Ozor v. Fluor Intercontinental CA1/2 ( 2015 )

Filed 9/8/15 Ozor v. Fluor Intercontinental CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
SELMA OZER,
Plaintiff and Appellant,
A140348
v.
FLUOR INTERCONTINENTAL INC. et (City & County of San Francisco
al., Super. Ct. No. CGC-08-477966)
Defendants and Respondents.
In 2006 an Mi-8 helicopter crashed in Afghanistan, killing all 12 onboard,
including Ihsam Ozer. The helicopter was being operated by employees of Tryco
International, Inc. (Tryco), which was operating the helicopter pursuant to a contract with
Fluor Intercontinental, Inc. (Fluor).
In 2008 Selma Ozer (Ozer), alleging to be the widow of Ihsam, filed a complaint
in the City and County of San Francisco, naming as defendants Fluor and Tryco,
essentially alleging negligence against Tryco and negligent hiring and retention against
Fluor. The lawsuit finally went to trial in 2013, against Fluor only, Tryco at that point
having been dismissed for lack of jurisdiction. It was a court trial presided over by the
Honorable Anne-Christine Massullo who, following 11 days of trial, filed a detailed 20-
page statement of decision, finding against Ozer, concluding among other things that
Ozer failed to meet her burden of proof.
Virtually ignoring that statement of decision, Ozer’s appeal asserts four
arguments, that: (1) Judge Massullo erroneously excluded the reports of the crash; (2) a
1
negligent hiring case does not require a showing that the hired party was negligent; (3)
res ipsa loquitur applied as a matter of law; and (4) the evidence relied on by Judge
Massullo was not substantial evidence. We conclude that none of Ozer’s arguments has
merit, and we affirm.
BACKGROUND
The General Factual Setting
On July 28, 2008, Ozer filed a complaint, followed by an amended complaint, the
operative pleading here (Complaint). Ozer alleged she was the surviving wife of Ihsam
Ozer (and the personal representative of his estate), who was killed on July 26, 2006,
when a helicopter crashed into a mountain in Afghanistan. The complaint named as
defendants five Tryco-related entities and three Fluor-related entities,1 and alleged that
the helicopter was being operated by representatives of Tryco, under a contract it had
with Fluor, which itself had contracted with the United States Army Corps of Engineers
to build a base for the Afghanistan Army.
The complaint was styled “wrongful death and survival,” and purported to allege
six causes of action: (1) negligence, against both defendants; (2) negligence per se,
against Tryco; (3) through (5) negligent hiring, against Fluor, based on three different
theories; and (6) negligent retention, against Fluor. The complaint sought general,
special, and punitive damages.
Ozer’s lawsuit apparently generated significant activity, manifest by a 43-page
register of actions. The record before us reveals little of that activity, which in any event
is not germane to the issues here. Thus, we will not discuss it, save to set out a few
things that did—and, as importantly, did not—occur in the 57 months the lawsuit was
pending before trial.
1
The defendants named were “Franz Zenz d/b/a Tryco, Tryco International, Tryco
Inc., and Tryco International Inc.; Tryco Inc; Fluor Intercontinental, Inc.; Fluor
Corporation; Fluor International, Inc.”
2
As to what did occur, Tryco successfully moved to have the action dismissed for
lack of jurisdiction, from which Ozer appealed, which appeal was pending at the time the
case went to trial.
As to what did not occur, three things are significant. First, Ozer propounded no
discovery directed at Tryco. Second, Ozer was never deposed, this despite an August 16,
2010 order granting Fluor’s motion to compel her deposition, and despite her counsel’s
apparent agreement to produce Ozer for deposition prior to trial. And third, Ozer did not
appear at the beginning of trial, a fact that generated much discussion, and several
promises by Ozer’s counsel to assure Ozer’s presence, who nevertheless did not arrive
until the seventh day of trial. The effect of this was that a very patient Judge Massullo
finally determined that Ozer’s right to a jury trial had been waived, ultimately to rule that
Ozer would be precluded from testifying.
