Opinion
A111579
12-7-2006
LINDA U. McKINLEY, Plaintiff and Appellant, v. SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, Defendant and Respondent.
Appellant Linda McKinley suffered serious injuries when knocked down a flight of steps at the San Francisco Bay Area Rapid Transit District (BART) Millbrae station by defendant Anthony White. This appeal primarily concerns whether the heightened duty of care attributed to common carriers applies to BART under the unique facts of the case. The accident occurred within the confined area of the station under BARTs exclusive control and accessible only to paying patrons. Notwithstanding these unique circumstances, we conclude that the carrier/passenger relationship had not yet come into play at the time of the accident. However, we also conclude that the court erred in (1) excluding certain evidence and (2) foreclosing McKinleys negligence cause of action under general negligence principles. Accordingly, we reverse the judgment.
I. FACTUAL BACKGROUND
Around 7:30 a.m. on the morning of November 3, 2003, BART train operator Kelly Kennedy pulled into the Millbrae station on instructions to take the train out of service. She "swe[pt]" the train to make sure all passengers departed the train prior to taking it out of service. Anthony White was asleep in one of the cars. He was the only person in the car. When Kennedy approached him he "smelled like alcohol." The whole car smelled "of alcohol"; there was an empty, oversized beer can in the car.
According to the BART police report, Kennedy told the reporting officer that she believed White was intoxicated. In her deposition, she testified she did not recall saying he was intoxicated, but rather that he smelled of alcohol. See part II.A.1., post, for discussion of admissibility of Kennedys statement as recorded in the police report.
It took Kennedy about a minute (police report) or 30 seconds (declaration) to awaken White. She instructed him to leave the car. Whites movement was slow as he stood up, and he did not appear to have perfect balance, like someone who just woke up. He did not speak to her.
That morning station agent Brian Cutillo saw White coming up to the concourse level. It appeared that he was heading toward an emergency gate. Cutillo confronted White and asked if he could help. White asked for the San Francisco train and Cutillo pointed him in the right direction. Cutillo had seen White various times before at a BART station and wanted to make sure that he had a ticket if he was leaving the system. Cutillo had seen White sitting by a flower stand, sometimes panhandling. White did not appear intoxicated to him.
BART Police Officer Lorente responded to an accident report at the Millbrae BART station. Appellant Linda McKinley was bleeding profusely from her mouth. Appellant told Officer Lorente that as she was walking down the stairs, White fell on her back, causing her to tumble down the stairs, face-first. McKinley suffered a broken jaw, severe facial lacerations and lost several teeth.
The trial court sustained BARTs relevancy objection to evidence of appellants injuries. The fact and extent of injury goes to the issue of damages, a necessary element of appellants tort claims. It was error to preclude this evidence.
Officer Lorente testified that initially White was completely unresponsive. When Lorente got close to White, he could "smell a strong scent of alcoholic beverage on his body" but not on his breath. He presented as a transient. He had the "body odor" of "not taking proper hygienic care of himself"—of probably not showering within a month.
The trial court also excluded, as irrelevant, Lorentes references to Whites physical state. Again, this was error. Lorentes observations went to the issue of Whites physical condition, a matter pertinent to BARTs liability for the purported negligence of its employees.
White was taken by ambulance to San Francisco General Hospital (SFGH). The discharge summary reflected that White informed his physicians that he had used crack cocaine at 10:00 p.m. the night before and that he uses crack daily. Further, he usually "becomes very somnolent when coming off of crack and on dissipation fell asleep and tumbled down the stairs at a BART station." Under the topic "HOSPITAL COURSE" and the heading "Somnolence," the record notes that "[t]his was felt to be most likely related to the patients withdrawal from crack, based on a chart review that noted that the patient frequently presents with this." White left the hospital "AWOL."
Appellant sued BART for negligence and premises liability. The trial court granted BARTs motion for summary judgment, and in the process sustained numerous evidentiary objections. This appeal followed.
The appeal is from the order granting BARTs motion for summary judgment. There is no judgment entered on the order. We hereby direct amendment of the order to make it an effective judgment, and deem such amended order to be an appealable judgment. (Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1, 6.)
