Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 14434
RAYE, J.Plaintiff Ray Patrick Willig, an experienced snowboarder, alleged that a loose wire sticking up through the early season snow at Mammoth Mountain Ski Area (Mammoth) caused him to fall and sustain devastating personal injuries. The ski patrollers who responded to the accident testified they found plaintiff perched on a rock amidst other rocks several hundred feet above the wire, which was discovered three weeks later after nine inches of snow had melted. Plaintiff’s ski companion testified, however, that he found his friend at a location below the wire. The jury found that, although Mammoth committed willful misconduct, the wire protruding from a gabion (an erosion control device) did not cause plaintiff’s injury.
On appeal, plaintiff complains that the trial court’s summary adjudication of his gross negligence cause of action compelled him to present evidence that the loose wire from the gabion alone caused his injury. Not so. Long before the ruling on summary judgment, plaintiff alleged the wire from the gabion caused him to fall. Despite the ruling precluding a cause of action for negligence, plaintiff was allowed to introduce voluminous evidence of gross negligence—that Mammoth had failed to pre-ski the run, failed to follow many of their policies and procedures, and failed to assure that the run was free of hazards. But in the face of a jury verdict for the defense on causation, plaintiff now blurs his theory of liability with his theory of causation, blaming his failure to prevail on causation on the court’s ruling that he needed to prove willful misconduct, which, in fact, he did.
We conclude the ruling on the theory of liability was separate and distinct from causation, and plaintiff has failed to demonstrate prejudice, that is, how the pretrial ruling limited, circumscribed, or otherwise precluded him from proving what actually caused him to fall. We also reject his claim of prejudicial juror misconduct and affirm the judgment.
PLEADINGS, EVIDENCE, AND FINDINGS
Undisputed
No one saw what, if anything, caused 36-year-old Ray Willig, an advanced snowboarder, to fall on an intermediate ski run on the morning of November 11, 2000. The weather was sunny, and there was a snow base of between 18 and 24 inches covered with fresh powder. Plaintiff had purchased a new snowboard for the season. But while skiing down the St. Anton ski run a second time that morning at about 25 to 30 miles per hour, plaintiff’s snowboard hit something and he somersaulted forward. During the fall, the snowboard’s tail slammed into the snow, the board flexed, plaintiff was thrown into a second somersault, and he landed on his back. As a result, his lower body is paralyzed.
Plaintiff did not see what he hit. Nor did Robert Mayer, his skiing companion that morning, his employer for over 10 years, and his best friend. Mayer had stopped to adjust his bindings and did not see plaintiff fall.
No one disputed that if the wire looked as it did three weeks later, that is, if loose wire from the gabion stuck up through the snow in the middle of the ski run, it would be a hazard to skiers and should be repaired or marked. However, the issue was not whether the gabion was dangerous if exposed, but whether plaintiff’s fall occurred above or below the gabion and thus whether the wire from the gabion caused plaintiff to fall.
Pleadings
Plaintiff filed suit in the United States District Court for the Eastern District of California on November 9, 2001, and in the Mono County Superior Court on April 3, 2002. Both his federal and state complaints contain identical allegations that he fell because he hit loose wire from an erosion control device. The complaints allege: “As Plaintiff snowboarded down the run, the barrier caused by the erosion-control materials was not visible. However, it was large enough and sufficiently close to the surface of the snow to catch the front of Plaintiff’s snowboard, causing him to crash.” There is no allegation that a bare spot, a log, a rock, or any other natural or man-made hazard caused plaintiff’s injury.
The federal complaint was dismissed for lack of diversity. The state complaint alleged three causes of action: for negligence, willful misconduct, and loss of consortium. The trial court granted summary adjudication of the negligence claim because plaintiff had signed an express release of liability when purchasing his annual ski pass. The liability release provided, in pertinent part: “I acknowledge that skiing [and] snowboarding... involve inherent and other risks of INJURY and DEATH.... [¶]... I hereby RELEASE... Mammoth Mountain Ski Area... from all liability for injury, death, or damage to me.... I accept the full responsibility for any and all such damage or injury of any kind... from my... participation in the sport... to the fullest extent allowed by law, including NEGLIGENCE.”