Against that background, and Fluor’s waiver of its right to jury trial, the case
proceeded to a court trial before Judge Massullo, who presided over 11 days of trial,
including lengthy Evidence Code section 402 hearings involving Ozer’s designated
expert witnesses. Much of the evidence at trial is likewise not germane to the issues here,
and is not discussed, other than to describe the circumstances that led to the relationship
between Fluor and Tryco, and the crash, which is this:
Following September 11, 2001, the United States set out on a “Global War on
Terror.” In connection with that, Fluor entered into a contract with the United States
Army Corps of Engineers, pursuant to which Fluor agreed to provide design-build and/or
construction-related services in the United States Central Command Area of
Responsibility, to support the interest of the United States.
One such project involved the construction of a regional brigade complex for the
Afghanistan National Army, to be located near the City of Khost. The brigade complex
was described as “like a little city,” with “a hospital, a dining facility that would feed
some 5,000 people, housing for these people, and paved roads.” The construction of the
complex necessitated the transport of personnel and materiel within Afghanistan,
between Kabul and Khost. Members of Al-Qaeda and Taliban lived in villages near
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Khost, and because of this, and because roads would ice up in the winter, movement by
road was regarded as an “extremely high risk” activity. This included risk of being killed
or taken hostage by Al Qaeda or Taliban fighters.
The primary subcontractor for Fluor on the brigade complex project was Yuksel
which, understandably concerned about traveling by convoy, sought assistance with its
essential transportation needs from the pool of air transport companies that provided air
service in the region. Some of these were already committed to exclusive contracts with
large organizations; others had limited availability, dedicated primarily to the United
States government or United Nations agencies. Yuksel chose Tryco, was satisfied with
its performance, and introduced it to Fluor. By contract effective August 24, 2005, Fluor
contracted with Tryco to provide chartered flights to the construction site.
The Fluor-Tryco relationship apparently proceeded without incident for 11-
months, until July 26, 2006, when a helicopter crashed some 20-miles north-northwest of
Khost, a location in the “mountains where security is a problem.” All 12 on board were
killed.
As to what caused the crash, Ozer tried to prove her case without any aviation
expert. One such expert did testify, one called by Fluor, one whom Judge Massullo
specifically commented as being very good, very credible: Douglas Stimpson.
Stimpson, who had over 45 years of experience and had investigated over 2,800 aviation
accidents, testified that “an accident investigator, using the proper methodology and
techniques, would be unable to render an opinion as to the cause of this accident.”
According to Stimpson, to conduct a proper investigation, a competent aviation accident
investigator would need information about the “man, the machine, and the
environment”—information was lacking here.
As to the men, the pilots, there was no “pilot information, [no] biography.” There
was no evidence “how old the pilot[s were:] Whether they have medical situations.”
There was no autopsy or toxicology information.
As to the machine, the helicopter, Stimpson explained that “[w]e have no
wreckage . . . . We have very little information about . . . the aircraft itself. . . . [W]e
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don’t have maintenance records we can review. We don’t have inspection records.”
“[W]e want to know [but don’t] if it just came out of maintenance.” No evidence was
captured by the “black boxes,” neither the cockpit voice recorder nor the flight data
recorder. Indeed, none of the wreckage was ever collected for examination, analysis, and
testing.
As to the environment, Stimpson said “[w]e have no eye witnesses. We have no
radar data. We have no weather data.” The accident site was never properly secured. In
fact, no trained accident investigator ever went there.
Stimpson summed it up this way: “[t]here’s . . . much more missing . . . than there
is available.” With so much information unavailable, many potential causes of the
accident could not be ruled out, including mechanical failure, component part failure,
pilot incapacitation, a bird strike, foreign object damage, or ground fire or other hostile
action. In his words, ruling out any of these, or other, possible causes would “absolutely”
require speculation.
