Hernandez v. Jensen

Filed 3/17/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ANNET HERNANDEZ, B294449 (consolidated with
B296958)
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. BC633443)
MARIA JENSEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Chester Horn, Jr., Judge. Affirmed.
Michael Maguire & Associates, Paul Kevin Wood and
Kathryn Saldana for Defendant and Appellant.
Law Offices of Frank J. Valdez and Frank J. Valdez; The
Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiff and
Respondent.
__________________________
INTRODUCTION
Maria Jensen and her family hired two healthcare aides to
work in their elderly parents’ home. While one of the aides
bathed Jensen’s mother in a hospital bed in her bedroom, the
second aide reached into the bedroom closet to retrieve an oxygen
tank for Jensen’s father. The removal of the tank caused a
loaded rifle in the closet to fall and discharge, striking the other
aide and injuring her.
A jury found Jensen liable for negligence. Jensen appeals,
arguing she did not owe the injured aide a duty of care and she
did not cause the aide’s harm. Jensen also argues the trial court
incorrectly instructed the jury on general negligence and the
verdict form reflected that error.
California law establishes the general duty of each person
to exercise reasonable care for the safety of others. We decline to
recognize an exception to this fundamental principle for
employers and supervisors of healthcare aides working in homes
where firearms are present. It is foreseeable that an accidental
shooting might occur in a home containing unsecured, loaded
firearms, and policy considerations favor a duty to use reasonable
care when one knows firearms are present. We accordingly hold
that Jensen owed the aide a duty of care. We further hold that
substantial evidence supports the jury’s finding that Jensen’s
negligence was a substantial factor in causing the aide’s harm,
and we find no error in the jury instructions. We affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
A. Jensen and Her Family Hire Home Healthcare Aides To
Care for Their Parents
Maria Jensen is the adult daughter of Josefina and
Fernando Corona.1 At the time of the events in this case,
Josefina and Fernando were 87 years old. Josefina was
bedridden, and Fernando had limited mobility and impaired
hearing. Josefina and Fernando owned a home in the City of
Commerce where the shooting occurred. Jensen lived in Santa
Maria, California and visited her parents at least monthly,
staying for a weekend or sometimes a week at a time.
In 2012, Jensen and her family learned that Josefina had
dementia. Beginning in December 2013, Gerinet, Inc. provided
hospice care for Josefina. Annet Hernandez worked for Gerinet
as a home healthcare aide.
Jensen completed and signed the paperwork hiring Gerinet
to provide home healthcare services for Josefina. Jensen
identified herself as a primary caregiver for her mother. At the
time Jensen hired Gerinet, Fernando could not care for Josefina
or their home.
When Jensen hired Gerinet, she did not discuss safety with
the Gerinet representative. The intake forms Jensen signed
stated that the hiring party would “provide a safe home
environment in which care can be given.” During an intake
meeting with a Gerinet representative, Jensen showed the
representative the rooms to which the Gerinet staff would have
1 For clarity, we refer to Josefina and Fernando Corona and
to Jensen’s siblings by their first names.
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access, i.e., the kitchen, her parents’ bedroom, the den, and the
shower room.
In March 2014 the family hired a second home healthcare
worker, Tanya Duran, to provide care for Josefina, perform light
housekeeping, and cook for Josefina and Fernando. Jensen told
Duran her duties and that Jensen was “in charge of her parents
and everything that was in the house.” Jensen set Duran’s hours
and supervised Duran and her work.
Because there had been break-ins at the house, Jensen’s
husband installed surveillance cameras. Jensen used the
cameras to monitor her parents when she was not there. Jensen
also used the cameras to supervise Duran’s work.
B. A Rifle in a Bedroom Closet Discharges, and Hernandez Is
Shot
On February 16, 2015 Duran and Hernandez were at work
at Josefina and Fernando’s home. Jensen was not in Commerce
that day. Fernando told Duran he was short of breath, and
Duran went to Josefina and Fernando’s bedroom to retrieve an
oxygen tank for him. When Duran entered the bedroom,
Hernandez was bathing Josefina in the bedroom. Duran opened
a sliding closet door and reached into the closet to retrieve an
oxygen tank. The removal of the tank caused a loaded rifle in the
closet to fall and discharge.
