Murphy v. Northwest Pump & Equipment
Filed 7/18/13 Murphy v. Northwest Pump & Equipment
CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
RHONDA MURPHY et al.
Plaintiffs and Appellants,
v.
NORTHWEST PUMP & EQUIPMENT
CO.
Defendant and Respondent.
D060678
(Super. Ct. No. 37-2009-00089932- CU-PO-CTL)
APPEAL from
a judgment of the Superior Court
of
County, Steven Denton, Judge.
Affirmed.
Law Offices
of John W. Houts and John W. Houts for Plaintiffs and Appellants.
Wilson,
Elser, Moskowitz, Edelman & Dicker, Robert W. Harrison and Kelly A. Van
Nort; Bragg & Kuluva and Kenyon M. Young for Defendant and Respondent.
Plaintiffs
and appellants Rhonda Murphy and Ronnie Murphy
appeal from a judgment following a jury verdict in favor of defendant and
respondent Northwest Pump & Equipment Co. on the Murphys' causes of action
for negligence and loss of consortium based on allegations that Rhonda Murphy
was hit by a falling aluminum retractor pole at a gasoline station where
defendant sometimes provided repair services.
The Murphys contend there is no substantial
evidence to support the jury's special verdict finding that defendant was
not negligent, particularly because safety experts for both parties assertedly
agreed the pole could only have fallen if defendant's service technicians
failed to properly maintain and repair the pump. The Murphys also appeal from the trial
court's denial of their new trial motion, arguing the court erred in finding no
jury misconduct. We conclude sufficient
evidence supports the verdict; further, there was no basis for finding the jury
committed misconduct. We therefore
affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
We state
the facts in the light most favorable to the judgment, drawing all reasonable
inferences and resolving all conflicts in favor of defendant. (Roby
v. McKesson Corp. (2009) 47 Cal.4th 686, 693-694; see Thompson v. Miller (2003) 112 Cal.App.4th 327, 330.)
On May 27, 2007, the Murphys arrived in
Ronnie Murphy's vehicle at a gasoline station in El Cajon,
California.
The gas station pumps required the use of retractor poles and a
spring-loaded retractor device at the top.
Each 12-pound retractor pole was secured at the base to a foot bracket,
and also midway up the pole by a bolt located inside the gas pump housing
fastened with a nut and lock washer. The
bolt was only visible when the faceplate was removed from the pump.
>
Surveillance Video
Evidence
Surveillance video from the gas
station taken at the time of the incident shows the Murphys' vehicle pulling up
to the pump, where Rhonda removes the nozzle and hands it to Ronnie. While Ronnie was holding the nozzle in order
to pump gas, one of the aluminum retractor poles fell. The pump blocks the surveillance camera's
view of where and how the pole ultimately fell.
Rhonda bends forward briefly out of the camera's view, then moves back
into view standing up. She next walks
into the convenience store, speaks to the cashier, walks back to the vehicle,
and afterwards returns to the convenience store.
The Gas Station Pumps'
Repair History
Eleven days
before the incident, Bobby Tellez, a service technician employed by defendant,
replaced a cracked footing on the subject pump and did a pump test to ensure it
was running correctly. He checked to
ensure the footing was securely fastened to the retractor pole, and the bolts
at both locations were secure. Tellez
pulled on the retractor pole vigorously, grabbing and pulling the hose five or
six times. The gas station also
conducted daily inspections, including testing each retractor by pulling the
hose. Nobody complained about looseness
or problems with the pole in the days before the incident. After Tellez replaced the footing, defendant
was not called to the gas station for any work until the day after the May 27,
2007 incident.
Defendant made only one repair to a
different retractor pole at the gas station, and it occurred in March
2007. Specifically, Tellez stated in
notes that he "resecured hood to dispenser," and conducted a site
inspection.
