Hatcher v. Powell CA2/6 ( 2021 )

Filed 9/27/21 Hatcher v. Powell CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
RONALD HATCHER et al., 2d Civil No. B302730
(Super. Ct. No. 56-2015-
Plaintiffs and Respondents, 00472035-CU-PO-VTA)
(Ventura County)
v.
COLLIN R. POWELL,
Defendant and Appellant.
Collin R. Powell appeals from the judgment after a
jury awarded damages against him for the wrongful death of two
passengers and injuries to a third passenger in a vehicle he was
driving, and from the award of costs. He contends: (1) the trial
court erred when it refused a jury instruction regarding
non-delegable duty of care, (2) the verdict was legally
inconsistent, (3) the court abused its discretion when it denied his
motion for new trial, and (4) the cost award was excessive. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The accident
Powell, Michael Hatcher, and Kayla Bean drank
vodka at Powell’s residence. After drinking, they got into
Powell’s car. Aimee Hoff, who had not been drinking, walked up
and got in. Powell was driving, with Hatcher in the front
passenger seat, Bean in the left rear seat, and Hoff in the right
rear seat.
Powell drove to a dark, winding portion of Potrero
Road with a posted speed limit of 40 miles per hour. A sign
warned of a left curve ahead and advised a speed of 35 miles per
hour. Hoff screamed, “Slow down.” Bean said, “Go faster.”
Powell drove off the road and proceeded 105 feet
before he hit a barricade and construction equipment stored off
the shoulder. The car hit the bucket of a backhoe, which ripped
through the passenger side of the car, killing Hatcher and Hoff.
Bean was injured.
When an officer arrived at the scene, Powell said,
“I’m the driver. I’m drunk. Take me to jail.” He said he had nine
or ten shots of vodka. He said as he approached the collision
scene, his friends urged him to drive faster. He increased his
speed to at least 65 miles per hour. He saw the backhoe but lost
control and crashed into it. Breath tests showed his blood alcohol
level as .178 and .179, and a blood test showed .19 percent
alcohol.
The construction equipment—a tank trailer,
generator trailer, and backhoe—had been placed by Mark Smith,
doing business as Smitty’s Construction Service. Smith was a
subcontractor doing underground utility work for Bouchard
Communications, Inc. (Bouchard).
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Pretrial proceedings
Ronald and Kathleen Hatcher (parents of Michael
Hatcher) and Charles and Teresa Hoff (parents of Aimee Hoff)
sued Powell, Bouchard, and Smith for wrongful death.1 The
Hatchers also sued the County of Ventura. Bean sued Powell,
Bouchard, and Smith for negligence. Powell sued Bouchard for
negligence and willful misconduct. The cases were consolidated.
The County of Ventura entered a good faith
settlement of $60,000, with $15,000 each to Ronald Hatcher,
Kathleen Hatcher, Teresa Hoff, and Bean, and a waiver of costs
against Powell. (Code Civ. Proc., § 877.6.) The court dismissed
all cross-complaints against the County and barred further
claims against it for indemnity, contribution, or comparative
fault. Powell did not accept Ronald and Kathleen Hatcher’s offer
to settle for $500,000 each. (Code Civ. Proc., § 998.)
Trial
Smith allegedly stored the construction equipment at
a location specified by county public works inspector James Van
Voorhis, and left it there for three days after the work was
completed. Whether this was a safe location was the subject of
conflicting expert opinion.
The county encroachment permit for the project
required equipment left overnight “be stored a minimum of 10
feet from the edge of the pavement.” One expert estimated the
backhoe was between nine and 10 feet from the fog line at the
time of the accident. Another expert calculated the distance from
the fog line to the backhoe bucket as 11.3 feet.
The traffic control plan required the overnight use of
1 Charles Hoff died during the case and is no longer a
plaintiff.
3
a stand-up type 3 barricade with high intensity blinking light.
Smith used a smaller type 2 folding barricade with a low
intensity blinker. There was conflicting evidence whether Van
Voorhis told Bouchard to use a type 2 barricade.
Road work warning signs were used during the
workday and removed at night. The county did not require
warning signs for equipment left onsite after the end of the
workday. The evidence conflicted whether safety cones were
required or used. Expert testimony conflicted as to whether the
warning devices were sufficient.
Estimates of Powell’s speed by different experts
ranged from 54 to 68.7 miles per hour. Based on tire marks, it
appeared unlikely that he applied the brakes.
Plaintiffs’ forensic engineering expert testified that
Powell hit the barricade, the tank trailer, and then the backhoe.
He testified that injuries would have been avoided or minimized
if the equipment had not been placed in the path of the vehicle.