The Proceedings Below
We begin with a few observations about the trial, including that presentation of
Ozer’s case was hardly a model of trial preparation, this despite that the trial was almost
five years after the complaint was filed. There were many scheduling incidents, many
disruptions, and many apologies from Ozer’s counsel. As to this, Judge Massullo “bent
over backwards” to accommodate Ozer’s counsel, to the point that Judge Massullo was
concerned about it. Thus, for example, on April 16, the eighth day of trial, Judge
Massullo said:
“I will tell you, Ms. Barlow. The court has bent over backwards, candidly, to
accommodate literally every problem that has been presented, and—in this trial. To try
to make it a fair trial for both sides. But right now, the lack of preparation—it is hard for
the court to ignore. Because now, I feel as though the court is tipping the scales in favor
of the plaintiff. [¶] The court is supposed to be neutral. And yet, there are so many
problems, the court is trying to be fair, trying to allow you to present a case. But the
court did not create the problems that come in the doors, literally, every hour. And—and
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now, the court has to say: well, what do we do? There’s an expert who is here, who is
literally not prepared, based on the court’s rulings yesterday. So do we continue him?
Do we—do we go forward, subject to a motion to strike? I—really there are—there are
very few—the options are getting more limited, the more the court has to make
accommodations.”2
The last day of testimony was April 18, at the conclusion of which Judge Massullo
ordered the parties to file briefs on the issues of res ipsa loquitur and negligent hiring, to
be followed by closing argument.
That argument occurred on May 3,3 at the conclusion of which Judge Massullo
requested both sides to submit proposed statements of decision. They did.
On September 20, Judge Massullo filed a comprehensive, detailed 20-page
statement of decision. The decision found against Ozer on all particulars, with several
conclusions devastating to her, all conclusions supported by extensive reference to the
supporting evidence or, in the case of res ipsa loquitur, extensive analysis of the law.
These conclusions included the following:
“Ozer failed to meet her burden of proving, by a preponderance of the evidence,
that with respect to The Accident, independent contractor, Tryco, was negligent. Neither
Mr. Gordon Nezich nor Mr. William John Funnell established that Tryco deviated from
the standard of care for the safe operation of The Helicopter at the time of The Accident.
Nor did Ozer proffer any other evidence, testimonial or documentary, that would support
such a conclusion.”
“The court also finds that res ipsa loquitur does not apply in this case [¶] . . . [¶]
“Even if she could prove negligence and causation on the part of Tryco, Ozer
failed to present evidence to sustain her burden on negligent hiring by Fluor.
2
Two days later, Judge Massullo made a similar comment: “Kn[o]w what, there
have been many apologi[es from plaintiff’s counsel] and the court has extended, it
believes, many courtesies. To a point where the court’s concerned that the perception
may be that the court is tipping the scale, which the court is not supposed to do.”
3
That day, Ozer also made a motion for reconsideration, which was denied.
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“Because Ozer presented no expert testimony in this case regarding the standard of
care applicable to Fluor’s hiring of Tryco, and such testimony would be required in this
case, Ozer failed to establish a prima facie case of negligent hiring even if she had proven
negligence and causation on the part of Tryco. [Fn. omitted.]”
Judgment was thereafter entered, from which Ozer timely appealed.
DISCUSSION
As noted, Ozer makes four arguments on appeal, the last with two subparts. We
will discuss them in turn. Before doing so, however, we begin with a few observations
about Ozer’s brief, observations we make in light of settled principles of appellate
review, many of which we collected and confirmed in In re Marriage of Davenport
(2011) 194 Cal. App. 4th 1507. The appellant there, like Ozer here, filed a brief that set
forth the facts favorable to her, as though the trial court’s comprehensive fact-based
statement of decision did not exist. Such conduct, we said, was “not to be condoned,”
and went on to describe why:
“California Rules of Court, rule 8.204(a)(2)(C) provides that an appellant’s
opening brief shall ‘[p]rovide a summary of the significant facts. . . .’ And the leading
California appellate practice guide instructs about this: ‘Before addressing the legal
issues, your brief should accurately and fairly state the critical facts (including the
evidence), free of bias; and likewise as to the applicable law. [¶] Misstatements,
misrepresentations and/or material omissions of the relevant facts or law can instantly
“undo” an otherwise effective brief, waiving issues and arguments; it will certainly cast
doubt on your credibility, may draw sanctions [citation], and may well cause you to lose
the case!’ (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter
Group 2010) ¶ 9:27, p. 9–8 (rev. #1, 2010), italics omitted.) [Ozer’s] brief does ignores
[sic] such instruction.
