's evidentiary rulings and rejection of her proposed special verdict form that would have required the jury to consider nonparty Noel Meredith's proportionate fault in allocating liability for noneconomic damages. Although we find no evidentiary error, we conclude that the error as to the special verdict form requires a partial new trial on apportionment of noneconomic damages.
BACKGROUND
This action involves a January 9, 2007 automobile accident in which Lispi, the owner and driver of a Mitsubishi Galant, rear-ended a Honda Civic in which Vollaro was a passenger. The Honda's other occupants —owner Ann Reed and driver Meredith—are not parties to this action.
When the accident occurred, Lispi stopped to inquire if anyone was injured and to exchange the required information. At the time, Lispi was not informed of any personal injuries, but saw that the Honda's rear bumper and trunk were damaged. Lispi saw no damage to her own vehicle.
On January 8, 2009, Vollaro sued Lispi for personal injury damages. The complaint alleged that on January 9, 2007, Vollaro was riding in the back seat of a Honda Civic “travelling northbound on I–405. After exiting the freeway at Atlantic Ave., the vehicle came to a stop at a yield sign at the bottom of the off-ramp prior to merging right. While stopped, the vehicle was struck from behind by [Lispi's] vehicle, which was being operated by [Lispi] in a negligent, careless, and reckless fashion. As a direct and proximate cause of [Lispi's] negligence, [Vollaro] has suffered physical and emotional injuries and subsequent loss of wages.”
At trial, the only eyewitness accounts of the accident were provided by Vollaro and Lispi. Consistent with the allegations of her complaint, Vollaro testified that the Honda was stopped at a yield sign at the bottom of the off-ramp when it was suddenly rear-ended by Lispi's vehicle. She denied that the driver of the vehicle in which she was riding made a sudden, unexpected stop.
Lispi testified that when she exited the northbound 405 freeway at Atlantic Boulevard, the Honda was stopped at a yield sign at the bottom of the off-ramp, where it was waiting to merge onto the street. Lispi stopped behind the Honda. When the Honda moved forward, Lispi moved forward and stopped at the yield sign. Lispi looked over her shoulder and saw no oncoming traffic. Lispi looked forward and saw that the Honda was moving forward. As Lispi began accelerating, however, the Honda “stopped suddenly” in front of her for no apparent reason. Lispi stated, “After I accelerated I hit my brakes to stop my car and I was unable to avoid hitting the car in front of me.”
Lispi did not see a turn signal, obstacle, animal, person, vehicle, or any other reason for the Honda “to stop suddenly” on the roadway.
Lispi initially testified that she was “accelerating at the time that [her] car hit the other car.” However, Lispi later clarified that she “hit [the] brakes” when the Honda stopped suddenly in front of her. She explained that because the earlier question did not ask whether she had tried to stop to avoid the collision, she “didn't get a chance to answer that question.”
Lispi testified that, although she was responsible for rear-ending the Honda, Meredith also was at fault for making a sudden stop for no apparent reason. In addition, Lispi testified that she did not believe Vollaro's injuries—a hernia that was surgically repaired
and a rib injury that will require future surgery—were sustained in the accident.
At the time of the accident, Vollaro was recovering from a recent gallbladder surgery.
Based on Lispi's theory that both drivers were at fault in causing the accident, she submitted a proposed special verdict form that would have required the jury to consider the fault of each driver for purposes of allocating liability for Vollaro's noneconomic damages. Lispi requested special verdict findings as to: (1) whether Lispi was negligent and, if so, whether her negligence was a cause of injury to Vollaro; (2) whether Meredith was negligent and, if so, whether his negligence was a cause of injury to Vollaro; and, if both drivers were found to be negligent, (3) the percentage of fault attributable to each driver.
Vollaro objected to Lispi's proposed special verdict form, claiming that California law prohibits the apportionment of liability for noneconomic damages to a nonparty. Vollaro also argued that the sole evidence of Meredith's alleged negligence—Lispi's testimony that the Honda stopped suddenly for no apparent reason—was legally insufficient to support an allocation of fault to Meredith.
In response, Lispi argued that California law permits the apportionment of noneconomic damages to a nonparty. Lispi further objected that, unless the jury made special verdict findings on Meredith's proportionate fault, her arguments to the jury “that there is a minimum speed law, and that the car stopped for no reason” would be pointless.
