Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG05200168
Sepulveda, J.
A longshoreman died in a fall from a dockside gangway while assisting in the unloading of a ship. Responsibility for the accident was disputed. The longshoreman’s family members and estate sued several defendants (the gangway’s owner, engineer, designer, and builder) upon allegations that the gangway was defective and negligently maintained. Defendants settled the litigation, and the gangway’s owner pursued a cross-complaint for contractual indemnity against the longshoreman’s employer. The corporate employer had contracted with the owner to unload vessels and, in its contract, had agreed to indemnify the owner for damages, injury, or death resulting from the employer’s negligence in unloading ships. The owner alleged that the employer’s negligence caused or contributed to the fatal accident, and sought to recover its settlement costs.
The jury found in favor of the owner. The jury found that both the owner and employer were negligent, but only the employer’s negligence was a substantial factor in causing the accident. The jury awarded the owner $4,687,500, which is 75 percent of the settlement sum the owner paid to the longshoreman’s heirs, plus attorney fees and costs.
The employer appeals upon contentions that (1) the court erred in instructing the jury that the employer was responsible for harm caused by its employees, which included the deceased longshoreman; (2) the jury’s verdict is inconsistent in finding the owner without liability, yet awarding less than the owner’s total damages; and (3) the evidence does not support the jury’s finding that the owner was not responsible for the accident. We reject the contentions and affirm the judgment.
Appellant’s motion to augment the record with trial exhibits and a deposition transcript is granted. Our statement of the facts reflects the applicable standard of review following a jury trial. We “ ‘consider the evidence in the light most favorable to the prevailing party, giving [it] the benefit of every reasonable inference, and resolving conflicts in support of the judgment.’ ” (Whitely v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 642, fn. 3, italics omitted.)
Respondent RMC Pacific Materials, Inc. (RMC) imports and sells cement. RMC operates a cement terminal at the Redwood City seaport where ships arrive with powder cement that is unloaded, stored in silos, and then transported to jobsites for use in making concrete. RMC contracted with appellant Metropolitan Stevedore Company, Inc. (Metropolitan) to provide longshoreman laborers who unload the ships. Metropolitan employed Robert Padgett, the longshoreman who died in a fall from RMC’s dockside gangway.
In 2002, RMC contracted with Metropolitan for longshoreman labor to discharge bulk cement cargoes at the Port of Redwood City. Metropolitan is “an independent stevedore contractor” that undertook responsibility “for the manner and methods used in performing the cargo handling operations.” Metropolitan agreed to indemnify RMC for claims arising from Metropolitan’s negligence or misconduct: “Except as prevented by law, [RMC] Company and [Metropolitan] Contractor shall each indemnify, defend and hold the other harmless from claims and causes of action of every type and character arising out of the performance of this Agreement which are asserted against the indemnitee by any person for personal injury, death or loss of or damage to property to the extent resulting from the active or passive negligence or willful misconduct of the indemnitor. Where personal injury, death or loss of or damage to property is the result of joint negligence or willful misconduct of Company and Contractor, each indemnitor’s duty of indemnification shall be in proportion to its allocable share of such joint negligence or willful misconduct.”
The fatal accident underlying the indemnification action occurred in January 2005, during the unloading of the Ivory Star, a cargo ship. The Ivory Star arrived in port on January 24, 2005, carrying about 40,000 tons of powder cement in five cargo holds. The ship was anchored at a dock leased and controlled by RMC. RMC had equipped the dock with a Siwertell ship unloader and gangway.
A Siwertell ship unloader is a type of crane that uses screw conveyor technology: a large screw is lowered into the hold of a dry bulk carrier where it loosens and lifts the powder cement and blows it along a conveyer system to a stock house. The gangway is used by the gang (the crew or longshoreman) to walk between the dock and the ship’s deck. RMC’s gangway consists of three parts: a stair tower, a platform or plank section, and a ladder. The gang walks up the stairs of the dockside tower, across the horizontal plank section extending from the dock to the ship, and down the ladder resting on the deck of the ship. The gangway is deployed mechanically: one presses a button on the stairway tower to lower the plank and ladder.