“[Ozer’s] brief also ignores the precept that all evidence must be viewed most
favorably to [Fluor] and in support of the order. (Nestle v. City of Santa Monica (1972)
6 Cal. 3d 920, 925–926; Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 881.)
This precept is equally applicable here, where [Judge Massullo] issued a statement of
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decision: ‘Where statement of decision sets forth the factual and legal basis for the
decision, any conflict in the evidence or reasonable inferences to be drawn from the facts
will be resolved in support of the determination of the trial court decision.’ (In re
Marriage of Hoffmeister (1987) 191 Cal. App. 3d 351, 358.)
“What [Ozer] attempts here is merely to reargue the ‘facts’ as she would have
them, an argumentative presentation that not only violates the rules noted above, but also
disregards the admonition that she is not to ‘merely reassert [her] position at . . . trial.’
(Conderback, Inc. v. Standard Oil Co. (1966) 239 Cal. App. 2d 664, 687; accord,
Albaugh v. Mt. Shasta Power Corp. (1937) 9 Cal. 2d 751, 773.) In sum, [Ozer’s] brief
manifests a treatment of the record that disregards the most fundamental rules of
appellate review. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §§ 365, 368,
pp. 421-424, 425–426.) As Justice Mosk well put it, such ‘factual presentation is but an
attempt to reargue on appeal those factual issues decided adversely to it at the trial level,
contrary to established precepts of appellate review. As such, it is doomed to fail.’
(Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 398–399.)” (In re Marriage of
Davenport, supra, 194 Cal.App.4th at p. 1531.)
The Exclusion of Evidence Was Not Error
Ozer’s first argument is that Judge Massullo “improperly excluded” documents
and testimony relating to weather conditions. The argument specifically focuses on two
items: (1) a sentence that was deleted from a Federal Aviation Administration (FAA)
report; and (2) the “Dutch report.”
We review Judge Massullo’s ruling on the admissibility of evidence for abuse of
discretion. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal. 4th 1059,
1078.) The erroneous exclusion of evidence does not require reversal unless the
exclusion caused “a miscarriage of justice.” (Evid. Code, § 354.) And a “miscarriage of
justice” occurs only when the court, “after an examination of the entire cause . . . is of the
‘opinion’ that it is reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (People v. Watson (1956)
46 Cal. 2d 818, 836; accord, People v. Richardson (2008) 43 Cal. 4th 959, 1001.)
8
Ozer has not demonstrated any such miscarriage of justice here. Indeed, she has
not established error—Judge Massullo’s rulings were right.
To put the issue in context, the essence of Ozer’s theory as to the cause of the
crash was weather-related pilot error. In an attempt to prove this, Ozer sought to rely on
an FAA report prepared by James Richmond, who had prepared what he called a
“briefing paper” and what Ozer calls a report. Fluor moved in limine to exclude the
report, and Judge Massullo ruled she would deny the motion, “subject to objections.”
Later, Ozer designated Richmond’s deposition as part of her case, but not the
exhibits to the deposition. And when Judge Massullo ruled on the admissibility of
Richmond’s testimony, Ozer did not advocate admission of the report, but did seek
admission of his deposition testimony, included within which was this sentence he read
that quoted from the FAA report: “However, the weather was marginal with low clouds
and rain.” After hearing argument, Judge Massullo ruled that Richmond’s testimony
would be limited to those matters based on his “firsthand observations,” and as Richmond
conceded he had no firsthand information about the weather at the crash site, the sentence
would be excluded.