Plaintiff’s wife, Rachil Willig, is also a plaintiff, seeking damages for loss of consortium.
Before trial, the Second District Court of Appeal ruled in City of Santa Barbara v. Superior Court (2006) 135 Cal.App.4th 1345 that a general release did not relieve a defendant of liability for gross negligence. After the Supreme Court granted review (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747 (City of Santa Barbara), the trial court decided to reaffirm the summary adjudication ruling and the case was tried only on a liability theory of willful misconduct.
Evidence
At 10:43 a.m. another skier alerted Michael Martyr, a ski patroller stationed at the top of ski lift chair 1, that a skier was injured on St. Anton. Martyr, who was no longer employed by Mammoth at the time of trial, testified he skied down with a rescue toboggan and located plaintiff on skier’s right on the upper portion of Lower St. Anton, a few hundred yards above a curve in the run. It was obvious to Martyr that plaintiff had sustained serious injuries and needed immediate medical attention. Martyr stomped a platform in the snow below plaintiff to secure his toboggan. Walking up to plaintiff, Martyr sunk knee-to-waist deep in unconsolidated snow. The area was rocky.
Nick Bianchini was the second ski patroller to respond and to assist Martyr. He, too, had difficulty walking at the scene and sank up to his thighs in the snow. Because plaintiff was lying on top of a rock, Bianchini and Martyr were able to scoop snow out from under him and slide a backboard underneath him to stabilize his spine. By the time they evacuated the patient, the loaded toboggan weighed 250 to 260 pounds and left distinct tracks in the snow.
Martyr testified he delivered plaintiff to the ambulance awaiting his arrival less than 30 minutes from the time he was notified of the emergency. He readily admitted that in attending to the critical needs of his patient he did not interrogate him about the cause of the accident, nor did he follow all the mountain policies for marking the scene of the accident or recording information from the victim in his report. Bianchini also testified that Martyr’s report fell short of the specificity needed to identify the exact location of the accident.
Neither plaintiff, his friend, nor the ski patrollers saw any wire on the day of the accident.
Mammoth required its ski patrollers to ski down St. Anton every morning inspecting for hazards and to sweep each run at the end of the day. Patrollers would normally ski the run numerous times a day. Nevertheless, there was no written record that any patroller had skied the run before plaintiff fell on November 11.
About four hours after the accident, Martyr and his supervisor, Laurey Ann Carlson, went back to the location where he had administered aid to plaintiff to take pictures of the scene. Martyr, a veteran patroller, was very familiar with the run and remembered where the accident had occurred. He skied to the location following the same route he had taken earlier and confirmed his recollection of the exact site by locating the boot marks, ski tracks, and other disturbances in the snow. Carlson photographed the area. Although fog had settled on the mountain, Martyr had no difficulty locating the site. Based on her 22 years of experience as a ski patroller, Carlson also testified the snow disturbances appeared to be a toboggan platform, boot prints, and ski tracks. At trial, both Martyr and Bianchini testified that Carlson’s photographs captured the first aid scene.
Plaintiff’s father hired a private investigator, Paul Burns, to visit the scene of the accident with Mayer three weeks later. Burns admitted at trial he had never investigated a ski accident. He had been terminated by the Gardena Police Department 30 years earlier for failing to follow departmental rules and regulations. He was also forced to resign from the Mono County Sheriff’s Department in 2000. In a letter to another investigator, whom plaintiff’s father contacted before he hired Burns, he told him that plaintiff had collided with a “log under fresh powder snow.”
Mayer accompanied Burns to help him locate the accident site on December 2, 2000. In the three weeks since the accident, there had been nine days of high temperatures in excess of 45 degrees. As a result, nine inches of snow had melted. Nevertheless, Mayer felt confident he was able to identify the correct location because he remembered seeing chair 12 while waiting for the ski patrol to arrive. Chair 12 was also visible from the location identified by the ski patrollers. Mayer testified in deposition, portions of which were read at trial, that in looking around on the morning of the accident to see what might have caused plaintiff to fall, he noticed a bare spot near the middle of the run and assumed plaintiff had hit it.