The Murphys' Trial
Testimony and Medical Testimony
The Murphys filed suit against the
gas station operator, the gasoline pump manufacturer and defendant. The matter proceeded to a jury trial against
defendant on causes of action for negligence and loss of consortium. At trial, Ronnie testified he left his
vehicle and went inside the station to pay, while Rhonda picked up the gas pump
nozzle. According to Rhonda, as she
looked for the vehicle's gas tank, the retractor pole struck her in the head
and back, the nozzle struck her in the breast bone, and her hands went into the
rear of the vehicle. Ronnie testified he
saw the pole lying across Rhonda's back, and she was pinned against the
vehicle. The Murphys claimed that Ronnie
lifted his vehicle's tailgate and helped Rhonda into the back, where she
remained when they drove away. Within a
half hour of the incident, Ronnie had a friend take pictures of Rhonda's back
and the pump. Five days later, Rhonda
went to a doctor.
Defendant
presented medical experts who testified Rhonda's injuries did not stem from the
May 2007 incident. They also presented
evidence that in April 2002, Rhonda fell three floors out of a building onto a
cement sidewalk while under the influence of alcohol, amphetamines and
methamphetamine. She was in a coma for
several months, shattered her elbow, broke her pelvis and tail bone, fractured
her cervical spine and sustained a brain injury. She had been unable to work since that 2002
fall.
Over a year
after the May 2007 incident, Rhonda wrote her doctors that she was cooking,
housecleaning, exercising and handling her own personal hygiene. In 2008, she submitted a sworn declaration in
connection with a custody dispute and stated she was "somewhat
disabled" but could "do everything but drive a car." Though Rhonda claimed she required a walker
after the May 2007 incident, she arrived at the first session of her deposition
in April 2010 without a walker.
Expert Testimony
Regarding Repair of Gas Station Pumps
The Murphys' safety expert Peter
Zande opined the defendant's conduct fell below the applicable standard of care
because defendant failed to install and maintain a safe system for customers to
pump gas. In his opinion, defendant
failed to determine the cause of the required repair to the pump; rather,
Tellez made the repair without significant analysis or investigation. Zande saw nothing indicating the defendant
had notified the gas station of a problem needing inspection and
monitoring. He noted that Tellez and
another of defendant's employees, Will Skoff, both stated that they simply make
repairs without ascertaining the root problems.
Zande admitted that the documents he reviewed did not show a widespread
problem with loosening of the retractor poles, or that anyone else was ever
injured by a falling retractor pole.
Zande also admitted he did not know who designed or manufactured the
retractor pole or footing.
Defendant's
mechanical engineer expert, Bernd Givon, was asked at trial, "Based on
your investigation, everything you reviewed and your background, do you have an
opinion as to how long that footing [on the pump at issue here] should last if
the assembly system you described is properly maintained?" He replied that "it should last
forever." He also was asked,
"Do you have an opinion as to whether or not that failure would have
happened, the one on [May 27, 2007], had Mr. Tellez done a proper
repair?" He replied, "The
opinion is that it would not."
Defendant's mechanical and
metallurgic failure analysis expert, Gerald Zamiski, testified the gas station
pole fell due to vibration and loading causing a nut backing off over time from
one of the bolts fastened through the mid-height portion of the pole. Zamiski stated the pole remained in place
because the bolt was stuck in a hole.
When Rhonda pulled the hose away from the pump in a certain direction,
the bolt fell out of the hole and the pole fell.
According
to Zamiski, Tellez conducted a reasonable inspection of the pump on May 16,
2007, and after Tellez replaced the foot bracket and resecured the pole, there
were no indications of looseness or other problems with the pole in the
intervening days before the claimed incident.
Zamiski said that Tellez and defendant's other employees received
on-the-job training that was not lacking in any respect. He testified that the gas station's daily
inspections were also reasonable; he understood the assistant manager tested
each retractor daily and also pulled on the hoses. Zamiski saw no record of complaints from
customers or from the assistant manager's daily checks indicating that the pole
was loose, and he explained that a loosened bolt "should show signs of
looseness before it separates."