On the last day of trial, Ozer sought to augment her deposition designations to
have the actual report admitted. Fluor stipulated the report could be admitted, with the
exception of the one objectionable sentence. Ozer implored Judge Massullo to revisit the
issue yet again. Reluctantly, and again expressing concern about tipping the scales in
Ozer’s favor, Judge Massullo agreed to “revisit the issue based on mistake, inadvertence
or excusable neglect . . . that [plaintiff’s counsel] didn’t realize [she] had to designate the
exhibits when [she was] designating the deposition.” After hearing more argument,
Judge Massullo reconsidered Ozer’s request to admit Richmond’s report in its entirety,
ruling that she would admit the document with the exception of the one sentence. In
Judge Massullo’s words: “regarding the weather,” the document does not satisfy
Evidence Code section 1280, subdivision (c) because it lacks indicia of trustworthiness,
commenting that “the sources of the weather in this report are hearsay, double hearsay,
triple hearsay.” That comment was correct.
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Richmond had no direct knowledge of the weather. And what little information he
claimed to know about “weather” came to him by a circuitous trail, from unknown—and
unidentified—sources: he got an oral report from an unnamed individual at the
International Security Assistance Force (ISAF) office in Afghanistan, who, in turn, was
believed to have received the information from an anonymous pilot. The sentence was
properly excluded.
Turning to the “Dutch report,” it was identified as “Air Accident Investigation
Report,” further describing on its cover that it was a “preliminary report of the
investigation of the accident with the Tryco Mi-8 MTV-1 helicopter, registration YA
TAD, on the 26th of July 2006 in East Afghanistan.” The only attempt to authenticate it
was through Richmond, according to whom the “Ministry of Transport . . . and Civil
Aviation in Afghanistan allowed the Dutch government to conduct the investigation,” as
“the Ministry of Transport clearly did not have that capacity.”
Richmond further testified that he met with the Dutch team at the ISAF facility the
day they arrived,” which, he said, “[s]eems like it was about between one and two weeks”
after the accident. Richmond said he met with “I think it was three” people, whose
names he could not remember, for “one to two hours.” Richmond could not recall the
specifics of what he told the Dutch team or whether he provided them with any written
materials. That was it, the sum total of Ozer’s attempt at showing how the Dutch Report
came to be. Judge Massullo ruled that the report would not be admitted, because Ozer
had not authenticated it and it was replete with hearsay.4 That ruling too was correct.
4
Dramatically showing the numerous shortfalls in the Dutch Report, Fluor’s brief
puts it this way: “Beyond this most elemental information, however, there is nothing in
the record that helps explain the report. There is nothing to inform any of these (among
other) issues:
“Who were the ‘Dutch investigators’?
“What qualified them to conduct an aviation accident investigation?
“When, where and how did they conduct the investigation?
“With whom did they consult?
10
Beyond all that, Ozer could not demonstrate any miscarriage of justice, not in light
of the comments on the last day of trial when, just before closing argument, counsel for
Ozer asked Judge Massullo to reconsider some rulings. In the course of this, Judge
Massullo made this observation in a comment to Ozer’s counsel: “[Y]ou couldn’t say it
was pilot error. You just—you couldn’t make that conclusion. Sadly, because this
investigation was not really done that well. I mean, at the end of the day, even if the
Dutch report came in, no one looked into the—with the level of detail Mr. Stimpson
discussed during his testimony—the various causes for the crash. In other words, there’s
a checklist. It is almost like treating a patient. [¶] You have mechanical error, pilot
error, you know—in a war zone—rocket fire, bullets. But you look—you look at—and
you exclude various things.” (Italics added.)
A Negligent Hiring Claim Requires a Showing that the Hired Contractor is a Cause
of the Injury
Ozer’s second argument asserts that: “Negligent hiring of non-party helicopter
operator Tryco does not require appellant to prove non-party Tryco’s negligence as an
element of the hirer’s negligence.” The argument fails, for two reasons.
The first reason is that it presupposes that Judge Massullo found that Fluor
negligently hired Tryco. To the contrary, she concluded that “Ozer failed to present
evidence to sustain her burden on negligent hiring by Fluor,” a conclusion that is fully
“Who did they interview and under what circumstances? [¶] . . . [¶]
“What information and documentation did they receive and from whom?