Although the trial court rejected Lispi's proposed special verdict form, it instructed the jury on the minimum speed law (Veh.Code, § 22400), and Lispi's counsel read the minimum speed law in her closing argument.
Thus, the jury was informed of the applicable standard of care that applied to the alleged unsafe stop by Meredith, even though it was not asked to make a special verdict finding as to whether Meredith was partly at fault in causing the accident.
Lispi's attorney read to the jury the second sentence of the minimum speed law, which states: “No person shall bring a vehicle to a complete stop upon a highway so as to impede or block the normal and reasonable movement of traffic unless the stop is necessary for safe operation or in compliance with law.” (Veh.Code, § 22400, subd. (a).)
Although the term “highway” is not defined in Vehicle Code section 22400, it is defined elsewhere in the Vehicle Code as “a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street.” (Veh.Code, § 360.)
As will be discussed later in this opinion, the first sentence of the minimum speed law, which was not read to the jury, provides: “No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic unless the reduced speed is necessary for safe operation, because of a grade, or in compliance with law.” (Veh.Code, § 22400, subd. (a).)
The jury returned special verdict findings that: (1) Lispi was negligent; (2) her negligence was a cause of injury to Vollaro; and (3) Vollaro had suffered $661,000 in damages, comprised of $22,000 for past economic loss, $64,000 for future economic loss, $75,000 for past noneconomic loss, and $500,000 for future noneconomic loss. After the trial court entered judgment in accordance with the jury's findings, Lispi filed a timely appeal. Additional facts relevant to the issues on appeal are discussed below.
DISCUSSION
I. The Rejection of Lispi's Proposed Special Verdict Form Constituted Prejudicial Error
“[A] special verdict is that by which the jury find the facts only, leaving the judgment to the court. The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the court but to draw from them conclusions of law.” (Code Civ. Proc., § 624.)
“Unlike a general verdict (which merely implies findings on all issues in favor of the plaintiff or defendant), a special verdict presents to the jury each ultimate fact in the case. The jury must resolve all of the ultimate facts presented to it in the special verdict, so that ‘nothing shall remain to the court but to draw from them conclusions of law.’ (Code Civ. Proc., § 624.) [¶] The requirement that the jury must resolve every controverted issue is one of the recognized pitfalls of special verdicts. ‘[The] possibility of a defective or incomplete special verdict, or possibly no verdict at all, is much greater than with a general verdict that is tested by special findings....' [Citation.]” (Falls v. Superior Court (1987) 194 Cal.App.3d 851, 854–855, 239 Cal.Rptr. 862 (Falls ).)
Lispi contends the trial court erred in rejecting her proposed special verdict form that would have required the jury to consider Meredith's proportionate fault for purposes of apportioning Vollaro's noneconomic damages. Lispi contends that: (1) because a defendant is liable only for the noneconomic damages directly attributable to his or her percentage of fault, the jury may apportion liability for noneconomic damages against a nonparty; (2) because her testimony created a disputed issue of fact as to Meredith's violation of the minimum speed law, the trial court erred in rejecting her proposed special verdict form; and (3) she preserved the issue for appellate review. For the reasons that follow, we agree.
A. Under Proposition 51, a Defendant Is Liable Only for the Noneconomic Damages Directly Attributable to His or Her Own Percentage of Fault
In 1986, the voters enacted Proposition 51, the Fair Responsibility Act, which abolished joint and several liability for noneconomic damages in personal injury cases. Proposition 51, which amended Civil Code section 1431 and added Civil Code sections 1431.1 through 1431.5,
“retains the joint liability of all tortfeasors, regardless of their respective shares of fault, with respect to all objectively provable expenses and monetary losses. On the other hand, the more intangible and subjective categories of damage were limited by [section 1431.2] to a rule of strict proportionate liability.” ( DaFonte v. Up–Right, Inc. (1992) 2 Cal.4th 593, 600, 7 Cal.Rptr.2d 238, 828 P.2d 140.) With respect to economic damages, codefendants are jointly and severally liable, but with respect to noneconomic damages, liability is several but not joint: “each defendant is liable for only that portion of the plaintiff's noneconomic damages which is commensurate with that defendant's degree of fault for the injury.” ( Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1198, 246 Cal.Rptr. 629, 753 P.2d 585.)