II. DISCUSSION
A. Evidentiary Rulings
1. Statement of BART Train Operator as Recorded in Police Report
The trial court sustained objection to a statement of train operator Kennedy as recorded in the BART supplemental police report prepared in connection with the incident. Officer Barrera, who assisted Officer Lorente, stated in the report that Kennedy told him she believed that White was intoxicated. In her deposition, taken more than a year later, Kennedy declared she did not form an opinion as to whether White was intoxicated. The trial court excluded the police report statement as double hearsay.
The two layers of hearsay are: (1) Kennedys statement; and (2) the police report. Kennedys statement is admissible as a prior inconsistent statement because it contradicts her deposition testimony that she did not have an opinion about whether White was intoxicated. (Evid. Code, § 1235.) The report itself is an official record, prepared by Officer Barrera on November 3, 2003. Evidence of an official record, such as a police report, is admissible under Evidence Code section 1280 if "(a) the writing was made by and within the scope of duty of a public employee; (b) the writing was made at or near the time of the event, and; (c) the sources of information and the method and time of its preparation were such as to indicate its trustworthiness." (McNary v. Department of Motor Vehicles (1996) 45 Cal.App.4th 688, 695.)
Unless otherwise noted, all statutory references are to the Evidence Code.
BART submitted the police report in its entirety as evidence, included within excerpts of appellants responses to a request for production of documents. As well, BART relied on the report to support three of its factual contentions. By these actions BART authenticated the police report. Authentication of a writing is either "(a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law." (§ 1400.) A writing may be authenticated by evidence that the party against whom it is offered has admitted its authenticity; or such party has acted upon the writing as authentic. (§ 1414.)
BART asserts that any waiver of authentication was not a waiver of its double hearsay objection. BART cannot have it both ways. The authentication essentially establishes that the writing was in fact a legitimate police report, made within the scope of duty of the police officer, and that the sources of information and method and time of preparation indicate trustworthiness. The report was made within hours of Officer Barreras contact with train operator Kennedy. The source of information was a BART employee who had contact with defendant White just prior to the accident. All of the requirements of section 1280 had been met. The trial court erred in excluding this evidence.
2. Prior Contacts
During the course of discovery, appellant deposed BART Police Commander Maria White. Opposing BARTs motion for summary judgment, appellant submitted portions of the deposition transcript, including exhibit 2 which contained records of 88 prior, documented BART police contacts with Anthony White. Among other things, in the six months immediately preceding the current accident, White was (1) reported injured after falling down several stairs in a BART station; (2) found passed out in a BART train and in possession of a crack pipe; (3) contacted by BART police for bothering patrons; (4) cited for panhandling; (5) found in possession of a smashed crack pipe but no crack on his person; (6) found passed out at a BART station; (7) ejected upon being approached for a violation of Penal Code section 647, subdivision (j) (lodging at BART station) (twice); (8) reprimanded and released for same; (9) reprimanded and released after being approached for a violation of Penal Code section 640, subdivision (b)(6) ("[w]illfully disturbing others on or in any system facility . . . by engaging in boisterous or unruly behavior"); (10) ejected for same; (11) reprimanded and released for fare evasion; and (12) cited for fare evasion (twice).
At the hearing appellants attorney indicated that he erroneously attached the wrong pages of the deposition transcript, omitting the pages which would have laid the foundation for the prior contact records. Acknowledging that the ruling was a "biggy," the court refused to continue the proceeding to permit appellant to correct the mistakes and rejected the prior contacts exhibit for lack of foundation and authenticity.
We recognize that the trial court could have relied on its inherent powers to allow appellant the opportunity to lay the proper foundation. However, it was not error to rule as the court did.
3. Cutillos Deposition Testimony
The court excluded as irrelevant Cutillos deposition testimony that he approached White when he seemed to be heading for an emergency gate, and asked if he could help him. White asked for the location of the San Francisco train and Cutillo pointed him in the right direction. Appellant mischaracterized this testimony, indicating "WHITE was prevented from exiting the Station" by Cutillo. However, his actual testimony was relevant to establish the interaction of BART employees with White around the time of the accident. The trial court could draw its own conclusions from what appellant argued from that testimony, but should not have sustained a relevancy objection. Cutillo had seen White at BART stations on other occasions, sitting by a flower stand and panhandling. Cutillo approached White because he wanted to make sure White had a BART ticket. The inference was that Cutillo had a concern about Whites legitimate presence in the BART station.
