At the jury trial, over Guernsey's objections, the court gave a special "[d]esign of the [d]riveway" jury instruction requested by the City, refused to give jury instructions requested by Guernsey on negligence per se ( CACI No. 418 ) and mandatory duty ( CACI No. 423 ) based on the City ordinance, and provided the jury with a special verdict form containing two fact-specific questions on dangerous condition to which Guernsey objected. The jury returned a multi-million dollar verdict against Capulin, but it found for the City on the two fact-specific dangerous condition questions. The jury wrote on the verdict form: "Paint the xwalk Salinas!" The trial court awarded the City its expert witness fees under Code of Civil Procedure section 998 after finding that the City's $250,000 pretrial offer was reasonable.
On appeal, Guernsey contends that the trial court prejudicially erred by (1) giving
I. Evidence Presented At Trial
The crosswalk across the driveway was originally painted in 1997 with 12-inch-wide lines consisting of thermoplastic paint. Thermoplastic material lasts for five to 10 years. By 2013, the crosswalk's lines had faded so much that they "weren't visible" but for some "remnants" near the curbs. It costs about $1,000 and takes about an hour to repaint a crosswalk.
The City's Municipal Code requires it to maintain its crosswalks, but the City has no program for inspecting them. Instead, maintenanсe is "[l]argely complaint driven." The City adopted the Caltrans Traffic
Next to the crosswalk was a 16-foot-wide strip of pink stamped concrete that also went across the driveway. The pink concrete was not on the City's property, nor was it controlled by the City. The stop sign for traffic exiting the driveway onto North Davis Road was not next to the crosswalk but in the pink concrete area, about 11 feet from the crоsswalk. On the north side of the intersection, next to the driveway's entrance lane, tall bushes hanging over the sidewalk limited the ability of a driver of an exiting vehicle to see southbound traffic. Most of the bushes were not on the City's property, but the City had the authority to require that the owner of the bushes trim them or to have them trimmed and charge the owner. The City did not trim the bushes or require them to be trimmed. No prior pedestrian accidents had occurred at the intersection between the driveway and North Davis Road.
On February 8, 2013, Darel Sorenson was in his vehicle heading toward the driveway's exit when he saw Guernsey approaching from his right. She was "on the sidewalk" 15 to 20 feet away from Sorenson's vehicle "down at the other end" by North Davis Road. He stopped his vehicle "prior to the stop sign." Guernsey crossed the driveway in the crosswalk in front of Sorenson's vehicle, looked at him, "jogged in place a second or two" in front of his vehicle and then continued northbound. Sorenson proceeded to the stop sign and then looked to his left and saw Guernsey on the ground.
Capulin was driving a GMC pickup truck northbound on North Davis Road. She got into the left turn pocket to turn left into the driveway into Westridge Shopping Center. The left turn pocket had no signal or stop sign. Capulin was familiar with the intersection because she had been going to the Costco in the shopping center at least monthly for more than a decade. She had exited the driveway "hundreds of times." Capulin brought her truck to a stop because there was southbound traffic. After the southbound traffic passed, sеveral vehicles exited the driveway by making right turns onto North Davis Road. Her view of the sidewalk was blocked because there were vehicles exiting the driveway that had pulled up to see whether southbound
Guernsey suffered a "severe traumatic brain injury," numerous orthopedic injuries, a collapsed lung, a lacerated liver, and other injuries. She was in a coma for a month, and she will require 24-hour care for the rest of her life. Guernsey is primarily wheelchair-bound and has only a limited ability to communicate.
II. Procedural Background
The only cause of action against the City that was submitted to the jury was Guernsey's third cause of action for a dangerous condition of public property. In her opening statement, Guernsey asserted that the City "created this dangerous condition by failing to maintain the crosswalk." The City admitted in its opening statement that "[t]he crosswalk lines are faded." Capulin's trial counsel asserted in opening statement that the intersection was "confusing" because of "the pink," and that "the pink," the bushes, and the stop sign location could have "played a role" in the accident.