.Civil Code section 1431.2 provides: “(a) In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.
“(b)(1) For purposes of this section, the term ‘economic damages' means objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities.
“(2) For the purposes of this section, the term ‘non-economic damages' means subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.”
In DaFonte v. Up–Right, Inc., supra, 2 Cal.4th 593, 7 Cal.Rptr.2d 238, 828 P.2d 140, the California Supreme Court considered the effect of Proposition 51 on a defendant's joint and several liability for personal injury damages sustained by the employee of another. The court concluded that under Proposition 51, “defendants no longer have to pay an injured employee's noneconomic damages caused by the fault of another, and the employee, like any other tort victim, bears the resulting risk of loss.” (Id. at p. 603, 7 Cal.Rptr.2d 238, 828 P.2d 140.) The court stated that “[w]ith respect to these noneconomic damages, the plaintiff alone now assumes the risk that a proportionate contribution cannot be obtained from each person responsible for the injury. [Citation.]” (Id. at p. 600, 7 Cal.Rptr.2d 238, 828 P.2d 140.) This limitation, which applies in any action for personal injury, property damage, or wrongful death that is based on principles of comparative fault, is consistent with the initiative's purpose of modifying the “unfairness” and “inequities” of the former tort recovery system where defendants with slight fault could be “saddled with large damage awards mainly attributable to the greater fault of others who were able to escape their full proportionate contribution. [Citation.]” (Id. at p. 599, 7 Cal.Rptr.2d 238, 828 P.2d 140; Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791, 1804–1805, 34 Cal.Rptr.2d 732.)
In short, under Proposition 51, an injured plaintiff bears the entire risk of loss for any unpaid noneconomic damages attributable to a tortfeasor who has not been sued or is statutorily immune.
( Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 305, 96 Cal.Rptr.2d 605.) We therefore conclude that Vollaro bears the entire risk of loss for any unpaid noneconomic damages attributable to Meredith, who was not sued. Accordingly, Lispi's failure to file a cross-complaint against Meredith does not preclude Lispi from seeking an apportionment of liability for noneconomic damages.
The proposition that a jury may apportion liability to a nonparty has been adopted in the Judicial Council of California Civil Jury Instructions (CACI) special verdict form applicable to negligence cases. (See CACI Verdict Form 402 and CACI Instruction No. 406 [“[Verdict Form] 402 is designed to compare the conduct of all defendants, the conduct of the plaintiff, and the conduct of any nonparty tortfeasors. [¶] ... [¶] ... ‘Nonparties' include the universe of tortfeasors who are not present at trial, including defendants who settled before trial and nonjoined alleged tortfeasors. (Dafonte v. Up–Right [, supra,] 2 Cal.4th 593, 603[7 Cal.Rptr.2d 238, 828 P.2d 140].)”].)
B. Because Lispi's Testimony Created Disputed Issues of Fact as to Meredith's Violation of the Minimum Speed Law, the Trial Court Erred in Rejecting Lispi's Proposed Special Verdict Form
The trial court rejected Lispi's special verdict form based on Vollaro's argument that the evidence failed to support a finding of negligence against Meredith. We conclude, however, that Lispi's testimony was sufficient to create disputed issues of fact as to Meredith's violation of the minimum speed law and, therefore, the trial court erred in rejecting Lispi's proposed special verdict form.
1. The Seaton Case
In Seaton v. Spence (1963) 215 Cal.App.2d 761, 30 Cal.Rptr. 510 (Seaton ), the appellate court concluded that the testimony of defendant Darrel Spence, the owner and driver of a vehicle that rear-ended plaintiff Robert Seaton's truck, was sufficient to establish that Seaton was driving at such a low speed that he was obstructing traffic in violation of the minimum speed law.
Spence testified that he was driving on the highway at 60 to 62 miles per hour when he briefly took his eyes off the road. (Seaton, supra, 215 Cal.App.2d at pp. 764–765, 30 Cal.Rptr. 510.) During that short interval, the car in front of Spence changed lanes. When Spence returned his attention to the road, he saw that he was quickly approaching Seaton's truck, which was going 10 to 20 miles per hour and was only “75 to 100 feet in front of him.” (Id. at p. 764, 30 Cal.Rptr. 510.) Although Spence immediately applied the brakes, he was unable to avoid rear-ending Seaton's truck.