In the early morning hours of January 25, 2005, RMC had a problem with its gangway. RMC needed to lift the gangway so the ship could move along the dock to be repositioned for access to another cargo hatch. The gangway was raised, and the ship moved. A RMC employee then lowered the gangway to the repositioned ship and discovered that the foot of the gangway ladder was not resting properly on the deck of the ship. The gangway plank and ladder sections meet at a hinge or pivot point, where the ladder can be adjusted to different angles to reach a ship’s deck. There is a thick metal axle connecting the two sections that allows it to pivot up and down. The ladder’s position is locked in place with the use of metal rods, or pins, between the plank and ladder sections. There are three holes along the side of the ladder where it meets the plank section of the gangway. A pin is passed through a hole in the flange of the plank section through one of the holes in the ladder. The design allows the angle of the ladder section to be adjusted to the height of the ship’s deck. The pins sometimes bend from a ship’s movement and RMC replaces them.
On January 25, 2005, RMC found a bent pin in the gangway that prevented it from being adjusted to rest on the ship’s deck. The pin was badly bent and could not be removed by hand. RMC employees used an acetylene torch on the pin but the torch ran out of acetylene before they could cut the pin. It is not clear if further efforts were made to use the gangway but, ultimately, RMC’s dockside gangway was retracted and stowed in its upright position, and the Ivory Star ship’s gangway was used for walking between the dock and ship.
The accident occurred on January 26, 2005. On that day, Metropolitan’s longshoreman team consisted of three men: a superintendent, Barry Bosserman; a walking boss (foreman), Robert Padgett; and a crane operator, David Tinga. The longshoremen walked across the Ivory Star gangway and met on the ship’s deck at the start of the day. Crane operator Tinga said that he could begin discharging the cement with the Siwertell crane but might need more slack on the electrical cord for the crane control box sometime during the day, as he moved about the ship. The crane is operated by a control box with joysticks that is carried on a sling by the crane operator as he walks along the ship’s deck. An electrical cord runs from the mobile control box to an electrical source on the ladder portion of the dockside gangway. There are brackets near the electrical source where unused cord is coiled. After Tinga told his superiors that he might need additional cord, he began lowering the crane into the ship’s hold. Bosserman and Padgett left the ship.
At trial, Bosserman said he believed Padgett was going to lower RMC’s dockside gangway to access the coiled cord. Bosserman testified that he did not give Padgett instruction on how to get more cord, as none was necessary given Padgett’s experience. However, a longshoreman union investigator testified that Bosserman told the investigator, immediately after the accident, that Bosserman instructed Padgett to get more cord. According to the investigator, Bosserman told Padgett to climb the stowed gangway to access the cord.
Whether instructed or not, Padgett did climb the stowed dockside gangway. When stowed, the gangway is raised about 30 feet in the air and the platform section is at a steep 42 degree angle. Padgett was not wearing fall protection equipment, as safety standards require when working at high heights.
In a reconstruction of the accident, it was shown that Padgett tried to access the crane cord by walking up the stair tower, scaling the steep vertically inclined platform that is a flat metal grate without footholds, and backing out onto the almost horizontal suspended ladder section. When Padgett was on the ladder section, the gangway pins locking the ladder section in place failed and the ladder pivoted to the vertical. Padgett lost his grip and fell to his death.
At trial, numerous witnesses testified that Padgett’s action in climbing a stowed gangway was unprecedented, dangerous, and risky. Bosserman, Metropolitan’s superintendent, testified that he has never seen anyone attempt to climb an elevated gangway, and to do so is “unsafe” and “extremely risky and totally unnecessary.” Bosserman said “the way that we would normally get more cord is you lower the gangway down to the deck of the ship and you simply pull it off the bracket that’s on the ladder portion of that gangway.” The gangway takes less than two minutes to lower.