Verdicts
The jury returned a unanimous special verdict. It
found Powell’s negligence was a substantial factor in causing
harm to the plaintiffs. It also found that Hatcher’s and Bean’s
negligence was a substantial factor in causing harm to
themselves. It found the Hatchers suffered non-economic
damages of $2 million, with 5 percent attributed to Hatcher and
the remaining 95 percent ($1.9 million) to Powell. It found Hoff
suffered non-economic damages of $5 million, and attributed 100
percent to Powell.
The jury determined that Bean’s economic damages
were $500,000 and non-economic damages were $1 million, with
15 percent attributed to Bean and the remaining 85 percent
4
($1,275,000) to Powell. It determined that although Bouchard
and Smith were negligent, their negligence was not a substantial
factor in causing harm to the plaintiffs.
Motion for new trial
The court denied Powell’s motion for a new trial. The
ruling stated: “The Court finds that the jury’s verdict that
Bouchard Communications and Mark Smith dba Smitty’s
Construction were negligent but not substantial contributing
factors in the damages claimed by plaintiffs is well supported by
the evidence. Exercising its independent judgment as the 13th
juror, the Court reaches the same conclusion. The fact is that
Powell was the sole cause of the accident by driving intoxicated at
a speed nearly double the posted speed limit, at night, along a
two-lane country road. Bouchard and Smitty’s Construction’s
negligence was not a substantial contributing factor in this
accident or in plaintiffs’ damages.”
Cost award
Following a hearing on motions for costs and to tax
costs, the court ordered that Powell pay the Hatchers’ costs of
$1,454,938.70.
DISCUSSION
Jury instruction
Powell contends that Smith and Bouchard had a
“nondelegable duty” to ensure a safe storage area, and therefore
the trial court erred when it refused a special jury instruction he
requested: “Bouchard Communications, Inc., had a nondelegable
duty to use reasonable care to store and secure the construction
equipment to prevent harm to others that could not be delegated
to the County of Ventura or Mark Smith.” There was no error.
On request, a party is entitled to correct instructions
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on each legal theory supported by substantial evidence. (Soule v.
General Motors Corp. (1994) 8 Cal.4th 548, 572.) “‘A court may
refuse a proposed instruction that incorrectly states the law’” or
“‘if other instructions given adequately cover the legal point.
[Citation.]’” (Bell v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62, 80.)
We review de novo the trial court’s denial of a requested jury
instruction. (Mansur v. Ford Motor Co. (2011) 197 Cal.App.4th
1365, 1373.)
The jury instructions given correctly and adequately
explained Bouchard’s and Smith’s liability. The court instructed
the jury that Smith was Bouchard’s agent, and Bouchard was
responsible for any harm caused by Smith’s negligence. (CACI
No. 3703, modified.) The jury was instructed to determine “how a
reasonably careful person would have acted” in Bouchard’s and
Smith’s situation. (CACI No. 401, modified.)
The jury was also instructed: “Following or not
following the permit conditions or the Inspector’s authorizations,
approvals or directions concerning same, does not, in and of itself,
establish that [Bouchard and/or Smith] did or did not use
reasonable care. You may consider such evidence as one of
among the totality of circumstances in your determination of
whether [Bouchard and/or Smith] used reasonable care.”
The jury was further instructed: “Evidence of State
and Federal laws, ordinances, rules, regulations, and standards
about traffic safety measures . . . has been received for a limited
purpose. You may, but are not required, to consider this evidence
for the limited purpose of (1) determining whether [Bouchard
and/or Smith] complied with traffic safety customs and practices
in the construction industry; and (2) determining whether
[Bouchard and/or Smith] used reasonable care to avoid harm to
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others arising from its construction activities on or about Potrero
Road.”
Powell did not object to any of these instructions.
Together, the jury instructions made clear that Van Voorhis’s
instructions regarding equipment storage, if any, did not absolve
Bouchard or Smith of liability, but were a factor in whether their
conduct was reasonable.
The requested special instruction was purportedly
based on CACI No. 3713. But CACI No. 3713, and the law it
summarizes, provides that certain duties of a hirer cannot be
delegated to an independent contractor. The principle set forth
in CACI No. 3713 does not apply here because neither Bouchard
nor Smith was “an independent contractor of the public entity.”
(Gov. Code, § 815.4; Jordy v. County of Humboldt (1992) 11
Cal.App.4th 735, 742 [county had no duty to prevent isolated
negligence of foster parents].) And County’s opportunity to
observe the work and influence the contractor’s and
subcontractor’s conduct did not make it the hirer. (Jordy, at p.
744.)
Powell relies on Felmlee v. Falcon Cable TV (1995) 36
Cal.App.4th 1032, 1036, which states, “A nondelegable duty is a
definite affirmative duty the law imposes on one by reason of his
or her relationship with others.” But in that case, we held that a
general contractor did not have a nondelegable duty to comply
with a safety order.