4. Whites Medical Records
The trial court sustained BARTs objection to the introduction of Whites medical records on grounds of relevancy, hearsay, lacking foundation and calling for expert testimony. BART also claimed appellant failed to include the medical report as an exhibit. Appellant cited the medical records for Whites recorded statement that he used crack on a daily basis, the most recent instance being the night before the accident, and that he fell down the stairs as a result of falling asleep when coming off crack.
First, the SFGH medical records were included as an exhibit.
Second, the records were accompanied by an affidavit of the authorized custodian of records declaring the following under penalty of perjury: "THE ATTACHED ARE THE RECORDS OF SAN FRANCISCO GENERAL HOSPITAL AND THAT THESE RECORDS ARE KEPT IN THE REGULAR COURSE OF BUSINESS AND SUCH BUSINESS IS A TYPE OF BUSINESS IN WHICH IT IS CUSTOMARY TO KEEP SUCH RECORDS; THE RECORDS WERE PREPARED BY PERSONNEL OF THE BUSINESS WITH ACTUAL KNOWLEDGE OF THE MATTERS STATED IN THE RECORDS[;] AND THAT THE ENTRIES CONTAINED IN THE ATTACHED RECORDS WERE MADE AT OR NEAR THE TIME OF THE ACTS, CONDITIONS OR EVENTS DESCRIBED." This affidavit complies with section 1561, which details the requirements for the affidavit accompanying transmittal of business records described in the relevant subpoena. Pursuant to section 1562, the affidavit is admissible "as evidence of the matters stated therein pursuant to Section 1561 and the matters so stated are presumed true." If the original records would be admissible had the custodian been present and testified to the matters in the affidavit, and if the requirements of section 1271 have been met, then the copy of the records accompanying the affidavit is admissible. (§ 1562.) The discharge summary specifies that White was discharged on November 6, 2003, and the summary was dictated the next day. The accompanying chart of ongoing interventions and comments records Whites admission to daily crack use. The records are admissible under section 1271 subject to valid hearsay objections to the statements of others recorded therein.
Section 1271, the business records exception to the hearsay rule, provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
Third, the statements of White reflected in the records are admissible as evidence of Whites then existing physical state or condition. (§ 1250.) Explaining his current condition and symptoms to the doctors, White informed them that he is a habitual drug user, just used crack at 10:00 p.m. the night before, usually becomes very drowsy when coming off crack and this time fell asleep and tumbled down the BART stairs.
Subject to section 1252 (circumstances indicating lack of trustworthiness), section 1250 permits admission of a declarants statement about his or her then existing pain or other bodily condition, to prove the existence of such condition or to prove or explain the declarants acts or conduct.
Fourth, the SFGH records were relevant to the issue of Whites physical state—i.e., whether he was under the influence of drugs and/or alcohol at the time he was awakened on the BART train and then fell on appellant.
B. The Heightened Common Carrier Duty Does Not Apply in This Case
Appellants theory of general negligence largely depended on application of the heightened common carrier standard of care. Civil Code section 2100 establishes the standard: "A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill." The trial court declined to impose common carrier liability; so do we.
The special relationship of common carrier and passenger was not triggered in this case. The elevated standard of care stemming from this relationship "is owed only while `passengers are in transitu, and until they have safely departed the carriers vehicle. [Citation.] As explained in Falls v. San Francisco etc. R.R. Co. (1893) 97 Cal. 114, 119 [], ` "[t]he passenger while in actual progress upon his journey is exposed to countless hazards, gives himself wholly in charge of the carrier. . . . But a rule properly ceases with the reason for it; therefore, as a passengers entrance to the carriers station is characterized by none of the hazards incident to the journey itself, the rigor of the rule above announced is justly relaxed, in that at such a time and place the carrier is bound to exercise only a reasonable degree of care for the protection of his passengers." [Citation.] "The rule in such cases is, that the carrier is bound simply to exercise ordinary care, in view of the dangers to be apprehended." [Citation.] [Citation.] The carriers affirmative duty of assistance applies only where the special relationship exists between the parties and the risk of harm arises in the course of that relation. (Rest. 2d Torts, § 314A, com. c, p. 119.)" (McGettigan v. Bay Area Rapid Transit Dist. (1997) 57 Cal.App.4th 1011, 1017-1018 (McGettigan).)
In McGettigan, plaintiff alleged he was ordered off the BART train and left standing on the platform. He was inebriated and unable to care for himself; defendant BART was aware of his condition. Plaintiff was found lying on the platform, with his legs sticking onto the trackway. He sustained serious injuries in a manner unknown to him. (McGettigan, supra, 57 Cal.App.4th at pp. 1014-1015.)
