Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Rita Miller, Judge. Los Angeles County Super. Ct. No. BC 348814
Law Offices of Marshall E. Rosenbach and Marshall E. Rosenbach for Plaintiff and Appellant.
Law Offices of Linda M. Libertucci and Sarah Yoseloff for Defendants and Respondents.
FLIER, J.
Thomas McGrath appeals from a judgment entered after the trial court granted respondents’ motion for nonsuit following appellant’s opening statement. (See Code Civ. Proc., § 581c.) Appellant, a truck driver, parked his truck and alighted in the left turn lane of the roadway while waiting to deliver quarry materials to a cement batch plant owned by Lebata and operated by Associated. Ark Leasing’s truck rolled over appellant’s foot while he stood in conversation with other drivers in the middle of the street. Appellant contends the trial court erred in ruling respondents owed appellant no duty as a matter of law upon the briefs and record presented. We affirm.
Respondents are Associated Ready Mixed Concrete, Inc. (Associated), Lebata, Inc. (Lebata), and Ark Leasing, Inc. (Ark Leasing). Another entity, Cemak Trucking, Inc. (Cemak), which is not a party to this action, employed both appellant and the driver of the truck at issue.
In the interest of judicial economy, the court allowed appellant to present an “opening statement” to the court before the jury was impaneled. Both parties stipulated to this procedure, and we agree it was appropriate for the court and counsel to agree to a procedure that ultimately avoided the need for jury selection. (See Michel v. Moore & Associates, Inc. (2007) 156 Cal.App.4th 756, 760, fn. 4 [no reversible error in granting premature motion for nonsuit if motion otherwise well taken]; Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 114 (Ritschel) [same].)
FACTS AND PROCEDURAL HISTORY
The presumed facts, as set forth in appellant’s opening statement, are as follows. Appellant was employed as a truck driver by Cemak and worked the evening shift from approximately 5:00 p.m. to 3:00 a.m. On the evening of July 28, 2004, appellant picked up a load of raw materials from a rock quarry in Sun Valley for delivery to Associated’s plant on East Washington Boulevard in Los Angeles. It was the practice for truck drivers making such deliveries to drive their trucks -- typically, Mac tractors towing two “belly dump” trailers -- to an underground area (grizzly) of the plant, where they discharged their load onto a conveyor belt that carried the materials into a silo.
Trucks going westbound on East Washington Boulevard normally pull into the middle turning lane and make a left turn into the plant, crossing two eastbound lanes of traffic to do so. Associated requires the truck drivers to ask the plant yardman for permission to discharge a load because the driver might be redirected to another plant if the silos for their particular material are full.
East Washington Boulevard at the plant’s location has a speed limit of 40 miles per hour. The roadway has five traffic lanes: two lanes for eastbound traffic, two lanes for westbound traffic and a center lane for making left turns. The center lane is marked by two solid yellow lines and is exclusively for turning. The area surrounding the plant is primarily industrial, with heavy traffic heading in both directions. At the cement plant’s location, there is curbside parking available on either side of the street and room for trucks to park and wait at the curb.
The California Vehicle Code prohibits vehicles from parking in such middle turning lanes. Vehicle Code section 22400, subdivision (a) states in part: “No person shall bring a vehicle to a complete stop upon a highway so as to impede or block the normal and reasonable movement of traffic unless the stop is necessary for safe operation or in compliance with law.”
Appellant proposed to show that at least once a week several trucks would arrive at the plant at the same time, causing the drivers to wait. Appellant asserted Associated had an informal, “unwritten . . . rule” for incoming material suppliers to park in the middle turning lane when that happened. According to appellant, drivers had parked in the middle lane for “many years” and Associated “accepted” this lineup. Drivers also occasionally parked along the north curb if there was no room to park in the middle turning lane. Appellant proposed to testify, and expected other drivers to testify, that drivers “believed” that “unless you’re parked there [in the middle of the street] and [the yardman] tells you to come in or wait, you’re not going to be served.”
Appellant proposed to produce evidence showing it was the practice for drivers to wait in their trucks for five to 10 minutes and, if no truck has moved, to locate Associated’s yardman to ask him what to do. Associated’s yardman had previously testified he dictated the “ingress and egress” from the plant and admitted he “controls everything.” Appellant’s evidence purportedly would show none of respondents’ employees had any safety training regarding ingress, egress, receiving raw materials or maneuvering or directing trucks. He also proposed to show that Associated knew drivers frequently got out of their trucks and congregated in the middle of the street or at curbside to socialize, stretch their legs or smoke a cigarette. The drivers and Associated’s employees knew it was illegal to park in the middle of the street, but Associated took the position it was not Associated’s problem.