“How was the report drafted and who drafted it?
“Was the report reviewed and edited and, if so, by who?
“Was there only one report?
“Why are some of the pages written in Dutch and others in English?
“Why do some of the exhibits differ from what is reflected in the table of
exhibits?
“Why is the report labeled as ‘preliminary’? And is there a final report?
“These are but a small fraction of the important questions to which there are no
answers in the record.”
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supported, as the discussion below in connection with Ozer’s fourth argument
demonstrates.
The second reason is that the argument is legally wrong, as shown, for example,
by Diaz v. Carcamo (2011) 51 Cal. 4th 1148. Diaz involved a claim of negligent hiring of
a truck driver who was involved in an accident. The Court of Appeal had distinguished
an earlier Supreme Court case on the ground that case involved negligent entrustment,
while Diaz involved negligent hiring. This distinction, the Supreme Court said, “fails. A
claim that an employer was negligent in hiring or retaining an employee-driver rarely
differs in substance from a claim that an employer was negligent in entrusting a vehicle
to the employee. Awareness, constructive or actual, that a person is unfit or incompetent
to drive underlies a claim that an employer was negligent in hiring or retaining that
person as a driver.” (Id. at p. 1157.) And, the court went on, negligence of the hired
person is an essential part of a negligent hiring claim: “No matter how negligent an
employer was in entrusting a vehicle to an employee, however, it is only if the employee
then drove negligently that the employer can be liable for negligent entrustment, hiring,
or retention [Citation] If the employee did not drive negligently, and thus is zero percent
at fault, then the employer’s share of fault is zero percent. That is true even if the
employer entrusted its vehicle to an employee whom it knew, or should have known, to
be a habitually careless driver with a history of accidents.” (Diaz at pp. 1159–1160. [Fn.
omitted.])
Evan F. v. Hughson United Methodist Church (1992) 8 Cal. App. 4th 828 discussed
the concept in the case of a molestation claim against a church. Holding that the church
was not liable, the court noted as follows: “[A]n employer may be liable to a third person
for negligently hiring an incompetent or unfit employee. [Citations.] California follows
the rule set forth in the Restatement Second of Agency section 213,” explained in
Comment d: “ ‘The principal may be negligent because he has reason to know that the
servant or other agent, because of his qualities, is likely to harm others in view of the
work . . . entrusted to him. . . . [¶] An agent, although otherwise competent, may be
incompetent because of his reckless or vicious disposition, and if a principal, without
12
exercising due care in selection, employs a vicious person to do an act which necessarily
brings him in contact with others while in the performance of a duty, he is subject to
liability for harm caused by the vicious propensity.” (Id. at p. 836.)
Ozer relies primarily on Phillips v. TLC Plumbing, Inc. (2009) 172 Cal. App. 4th
1133. It hardly helps her, beginning its discussion of the tort of negligent hiring by
confirming that the elements of such cause of action include “(3) proximate [or legal]
cause between the breach and (4) the plaintiff’s injury.” (Id. at p. 1138.)5—elements that
necessarily implicate causation. The Court of Appeal went on to affirm the summary
judgment for the defendant because the employer-employee relationship had ended on
the termination of employment.
Judge Massullo’s Conclusion that Res Ipsa Loquitur Did Not Apply is Supported by
the Record
Ozer’s third argument is that she established Tryco’s liability “under the doctrine
of res ipsa loquitur-as a matter of law.” Ozer is wrong.
Over 40 years ago Justice Sullivan set out the applicable law, in Newing v.