The causes of the accident were hotly contested at trial. Guernsey's experts identified several factors that could have contributed to the accident. The six-inch-wide "A-pillar" in Capulin's truck created a blind spot that obstructed Capulin's vision of objects to the left of her truck. Due to the bushes, a vehicle exiting from the driveway would have to move forward from the stop sign into the crosswalk to see whether there was southbound traffic coming. The faded crosswalk created different expectations for a pedestrian than for a driver. While a pedestrian would reasonably expect the crosswalk to be a "safe zone" once she had entered it, the absence of plainly visible crosswalk markings would cause a driver's attention to be drawn to the visually distinct pink cement area, particularly since that is where the stop sign required vehicles to stop. Thus, the "completely faded" crosswalk "created a very confusing visual environment" for "left-turning vehicles." In contrast, had there been a clearly visible "marked crosswalk," it would have created a "visual cue" for a driver to watch for pedestrians in the crosswalk.
After Guernsey's case-in-chief, the court denied the City's motion fоr nonsuit on the dangerous condition cause of action, but it noted what it perceived to be weaknesses in Guernsey's case on that cause of action. The City's experts testified that the crosswalk markings were not responsible for
Capulin's expert testified that the most reasonable explanation for the accident was that an exiting vehicle had blocked Capulin's view of Guernsey, who he concluded had gone behind the vehicle because the vehicle was blocking the crosswalk due to the driver's need to look past the overgrown bushes. Alternatively, this expert believed that Capulin's view of Guernsey was blocked by the "straggling car" that was proceeding southbound.
At the City's request, and over Guernsey's objections, the court instructed the jury: "Plaintiffs have not alleged that the design of the Driveway created a dangerous condition. Instead, Plaintiffs have alleged that it was the City's failure to maintain the crosswalk lines and the bushes that created a dangerous condition. [¶] To find that the Driveway presented a dangerous condition, you cannot rely on characteristics of the Driveway itself (e.g., the placement of the stop sign, the left turn pocket, and the presence of the pink cement). Although you can consider those elements of the Driveway when weighing whether or not the faded crosswalk lines and bushes created a dangerous condition, you cannot rely on those design elements of the intersection to find that a dangerous condition existed." The court also instructed the jury with the following instruction, to which both parties agreed: "The City оf Salinas' property may be considered dangerous if a condition on adjacent property, such as the pink stamped concrete or the location of the stop sign, exposes those using the public property to a substantial risk of injury in conjunction with the adjacent property."
The verdict form, which was provided to the jury over Guernsey's objections, contained questions 2a and 2b about the City's liability for a dangerous condition, with the word "or" between the two questions. Question 2a asked: "Was the property in a dangerous condition at the time of the incident because of the lack of crosswalk lines and/or bushes on the City's
Guernsey's trial counsel argued to the jury: "The City of Salinas did not maintain the crosswalks. [¶] The faded lines make the pink walkway more prominent, and the overgrown bushes created a dangerous condition, which led to the dangerous condition, and an inattentive driver that went in to the crosswalk, striking Mrs. Guernsey." She argued that Capulin "saw the pink concrete and thought the pink was the crosswalk." Her argument was that the faded crosswalk lines made Capulin mistake the pink concrete for the crosswalk. This created a dangerous condition because a pedestrian in the crosswalk was closer to a left-turning driver than a pedestrian in the pink concrete walkway would be. She also relied on the City's failure to "trim the bushes down to three feet" because the bushes "blocked the view
The City argued to the jury that the faded crosswalk lines and the bushes had not been a substantial factor in сausing the accident. "As you have seen, you can say this crosswalk's stripes were faded, but it was not a cause of this accident." The City also argued: "[D]id the crosswalk stripes and the bushes that were part of the City and the bushes that were part of Costco and the pink cement that was part of Costco and Sammut Brothers, the developers, did the stripes in conjunction with those-was that a substantial factor in Mrs. Guernsey's accident? [¶] And the answer is no." It argued that Guernsey was responsible for the accident. Capulin's trial counsel argued that Guernsey had not been in the crosswalk but "in the pink" when Capulin began her left turn.