TRIAL COURT PROCEEDINGS
Padgett was survived by his wife and three daughters. In February 2005, his estate, his wife and a young daughter sued RMC and others upon allegations that the dockside gangway was defective and negligently maintained. Padgett’s two adult daughters intervened in the suit. Metropolitan also intervened, seeking reimbursement of workers’ compensation death benefits paid to Padgett’s survivors. RMC cross-complained against Metropolitan for contractual indemnity.
Several defendants settled with Padgett’s heirs, leaving RMC as the lone defendant in the wrongful death action. Just days before the June 2007 trial, RMC settled with Padgett’s heirs. RMC paid $6 million to Padgett’s wife and young daughter, and $250,000 to Padgett’s two adult daughters. The only claims remaining for trial were RMC’s claim against Metropolitan for express indemnity of settlement payments and defense costs, and Metropolitan’s claim against RMC for reimbursement of workers’ compensation payments. RMC and Metropolitan each denied liability, and contended that the other was negligent.
The jury found in favor of RMC. On RMC’s claim against Metropolitan, the jury found that Metropolitan was negligent and that its negligence was a substantial factor in causing Padgett’s fatal accident. The jury awarded damages to RMC in the amount of $4,687,500, plus attorney fees and costs to be determined by the court. On Metropolitan’s claim against RMC, the jury found that RMC was negligent but that its negligence was not a substantial factor in causing the accident. The court entered judgment on the verdict on June 21, 2007. The court denied Metropolitan’s motions for new trial or judgment notwithstanding the verdict, and awarded RMC $932,788 in attorney fees and costs. This appeal followed.
Discussion
As noted above, Metropolitan appeals upon contentions that (1) the court erred in instructing the jury that Metropolitan was responsible for harm caused by its employees, which included the deceased longshoreman, Padgett; (2) the jury’s verdict is inconsistent in finding RMC without liability, yet awarding less than RMC’s total damages; and (3) the evidence does not support the jury’s finding that RMC was not responsible for the accident. We discuss these claims in turn. The first two claims require an understanding of indemnity, so we begin with an overview of that area of the law.
A. General principles of indemnity
“In general, indemnity refers to ‘the obligation resting on one party to make good a loss or damage another party has incurred.’ ” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157 (Prince).) There are “two basic types of indemnity: express indemnity and equitable indemnity.” (Ibid.) Traditional equitable indemnity requires no contractual relationship between an indemnitor (the one obligated to pay) and an indemnitee (the one entitled to payment), and arises from the equities of particular circumstances. (Id. at p. 1157, fn. 2; Maryland Casualty Co. v. Bailey & Sons, Inc. (1995) 35 Cal.App.4th 856, 864.) “Such indemnity ‘is premised on a joint legal obligation to another for damages,’ ” (Prince, supra, at p. 1158) and “focuses on principles of fairness and justice” (Maryland Casualty Co., supra, at p. 864). Equitable indemnity was first conceived as “ ‘ “a right which enures to a person who, without active fault on his part, has been compelled by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable.” ’ ” (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 108.) “Although traditional equitable indemnity once operated to shift the entire loss upon the one bound to indemnify, the doctrine is now subject to allocation of fault principles and comparative equitable apportionment of loss” according to the parties’ relative culpability. (Prince, supra, at p. 1158.)
Historically, implied contractual indemnity has also been referred to as a type of indemnity. (Prince, supra, at p. 1157.) But, as the California Supreme Court has explained, “implied contractual indemnity is but a form of equitable indemnity.” (Ibid, fn. 2.)