Plaintiff’s private investigator, Burns, then went to work. He located a wire uphill from where Mayer believed he had found his injured friend. He took photographs. He started digging in the snow, but he could not remember whether he used the shovel he brought. He discovered the wire was protruding from a gabion. A gabion is a small dam made up of large rocks held in a rectangular wire cage and placed in a streambed to capture sediment. The gabion Burns found was about three-and-a-half feet high, three-and-a-half feet wide, and 26 feet long. The uphill side was flush with the grade. Plaintiff was the first person ever to claim he hit a gabion at Mammoth. Mayer testified that the gabion discovered by Burns was above the spot where he found plaintiff.
Olaf Jacobson, a forensic mechanical engineer, opined: 1) plaintiff “tripped on a piece of wire. That’s what caused his fall”; 2) “[t]he location of the wire where Mr. Willig tripped was at the erosion control device on St. Anton”; and 3) “the condition of the wire at the erosion control device was unsafe and unreasonably dangerous.” Although Jacobson has consulted as an expert in approximately 1,500 cases for both plaintiffs and defendants, in all of the cases involving ski or snowboard accidents in which he has testified, he has appeared exclusively on behalf of plaintiffs. He based his opinions on a personal examination of plaintiff’s snowboard, a visit to the gabion discovered by Burns, and a series of rudimentary tests.
Jacobson began with several hypotheses about how the snowboard was damaged: tripping on a rock, a wood object, or a gabion wire; impact with a rock or wood during tumbling; or from another snowboard or ski. He conducted rather simplistic experiments to test those hypotheses. He did not attempt to ascertain the cause of the damage to the bottom of the snowboard. For example, to ascertain whether a rock could have caused the damage to the top and toe edge of the board, he suspended a snowboard on a pendulum and with varying degrees of force at different angles swung the snowboard into the rock and into a piece of wood. The rock did not come from Mammoth, nor was it the kind of volcanic rock found at Mammoth. Rather, it was a granite-like rock he picked up in his yard in Colorado. He candidly conceded: “This is a laboratory test. This doesn’t replicate the conditions on the ski slope.”
On the first swing, the top of the board just slid past the rock and “scuffed off to the side.” He swung again, “to get good engagement.” After five swings, he concluded a rock could not have caused the damage he observed on the board. He reached the same conclusion about a piece of wood.
To determine whether any or all of the damage could have been inflicted by another ski or snowboard, Jacobson took an old ski and whacked away at an exemplar snowboard like an ax to see what the damage would look like when it was struck by a ski. He gave his expert opinion, based on this test, that a ski had not caused the damage.
The only remaining hypothesis he entertained was that plaintiff had tripped on a gabion wire. He testified that the gauge of the wire fit indentations on the snowboard. He did not, however, conduct a test with wire. The only way he could replicate the damage to the board was by hammering a chisel into the edge of the snowboard underneath the top skin. He admitted that the wire, unlike the chisel, did not have a flat leading edge.
The defense expert mechanical engineer opined that a piece of wire did not cause plaintiff to go flying through the air. He testified that a wire could not have generated enough force to cause the accident or the damage to the snowboard. He acknowledged he had not tested the strength of the wire at the gabion, and he would not opine on what actually caused plaintiff to fall.
Plaintiff introduced evidence that Mammoth’s failure to inspect and maintain the gabion and to warn skiers about the danger it presented constituted willful misconduct. But plaintiff also offered evidence of negligence unrelated to the gabion. Although patrollers were required to ski St. Anton every day, no one could attest to the fact it had been skied before the lifts opened on November 11. The patrollers, contrary to Mammoth policy, did not mark the spot where they found plaintiff or leave anything to identify the exact location. Nor did they provide a specific description in the post-accident report.
Mammoth personnel had not gathered data about snow density or depth. There was evidence, however, that the snow on St. Anton was light and not the heavy, wet, dense snow needed to open when coverage was light. Thus, Mammoth did not know the conditions on St. Anton or the potential hazards that might have been present. According to Mayer, there was a bare spot on the mountain above the spot where he located plaintiff.