Zamiski viewed the videotape of the incident and did not see the pole
fall on Rhonda; it appeared to fall in front of her.
In June
2011, the jury, by a 10 to 2 vote, reached a special verdict finding defendant
was not negligent. The Murphys
unsuccessfully moved for a new trial, and the trial court thereafter entered
judgment in defendant's favor. The
Murphys timely appealed.
name="_ftnref2" title="">[2]
DISCUSSION
I
The Murphys contend experts from
both plaintiff and defendant established defendant acted negligently;
therefore, the jury was bound by that finding.
They point specifically to the fact that on recross-examination, Zamiski
was asked, "If the midlevel bolt and footing are properly installed and
maintained, there's no reason that pole would ever fall, is there?" He replied, "The answer is yes, it would
not."
A.
The issue of whether there is
sufficient evidence to support the trial court's judgment is governed by a
well-established and narrow standard of review.
We do not weigh conflicts or disputes in the evidence. The jury is the trier of fact and sole judge
of witnesses' credibility. Even if
different inferences can reasonably be drawn from the evidence, we may not
substitute our own inferences or deductions for those the jury made. Our authority begins and ends with a
determination of whether, on the entire record, there is any substantial
evidence, contradicted or uncontradicted, which will support the judgment. (Board
of Education v. Jack M. (1977) 19 Cal.3d 691, 697; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) "[T]he test is not the presence or
absence of a substantial conflict in the evidence. Rather, it is simply whether there is
substantial evidence in favor of the respondent. If this 'substantial' evidence is present, no
matter how slight it may appear in comparison with the contradictory evidence,
the judgment must be upheld. As a
general rule, therefore, we will look only at the evidence and reasonable
inferences supporting the successful party, and disregard the contrary
showing." (Howard v. Owens Corning, supra,
at p. 631.)
The jury, however, may elect to
reject an expert witness's testimony:
"Thus, 'as a general rule, "[p]rovided the trier of fact does
not act arbitrarily, [it] may reject in
toto the testimony of a witness, even though the witness is
uncontradicted. [Citations.]"
[Citation.] This rule is applied equally
to expert witnesses.' " (
On this point, one appellate court
has clarified: "The
finder to accept uncontradicted expert testimony as conclusive applies
where the standard of care must be established by expert testimony. In such instances, 'the plaintiff must prove
by members of the defendant's profession the standard of care or skill
ordinarily used in the practice of that profession at a particular place'
[citation]; only then may this
'standard of care, when testified to by experts who are
uncontradicted, . . . be conclusively shown by such
testimony.' [Citation.]" [¶] "Because the instant case does not
present any issues of professional negligence or medical malpractice, there was
no reason to require the trier of fact to accept as 'conclusive' the
uncontradicted testimony of appellants' experts. Instead, the general rule applies." (Howard
v. Owens Corning, supra, 72
Cal.App.4th at pp. 632-633.)
Here, the
court instructed the jury on how to interpret expert witness testimony. (CACI No. 219.) The court also instructed the jury with CACI
No. 401 regarding the elements of a negligence cause of action: "Negligence
is the failure to use reasonable care to prevent harm to oneself or to
others. [¶] A person can be negligent by acting or by
failing to act. A person is negligent if
he or she does something that a reasonably careful person would not do in the
same situation or fails to do something that a reasonably careful person would
do in the same situation." (CACI
No. 401.)
B.
We conclude substantial evidence
supported the jury's finding defendant was not negligent, and the weight of
that evidence was not undermined by any presumed inconsistency in Zamiski's
expert testimony that if the
midlevel bolt and footing were properly installed and maintained, there is no
reason the pole would ever fall. The
evidence consisted of testimony that 11 days before the incident, defendant
made the last repair to the gas station pumps and had securely fastened the
footing to the retractor pole of the pump and pulled on it to ensure it was
secure. Afterwards, the gas station
conducted daily tests, and found no other problem, and received no other
complaints. The history of repairs at
the gas station also failed to disclose negligence on the defendant's part. Zamiski testified that based on his review of
the defendant's records, defendant exercised reasonable care.