On the night of the incident, there was a “big pour,” and Associated needed a large amount of materials from its suppliers. Appellant arrived in his truck, only to discover there were three trucks already parked in the middle turning lane. Appellant pulled his truck in line behind the three trucks, to wait his turn. After 10 minutes, appellant got out of his truck and crossed the eastbound lanes of the street to look for the yardman. When he located the yardman, the yardman asked appellant to tell whoever had one-inch rock to pull in next. Appellant crossed back to the middle turning lane, where the three other drivers were standing and talking, in between the first truck’s two trailers.
Appellant told the group that “Shorty” wanted whoever had one-inch rock to pull in. About a half minute later, the driver of the first truck left the group. The next thing appellant and the other two drivers were aware of was the sound of brakes being released. They realized the first truck was about to move, so they stepped into the inner eastbound lane of the street to avoid the moving truck. However, a car was approaching in that lane. To avoid the oncoming car, they stepped back into the turning lane. At that point, the left rear tire of the first truck’s second trailer rolled over appellant’s foot as the driver made a left turn into the plant.
One of the drivers proposed to testify he observed a plant employee wave and holler at the driver of the first truck to “come in” just before its trailer ran over appellant’s foot.
In the trial court, appellant contended Associated was negligent in requiring drivers to wait before making a delivery, in permitting drivers to leave their trucks and walk around them in the middle of the street, and in requesting appellant to give a message to the other drivers instead of communicating with them directly. Appellant asserted the accident was foreseeable, because Associated had knowledge drivers were illegally parking in the middle lane and it had constructive knowledge that a similar accident had occurred approximately 10 years earlier in March 1995, when the plant was owned by Associated’s predecessor, L.A. Premix, Inc. Appellant further contended a special relationship was created when Associated’s employee undertook to wave the driver into the plant and then did so negligently.
Supposedly, another Cemak driver was killed after parking his truck in the middle turning lane and exiting his truck.
Appellant claimed Ark Leasing and Lebata had notice of the alleged dangerous practices because all the companies had a common ownership. He further contended that Ark Leasing owned the truck that ran over appellant’s foot, and it entrusted its vehicle to be used in a “dangerous scheme.”
CONTENTIONS
On appeal, appellant contends respondents owed him a duty of care because the foreseeability of the risk of harm was “very high.” Specifically, appellant claims Associated, Lebata and Ark Leasing all had imputed knowledge of the 1995 incident because they had a common ownership. He faults Associated for failing to change its “policies” despite its imputed knowledge of the previous lawsuit. He argues that if a duty is not imposed upon respondents, they will continue to operate “their delivery scheme” in a manner that exposes incoming delivery drivers to an “extraordinary risk” of harm. Appellant suggests his accident could have been avoided had respondents implemented two-way radios between Associated and incoming drivers or furnished a flagman to direct traffic. Appellant asserts Associated’s employee was negligent in waving the truck driver into the plant without first warning appellant or looking for oncoming traffic, that respondents are liable to him under a theory of negligence per se and that Ark Leasing had additional duties to him as the owner of the truck that injured him.
DISCUSSION
“A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor.” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291 (Nally).) Mere conjecture or nonsensical interpretations of evidence are insufficient to reverse a nonsuit. (Ritschel, supra, 137 Cal.App.4th at p. 115.)
A determination of the existence and scope of legal duty begins with the general rule that each person has a duty to exercise ordinary care to avoid causing injury to another, “except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).) “‘[D]uty’ is not an immutable fact of nature ‘“but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.”’ [Citation.]” (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6; Cohen v. NuVasive, Inc. (2008) 164 Cal.App.4th 868, 875.) When analyzed to determine the existence or scope of a duty, foreseeability is a question of law to be decided by the court. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678 (Ann M.).)
Viewing the briefs and the record under these principles, we conclude the trial court properly granted the nonsuit as respondents owed appellant no legal duty of care.
1. No Duty of Care from Balancing Factors
Whether a duty exists in tort is based on a balancing of various factors, including “‘[t]he 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.’” (Ann M., supra, 6 Cal.4th at p. 675, fn. 5, citing Rowland v. Christian (1968) 69 Cal.2d 108, 113 (Rowland).)