Powell nevertheless argues that the trial court was
required to instruct the jury regarding nondelegable duty in light
of his agreement regarding the special verdict form. Plaintiffs
moved in limine to exclude a question regarding negligence by
the County from the verdict form, and to preclude Powell from
7
seeking apportionment against the County, as a result of their
good faith settlement with the County. Powell offered to
withdraw his opposition to the motion “if the Court becomes
satisfied that this is truly a nondelegable duty, so that if in fact
Mr. [Van Voorhis] did issue that instruction, it would not obviate
the responsibility of Bouchard and Smitty’s.” The court
acknowledged that “your withdrawal’s conditional upon whether
I’m finding nondelegable duty or not.” Powell’s counsel stated,
“[W]ith the understanding if the Court finds it’s a nondelegable
duty or . . . the indemnity holds, then I will not be asking that the
County be [listed] on the verdict form.” The court granted the
motion.
It is true that “it is error for a trial court not to allow
the jury to assess the comparative fault of defendants who settled
before trial.” (Romine v. Johnson Controls, Inc. (2014) 224
Cal.App.4th 990, 1011.) But failure to object to a special verdict
form ordinarily forfeits challenges to the form. (Behr v. Redmond
(2011) 193 Cal.App.4th 517, 530.) And the jury instructions
given here made it clear that the County’s actions did not
immunize Bouchard or Smith from a finding of negligence.
Indeed, the jury found them negligent, but found that their
negligence did not cause the accident or plaintiffs’ injuries.
Powell next argues that he was precluded from
arguing the County was partially at fault, and stated he would
have presented additional evidence to show the County’s liability.
The trial court explained that the principle of nondelegable duty
did not apply. The court said it incorrectly labeled as
“nondelegable duty” the issue of whether “complying with
somebody else’s instruction relieves one of the duty of due care.”
The issue of whether Bouchard and Smith were negligent
8
included the question of whether it was reasonable for them to
comply with the County’s directions. The jury determined that
they were negligent, but that their negligence was not a cause of
the harm. No further instructions were required.
Inconsistent verdicts
Powell contends the jury’s verdict that Bouchard and
Smith were negligent is inconsistent with its verdict that their
negligence was not a substantial factor in causing harm to
Hatcher, Hoff, and Bean. We disagree.
When a jury renders inconsistent verdicts based on
the same evidence, the inconsistency is reversible error. (City of
San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126
Cal.App.4th 668, 682 (Horton).) “Where there is an inconsistency
between or among answers within a special verdict, both or all
the questions are equally against the law. [Citation.] The
appellate court is not permitted to choose between inconsistent
answers.” (Ibid.)
As a general rule, “‘“[w]e review a special verdict de
novo to determine whether its findings are inconsistent.”’”
(Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1316
(Bermudez).) Because the jury did not make a special finding as
to which conduct by Bouchard and Smith was negligent, “the
jury’s finding is tantamount to a general verdict.” (Jonkey v.
Carignan Construction Co. (2006) 139 Cal.App.4th 20, 26.)
Accordingly, we review the verdict for substantial evidence,
“drawing every reasonable inference and resolving every conflict
to support the judgment.” (Id. at p. 24.) “As long as a single
theory of negligence is lawfully rebutted on a lack of causation
theory, it matters not that another theory of negligence is not so
rebutted.” (Id. at p. 26.)
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The jury may have based its negligence finding
against Bouchard and Smith on several theories: the equipment
should not have been placed at the apex of the turn, the
equipment was located less than 10 feet from the road, it should
have been removed as soon as the work was completed, a type 3
barricade should have been used, signs should have been placed
ahead of the curve, or an adequate number of safety cones should
have been used. Whether placing the equipment farther from the
road would have avoided or lessened the harm from the accident
is not established by the evidence. And the jury could have
reasonably concluded that inadequate warning devices were not a
substantial factor in causing the harm based on Powell’s
intoxication, speed, and admission that he saw the equipment.
“‘A special verdict is inconsistent if there is no
possibility of reconciling its findings with each other.’”
(Bermudez, supra, 237 Cal.App.4th at p. 1316.) Here, as in
Bermudez, the jury was entitled to conclude that Bouchard and
Smith were negligent, but that their negligence was not a
substantial factor in causing either the accident or the resulting
deaths and injuries. Powell drove off the road because he was
intoxicated and speeding on a dark and winding road. The
evidence did not establish that if the backhoe had been parked
farther from the road but in the path of the vehicle, or if better
warning devices had been used, Powell would have avoided
hitting it, or would have hit it at an angle that would have
lessened the harm to his passengers.