Spence argued at trial that Seaton's dangerously slow speed was impeding the normal and reasonable movement of traffic, in violation of the minimum speed law. Spence contended that Seaton's slow driving constituted contributory negligence, which at the time operated as a complete bar to an injured plaintiff's recovery.
( Seaton, supra, 215 Cal.App.2d at p. 765, 30 Cal.Rptr. 510.) The jury found in favor of Spence, and the trial court entered judgment accordingly.
As the Supreme Court stated in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 582, 146 Cal.Rptr. 182, 578 P.2d 899: “[I]n Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, we concluded that the harsh and much criticized contributory negligence doctrine, which totally barred an injured person from recovering damages whenever his own negligence had contributed in any degree to the injury, should be replaced in this state by a rule of comparative negligence, under which an injured individual's recovery is simply proportionately diminished, rather than completely eliminated, when he is partially responsible for the injury.”
In his appeal from the judgment, Seaton argued that Spence's testimony was insufficient to prove that Seaton had violated the minimum speed law. The appellate court disagreed, stating that Spence was “a competent witness to testify to the speed of [Seaton's] truck,” and the fact that Spence's “observation was momentary goes to the weight of the evidence rather than its admissibility. [Citations.]” (Seaton, supra, 215 Cal.App.2d at p. 766, 30 Cal.Rptr. 510.)
The appellate court further stated: “The implied finding of the jury that [Seaton's] slow driving was contributory negligence is supported by section 22400 of the Vehicle Code which provides in part: [¶] ‘(a) No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or because upon a grade or in compliance with law.’ [¶] The jury could have concluded that by driving 10 to 20 miles per hour [Seaton] violated that section. Such a violation would raise a presumption of negligence. [Citation.]” (Seaton, supra, 215 Cal.App.2d at p. 766, 30 Cal.Rptr. 510.)
2. Analysis
The primary issue in this case was whether Lispi, who had only a brief moment before the collision to observe the Honda, was a credible witness concerning the Honda's sudden stop for no apparent reason. As in Seaton, this issue was a jury question. “Under all but the most limited circumstances, credibility of witnesses is a question of fact to be resolved by the jury.” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1001, 62 Cal.Rptr.2d 164.) “[I]t is well settled that the testimony of one witness entitled to credit is sufficient to establish a fact in a civil case. [Citation.]” (Minikin v. Hendrix (1940) 15 Cal.2d 338, 341, 101 P.2d 473.) “Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” (Evid.Code, § 411.)
Vollaro cites Wilson v. Ritto (2003) 105 Cal.App.4th 361, 367, 129 Cal.Rptr.2d 336, for the principle that “ unless there is substantial evidence that an individual is at f ault, there can be no apportionment of damages to that individual.” (Italics added.) However, Vollaro does not explain why Lispi's percipient testimony concerning the Honda's unsafe stop was insufficient to establish a violation of the minimum speed law. Vollaro relies on the language quoted above without addressing the fact that a different standard of care applies to medical malpractice cases such as Wilson. Wilsonstands for the proposition that “a nonparty medical doctor cannot be found comparatively at fault in a personal injury action unless the defendant proves with expert testimony the doctor failed to meet the applicable standard of care.” (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1561, 141 Cal.Rptr.3d 362.) Because this is not a professional malpractice action, Wilsonsheds no light on whether Lispi's testimony provided substantial evidence of Meredith's violation of the minimum speed law.
If a jury were to find, based on Lispi's testimony, that Meredith had violated the minimum speed law, such violation would give rise to a presumption of negligence. (Seaton, supra, 215 Cal.App.2d at p. 765, 30 Cal.Rptr. 510.)
Because the jury was not asked to return a special verdict finding on the disputed issues of Meredith's negligence, causation, and proportionate fault, the special verdict findings are incomplete as to Lispi's share of noneconomic damages.