In assessing a defendant’s duty of care, a court must “identify the specific action or actions the plaintiff claims the defendant had a duty to undertake. ‘Only after the scope of the duty under consideration is defined may a court meaningfully undertake the balancing analysis of the risks and burdens present in a given case to determine whether the specific obligations should or should not be imposed on the [defendant].’” (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214 (Castaneda).) Upon analysis, we conclude appellant has failed to demonstrate respondents owed him a duty under the purported circumstances.
We begin by identifying the specific action or actions appellant claims respondents were obliged to take to protect him from the alleged harm. (Castaneda, supra, 41 Cal.4th at p. 1215.) Appellant essentially argues that, as a result of their constructive knowledge of the March 1995 accident, respondents had a duty to “change their procedures” by (1) implementing two-way radios between Associated and incoming drivers and (2) furnishing a flagman to direct traffic. Neither assertion is cognizable or supported by the record.
Putting aside the issue of constructive knowledge, it is clear the alleged “delivery procedure” was only a belief on the part of the drivers that Associated “required” drivers to park their vehicles in the middle turning lane. There was no evidence respondents directed anyone to park in the middle of the street. Appellant’s counsel expressly stated the drivers merely were of the belief they had to remain visible to Associated’s yardman in order to be “served.” Appellant conceded there was nothing in writing, no one told the drivers to stay in the left turn lane and there were no written policies or procedural manuals setting forth this “requirement.” At best, Associated merely “accepted” the truck drivers’ practice of parking in the middle of the street. The proffered evidence, therefore, cannot establish respondents had any “delivery procedure” to be “changed.”
Nor do we find appellant’s contention that respondents should have provided two-way radios and a flagman to direct traffic compelling. Providing two-way radios to truck drivers making deliveries or providing a flagman at the plant entrance would not assure a truck driver’s safety or be practical. Drivers would still need to park and exit their trucks in order to retrieve a radio, then go back and wait for instructions. The availability of radios would not discourage drivers from parking in the left turn lane nor from standing in the middle of the roadway or between trailers where they are not visible. Neither would posting a flagman to direct traffic prevent the drivers from continuing to park in the left turn lane or from standing in the middle of the roadway. Although two-way communications with the drivers might conceivably have avoided this accident, it would not certainly have prevented it. Nor would posting a flagman at the entrance have necessarily prevented the harm to appellant. In both cases, the truck driver would merely have been given permission to enter the plant. Moreover, requiring a flagman to be present for deliveries would impose a costly burden. Given the nature of the business, this flagman would have to be provided 24 hours a day. As a policy matter, it is unfair to require businesses to shoulder such a costly expense, particularly with such little benefit.
The remaining factors in Rowland, supra, 69 Cal.2d at page 113, do not convince us to impose a duty upon respondents. It is undisputed that appellant suffered injury, and insurance undoubtedly is available for the type of accident that occurred here. However, the record does not support a conclusion that respondents’ conduct was morally blameworthy. The evidence at best is that Associated merely “accepted” the truck drivers’ practice of parking in the middle of the street and did not require them to do so. There is no indication the presence of a radio or flagman would prevent a truck driver from failing to check for oncoming traffic or for nearby pedestrians before making the left turn. The connection between respondents’ alleged inaction and appellant’s injury is not particularly strong. Nor is there any social value in encouraging the type of risky behavior demonstrated by appellant’s standing in the middle of a busy roadway between two trailers.
On the other hand, the burdens of requiring Associated to be in two-way radio communication with incoming truck drivers or stationing a flagman at the driveway during all hours of operation would place a significant burden upon respondents and other business owners who accept deliveries from suppliers. There would be no social value in transferring the duty of safe operation of a vehicle from the driver to the property owner receiving deliveries. (See e.g., Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 517 [discussing social cost of “forc[ing] property owners to protect the motoring public”].) Considerations of policy, burdens on property owners and cost, “plus the statutory duty imposed by statute on left-turning drivers,” convince us that the balance properly falls on the side of absence of duty on the part of respondents. (Gilmer v. Ellington (2008) 159 Cal.App.4th 190, 199-200 (Gilmer); see also Garcia v. Paramount Citrus Assn., Inc. (2008) 164 Cal.App.4th 1448, 1454.)
Discussed, post.
2. Assumption of Duty by Signaling Driver
Appellant is not aided by his contention that an Associated employee negligently signaled the truck driver to come into the plant. As we have recently explained, pursuant to Vehicle Code section 21801, a left-turning driver “has the obligation to ascertain throughout the turning maneuver whether it is reasonably safe to make the turn.” (Gilmer, supra, 159 Cal.App.4th at p. 198.)