DISCUSSION
I
Plaintiff urges us to reverse the judgment entered on the jury verdict because he did not have the opportunity to prove a gross negligence claim as allowed by the Supreme Court in City of Santa Barbara, supra, 41 Cal.4th 747. We need not reach the question whether City of Santa Barbara applies to the facts before us because we conclude the jury verdict accepting plaintiff’s contention that Mammoth had committed willful misconduct but rejecting his contention that the gabion caused his injuries renders harmless any potential error in the pretrial ruling foreclosing his gross negligence theory of liability. Our resolution is based on a careful review of the pleadings and evidence recounted above.
From the complaint through trial, plaintiff alleged that the gabion caused him to fall and sustain his injuries. He never pled that a bare spot, snow conditions, or any other natural or man-made hazard caused him to fall. On appeal, however, he contends that the summary adjudication of his negligence claim forced him to rely exclusively on the gabion as the cause of the accident even though evidence emerged during trial that the bare spot or snow conditions actually caused the accident. We agree with defendant that plaintiff ascribes blame to the trial court for his own failure to allege and prove causation.
We cannot accept plaintiff’s notion that the trial court’s ruling on liability foreclosed him from proving a different cause of the accident. The theory of liability, assessing as it does the defendant’s degree of culpability, is independent of the factual issue as to what caused the accident. While a qualitative assessment of a defendant’s fault in failing to meet reasonable standards of care is implicit in determining whether a jury can find sufficient evidence of gross negligence or willful misconduct, regardless of the theory of liability and the defendant’s culpability, the jury must still find that the defendant’s abrogation of its responsibility to the plaintiff caused the ensuing damage. We reject the linchpin of plaintiff’s argument—that the trial court’s elimination of gross negligence from trial hamstrung his proof of causation. We conclude the summary adjudication had no bearing on causation, and therefore the elimination of gross negligence, even if erroneous, was harmless.
Plaintiff insists the ruling on summary adjudication was prejudicial because it “profoundly affected the Willigs’ ability to place their full case before the jury.” (Daum v. SpineCare Medical Group, Inc. (1997) 52 Cal.App.4th 1285, 1313.) In plaintiff’s view, the ruling foreclosed his opportunity to have the jury consider any cause of injury other than the gabion. He asserts that evidence came out at trial, completely without regard to the gabion, that would have permitted the jury to find Mammoth liable for gross negligence for opening the St. Anton run on the day of the accident. Plaintiff, reminding us to view the evidence in the light most favorable to him (Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 691-692), recites the following evidence of gross negligence the jury could have considered, none of which involved the gabion: “the run had not been skied by the ski patrol; [¶]... Mammoth did not know the actual snow depth at St. Anton; [¶]... Mammoth, likewise, did not know the conditions on the run; [¶]... Mammoth did not know whether there were hazards that should have been marked or at least reported, or that were serious enough to prevent opening the run that day; [¶]... Mammoth did know that the snow cover was light and dry, not heavy, wet and dense.”
Thus, plaintiff contends the ruling barring his gross negligence claim did not allow him to prove Mammoth’s liability even if the jury found he fell at another spot. He claims he “was not allowed to argue that, if the jurors were not convinced that [he] tumbled on the gabion, they could still hold Mammoth liable for gross negligence if they found that he actually crashed on the bare spot in the middle of the run. Nor could [he] argue that Mammoth could be liable for gross negligence if the jurors found Mammoth opened St. Anton without first assuring that the ski patrol had checked it to determine whether it had sufficient snow to be skied safely and to mark or report hazards that would not be readily visible to skiers or snowboarders coming down the run.”
The fatal flaw in his appeal, as we explained above, is plaintiff’s inability to translate his tactical decision to plead and prove that the gabion alone caused his injuries into prejudicial error based on the gross negligence ruling. In short, plaintiff suffered no prejudice from the ruling barring his gross negligence claim because the jury rejected the only cause he asserted. Nothing in the summary adjudication ruling precluded or foreclosed him from introducing evidence or arguing a different or additional cause of the accident. Indeed, he was allowed to introduce all the evidence he argues on appeal—the failure to pre-ski the run, the bare spot, and the failure to check the conditions of the snow and the coverage on St. Anton—albeit in the context of a willful misconduct theory of liability. But plaintiff’s theory of liability did not foreclose, as he suggests, his ability to argue an additional cause of the accident.