During deliberations, the jury initially submitted three questions to the court. One of them sought " 'a legal definition of "dangerous condition"?' "
The jury thereafter returned its verdict. On questions 2a and 2b, which concerned whether the property was in a dangerous condition, the jury answered both questions "No." The jury found that Capulin had been negligent, that Guernsey's damages were over $7 million, that Capulin was 70 percent responsible, and that Guernsey was 30 percent responsible. The jury was polled, and all 12 jurors affirmed that this was their verdict. After the jury had been polled, the foreperson asked if he could "say something on behalf of the jury." He said: "Please paint the crosswalk lines." The court pointed out that the same message was also written on the verdict form, which said "P.S. Paint the xwalk Salinas!" The court entered judgment on the jury's verdict in December 2015.
Guernsey subsequently brought a motion for a new trial as to the City. She argued that (1) the verdict form's questions
III. Discussion
Guernsey contends that the trial court prejudicially erred in instructing the jury with the City's "[d]esign of the [d]riveway" instruction.
In response to Guernsey's dangerous condition cause of action, the City pleaded as an affirmative defense in its answer that the physical conditions of the intersection had not changed after the approval of its design. This affirmative defense is commonly known as design immunity. When the City moved for summary judgment, Guernsey argued, among other things, that the design of the intersection was not reasonablе. Guernsey's trial brief argued that the left turn pocket, the pink concrete, and the location of the stop sign were factors, along with the faded crosswalk lines and the bushes, in causing the accident.
At the commencement of trial, the City's trial counsel expressed confusion about whether Guernsey was pursuing her allegations of "defective design," and Guernsey's trial counsel told the court that she was "not saying the design caused the dangerous condition" so "design immunity doesn't come in to [sic ] play." She said that she was pursuing only "failure to maintain for which there is no immunity." The City's trial counsel asked whether Guernsey was "going to argue the location of the stop sign is a causative factor in this accident, defective and it caused-or the left turn lane channelling lane, the curb radius and so on." Guernsey's trial counsel responded that "the stop sign is still at issue" because it was on adjacent property and the City "would be liable for having a condition on their property in conjunction with [a] dangerous condition on adjacent property." The City's trial counsel sought confirmation of his "understand[ing]" that "there are going to be no jury instructions on defective design." Guernsey's trial counsel confirmed as much and said that "the whole design process ... [that] goes into design immunity ... we're not doing that." The City's trial counsel responded: "It's more clear."
The City subsequently asked the trial court to exclude "design defect" evidence by precluding Guernsey's trial counsel from asking questions about various aspects of the intersection that the City claimed were relevant only to the intersection's "design." Guernsey's trial counsel argued that evidence about the "pink ... walkway" and "the stop sign" was properly placed before the jury because the City could not "get design immunity for" "items" that "are on private property." She disclaimed any contention that the left turn pocket, which was on the City's property, was "defective." She explained: "[W]e are not saying that defect in the design, the original design of public property, caused the incident. [¶] It's the failure to maintain the crosswalk line[s] and the existence of the pink concrete, the stop sign, they all just explain what happened in the situation with the various drivers, the pedestrian,
At trial, one of Guernsey's experts testified that the "intersection" was a "dangerous condition" due to (1) the "disintegrated paint" on the crosswalk, (2) the "confusion" arising from the stop sign's location in the pink cement area, (3) the fact that the pink cement was eye-catching and immediately adjacent to the crosswalk, and (4) the untrimmed bushes that made it difficult for drivers exiting the driveway to see southbound trаffic without pulling up into the crosswalk. He expressed the opinion that a left-turning driver "wasn't really warned this is a crosswalk." He also testified that the placement of the stop sign contributed to confusion about where the crosswalk was located. This expert testified that the faded crosswalk was a factor in causing this accident, particularly because it was next to the "more prominent" pink cement. On cross, he said that the confusing factors were the "combined" impact of the faded crosswalk, the pink cement, and Sorenson's "stopping" twice.
The City requested a "[d]esign of the [d]riveway" instruction stating: "Plaintiffs have not alleged that the design of the Driveway created a dangerous condition. Instead, Plaintiffs have alleged that it was the City's failure to maintain the сrosswalk lines and the bushes that created a dangerous condition. [¶] To find that the Driveway presented a dangerous condition, you cannot rely on characteristics of the Driveway itself (e.g., the placement of the stop sign, the left turn pocket, and the presence of the pink cement). Although you can consider those elements of the Driveway when weighing whether or not the faded crosswalk lines and bushes created a dangerous condition, you cannot rely on those design elements of the intersection to find that a dangerous condition existed."