Duran saw a flash of light and heard a sound “like a
firecracker” or a “pop.” Hernandez told Duran “something hit
me,” and they realized Hernandez had been shot. Hernandez fell
to her knees, and Duran called 911. Hernandez suffered serious
injuries, including a fractured pelvis and a perforated intestine.
The police confiscated the rifle, a BB gun, and a loaded
handgun from Josefina and Fernando’s bedroom. After
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paramedics and police arrived, Duran telephoned Jensen to tell
her what had occurred. Jensen asked Duran: “What the fuck are
you doing in the closet?” Jensen did not ask about Hernandez’s
condition. Jensen testified she was “pissed” and “mad” about the
shooting. The police determined the shooting was accidental.
C. Jensen and Her Siblings Knew Fernando Kept Firearms in
the House
Before the shooting, Jensen knew her father had handguns
and rifles in the house, including a handgun and a BB gun in his
nightstand. Jensen also knew her father had kept handguns and
rifles at a prior residence. Jensen testified that Fernando was “a
little crazy when it came to guns.”
Jensen had not seen the rifle involved in the shooting and
did not know it was in the bedroom closet. Jensen’s husband
knew Fernando had guns in the house because he had unloaded
two of them. Jensen’s sister Irma knew Fernando had guns in
the house, including a handgun in the bedroom nightstand. Irma
had not seen the rifle involved in the shooting and did not know
how it came to be in the closet. Jensen’s brother John had seen a
rifle in the bedroom closet but did not tell Duran it was there.
John did not tell Jensen or Irma about the rifle either. Fernando
did not have a gun safe in the house.
Following the shooting, Gerinet informed the family that
all guns must be removed from the house before Gerinet
personnel could continue working in the house. Jensen was
present by telephone for that conversation. After the
conversation with Gerinet, and within two weeks after the
shooting, Duran found two more rifles at the other end of the
same bedroom closet.
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D. The Jury Finds Jensen, John, and Fernando Liable for
Negligence
Hernandez sued Jensen, John, and Fernando, as well as
Josefina’s estate, Josefina as trustee of a family trust, and
Jensen’s other two siblings. The jury found Jensen, John, and
Fernando liable for general negligence and awarded total
damages of $3.61 million. The jury apportioned fault 65 percent
to Jensen, 20 percent to John, and 15 percent to Fernando. The
trial court entered judgment on the jury’s verdict on September
12, 2018. The court subsequently reduced the economic damages
award from $610,000 to $406,644.77 and left the $3 million non-
economic damages award intact. Jensen timely appealed.
DISCUSSION
A. Standards of Review
Hernandez alleged causes of action for general negligence
and premises liability. Jensen argues she did not owe Hernandez
a duty of care and she did not cause Hernandez’s harm.
The elements of a negligence claim and a premises liability
claim are the same: a legal duty of care, breach of that duty, and
proximate cause resulting in injury. (Kesner v. Superior Court
(2016) 1 Cal.5th 1132, 1158 (Kesner).) Duty is a question of law
for the court, to be reviewed de novo on appeal. (Cabral v. Ralphs
Grocery Co. (2011) 51 Cal.4th 764, 770 (Cabral).)
The elements of breach of duty and causation are ordinarily
questions of fact for the jury’s determination. (Vasquez v.
Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278
(Vasquez).) “Where findings of fact are challenged on appeal, we
are bound by the ‘elementary, but often overlooked principle of
law, that . . . the power of the appellate court begins and ends
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with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted,’ to support the findings
below.” (Garbell v. Conejo Hardwoods, Inc. (2011) 193
Cal.App.4th 1563, 1569 (Garbell), quoting Crawford v. Southern
Pacific Co. (1935) 3 Cal.2d 427, 429; Schmidt v. Superior Court
(2020) 44 Cal.App.5th 570, 582.) The substantial evidence
standard of review applies to the jury’s findings on causation.