Equitable indemnity is distinct from express indemnity. “Express indemnity refers to an obligation that arises ‘ “by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specific circumstances.” ’ [Citation.] Express indemnity generally is not subject to equitable considerations or a joint legal obligation to the injured party; rather, it is enforced in accordance with the terms of the contracting parties’ agreement.” (Prince, supra, 45 Cal.4th at p. 1158.) Where “the parties have expressly contracted with respect to the duty to indemnify, the extent of that duty must be determined from the contract and not by reliance on the independent doctrine of equitable indemnity.” (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628.) “[E]xpress indemnity allows contracting parties ‘great freedom to allocate [indemnification] responsibilities as they see fit,’ and to agree to ‘protections beyond those afforded by the doctrines of implied or equitable indemnity.’ ” (Prince, supra, at p. 1158.) “[T]he question whether an indemnity agreement covers a given case turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control. When the parties knowingly bargain for the protection at issue, the protection should be afforded. This requires an inquiry into the circumstances of the damage or injury and the language of the contract; of necessity, each case will turn on its own facts.” (Rossmoor Sanitation, Inc., supra, at p. 633.)
B. Metropolitan’s negligence entitled RMC to indemnity
Metropolitan agreed to provide longshoremen to discharge RMC bulk cement cargoes. The contract between the parties is clear and unambiguous. Each agreed to “defend and hold the other harmless from claims and causes of action of every type and character arising out of the performance of this Agreement which are asserted against the indemnitee by any person for personal injury, death or loss of or damage to property to the extent resulting from the active or passive negligence or willful misconduct of the indemnitor. Where personal injury, death or loss of or damage to property is the result of joint negligence or willful misconduct of Company and Contractor, each indemnitor’s duty of indemnification shall be in proportion to its allocable share of such joint negligence or willful misconduct.”
RMC is plainly entitled to indemnity for a wrongful death claim resulting from the negligence of Metropolitan in the performance of its stevedoring services. The negligence of Metropolitan can only mean the negligence of its employees, as a corporation necessarily acts through its employees. (O’Shea v. Pacific Gas & Elec. Co. (1936) 18 Cal.App.2d 32, 40.) The jury was thus properly instructed that “[a] corporation is responsible for harm caused by the wrongful conduct of its employees while acting within the scope of their employment.” (CACI No. 3700.)
Metropolitan argues that this instruction on the basic principle of respondeat superior was erroneously given in this case because any negligence of Padgett, who suffered the fatal accident, should have been excluded from Metropolitan’s responsibility. Metropolitan reasons that RMC had a comparative fault defense against Padgett’s heirs in the underlying wrongful death action, and thus RMC’s settlement with the heirs “necessarily did not include compensation for Padgett’s negligence, as RMC would not have paid Padgett’s heirs for the negligence of their decedent.” Thus, damages resulting from Padgett’s negligence were not a loss or damage RMC incurred “and are incapable of supporting RMC’s indemnity claim against Metropolitan.”
Metropolitan’s argument is misguided in trying to inject principles of comparative fault into the law of express indemnity. The doctrine of equitable indemnity is subject to allocation of fault principles but express indemnity is not subject to equitable considerations; “rather, it is enforced in accordance with the terms of the contracting parties’ agreement.” (Prince, supra, 45 Cal.4th at p. 1158.) Where express indemnity applies, as here, the indemnifying contractor’s legal obligation “is predicated upon express contractual indemnity and not upon the application of the comparative fault doctrine which springs from common law tort principles.” (C.I. Engineers & Constructors, Inc. v. Johnson & Turner Painting Co. (1983) 140 Cal.App.3d 1011, 1017.)
Under the law of express indemnity, when an indemnitee settles without trial, “the indemnitee must show the liability is covered by the contract, that liability existed, and the extent thereof. The settlement is presumptive evidence of liability of the indemnitee and of the amount of the liability, but it may be overcome by proof from the indemnitor that the settlement was unreasonable (e.g., unreasonable in amount, entered collusively or in bad faith, or entered by an indemnitee not reasonable in the belief that he or she had an interest to protect).” (Peter Culley & Associates v. Superior Court (1992) 10 Cal.App.4th 1484, 1497.)