Cheatham (1975) 15 Cal. 3d 351, 359, law that remains apt today:
“It is settled law in this state that the ‘doctrine of res ipsa loquitur is applicable
where the accident is of such a nature that it can be said, in the light of past experience,
5
CACI No. 426 entitled “Negligent Hiring, Supervision, or Retention of
Employee,” sets forth the law, that “[to] establish this claim, [Plaintiff] must prove. . .:
“1. That [name of employee] was [unfit /[or] incompetent] to perform the work
for which [he/she] was hired;
“2. That [name of employer defendant] knew or should have known that [name of
employee] was [unfit /[or] incompetent] and that this [unfitness/ [or] incompetence]
created a particular risk to others;
“3. That [name of employee]’s [unfitness/ [or] incompetence] harmed [name of
plaintiff]; and
“4. That [name of employer defendant]’s negligence in [hiring/supervising/ [or]
retaining] [name of employee] was a substantial factor in causing [name of plaintiff]’s
harm.”
Clearly, items 3 and 4 require that the hired employee or contractor do something
wrong, that it be a “substantial factor” in causing the harm.
13
that it probably was the result of negligence by someone and that the defendant is
probably the one responsible. [Citations.]’ According to the classic and oft-repeated
statement, there are three conditions for the application of the doctrine: ‘ “(1) the
accident must be of a kind which ordinarily does not occur in the absence of someone’s
negligence; (2) it must be caused by an agency or instrumentality within the exclusive
control of the defendant; (3) it must not have been due to any voluntary action or
contribution on the part of the plaintiff.” ’ [Citations.] The existence of one or more of
these conditions is usually a question of fact for the jury. [Citations.]. . . The question to
be answered here is whether, as the trial judge determined, this is such a case.” (Newing
v. Cheatham, supra, 15 Cal.3d at p. 359.)
Newing went on to hold that res ipsa loquitur applied there, in light of the known
facts, which included that the airplane took off in clear weather; that there was no
evidence weather conditions contributed to the crash; and that air collision was
eliminated. In short, that the airplane “fell to the ground, apparently unaffected by
external factors.” (Newing v. Cheatham, supra, 15 Cal.3d at pp. 361–362.)
Ozer relies heavily on Newing, citing it no fewer than 11 times. Such reliance is
misplaced, as Newing is easily distinguishable, the facts here significantly different. As
indicated, res ipsa loquitur was the subject of much briefing below, both prior to trial and
at its conclusion. As also indicated, Judge Massullo concluded that the doctrine did not
apply, a conclusion based on pages of analysis why neither the first nor the second
required element was present. That conclusion was correct.
The first requirement for res ipsa is that the event must be one which ordinarily
does not occur in the absence of negligence. “All of the cases hold, in effect, that it
must appear, either as a matter of common experience or from evidence in the case,
that the accident is of a type which probably would not happen unless someone was
negligent.” (Zentz v. Coca Cola Bottling Co. of Fresno (1952) 39 Cal. 2d 436, 442–
443, (italics added).) Ozer asserts that this first element can be satisfied by
considerations of common sense, testimony of an expert witness, or the circumstances
surrounding the particular accident. Having said that, Ozer nowhere attempts to apply
14
any of these sources—all of which, not incidentally, militate against application of the
doctrine.
As Judge Massullo noted, “Helicopter accidents can and do occur even in the
absence of someone’s negligence, particularly when flying over a war zone.” And
while res ipsa loquitur does not require that it “be concluded that negligence is the
only explanation of the accident, but merely the most probable one.” (See Di Mare v.
Cresci (1962) 58 Cal. 2d 292, 298–299.) And so Judge Massullo concluded: “[t]hese
potential non-negligent causes of The Accident include, inter alia, hostilities (gun fire
or rocket fire), a mechanical failure or a bird strike. Based on the testimony proffered
at trial and the surrounding circumstances, e.g., the fact that The Accident occurred in
an area rife with hostilities, the court finds the non-negligent explanations of The
Accident to be as probable, if not more so, than Ozer’s theory. See Zentz v. Coca
Cola, 39 Ca1.2d 436 at 446-447 [identifying the central inquiry of the first
element as ‘whether the accident was of such a nature that the injury was more
probably than not the result of the defendant’s negligence.’].”
It is entirely consistent with common sense to conclude that a helicopter flying
in Afghanistan, in the summer of 2006, with hostilities regularly taking place, was
vulnerable to a crash irrespective of pilot, or any other, negligence. Were there any
doubt on this, two of Ozer’s own pilot expert witnesses—Gordon Nezich and William
Funnell—agreed that a helicopter could hit a mountain without someone being
negligent.