(Cabral, supra, 51 Cal.4th at p. 770.)
Jensen also argues the trial court erred by failing to
instruct the jury that ownership, maintenance, or control of the
premises was a prerequisite to finding Jensen liable for general
negligence. The propriety of jury instructions is a question of law
that we review de novo. (Alamo v. Practice Management
Information Corp. (2013) 219 Cal.App.4th 466, 475.)
B. Jensen Owed Hernandez a Duty of Care
1. The duty of care
Pursuant to Civil Code2 section 1714, subdivision (a),
“[e]veryone is responsible, not only for the result of his or her
willful acts, but also for an injury occasioned to another by his or
her want of ordinary care or skill in the management of his or her
property or person, except so far as the latter has, willfully or by
want of ordinary care, brought the injury upon himself or
herself.” (§ 1714, subd. (a).) “California law establishes the
general duty of each person to exercise, in his or her activities,
reasonable care for the safety of others.” (Cabral, supra, 51
Cal.4th at p. 768.) “In the absence of a statutory provision
establishing an exception to the general rule of Civil Code section
2 All further statutory references are to the Civil Code.
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1714, courts should create one only where ‘clearly supported by
public policy.’” (Id. at p. 771, quoting Rowland v. Christian
(1968) 69 Cal.2d 108, 112 (Rowland).)
“In the Rowland decision, th[e] court identified several
considerations that, when balanced together, may justify a
departure from the fundamental principle embodied in Civil Code
section 1714: ‘the foreseeability of harm to the plaintiff, the
degree of certainty that the plaintiff suffered injury, the closeness
of the connection between the defendant’s conduct and the injury
suffered, the moral blame attached to the defendant’s conduct,
the policy of preventing future harm, the extent of the burden to
the defendant and consequences to the community of imposing a
duty to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk
involved.’” (Cabral, supra, 51 Cal.4th at p. 771.)
The Supreme Court has explained that “[t]he Rowland
factors fall into two categories. Three factors—foreseeability,
certainty, and the connection between the plaintiff and the
defendant—address the foreseeability of the relevant injury,
while the other four—moral blame, preventing future harm,
burden, and availability of insurance—take into account public
policy concerns that might support excluding certain kinds of
plaintiffs or injuries from relief.” (Kesner, supra, 1 Cal.5th at p.
1145.)
2. Foreseeability factors
“The most important factor to consider in determining
whether to create an exception to the general duty to exercise
ordinary care articulated by section 1714 is whether the injury in
question was foreseeable.” (Kesner, supra, 1 Cal.5th at p. 1145.)
For purposes of duty analysis, “‘foreseeability is not to be
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measured by what is more probable than not, but includes
whatever is likely enough in the setting of modern life that a
reasonably thoughtful [person] would take account of it in
guiding practical conduct.’ . . . [I]t is settled that what is required
to be foreseeable is the general character of the event or harm—
e.g., being struck by a car while standing in a phone booth—not
its precise nature or manner of occurrence.” (Ibid.)
It is foreseeable that a home healthcare worker might
accidentally be shot in a home containing unsecured, loaded
firearms. Accidental shootings in residences are a sad reality of
modern life. In light of this known risk, a reasonably thoughtful
person employing a healthcare aide in a home containing guns
would consider the possibility that a gun could be discovered and
accidentally discharged. Jensen described her father as “a little
crazy when it came to guns” and knew her father had handguns
and rifles in the house, including a handgun in his nightstand.
Jensen’s argument that she did not know the specific rifle
involved in the shooting was in the closet misconstrues the
foreseeability analysis. “[I]t is settled that what is required to be
foreseeable is the general character of the event or harm . . . not
its precise nature or manner of occurrence.” (Kesner, supra, 1
Cal.5th at p. 1145.) The general character of the event or harm
here is the likelihood that an unsecured gun in a home could
accidentally discharge and cause injury. Unfortunately, that
occurrence is more than “‘likely enough in the setting of modern
life that a reasonably thoughtful [person] would take account of it
in guiding practical conduct.’” (Ibid.)