As an aside, plaintiff also fails to demonstrate how he could prevail on his new ideas of causation as a matter of law. If, as he now contends, he lost his balance on a bare spot, a legion of cases hold that a bare spot is a natural and inherent risk of the sport of skiing. “[I]t is ‘inherent’ in the sport of skiing that a skier may encounter conditions such as moguls, ice, bare spots, tree stumps, and so on. The challenge and fun of the sport consists largely in the skier’s skill in encountering such conditions.” (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1367.) “[F]alling down is an inherent risk of skiing, and... a resort has no duty to eliminate or mitigate the inherent risks of skiing, lest the thrill of the sport be sapped.” (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 364.) Consequently, a skier assumes the risk of injuries resulting from the risks inherent in the sport and thereby abrogates a ski resort’s duty of care to eliminate those risks. (Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 269.)
At the end of this terribly sad case there is simply no remedy and no reason for plaintiff’s paralysis. It defies understanding how an accomplished athlete enjoying an easy ride down an intermediate slope on a beautiful November morning can now be confined to a wheelchair for the rest of his life. But a jury heard the testimony of plaintiff, his friend, witnesses involved in the rescue effort, the investigator, and the experts in mechanical engineering and based on that testimony concluded that the man-made hazard, the wire splaying out from the gabion, did not cause the accident. Whether plaintiff chose to rely exclusively on the gabion as the cause of the accident based on tactics or the law of assumption of the risk, we cannot say. We can say, however, that the trial court’s ruling barring his gross negligence claim did not restrict him to arguing or introducing evidence of other causes, including the bare spot and opening the mountain. We conclude, therefore, the jury verdict must stand; plaintiff suffered no prejudice from the ruling.
II
Similarly, after a scrupulous review of the entire record, we conclude there is no reasonable probability that any juror misconduct in this case actually harmed plaintiff. (In re Carpenter (1995) 9 Cal.4th 634, 653 (Carpenter); Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417-418 (Hasson).) We need not decipher the trial court’s evidentiary rulings on each of the nine juror declarations, and we will assume, as did the trial court, that at least one juror, Mr. B., and perhaps two others believed that plaintiff had rejected a $3 million settlement offer, that this was a second trial, and that plaintiff had signed a liability release. Thus, we will assume there was misconduct and explain why we agree with the trial court that the record overcomes the presumption of prejudice arising from the misconduct.
Extraneous information is prejudicial when it is inherently and substantially likely to have influenced a juror, or the nature of the misconduct and the surrounding circumstances demonstrate that it is substantially likely that a juror was actually biased against the complaining party. (Carpenter, supra, 9 Cal.4th at p. 653.) We must independently and objectively consider “the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.” (Hasson, supra, 32 Cal.3d at p. 417.)
Not a single juror submitted a declaration stating that the jurors discussed any extrinsic matters before or during deliberations. To the contrary, nine jurors affirmatively denied that they participated in any preverdict discussions regarding improper matters, and a tenth juror’s declaration was somewhat ambiguous.
Plaintiff insists that Juror B. demonstrated blatant prejudice with his statement that plaintiff was “screwed over... by the bad legal advice he received from his attorneys” and that plaintiff’s attorneys “had given him bad advice in allowing him to reject the [settlement] offer.” Juror B. was one of the nine jurors who voted for the defense verdict on causation. Plaintiff argues defendant cannot overcome the prejudice that arises from Juror B.’s admission he learned of the imaginary $3 million settlement offer prior to deliberations. Worse yet, according to plaintiff, one other juror who voted for the defense on causation did not file a declaration denying that he knew of the extraneous matters, and another juror’s declaration that he did not recall was equally insufficient to overcome the presumption of prejudice.