Ozer’s No Substantial Evidence Arguments Have No Merit
Ozer’s last argument is one of substantial evidence, set forth in two
subarguments as follows: “Evidence relied on by the trial court in finding the
helicopter operator was not negligent in flying into the mountain is not ‘substantial
evidence’ ”; and “The evidence relied on by the trial court in finding the respondent
hirere [sic] of the non-party helicopter operator was not negligent hiring fails to meet
the ‘substantial evidence’ standard.”
15
As noted, Judge Massullo found that Ozer failed to meet her burdens as to the
cause of the accident and on her claim of negligent hiring. In light of this, the burden
that confronts Ozer here is even more stringent than the substantial evidence test. It is
this: “[w]here the issue on appeal turns on a failure of proof at trial, the question for a
reviewing court becomes whether the evidence compels a finding in favor of the
appellant as a matter of law. [Citations.] Specifically, the question becomes whether
the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a
character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.’ ” (Sonic Manufacturing Technologies, Inc. v. AAE
Systems, Inc., 196 Cal. App. 4th 466; Los Angeles County Dept. of Children & Family
Services v. Superior Court (2013) 215 Cal. App. 4th 962, 967.)
Though Ozer’s brief recognizes this rule, she does not even try to meet it. Nor
could she, as there is much evidence favoring Fluor.
As to the cause of the crash, some of the pertinent evidence is set forth in
connection with the discussion of res ipsa loquitur. Other evidence includes that from
Mr. Stimpson, discussed above.
As to Ozer’s second subargument, it proceeds from a false premise—that Judge
Massullo found that Fluor’s hiring of Tryco was “not negligent hiring.” Judge
Massullo made no such finding, as Fluor had no obligation to prove that there was “no
negligent hiring.” Ozer had to prove there was. And she failed.
To begin with, despite repeated admonitions from Judge Massullo, Ozer did not
offer any evidence of the applicable standard of care. Thus, for example, at the
conclusion of the case, Judge Massullo asked Ozer’s counsel, “[w]hat witness did you
present who—who can establish in Afghanistan, in 2006, when you are dealing with
air transport under the government contract, this is the standard of care that you would
use? Because the court is not at liberty to pick its own standard. And that’s of grave
concern, that this record doesn’t appear to have all that information that a fact finder
would need to hold Fluor liable for negligent hiring.”
16
Ozer asserts she “had an expert witness who provided testimony on the
applicable standard of care,” and points to Gordon Nezich as that witness. But Nezich
did not—indeed, could not—attest to the standard of care for hiring a helicopter
operator for flights in Afghanistan in 2006, as he lacked the qualifications to do so.
While an experienced helicopter pilot, Nezich had flown in Afghanistan only for a
short period of time between the end of 2003 and the beginning of 2004. He had
never flown an Mi-8 helicopter. And he knew nothing about how pilots were licensed
in Afghanistan, most clearly shown by his response to Judge Massullo’s question that
“you said, you know nothing about Afghanistan, the requirements.” Nezich’s
response: “That’s right.”
In short, Ozer presented no evidence as to the standard of care for the hiring of
a helicopter operator in Afghanistan in 2006, much less evidence so compelling that it
supports a judgment for Ozer as a matter of law.
Beyond that, there is no evidence that Tryco pilots were not qualified—and
abundant evidence they were. While there was little evidence about the pilots, not
even their names, what evidence there is hardly supports Ozer. The evidence
included that the pilots had flown helicopters in the Afghanistan Air Force, and had
amassed a significant number of flight hours doing so. Indeed, Joseph (Danny) Rider,
of Fluor, a former United States Marine helicopter pilot who was called by Ozer as a
friendly witness, gave testimony that was hardly friendly: Rider had met the pilots of
the accident flight and they “absolutely knew their business” of flying helicopters in
Afghanistan.
DISPOSITION
The judgment is affirmed.
17
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Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
18