Jensen’s argument that she did not owe Hernandez a duty
of care because “the presence of guns in the house would not have
made it foreseeable to [Jensen] that either 1) a gun would be
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found in a closet, or 2) this gun would be kept loaded” overlooks
that “the Rowland factors are evaluated at a relatively broad
level of factual generality.” (Cabral, supra, 51 Cal.4th at p. 772.)
Thus, as to foreseeability, “the court’s task in determining duty
‘is not to decide whether a particular plaintiff’s injury was
reasonably foreseeable in light of a particular defendant’s
conduct, but rather to evaluate more generally whether the
category of negligent conduct at issue is sufficiently likely to
result in the kind of harm experienced that liability may
appropriately be imposed . . . .’” (Ibid., original italics.) The first
foreseeability factor weighs against finding an exception to the
duty to exercise reasonable care for the safety of others.3
“The second Rowland factor, the degree of certainty that
the plaintiff suffered injury, ‘has been noted primarily, if not
exclusively, when the only claimed injury is an intangible harm
such as emotional distress.’” (Kesner, supra, 1 Cal.5th at p. 1148,
quoting Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 421.)
Hernandez was shot and suffered serious physical injuries. Her
injuries are certain and compensable under the law. (Kesner, at
p. 1148.) The second foreseeability factor weighs against finding
an exception to the duty of care.
3 Jensen also contends that “property or person” in
section 1714 precludes a duty of care because Jensen did not
control the “property” where the shooting occurred and her
“person” was not involved in the shooting. Contrary to this
narrow interpretation, section 1714 “establishes the general duty
of each person to exercise, in his or her activities, reasonable care
for the safety of others.” (Cabral, supra, 51 Cal.4th at p. 768,
italics added.)
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The third Rowland factor, “the closeness of the connection
between the defendant’s conduct and the injury suffered[,]’
[citation] is strongly related to the question of foreseeability
itself.” (Cabral, supra, 51 Cal.4th at p. 779.) “Generally
speaking, where the injury suffered is connected only distantly
and indirectly to the defendant’s negligent act, the risk of that
type of injury from the category of negligent conduct at issue is
likely to be deemed unforeseeable. Conversely, a closely
connected type of injury is likely to be deemed foreseeable.”
(Ibid.)
Hernandez was injured when a loaded rifle fell from a
bedroom closet. That injury could result from the presence of an
unsecured rifle in a residence is clearly foreseeable. The presence
of the loaded rifle in the home, and Jensen’s failure to secure her
father’s guns or advise Duran and Hernandez of their presence,
are closely connected to Hernandez’s gunshot injury. Duran’s
intervening conduct of removing the oxygen tank from the closet
did not create a risk that Hernandez would be shot; the presence
of an unsecured, loaded firearm in the home created that risk.
The third foreseeability factor weighs against finding an
exception to the duty of care.4
4 Jensen argues that an individual owes no general duty to
warn or control the conduct of family members with respect to
guns or weapons. The cases Jensen cites involve claims based on
the failure of family members to prevent shootings by other
family members, not the failure to secure weapons or disclose
their presence to those likely to be accidentally injured by them.
(See Smith v. Freund (2011) 192 Cal.App.4th 466, 475 [affirming
summary judgment for parents, finding that son’s shooting of two
individuals was not foreseeable and thus parents did not owe
plaintiffs duty of care]; Todd v. Dow (1993) 19 Cal.App.4th 253,
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3. Policy factors
Having concluded it is reasonably foreseeable that an
unsecured, loaded firearm stored in a home could accidentally
discharge and cause injury, we turn to the policy considerations
for and against the imposition of liability. (Kesner, supra, 1
Cal.5th at pp. 1149-1150.) These policy considerations include
the moral blame attached to the defendant’s conduct, the policy of
preventing future harm, the extent of the burden to the
defendant and consequences to the community of imposing a duty
to exercise care with resulting liability for breach, and the
availability, cost and prevalence of insurance for the risk
involved. (Rowland, supra, 69 Cal.2d at p. 113.)