In essence, plaintiff contends we must reverse the jury verdict because defendant did not produce declarations from the remaining three jurors stating affirmatively that they did not know of the extraneous matters, or at a minimum, that those matters were not discussed prior to, or during, deliberations. In the absence of affirmative evidence to rebut the presumption of prejudice, plaintiff concludes he is entitled to a new trial. We disagree.
We begin with the law. The facts regarding juror misconduct in Carpenter, supra, 9 Cal.4th 634 are particularly instructive. Carpenter was a capital case. During the guilt phase of the trial for murders and rapes in Marin County, a juror improperly read or learned of newspaper accounts that defendant Carpenter had already been convicted and sentenced to death for multiple rapes and murders in Santa Cruz County. (Id. at pp. 642, 647.) The juror’s husband, while drinking, told her she was wasting her time on the trial because Carpenter had already been convicted of similar crimes. (Id. at pp. 642-643.) The couple fought. (Ibid.) The juror did not disclose to any of the other jurors the forbidden information, but during trial she told nonjurors at a party that she knew Carpenter had already been convicted of and sentenced to death for the Santa Cruz crimes. (Id. at p. 643.) When confronted, she lied. (Id. at p. 656.)
Receiving information outside the trial was clearly misconduct. The Supreme Court analyzed the thornier issue of prejudice at some length. “[W]hen misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant.” (Carpenter, supra, 9 Cal.4th at p. 653.)
The court distinguished the harmless standard in ascertaining actual juror bias from more typical harmless error analysis. “Ultimately, the test for determining whether juror misconduct likely resulted in actual bias is ‘different from, and indeed less tolerant than,’ normal harmless error analysis, for if it appears substantially likely that a juror is actually biased, we must set aside the verdict, no matter how convinced we might be that an unbiased jury would have reached the same verdict. [Citation.] A biased adjudicator is one of the few ‘structural defects in the constitution of the trial mechanism, which defy analysis by “harmless-error” standards.’ [Citations.]” (Carpenter, supra, 9 Cal.4th at p. 654.) Indeed, even if one juror entertained actual bias as a result of juror misconduct, the judgment must be reversed.
On facts we believe far more egregious than those before us, the Supreme Court concluded that the record did not support the trial court’s conclusion that the extraneous information was inherently prejudicial and that there was a substantial likelihood the juror actually was impermissibly influenced by the outside information. (Carpenter, supra, 9 Cal.4th at p. 656.) In Carpenter, the juror either read or learned of newspaper accounts that a criminal defendant had been convicted of and sentenced to death for another series of grisly rapes and murders. (Id. at p. 642.) Nevertheless, the Supreme Court concluded that this evidence was not inherently prejudicial. (Id. at p. 656.) Rather, the Supreme Court admonished, the evidence had to be considered in the context of other evidence of guilt. (Id. at p. 655.)
Nor did the court find the likelihood the juror was impermissibly influenced by the information to be substantial. (Carpenter, supra, 9 Cal.4th at p. 656.) The court acknowledged that it is nearly inevitable that secrets are not kept and “‘virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.’ [Citation.]” (Ibid.) But, in the Supreme Court’s view, the receipt of extraneous information does not equate to bias. In Carpenter, the court concluded that because she kept the information to herself, she was not necessarily biased. (Ibid.)
The court condemned her later brashness in telling nonjurors both what she knew and that she knew it was forbidden, and her blatant dishonesty in lying about the misconduct. But again, the court did not infer bias from her failings. The court explained: “Learning the secret during the long and publicized trial (and then not reporting it) is one thing. Actually using the forbidden information—rather than basing the verdict on the evidence—is quite different.” (Carpenter, supra, 9 Cal.4th at p. 656.)
In sum, the Supreme Court was unwilling to find a substantial likelihood of actual bias even when a dishonest juror, with knowledge she was in receipt of forbidden information, broadcast her misconduct to nonjurors. Worse yet, the forbidden information had tremendous potential for prejudice because it involved a criminal defendant who was supposed to be presumed innocent and yet had been recently convicted and sentenced to death for the commission of another series of rapes and murders. Affirming, the court found no substantial likelihood of bias even where the egregious misconduct involved a grave risk of prejudice.