Rejecting the existence of a duty to assist based on the special relationship between common carrier and passenger, this court held that once plaintiff "had safely exited the train, the relationship of carrier and passenger terminated. He was in a place of relative safety." (McGettigan, supra, 57 Cal.App.4th at p. 1018.) We also explained that plaintiff was not within a " `sphere of activity " of BART, the carrier, which reasonably might constitute an active or mobile hazard to him. (Ibid.) Plaintiff was neither boarding nor alighting a train. There were no mobile hazards on the train platform where plaintiff was discharged. In short, the platform was not a dangerous place, he had safely exited the train and thus BART was not responsible for his injuries. (Id. at pp. 1020-1021.)
McGettigan is on point. Appellant was injured on the stairs leading to the platform, a safe distance from any mobile risk within the sphere of BARTs common carrier conveyances. Appellant would have us apply the elevated standard of care because she had purchased a ticket, entered the station and was on the way to the train. Sanchez v. Pacific Auto Stages (1931) 116 Cal.App. 392 does not assist appellant. There, a bus company agent who had sold plaintiff a ticket was leading or assisting plaintiff across the highway to the bus stop when she was struck by a car. Because the carrier had assumed the responsibility of conducting its passenger to the point of departure, the relationship of passenger and carrier was in force during that time. (Id. at p. 396.) Similarly, in Grier v. Ferrant (1944) 62 Cal.App.2d 306, the taxicab station employee undertook to escort plaintiff to the taxicab. The cab was parked remotely from the station instead of in the space directly in front of the station reserved for use by the company in loading and discharging passengers. Plaintiff had a disability, known to the carrier, which limited his walking. As plaintiff and the carriers agent walked on the downgrade of a wet and slippery sidewalk in order to reach the cab, plaintiff slipped and injured himself. The common carrier relationship was established under the alleged facts that plaintiff offered himself as a passenger, the carrier accepted plaintiff as a passenger and undertook to escort him to the point of departure. (Id. at p. 311.) There are no facts here showing that any BART agent was directing, conducting, or leading appellant to the BART train. No BART employee had exercised any control over appellants movements, and she had not arrived at the platform, let alone entered a train.
Appellant also suggests that the common carrier doctrine should apply because she was injured in an area that was not accessible to nonpassengers. We take judicial notice that BART stations are separated into two sections: (1) the area where one enters after inserting a ticket with sufficient funds into the ticket machine which controls the automated gate, and (2) the outlying concourse area where one can purchase tickets, check schedules, etc. Once inside the "paying" area, a patron has unlimited access to the BART transportation system.
Appellants point is that the accident occurred in the area only accessible to paying patrons, an area under BARTs exclusive control. From this she asserts that the carrier/passenger relationship commenced when her ticket was "accepted" at the BART entrance gate. This argument ignores the fact that the physical separation between paying and free areas does not denote the point of departure, nor does BART take any affirmative action to accept the patron as a passenger after the automatic gate has allowed entry. The point of departure is at the platform, not at the entrance/exit gates. Again, the special relationship comes into being "when a person who intends in good faith to become a passenger goes to a depot, waiting room or other place designated as the site of departure, and by some action taken by the carrier, the latter indicates acceptance of the passenger as a traveler . . . ." (Grier v. Ferrant, supra, 62 Cal.App.2d at p. 311.) Within the BART system, the typical set of actions taken by the carrier to indicate acceptance of a traveler are those of stopping the train at the platform, opening the train doors to accept passengers and facilitate exiting passengers, and then closing the doors. Unless a patron has engaged the assistance of a station agent or other employee to assist in access to the BART conveyance—a scenario that did not occur with respect to appellant—there is no other interaction which starts the carrier/passenger relationships prior to setting foot at the point of departure or debarking.
C. Nonetheless, Appellants Negligence Claim Should Proceed
Appellant also presses us to overturn summary judgment on her premises liability cause of action. Appellants theory is that she was an invitee of BART, BART owned and controlled the premises, and under common law principles, BART had a duty to take minimally burdensome steps to ensure that White exited the station without harming other patrons. We reject this theory because "direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles." (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) Government Code section 835, enumerating the circumstances in which a public entity may be liable for injuries caused by a dangerous condition of public property, is the defining statute for purposes of setting forth the liability of public entities as property owners. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1132.) Appellant has not argued or developed this case within the limitations of Government Code section 835.