The Supreme Court has explained, “We have previously
assigned moral blame, and we have relied in part on that blame
in finding a duty, in instances where the plaintiffs are
particularly powerless or unsophisticated compared to the
defendants or where the defendants exercised greater control
over the risks at issue.” (Kesner, supra, 1 Cal.5th at p. 1151.)
The moral blame factor weighs against creating an exception for
employers and supervisors of home healthcare aides because
those familiar with a home are far better positioned to protect
against the risk of accidental residential shootings than outside
workers are. A healthcare aide employed in a private home
cannot be expected to search the home for firearms and,
259 [affirming summary judgment for parents, finding parents
had no duty to supervise or control adult son’s activities]; Wise v.
Superior Court (1990) 222 Cal.App.3d 1008, 1014 [holding wife
had no duty to prevent husband from committing unforeseeable
sniper attack].)
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moreover, determine whether they are loaded. The moral blame
factor does not support creating an exception to the duty of care.
“The overall policy of preventing future harm is ordinarily
served, in tort law, by imposing the costs of negligent conduct
upon those responsible. The policy question is whether that
consideration is outweighed, for a category of negligent conduct,
by laws or mores indicating approval of the conduct or by the
undesirable consequences of allowing potential liability.”
(Cabral, supra, 51 Cal.4th at pp. 781-782.) In evaluating the
burden that a tort duty would impose on the defendant and the
community, the court’s “duty analysis is forward-looking, and the
most relevant burden is the cost to the defendants of upholding,
not violating, the duty of ordinary care.” (Kesner, supra, 1
Cal.5th at p. 1152.)
Jensen argues that imposing an “unlimited duty to
caregivers” on adult children assisting elderly parents will
discourage individuals from hiring home healthcare workers and,
in turn, preclude elderly people from remaining in their homes.
The duty here, however, is not as wide-ranging as Jensen
describes. It is a duty to exercise reasonable care for the safety of
others when one knows firearms are present. Public policy
supports the safe storage and handling of guns, particularly in
circumstances where one party has superior knowledge and the
ability to prevent accidental shootings. These factors weigh
against creating a duty exception.
The final policy factor is the availability of insurance for
the risks involved. Jensen concedes she has insurance coverage
for at least some of her liability. The insurance factor weighs
against creating an exception to the duty of care.
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C. Substantial Evidence Supports the Jury’s Finding that
Jensen’s Negligence Was a Substantial Factor in Causing
Hernandez’s Harm
Jensen next argues she did not cause Hernandez’s harm.
Jensen characterizes this argument as a question of law to be
decided by the court. On this factual record, however, the
decision whether Jensen’s negligence caused Hernandez’s harm
was a question of fact for the jury.
Breach of duty is usually a fact issue for the jury.
(Constance B. v. State of California (1986) 178 Cal.App.3d 200,
207; see also Vasquez, supra, 118 Cal.App.4th at p. 278 [“the
elements of breach of . . . duty and causation are ordinarily
questions of fact for the jury’s determination”].) “[G]iven a
breach of duty by the defendant, the decision whether that
breach caused the damage (that is, causation in fact) is again
within the jury’s domain . . . .” (Constance B., at p. 207, original
italics.) Only “where reasonable [people] will not dispute the
absence of causality, [may] the court . . . take the decision from
the jury and treat the question as one of law.” (Ibid.)
Jensen argues her conduct and Hernandez’s harm are
insufficiently close because “one simply could not foresee” that a
loaded rifle would be kept in a closet near an oxygen tank and
that Duran’s removal of the tank would cause the rifle to fall and
discharge. In one sense, this argument restates Jensen’s
unpersuasive foreseeability argument addressed above. In
another sense, this argument is a contention that substantial
evidence did not support the jury’s conclusion that Jensen’s
negligence was a substantial factor in causing Hernandez’s harm.