In Gilmer, we refused to impose a duty of care upon a motorist, who signaled to another motorist traveling in the opposite direction to proceed to turn left in front of him, to ascertain first that the left-turning driver could do so safely. (Gilmer, supra, 159 Cal.App.4th at pp. 201-202.) We held as a matter of law that the yielding driver had no duty of care to a motorcyclist who collided with the left-turning vehicle in the intersection. (Id. at p. 202.) We found persuasive the reasoning that the signaling driver’s gesturing “‘signified nothing more than permission to cross in front of [his] car and could not be relied upon as assurance that all was clear ahead.’ [Citation.]” (Id. at p. 200.) We noted a yielding driver “has little ability to anticipate the speed with which the left-turning driver will execute the turn. . . . [A] yielding driver is in a poor position to make the speed and distance calculations necessary to ascertain . . .” whether or not it is safe to make the left-hand turn. (Id. at p. 199.)
Similarly, the Associated employee who purportedly signaled the truck driver to enter the plant driveway would have little ability to anticipate the speed at which the left-turning driver will make his turn or when and how the truck driver would make the maneuver. The signal by the employee to the truck driver was permission to cross in order to discharge his load, not assurance it was safe to make the left turn. It remained the left-turning driver’s duty as a matter of law to make this assessment and ensure no other vehicle or pedestrian was in harm’s way before starting or executing his turn. (Gilmer, supra, 159 Cal.App.4th at p. 198.)
3. Ark Leasing’s Duty as Truck Owner
Appellant asserts Ark Leasing owed him a duty of care due to its ownership of the truck and its “negligent entrustment” to the driver who ran over his foot. In the trial court, appellant proffered no evidence supporting this contention. On appeal, he offers scant argument supporting this point in his opening brief and cites no authorities whatsoever for this contention. “[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 701, p. 769; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [“We . . . treat the issue as abandoned and do not address it on the merits”]; Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873 [“An appellate court is not required to consider alleged errors where the appellant merely complains of them without pertinent argument”].) Accordingly, we do not address appellant’s claim that Ark Leasing had liability based on its ownership of the truck that injured him.
4. Negligence Per Se Liability
Appellant further asserts that at least his negligence per se claim should have survived the nonsuit motion. We disagree.
The negligence per se doctrine is codified at Evidence Code section 669, which provides in relevant part: “(a) The failure of a person to exercise due care is presumed if: [¶] (1) He violated a statute, ordinance, or regulation of a public entity; [¶] (2) The violation proximately caused death or injury to person or property; [¶] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [¶] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” The first two elements present issues of fact, while the second two elements present issues of law. (Lua v. Southern Pacific Transportation Co. (1992) 6 Cal.App.4th 1897, 1901-1902 (Lua).)
Not all violations of statute constitute negligence per se. The doctrine generally provides that “‘“a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm which the plaintiff suffered as a result of the violation of the statute.”’ [Citation.]” (Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254, 267 [violation of slope regulations for disabled parking space intended to facilitate disabled person’s transfer between vehicle and wheelchair does not support negligence per se claim of disabled plaintiff crossing empty parking space on foot]; Lua, supra, 6 Cal.App.4th at p. 1903 [“The California decisions agree that the per se effect of a statute is limited to the conduct the statute or regulation was designed to prevent”; violation of regulation designed to ensure free flow of traffic not basis for per se liability to plaintiff injured while attempting to climb over stopped train]; see also Ramirez v. Nelson (2008) 44 Cal.4th 908, 918 [negligence per se doctrine not applicable if one is not within protected class or injury did not result from occurrence transgressed statute was designed to prevent].) A violation of a Vehicle Code section not intended to protect against traffic accidents does not constitute negligence per se. (Gilmer, supra, 159 Cal.App.4th at p. 203.)
Vehicle Code section 22400 expressly indicates an intention to prevent a driver from “imped[ing] or block[ing] the normal and reasonable movement of traffic,” rather than to protect other drivers or pedestrians from traffic accidents. (Veh. Code, § 22400, subd. (a).) Appellant’s injury did not result from an occurrence of the nature which the statute was designed to prevent, nor was appellant of the class of persons for whose protection the statute was adopted. (Evid. Code, § 669, subd. (a)(4); Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 938.)
A negligence per se claim against respondents therefore is not available to appellant.
DISPOSITION
The judgment is affirmed. Respondents are to recover costs on appeal.
We concur: COOPER, P. J., RUBIN, J.