The trial court also rejected appellants negligence cause of action on grounds that the accident causing her injuries was not foreseeable to BART and BART did not create a situation of peril triggering any affirmative duty. Appellant urges that even in the absence of common carrier liability, her negligence claim should proceed under some "heightened" duty owed to her as a paying patron within the part of the station under BARTs exclusive control. We conclude that general negligence principles will suffice.
BART is a public entity in the business of providing rapid rail transportation services. A public entity such as BART is vicariously liable for injuries proximately caused by the negligent acts or omissions of an employee within the scope of his or her employment, unless the employee is immune from liability for such injuries. (Gov. Code, §§ 815.2, 820, subd. (a) [public employees are liable for injuries caused by their acts or omissions to same extent as private persons]; Eastburn v. Regional Fire Protection Authority, supra, 31 Cal.4th at p. 1180.)
As recently explained in Zelig v. County of Los Angeles, supra, 27 Cal.4th at page 1128, general negligence principles ordain that " `a person ordinarily is obligated to exercise due care in his or her own actions so as . . . not to create an unreasonable risk of injury to others . . . . [Citations.] It is well established . . . that ones general duty to exercise due care includes the duty not to place another person in a situation in which the other person is exposed to an unreasonable risk of harm through the reasonably foreseeable conduct . . . of a third person. [Citations.] " Further, where a person creates the peril confronted by the plaintiff or increases or changes the risk which otherwise existed, this breach of ordinary care in turn may give rise to an affirmative duty to act. (Williams v. State of California (1983) 34 Cal.3d 18, 23-24, 27-28; McGettigan, supra, 57 Cal.App.4th at pp. 1021-1022.)
Here, train operator Kennedy was acting within the scope of her employment when she off-boarded White from her out-of-service train. She had found White alone in a car that reeked of an alcoholic beverage. There was a large empty can of beer in the car. White was asleep and it took Kennedy 30 seconds to a minute to awaken him. He was drowsy upon waking up and moved slowly, without perfect balance. Kennedy ordered White to leave the car but did not contact BART police or take any other action with respect to him at the time. The evidence is conflicting as to whether Kennedy thought White was intoxicated.
According to Commander Maria White of the BART Police Department, the department "is required to follow the mandates set forth in the California Penal Code in pursuing their course of action. With respect to policing `intoxicated persons, BART police follow Penal Code section 647 (f) entitled `Disorderly Conduct. . . . [¶] . . . BARTs employees, including station agents and train operators[,] are instructed to notify BARTs Police Department of criminal activity."
Under Penal Code section 647, subdivision (f), a person is guilty of a misdemeanor when such person is found in a public place under the influence of intoxicating liquor, any drug or controlled substance or combination thereof, "in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under [such] influence . . . , interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way." When someone has violated the above provision, a peace officer, if reasonably able to do so, "shall place the person, or cause him or her to be placed, in civil protective custody." (Id., subd. (g).)
From our review of all the papers submitted, we conclude there is a triable issue of fact as to whether Kennedy had knowledge—or reasonably should have had knowledge—that White was under the influence of an intoxicating liquor and/or drugs, and whether his condition was such that he was unable to care for his safety or the safety of others. With such actual or constructive knowledge, BARTs own operating procedures would oblige the train operator to notify BART police. BART police, if reasonably able to do so, would remove such person from the premises, in accordance with the protocol adopted by BART and the provisions of the Penal Code.
Instead, the papers submitted raise a question of fact whether Kennedy failed to exercise ordinary care by negligently off-boarding White thereby creating a situation of peril that increased the risk of harm to BART patrons with whom he would mingle within the restricted paying area of the station. As a matter of law, when a person removed from a BART train by a train operator presents as coming within the scope of Penal Code section 647, subdivision (g), it is reasonably foreseeable that, if left on his or her own to maneuver up and down the stairs within the confines of the paying area of the station, such person would pose a risk of harming patrons in the hustle of negotiating stairs to or from the platform area. The trial court erred in foreclosing appellants negligence cause of action under these facts.
III. DISPOSITION
We reverse the summary judgment in favor of BART on appellants negligence cause of action and remand for further proceedings in accordance with this opinion.
We concur:
Ruvolo, P.J.
Sepulveda, J.