Guernsey's trial counsel objected to the City's proposed "[d]esign of the [d]riveway" instruction on the ground that it was unnecessary. She proposed an "alternative" instruction: "Plaintiffs have not alleged that the design of North Davis Road, including the crosswalk, created a dangerous condition. Instead, Plaintiffs have alleged that it was the City's failure to maintain the crosswalk and the bushes that created a dangerous condition. Plaintiffs have also alleged that the crosswalk may be considered dangerous if a condition on adjacent property, such as the pink stamped concrete and the location of the stop sign, exposed those using North Davis Road to a substantial risk of
During the instruction conference, the court asked Guernsey's trial counsel "[w]hat arе you going to be arguing the 'dangerous condition' is?" Guernsey's trial counsel replied: "The failure to maintain the crosswalk lines" "in combination with the bushes." The City argued that its proposed
B. "Design of the Driveway" Instruction Was Erroneous
Guernsey contends that the trial court erred in giving the "[d]esign of the [d]riveway" instruction because the instruction was "irrelevant" and "ambiguous," and it "repeated and thus unduly emphasized factors the jury could not rely on to find a dangerous condition." (Italics omitted.) The City claims that the instruction was required because the jury needed to be informed that Guernsey wаs not claiming that the City was liable based on the design of the intersection so that the jury would not premise liability on the intersection's design.
The City contends that Guernsey forfeited her challenges to the "[d]esign of the [d]riveway" instruction by failing to object on these grounds below. "It is settled that a party may not complain on appeal that an instruction correct in law is too general or incomplete unless he had requested an additional or qualifying instruction." ( Agarwal v. Johnson (1979)
The City argued below, and the trial court agreed, that the "[d]esign of the [d]riveway" instruction was necessary to inform the jury that Guernsey was not premising liability on the City's design of its property. Yet the instruction was not limited to providing just that information. Guernsey's proposed alternative instruction was so limited. Instead, the City's instruction went on to implicitly presume
The third and fourth sentences of the City's "[d]esign of the [d]riveway" instruction improperly told the jury that it could not "rely on" elements of the driveway, including "the placement of the stop sign, the left turn pocket, and the presencе of the pink cement" in deciding whether "a dangerous condition existed." This was legally incorrect, and it directly conflicted with another instruction given to the jury, which told it that the City's "property may be
C. Instructional Error Was Prejudicial
The City argues that even if the trial court erred in giving the "[d]esign of the [d]riveway" instruction, the error was not prejudicial. "[I]nstructional error requires reversal only ' "where it seems probable" that the error "prejudicially affected the verdict." ' [Citation.] The reviewing court should consider not only the nature of the error, 'including its natural and probable effect on a party's ability to place his full case before the jury,' but the likelihood of actual prejudice as reflected in the individual trial record, taking into account '(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled.' " ( Rutherford v. Owens-Illinois, Inc. (1997)
Guernsey argues that the jury's verdict was "close," that the jury used the "[d]esign of the [d]riveway" instruction in answering the critical questions on the verdict form, questions 2a and 2b, and that the jurors understood the "[d]esign of the [d]riveway" instruction to preclude it from
Evidence Code section 1150 provides: "(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. Nо evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined. [¶] (b) Nothing in this code affects the law relating
The key statements in the juror affidavits upon which Guernsey relies are: (1) the vote on dangerous condition was 9 to 3; (2) a juror changed his vote because he "felt outvoted"; (3) it was the foreperson's handwriting on the "[d]esign of the [d]riveway" instruction; (4) the jury used the instruction to answer questions 2a and 2b; (5) the jury discussed and "agreed" that the instruction did not allow them to find a dangerous condition; and (6) some jurors "stated" that the City was partially responsible.