The liability was clearly covered by the contract between RMC and Metropolitan. Metropolitan agreed to indemnify RMC from claims asserted against RMC “by any person for personal injury [or] death” resulting from Metropolitan’s negligence. The contract did not exclude Metropolitan’s injured employees from the class of persons asserting claims. It is not uncommon for an indemnity contract to cover claims brought by the indemnitor’s injured employees. (E.g., Gonzales v. R.J. Novick Constr. Co. (1978) 20 Cal.3d 798, 807-809; Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791, 1798-1799.) A contractual provision indemnifying a premises owner from “ ‘all claims for damages to persons’ ” is “ ‘broad enough to cover such persons as may be employed by the indemnitor in view of the plain meaning of the language.’ ” (Gonzales, supra, at p. 809.) The contractual provision at issue here, indemnifying RMC from “claims and causes of action of every type and character” asserted against RMC “by any person for personal injury, death or loss of or damage to property” resulting from Metropolitan’s negligence is likewise broad enough to cover persons employed by Metropolitan.
RMC paid $6,250,000 to settle the wrongful death claim made by the heirs of Metropolitan’s employee, Padgett. This settlement was presumptive evidence of RMC’s liability and the amount of the liability in RMC’s indemnity action against Metropolitan. (Peter Culley & Associates v. Superior Court, supra, 10 Cal.App.4th at p. 1497.) Metropolitan was free to show that the settlement amount was too high given evidence of Padgett’s negligence, and that RMC’s compensable liability under the indemnity contract was therefore less than the settlement amount. (Ibid.; Gouvis Engineering v. Superior Court (1995) 37 Cal.App.4th 642, 647-648.) Indeed, the jury awarded less than the full settlement amount, which may reflect its determination that RMC overpaid Padgett’s heirs.
While Padgett’s alleged negligence may be used as evidence that RMC paid too much in settlement, and thus reduce the amount of indemnity owed by Metropolitan, there is no basis for Metropolitan’s argument on appeal that the jury was wrongly instructed that Metropolitan, as a corporation, “is responsible for harm caused by the wrongful conduct of its employees while acting within the scope of their employment.” Metropolitan was not entitled to an instruction excluding Padgett’s conduct from consideration.
Metropolitan tries to show the resulting judgment here to be unfair by comparing it to what would have occurred had RMC not settled. Metropolitan notes that, had the wrongful death action been tried, the jury would have apportioned fault between Padgett and RMC and reduced any damages awarded to Padgett’s heirs in accordance with Padgett’s proportionate share of fault. (See Hernandez v. Badger Construction Equipment Co., supra, 28 Cal.App.4th at p. 1803.) RMC therefore would not be obligated to pay any damages resulting from Padgett’s negligence, and could not seek indemnity from Metropolitan based on Padgett’s actions. Metropolitan asserts that “[t]he result should be no different simply because RMC settled with Padgett’s heirs. Either way, RMC was not required to compensate the heirs for Padgett’s negligence and cannot recoup any such compensation from Metropolitan.”
The result is no different. Metropolitan is correct in stating that RMC was not required to compensate Padgett’s heirs for his negligence and cannot recoup any such compensation from Metropolitan. Metropolitan is wrong in suggesting that RMC did recoup compensation for Padgett’s negligence from Metropolitan. What RMC recouped was a portion of its settlement payments to Padgett’s heirs. Presumably, RMC’s comparative fault defense against Padgett’s heirs was factored into the amount of the settlement. If it was not, Metropolitan could show that the settlement amount was unreasonably high in light of Padgett’s negligence, and that RMC’s compensable liability under the indemnity contract was therefore less than the settlement amount. (Peter Culley & Associates v. Superior Court, supra, 10 Cal.App.4th at p. 1497; Gouvis Engineering v. Superior Court, supra, 37 Cal.App.4th at pp. 647-648.) As we discuss next, the jury’s verdict suggests that the jury did find that RMC paid too much in settlement, as it awarded RMC only 75 percent of the $6.25 million RMC paid to Padgett’s heirs.