As we stated in Spriesterbach v. Holland (2013) 215 Cal.App.4th 255 at page 263, 155 Cal.Rptr.3d 306: “Where a statute establishes a party's duty, ‘ “proof of the [party's] violation of a statutory standard of conduct raises a presumption of negligence that may be rebutted only by evidence establishing a justification or excuse for the statutory violation.” (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 547[25 Cal.Rptr.2d 97, 863 P.2d 167].) This rule, generally known as the doctrine of negligence per se, means that where the court has adopted the conduct prescribed by statute as the standard of care for a reasonable person, a violation of the statute is presumed to be negligence. (Casey v. Russell (1982) 138 Cal.App.3d 379, 383 .) [¶] The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: “(1) the [party opposing a finding of negligence per se] violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420 .) The first two elements are questions of fact, while the latter two are questions of law. (Ibid.)’ (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 218 .) If the party seeking to prove negligence per se establishes a presumption of negligence, the burden then shifts to the other party to rebut the presumption by proof that, among other things, ‘[t]he person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law....’ (Evid.Code, § 669, subd. (b)(1).)”
The next question is whether the incomplete special verdict findings were prejudicial. In answering that question, we find the court's discussion in Falls, supra, 194 Cal.App.3d 851, 855, 239 Cal.Rptr. 862, concerning the prejudice resulting from an incomplete special verdict to be instructive.
In Falls, a personal injury action, the jury received a special verdict form similar to the one that was requested by Lispi in this case, requiring the jury to apportion negligence. However, the jury failed to answer all of the questions in the special verdict form and found only that the defendant was negligent and that such negligence was a cause of the plaintiff's injuries. The jury left unresolved the disputed issues of the plaintiff's comparative negligence, if any, and the negligence of another defendant who had settled with the plaintiff. Based on the jury's failure to answer all of the questions presented in the special verdict form, the trial court declared a mistrial.
The plaintiff petitioned for a writ of mandate to compel the trial court to enter a partial verdict against the defendant on the issues of liability and proximate cause. Division Five of this district denied the petition, stating, “The jury reached a verdict on only two of [six] ultimate facts. While the jury may have resolved the issue of defendant's negligence, it did not ‘resolve the issue of liability in plaintiff's favor,’ since in order to do so it would have to reach the question of plaintiff's comparative negligence, if any, or the contributory negligence of the settling defendant, Lakewood Center Mall. The liability issue as it now stands is like a puzzle with pieces missing; the picture is not complete.” (Falls, supra, 194 Cal.App.3d at p. 855, 239 Cal.Rptr. 862, fns. omitted.)
The jury's partial verdict, the court stated, “ ‘was not dispositive of the liability issue and percentage of fault,’ and therefore the jury had not determined sufficient ultimate facts upon which the court could render the ‘partial verdict’ requested by plaintiff. [¶] Although we appreciate plaintiff's frustration at losing an advantage fairly won, such a loss is an inherent risk of the special verdict. To award plaintiff a ‘partial verdict’ based upon a special verdict form which is fatally deficient would be contrary to the requirement that the jury must resolve all the ultimate facts presented. It would also severely prejudice defendant at the time of retrial, since the jury would be instructed that defendant's negligence was a fait accompli. The record presented here demonstrates that respondent court weighed all of these issues in concluding that a mistrial must be granted. There was no abuse of discretion.” (Falls, supra, 194 Cal.App.3d at p. 855, 239 Cal.Rptr. 862.)
Applying the above reasoning to this case, we conclude that the judgment must be reversed for a new trial on the issue of Meredith's proportionate fault. Given that Lispi's testimony, if believed by the jury, is sufficient to support a finding that Meredith violated the minimum speed law, thereby creating a presumption of negligence, the absence of any findings as to Meredith's proportionate fault has resulted in a defective or incomplete special verdict that is prejudicial to Lispi.
3. The Issue Was Preserved for Appeal
Lispi contends that she preserved her objection to the special verdict form by submitting a proposed special verdict form that requested findings on the disputed issue of Meredith's proportionate fault. (See Behr v. Redmond (2011) 193 Cal.App.4th 517, 530, 123 Cal.Rptr.3d 97 [the failure to object to a special verdict form ordinarily constitutes a waiver of any objection to the form]; Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1287, 87 Cal.Rptr.2d 497 [the failure to submit a proposed special verdict form that addresses the purported defects in the special verdict form can result in a waiver].) Vollaro argues, however, that Lispi waived the right to a finding on the issue of apportionment through her testimony and interrogatory responses. We conclude there was no waiver.