Nearly all of these statements were inadmissible because they were reflections of the jurors' mental processes. " '[W]hen a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror's mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150.' [Citation.]" ( People v. Lewis (2001)
The "mental processes" prohibition applies to juror affidavits conveying jurors' statements about their understanding of certain words in instructions. ( Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010)
Guernsey relies on Harb v. City of Bakersfield (2015)
While there are situations where the fact that a statement was made by a juror during deliberations may be admissible, the situation before us is not one of them. " Evidencе Code section 1150, subdivision (a) does not prohibit admitting a statement that reflects a juror's reasoning processes if the statement itself amounts to juror misconduct , comparable to an objective fact such as reading a novel during trial, or consulting an outside attorney for advice on law relevant to the case." ( Lewis , supra ,
None of the information in the juror declarations that Guernsey now relies upon was admissible under Evidence Code section 1150 with the possible exception of the foreperson's declaration that the notations on the "[d]esign of the [d]riveway" instruction had been placed there by him.
The fact that the "[d]esign of the [d]riveway" instruction given to the jury bore notations associating the verdict form's questions with the erroneous instruction demonstrates that the jury's verdict was influenced by the erroneous instruction. The only reasonable inference that could be drawn was that some member of the jury had drawn the line on the instruction between the third and fourth sentences of the instruction and written "2.a." next to the third sentence and "2.b." next to the fourth sentence.
The handwriting on the instruction by a member of the jury strongly supports a conclusion that the jury used the third sentence of the "[d]esign of the [d]riveway" instruction to answer question 2a on the verdict form and the fourth sentence of that instruction to answer question 2b on the verdict form. Since these two sentences of the instruction were erroneous, and questions 2a and 2b were the critical questions regarding whether the City's property was in a dangerous condition, it "seems probable" that the "[d]esign of the [d]riveway" instruction " ' "prejudicially affected the verdict." ' " ( Rutherford , supra ,
The handwriting on the "[d]esign of the [d]riveway" instruction was not the only evidence of prejudice. The "[d]esign of the [d]riveway" instruction conflicted with the "adjacent property" instruction, which otherwise could have provided substantial support for a finding that the City's property was in a dangerous condition. The jury submitted multiple questions to the court about the meaning of "dangerous condition," which suggested that it was struggling with this issue. And there was significant evidence that the City's property was in a dangerous condition since it wаs undisputed that the crosswalk was badly faded and had been poorly maintained. Under these
IV. Disposition
The judgment is reversed as to the City. Guernsey shall recover her appellate costs.
WE CONCUR:
Premo, Acting P. J.
Bamattre-Manoukian, J.
Notes
Salinas Municipal Code section 20-43 provides: "The city traffic engineer shall establish, designate, and maintain crosswalks at intersections and other places by appropriate devices, marks, or lanes upon the surface of the road-way, as follows: Crosswalks shall be established and maintained at all intersections within the central traffic district; and at such other intersections outside of such district and at other locations within or outside of such district as are designаted by any ordinance or resolution."
We will refer to plaintiffs as Guernsey since their interests do not diverge.
Nevertheless, he testified that the City should repaint the lines if it was going to keep the crosswalk or remove them if it did not want to keep the crosswalk and that the City should have the bushes trimmed.
The other two questions concerned the MUTCD.
During the trial, the City objected at times to "design testimony," and some of its objections were sustained.
"The usual methods for raising a design immunity defense are motion for summary judgment [citation]; motion for nonsuit [citation]; motion for directed verdict [citation]; or a combination of these motions [citation]. On submitting such motions, the trial court is invited, and is in a position, to rule whether the evidence is sufficient to support the design immunity defense [citation]. If the trial court determines that the defense has been estаblished, the jury is instructed that the public entity is immune as a matter of law for design-related damages, but if the damage is unrelated to the design (e.g., it results from improper construction or improper maintenance), then the public entity may still be liable [citations]." (Mozzetti v. City of Brisbane (1977)
The foreperson of the jury, Christopher Chopyk, submitted a declaration in which he stated that he had written "2.a." and "2.b." on the jury's copy of that instruction.
Since we reverse and remand for a new trial, it is unnecessary for us to address Guernsey's other assertions of instructional error, her claim that the verdict form was prejudicially erroneous, or her challenge to the court's award of expert witness fees.