C. The jury’s verdict is not inconsistent
Metropolitan contends that the jury’s verdict is inconsistent, and requires a new trial. Metropolitan notes that the jury assigned 100 percent of the causal blame for the fatal accident to Metropolitan and zero percent to RMC, yet awarded RMC only 75 percent of the amount RMC paid to settle with Padgett’s heirs (i.e., $4,687,500 of the $6,250,000 paid). Metropolitan argues that the verdict’s assignment of blame and award of damages are inconsistent because “[t]he only basis upon which the jury could have awarded RMC 75 percent of its indemnity claim is that it found RMC was 25 percent at fault in causing the accident, yet the jury also found RMC was not a substantial factor in causing Padgett’s death.”
As we have discussed, however, there is another basis upon which the jury could have awarded RMC less than the full amount of RMC’s settlement payments—if the jury thought that RMC overpaid Padgett’s heirs. (Peter Culley & Associates v. Superior Court, supra, 10 Cal.App.4th at p. 1497; Gouvis Engineering v. Superior Court, supra, 37 Cal.App.4th at pp. 647-648.) The valuation put on the settlement by the settling parties is not conclusive in establishing an indemnitee’s damages. (Gouvis Engineering, supra, at p. 650.) At the trial of RMC’s indemnity action against Metropolitan, RMC had the burden of proving that its settlement payments were attributable to Metropolitan’s fault. (Id. at p. 651.) The jury may have found the settlement payment to be unreasonably high (in light of Padgett’s alleged negligence or other evidence) and thus awarded less than the full settlement amount.
“ ‘ “A verdict should be interpreted so as to uphold it and give it the effect intended by the jury....” ’ [Citation.] Where special verdicts appear inconsistent, if any conclusions could be drawn which would explain the apparent conflict, the jury will be deemed to have drawn them.” (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424.) We see no irreconcilable conflict between the jury’s finding that RMC was without blame for Padgett’s fatal accident and the jury’s award of less than RMC’s total settlement payments to Padgett’s heirs. A jury may award less than a party’s total losses, especially in an action for indemnification of settlement payments where the jury weighs the reasonableness of the amount paid in settlement.
D. Substantial evidence supports the jury’s verdict
Metropolitan claims there is insufficient evidence supporting the jury’s determination that RMC’s negligence was not a substantial factor contributing to the accident. A party raising a claim of insufficiency of the evidence “assumes a ‘daunting burden.’ ” (Whitely v. Philip Morris, Inc., supra, 117 Cal.App.4th at p. 678.) We “ ‘are bound by the rule that when “a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.” ’ ” (Ibid., italics in original.)
There was substantial evidence that Metropolitan was to blame for Padgett’s fall from the dockside gangway and that RMC’s negligence in failing to replace a steel pin before stowing its dockside gangway was not a substantial factor in causing the accident. As the jury was instructed: “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.” (CACI No. 430.)
“The word ‘substantial’ is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called ‘philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called ‘philosophic sense,’ yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.” (Rest.2d Torts, § 431, com. a; see Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968-969 [adopting Restatement standard].)
“In order to be a legal cause of another’s harm it is not enough that the harm would not have occurred had the actor not been negligent.” (Rest.2d Torts, § 431, com. a.) “[T]his is necessary, but it is not of itself sufficient. The negligence must also be a substantial factor in bringing about the harm,” meaning that defendant’s conduct had such an effect in producing the harm that he should be held responsible. (Ibid.)