Vollaro cites Lispi's testimony—that she was accelerating at the time of impact and was responsible for the accident and the injuries sustained by the people in the Honda—as evidence of waiver. However, this contention ignores Lispi's testimony that she braked but could not avoid the collision because Meredith had made an unsafe stop for no apparent reason. This contention also ignores Lispi's testimony in which she denied that Vollaro's injuries were caused by the accident. We therefore conclude that Lispi's testimony, taken as a whole, does not support a finding of waiver.
Vollaro also relies on Lispi's verified interrogatory responses—her failure to identify anyone else who had caused the accident and her failure to list Meredith's comparative negligence as an affirmative defense—as evidence of waiver. However, this contention ignores Lispi's interrogatory response that Meredith was partly at fault for making a sudden stop for no apparent reason.
We therefore conclude that Vollaro's interrogatory responses, taken as a whole, do not support a finding of waiver.
Vollaro stated in her interrogatory response: “Defendant came to a complete stop behind plaintiff's vehicle. When oncoming traffic cleared, plaintiff's vehicle began moving forward. Defendant also began moving forward when suddenly and for no apparent reason, plaintiff's vehicle stopped. Defendant applied her brakes but was unable to stop in time. The front end of defendant's vehicle came in contact with the rear end of plaintiff's vehicle.”
Finally, Vollaro relies on Lispi's failure to depose Meredith before trial as evidence of waiver. As we previously discussed, however, Lispi's testimony, if believed by the jury, was sufficient to establish the alleged violation of the unsafe speed law without eliciting any testimony from Meredith. (See Minikin v. Hendrix, supra, 15 Cal.2d at p. 341, 101 P.2d 473 [“the testimony of one witness entitled to credit is sufficient to establish a fact in a civil case”].) We conclude there was no waiver.
4. Vollaro's Reliance on Lispi's Failure to Request an Instruction on Apportionment Is Misplaced
In her respondent's brief, Vollaro argues that any error with regard to the special verdict form was rendered moot by Lispi's failure to request an instruction on apportionment. Vollaro's contention, as we understand it, is that because Lispi did not request an instruction on apportionment, no instruction on apportionment was given, and therefore, any apportionment of liability would have rendered the verdict erroneous on the ground that it was contrary to the instructions.
In support of her contention, Vollaro cites Sherwood v. Rossini (1968) 264 Cal.App.2d 926, 71 Cal.Rptr. 1 (Sherwood ), which stated that “a verdict which is patently contrary to the court's instructions on damages does not cover or comprehend the issues submitted and is therefore insufficient.” (Id. at p. 929, 71 Cal.Rptr. 1.) In that case, the jury was instructed that because the defendant was not contesting liability for the plaintiff's injuries, the only issue to be determined was the amount of the plaintiff's damages. Notwithstanding this instruction, the jury returned a verdict of zero damages. The court sent the jury back for further deliberations after advising the jury that its verdict was inconsistent with both the instructions and the verdict form. After the jury returned a second verdict of $3,000, the court entered a judgment in that amount. On appeal, the plaintiff argued that the first verdict was erroneous but not insufficient and, therefore, the trial court had erred in returning the jury for further deliberations. The appellate court rejected the plaintiff's contentions and affirmed the judgment.
Vollaro's reliance on Sherwoodis unavailing. Significantly, the defendant in that case conceded the plaintiff's injuries were sustained in the car accident, defendant did not contest liability for those damages, and the jury was instructed accordingly. Under those circumstances, the verdict of zero was directly contrary to the court's instructions.
In this case, the jury was not instructed that Lispi accepted complete responsibility for the accident. There were no jury instructions regarding apportionment of liability. Therefore, unlike Sherwood, an apportionment of liability by the jury could not have been contrary to the instructions. Presumably, had the trial court agreed to include apportionment of liability on the verdict form, either party could have requested an instruction regarding apportionment. However, the trial court did not, and Lispi's failure to request an instruction did not constitute waiver.
II. Lispi's Contentions of Evidentiary Error Are Unsupported by the Record
See footnote *, ante.
DISPOSITION
The jury's special verdict findings are affirmed, but the judgment is reversed and the matter is remanded for a new trial on the following issues only: (1) whether Meredith was negligent and, if so, (2) whether his 107negligence was a cause of injury to Vollaro and, if so, (3) the percentage of fault attributable to Lispi and Meredith. Lispi is entitled to her costs on appeal. We concur: EPSTEIN, P.J. WILLHITE, J.