By comparison, the extraneous information received in this case is quite benign. We agree with defendant that settlement offers during lengthy civil litigation and liability releases for dangerous sporting activities are common and commonly understood by most jurors. (Krouse v. Graham (1977) 19 Cal.3d 59, 81.) Indeed, it would be surprising if a plaintiff who had suffered debilitating lifelong injuries and been involved in more than five years of litigation had not been engaged in settlement negotiations. Similarly, most jurors would know of the prevalence of liability releases, particularly by participants in skiing and snowboarding.
That is not to minimize, sanction, or condone the misconduct. But the Supreme Court has dictated a pragmatic analysis, despite the presumption of prejudice arising from the misconduct. We must assess whether it is objectively and substantially likely that any of the three jurors in question actually used information about the purported settlement offer or retrial, or the liability release, in deciding the case rather than basing the verdict on the evidence. The record does not support a substantial likelihood of actual bias.
Even if we assume all three jurors actually heard the information, there is absolutely no evidence that any of them discussed the information during deliberations. In Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, a product liability case involving a seat belt, a juror saw a television news story that Ford would not be able to argue that the seat belt was not defective as punishment for refusing to turn over important documents. (Id. at p. 1232.) The Court of Appeal rejected Ford’s claim of prejudice in part because there was no indication the juror “urged the jury to consider those matters in its deliberations.” (Id. at p. 1235.) Without a shred of evidence that the information in the case before us factored into any of the jurors’ deliberations, we too find the likelihood not substantial enough to necessitate reversal of the judgment.
Nor do we accept plaintiff’s argument that Juror B.’s remarks that plaintiff was “screwed over twice” and that he had received bad legal advice prove actual bias. Having voted for the defense on causation, Juror B. may have been expressing empathy for plaintiff, a paraplegic, who would receive no compensation for his injury. The remarks may reflect animosity toward the legal profession or a feeling of helplessness for the plight of plaintiff, but they do not necessarily reflect bias. While we cannot speculate as to the juror’s mental processes or how a fact erroneously considered by a juror may have influenced the verdict (Romano v. Oklahoma (1994) 512 U.S. 1, 13-14 [129 L.Ed.2d 1]), we can say that these remarks alone do not convince us he relied on the improper information rather than the compelling evidence to determine that the gabion did not cause the accident. To do more would be to engage in improper speculation. (Ibid.)
While plaintiff relies on inapposite out-of-state authority regarding the prejudicial effect of a jury’s improper consideration of a settlement, defendant points to a California case in which the court found no prejudice. In Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728 (Moore), jurors discussed the fact that if one of the doctors settled with the plaintiff, the medical group must also be guilty of malpractice. (Id. at p. 743.) But one of the jurors submitted a declaration that suggested the jury realized it had the obligation to decide the issue of liability for itself. Recognizing there was an inconsistency, the appellate court deferred to the trial court and, finding no abuse of discretion, upheld the judgment. (Ibid.)
Moore is another poignant example of the pragmatic approach taken by the Supreme Court in Carpenter. Misconduct, even when serious, is not equivalent to actual bias, and it is only bias that prejudices a complaining party. Here we have a mere possibility of bias from three bits of information generally of common knowledge and without any evidence the information entered into the deliberations. We do not find the nature of the misconduct particularly egregious or the potential for prejudice particularly grave. The jury, as the Supreme Court has recognized, may have failed to adhere to the high standards expected of it, but the information was not so inherently dangerous nor the juror response so open and contagious as to render it substantially likely any of the three jurors allowed this information to actually affect their deliberations. Thus, based on our examination of the entire record, we conclude “‘there is [no] reasonable probability of actual harm to the complaining party resulting from the misconduct.’ [Citations.]” (Carpenter, supra, 9 Cal.4th at p. 657.)
DISPOSITION
The judgment is affirmed.
I concur in the judgment and the opinion, except as to part II of the opinion, as to which I concur in the result:
BLEASE, Acting P. J.
I concur, NICHOLSON, J.