245 Cal. App. 4th 362
Cal. Ct. App.2016Background
- On June 17, 2010, Paul Michaelson, a truck driver for V&J Rock Transport, backed an asphalt truck over Dan Toste during a paving project; Toste died of blunt force trauma. Michaelson admitted marijuana use two days earlier and had a high marijuana metabolite level in his urine but denied impairment.
- Plaintiff (Anthony Toste) sued for wrongful death alleging negligence, negligence per se (violation of 49 C.F.R. § 382.213 and Veh. Code § 23152), and defective/inaudible backup alarm/the manner of backing.
- Jury special verdict: Michaelson was negligent but his negligence was not a substantial factor in causing death; V&J Rock Transport and CalPortland were found not negligent; jury found Michaelson was not a temporary employee of CalPortland.
- Plaintiff moved for a new trial (insufficiency of the evidence and juror misconduct). The motion was denied after conflicting juror declarations.
- Trial court awarded costs under Code Civ. Proc. § 998, including substantial expert witness fees to defendants; appellate court affirmed most rulings but reversed and remanded the expert-fee award to Michaelson/V&J for recalculation under a 2016 amendment to § 998.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Michaelson's negligence (marijuana use/backing) was a substantial factor in causing death | Michaelson's marijuana use and backing caused the death; causation follows from negligence per se | Evidence showed no impairment, proper backing, audible alarm, and Toste's inattentiveness/medical condition were causative | Held for defendants: substantial-evidence supports jury's implied finding that negligence was not a substantial factor; verdict stands |
| Effect of federal motor carrier drug regulation (negligence per se) and interplay with state law instruction | Violation of 49 C.F.R. § 382.213 is a “zero tolerance” that establishes causation as a matter of law | Plaintiff still must prove causation; jury properly instructed on both federal regulation and Veh. Code § 23152 | Held: negligence per se instruction (CACI 420) was correct; violation does not automatically establish causation; jury reasonably found no causal impairment |
| Vicarious liability of CalPortland | CalPortland should be vicariously liable as temporary employer of Michaelson | Jury found Michaelson was not CalPortland’s temporary employee and CalPortland not negligent | Held: judgment for CalPortland affirmed; judgment for employee bars vicarious liability where only that theory is pled |
| Validity and scope of § 998 cost award for expert witness fees (pre- and post-offer) | Offers to compromise were defective or do not support recovery of preoffer expert fees; amendment to § 998 prohibits awarding preoffer expert fees to defendants | Defendants contend offers complied with § 998 and trial court properly awarded expert fees incurred pre- and post-offer | Held: one defendant offer (July 31, 2013) was conditional/invalid; 2016 amendment to § 998 limits defendant recovery to postoffer expert costs — award to CalPortland affirmed (no preoffer experts awarded); award to Michaelson/V&J reversed and remanded to recalculate under amended § 998 |
Key Cases Cited
- Jonkey v. Carignan Construction Co., 139 Cal.App.4th 20 (Cal. Ct. App.) (deference to jury on causation where inferences differ)
- David v. Hernandez, 226 Cal.App.4th 578 (Cal. Ct. App.) (negligence per se does not automatically establish causation; jury may find other causes)
- Murillo v. Fleetwood Enterprises, Inc., 17 Cal.4th 985 (Cal.) (historical rule on awarding expert witness fees under pre-amendment § 998)
- DeArmond v. Southern Pacific Co., 253 Cal.App.2d 648 (Cal. Ct. App.) (no liability without causation)
- Johnson v. Pratt & Whitney Canada, Inc., 28 Cal.App.4th 613 (Cal. Ct. App.) (reaffirming causation requirement even when duty breached)