That contention is also unpersuasive.
Jensen knew her father had handguns and rifles in the
house, including a handgun in the bedroom nightstand. Jensen
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oversaw Duran’s and Hernandez’s work and knew they had
access to substantial areas of the house, including her parents’
bedroom. Despite Jensen’s knowledge that her father kept
firearms in the house and that Duran’s and Hernandez’s job
duties required them to work throughout much of the residence,
Jensen neither secured the firearms nor warned Duran and
Hernandez of their presence. The jury could reasonably conclude
from this evidence that Jensen’s conduct contributed to
Hernandez’s harm. (See Bockrath v. Aldrich Chemical. Co.
(1999) 21 Cal.4th 71, 79 [“The substantial factor standard is a
relatively broad one, requiring only that the contribution of the
individual cause be more than negligible or theoretical.”]; Osborn
v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 253
[“[c]ausation in fact is ultimately a matter of probability and
common sense”].) Substantial evidence supports the jury’s
finding that Jensen’s negligence was a substantial factor in
causing Hernandez’s harm.5
5 Jensen also contends the trial court erred in denying her
summary judgment motion, in which she argued the same issues
she challenges from the trial, i.e., that she did not owe
Hernandez a duty of care and that she did not cause Hernandez’s
harm. “As a general rule, the denial of summary judgment is
harmless error after a full trial covering the same issues.”
(Legendary Investors Group No. 1 LLC v. Niemann (2014) 22
Cal.App.4th 1407, 1410; see also Transport Ins. Co. v. TIG Ins.
Co. (2012) 202 Cal.App.4th 984, 1011 [“general rule [is] that
denial of [summary judgment] motions may not be challenged [on
appeal] because the parties litigated the same issues at trial”].)
Moreover, as discussed, Jensen owed Hernandez a duty of care,
and substantial evidence supports the jury’s finding that Jensen’s
negligence caused Hernandez’s harm.
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D. The Trial Court Did Not Err in Instructing the Jury, and
the Verdict Form Was Proper
Jensen last argues the trial court erred by failing to
instruct the jury that ownership, maintenance, or control of the
premises was a prerequisite to finding Jensen liable for general
negligence. Jensen also argues the verdict form reflecting the
general negligence instruction was erroneous.
The trial court instructed the jury on the elements of
Hernandez’s general negligence claim with CACI No. 400. CACI
No. 400 states that to find a defendant liable for general
negligence, the jury must find the plaintiff proved all of the
following: (1) the defendant was negligent; (2) the plaintiff was
harmed; and (3) the defendant’s negligence was a substantial
factor in causing the plaintiff’s harm. Jensen argues that
because Hernandez’s injury occurred in Jensen’s parents’ home,
to prove general negligence Hernandez also must prove Jensen
owned, maintained, or controlled the house.
Jensen’s argument conflates general negligence and
premises liability theories. Ownership, maintenance, or control
of the home is not required to find Jensen liable for general
negligence. Jensen’s liability arises from the jury’s finding that
Jensen failed to use reasonable care and that her negligence was
a substantial factor in causing Hernandez’s harm. Premises
liability, by contrast, “‘is grounded in the possession of the
premises and the attendant right to control and manage the
premises’”; accordingly, “‘mere possession with its attendant right
to control conditions on the premises is a sufficient basis for the
imposition of an affirmative duty to act.’” (Kesner, supra, 1
Cal.5th at p. 1158.) Jensen’s negligence is not “grounded in the
possession” of and right to control her parents’ home. Jensen’s
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negligence derives from her failure to protect or warn against a
known danger with a foreseeable risk of harm. The trial court
did not err in instructing the jury on the elements of Hernandez’s
general negligence claim, and the verdict form containing those
elements was proper.
DISPOSITION
The judgment is affirmed. Hernandez shall recover her
costs on appeal.
MCCORMICK, J.*
We concur:
PERLUSS, P. J.
SEGAL, J.
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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