New trial
Powell contends the trial court abused its discretion
when it denied his motion for a new trial. There was no abuse of
discretion.
10
In ruling on a motion for new trial, the trial judge sits
as a “‘thirteenth juror’” and “‘independently assess[es] the
evidence supporting the verdict.’” (Barrese v. Murray (2011) 198
Cal.App.4th 494, 503.) We review an order denying a new trial
for abuse of discretion. (David v. Hernandez (2014) 226
Cal.App.4th 578, 588-589.) But we examine the determination
underlying the order using the applicable test for such a
determination—in this case, whether the verdicts were
inconsistent as a matter of law. (Horton, supra, 126 Cal.App.4th
at p. 678, citing Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 859.)
David v. Hernandez, supra, 226 Cal.App.4th 578,
cited by Powell, is inapposite. There, the trial court found the
defendant was negligent per se when he parked his tractor trailer
facing north on the southbound side of a highway in violation of
the Vehicle Code. When he pulled out to cross the highway and
drive north, the plaintiff, driving southbound, hit the trailer,
injuring himself and his passenger. We held that the plaintiff’s
inattention could not have been the sole cause of the collision
because it would not have occurred but for the defendant’s
negligence in being in a place where he had no legal right to be.
(David, at pp. 590-591.)
In contrast here, if the jury found Bouchard’s and
Smith’s negligence was based on inadequate warning devices, it
could have reasonably concluded that was not a substantial factor
in causing the harm. The trial judge, sitting as a thirteenth
juror, agreed that Bouchard’s and Smith’s negligent conduct was
not the cause of the harm. The court therefore did not abuse its
discretion.
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Cost award
Powell contends the trial court abused its discretion
in the amount of its award of attorney’s fees and costs. We are
not persuaded.
The Hatchers sought costs of $1,458,588.72, including
prejudgment interest of $544,493.80 (Civ. Code, § 3291; Code Civ.
Proc., § 998) and attorney’s fees of $760,000 (Code Civ. Proc.,
§ 1021.4). After Powell filed a motion to tax costs, the trial court
reduced the jury fees by $1,150 and deducted $2,500 for expert
fees incurred prior to the Code of Civil Procedure section 998
offer. The court found it was not feasible to apportion attorney’s
fees in the investigation and presentation of the case against
Powell as opposed to the case against Bouchard and Smith
because counsel’s efforts against these defendants were
inextricably intertwined.
Powell did not deny his liability. Instead, he
attempted to show that Bouchard and Smith bore some
responsibility. As the trial court noted, the case could not have
been presented without significant expert testimony to determine
who was legally responsible.
In awarding attorney’s fees and costs, the trial court
properly considered the time spent, reasonable hourly
compensation, complexity of the issues, success achieved, and
skill of the attorneys. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-
49.) The factual and legal issues regarding Bouchard and Smith
were closely related to those regarding Powell. (Harman v. City
and County of San Francisco (2007) 158 Cal.App.4th 407, 417.)
The attorney’s fees and costs were proportionate to the judgment
obtained. (Id. at p. 419.) They were not so large as to “shock[]
the conscience and suggest[] that passion and prejudice
12
influenced the determination.” (Id. at p. 428.) Accordingly, there
was no abuse of discretion. (Ibid.)
Offset
The Hatchers’ and Hoff’s respondents’ brief states
that Powell is entitled to an offset for the $60,000 settlement paid
by the County. Powell did not request an offset in either the trial
court or in his opening brief. (See Wade v. Schrader (2008) 168
Cal.App.4th 1039, 1044, 1048-1049 [trial court procedures for
offset; abuse of discretion standard on appeal].) No party
discusses the rule that an offset for settlement funds is limited to
economic losses, in proportion to the total damages award. (Civ.
Code, § 1431.2; Hellam v. Crane Co. (2015) 239 Cal.App.4th 851,
862-863.)
Because Bean received the only economic damages
award, it appears her award would be the only one affected by an
offset. No brief was filed on behalf of Bean, and we advised her
that the appeal would be submitted for decision on the record and
appellant’s opening brief. (Cal. Rules of Court, rule 8.220(a)(2).)
We decline to modify the judgment based on the statement in the
Hatchers’ and Hoff’s respondents’ brief.
DISPOSITION
The judgment is affirmed. Respondents shall recover
their costs on appeal.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J. YEGAN, J.
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Matthew P. Guasco, Judge
Superior Court County of Ventura
______________________________
Shaver, Korff & Castronovo, Tod M. Castronovo and
Alex Silva Van Vo for Defendant and Appellant.
Law Office of Gerald Philip Peters and Gerald P.
Peters for Plaintiffs and Respondents.