Even assuming that the evidence established that RMC’s negligent maintenance of its gangway was a “but for” cause of Padgett’s accident (but for the damaged pin, the gangway would not have pivoted and Padgett would not have lost his grip and fallen), there was sufficient evidence that RMC’s negligence was not a substantial factor in causing the accident. There was abundant evidence that Padgett’s action in climbing an elevated, stowed gangway to retrieve electrical cord was unprecedented, dangerous, and risky. Metropolitan’s superintendent Bosserman testified that he has never seen anyone attempt to climb an elevated gangway, and to do so is “unsafe” and “extremely risky and totally unnecessary.” Bosserman said “the way that we would normally get more cord is you lower the gangway down to the deck of the ship and you simply pull it off the bracket that’s on the ladder portion of that gangway.” The gangway takes less than two minutes to lower. On these facts, the jury could reasonably conclude that the risk of anyone climbing the stowed gangway was remote and that Padgett’s peculiar use of the gangway (whether self-directed or directed by his superintendent) was unforeseeable.
Metropolitan argues that, regardless of the state of the evidence, the jury was required to find RMC partially to blame for the accident because RMC’s counsel made a binding judicial admission of fault in counsel’s statements to the jury. In the course of a long opening statement, RMC’s counsel told the jury: “My client settled the case because we recognized that we had some responsibility, accountability, but there is reasons to settle cases, as the judge has said.” Counsel made similar remarks in his closing argument, saying “we’ve taken some responsibility, and we have settled the case, acknowledging some possible responsibility.”
Metropolitan correctly notes that an oral statement by counsel “is a binding judicial admission if the statement was an unambiguous concession of a matter then at issue and was not made improvidently or unguardedly.” (Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 752.) This limitation on holding an attorney’s statement to be a binding judicial admission is critical. “[A]n admission is not binding if it is made improvidently or unguardedly, or if it is in any way ambiguous.” (Irwin v. Pacific Southwest Airlines (1982) 133 Cal.App.3d 709, 714.) As in Irwin, we find that counsel’s remarks here lack “the gravity of a complete relinquishment of rights on the issue of liability.” (Ibid.)
RMC’s counsel acknowledged possible responsibility for the accident to contrast its position with the “corporate arrogance” of Metropolitan, which “strident[ly]”refused to accept any responsibility. But RMC never unequivocally conceded liability. In closing statement to the jury, RMC’s counsel acknowledged that the gangway pin was bent but maintained that the company never expected a longshoreman to climb a stowed gangway and that the accident happened because Metropolitan misused the gangway. Counsel argued to the jury: “We chose to settle the case and do the right thing. But we also did so knowing full well that Metropolitan would be held accountable, it would be accountable, even if it meant to come to a jury like you to get it accountable.” “Nobody uses a gangway in its stowed position, and if you are going to do it, you shouldn’t do it, and it’s the responsibility and province of the stevedoring company to make sure that doesn’t happen.”
Counsel’s comments do not indicate an unambiguous concession of partial liability. While acknowledging that RMC did something wrong in failing to replace a bent pin, counsel maintained that Padgett’s use of the stowed gangway was unforeseeable and that, ultimately, Metropolitan should take full responsibility for the settlement payments to Padgett’s heirs. Effectively, counsel suggested that RMC may have been negligent, but any negligence was not a substantial factor in causing the accident. Metropolitan’s trial attorney recognized that this was the nature of RMC’s position. In closing argument to the jury, Metropolitan’s attorney said RMC’s “real argument” is that any negligence on its part was not a substantial factor: “Their real argument is that no matter what, no matter how bad this gangway was, no matter how much of a trap it presented, who could ever figure that somebody would go out on it? All right? That’s—that’s the defense that’s been presented to you.” And it was the defense the jury accepted, as shown in their verdict finding RMC’s conduct negligent but not a substantial factor in causing the accident.
RMC did not admit partial liability in its counsel’s statements to the jury. The statements show no more than an effort to present itself as a responsible corporation that settled a case brought by the family of a Metropolitan employee who died, not as the result of a negligently maintained gangway, but as the result of Metropolitan’s unprecedented and dangerous misuse of the gangway. The jury’s verdict, finding that RMC’s negligence was not a substantial factor in causing the fatal accident, is supported by the evidence.
Disposition
The judgment is affirmed.
We concur: Ruvolo, P.J., Rivera, J.