Murphy's contention that: "[T]he testimony from both parties' lay
and expert witness was completely consistent:
[defendant's] service technicians' negligence in failing to properly
repair and maintain [the pump] caused the pole apparatus to fail," is
unavailing in light of the above substantial evidence. Moreover, the court instructed the jury on
how to evaluate an expert's testimony:
"You do not have to accept an expert's opinion. As with any other witness, it is up to you to
decide whether you believe the expert's testimony and choose to use it as a
basis for your decision. You may believe
all, part, or none of an expert's testimony.
In deciding whether to believe an expert's testimony, you should consider: [¶] a. The expert's training and experience;
[¶] b. The facts the expert relied on; and [¶] c. The reasons for the expert's
opinion." (CalCrim No. 219.)
II.
The Murphys contend the court
erroneously denied their new trial motion brought on grounds of jury
misconduct. The Murphys specifically
contend: (1) the jurors incorrectly
believed defendant was required to have notice of a dangerous condition; and (2) the jurors rushed to judgment—without any
substantial deliberations—thus demonstrating their haste was "almost
certainly motivated by the desire of jurors to end the trial immediately."
A.
Murphy
supported his new trial motion with the jury foreperson's declaration stating
that the jury retired for deliberation at 4:15 p.m. on June 14, 2011. Before the trial exhibits were provided to
them, the jury immediately took a vote and decided by a vote of 10 to 2 that
defendant was not negligent. The first
question on the verdict form, which stated, "Was Northwest Pump &
Equipment Company negligent?" directed the jury to stop deliberating if
its answer was no. The jury ended
deliberations at 4:30 p.m. that day. The
next day, the jury assembled at 9:00 a.m.
The exhibits were brought into the jury room at approximately 10:00
a.m., and by 10:15 a.m., the jurors had taken another vote and reached their
verdict with the same lineup of votes.
The foreperson declared,
"There was some although [not] thorough discussion of the case, the
evidence, or the exhibits." The
foreperson also stated in the declaration, "Several of the jurors stated
that there was no evidence of negligence because Defendant Northwest Pump and
Equipment Co. did not have any 'notice' that there was a problem with the pump
retractor pole because it had never happened before, there or anywhere
else." The foreperson concluded,
"I felt a sense among the jurors that due to previous personal commitments
and after two weeks of testimony, [the jurors] favored a hurried decision in the
case."
B.
"The authority of a trial
court in this state to grant a new trial is established and circumscribed by
statute." (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624,
633.) Code of Civil Procedure section
657 identifies seven grounds for a new trial motion, including jury
misconduct. When a party seeks a new
trial based on jury misconduct, the court undertakes a three-step inquiry. First, the court must determine whether the
declarations offered in support of the motion are admissible under Evidence
Code section 1150.
title="">[3] If they are, the court must next consider
whether the facts establish misconduct.
Finally, assuming misconduct is found, the court must determine whether
it was prejudicial. (
103, 112-113; People v. Hord (1993)
15 Cal.App.4th 711, 724.) "Juror
misconduct raises a rebuttable presumption of prejudice." (People
v. Dykes (2009) 46 Cal.4th 731, 809.)
The presumption of prejudice "may be rebutted by an affirmative
evidentiary showing that prejudice does not exist or by a reviewing court's
examination of the entire record to determine whether there is a reasonable
probability of actual harm to the complaining party resulting from the
v. Ford Motor Co. (1982) 32 Cal.3d 388, 417.)
Whether juror misconduct has
occurred is "a legal question we review independently." (People
v. Collins (2010) 49 Cal.4th 175, 242, fn. omitted.) However, we " 'accept the trial court's
credibility determinations and findings on questions of historical fact if
supported by substantial evidence.' "
(Ibid.) Similarly, whether misconduct is prejudicial
is reviewed independently as a mixed question of law and fact when the trial
court denies a motion for new trial. (
1260-1263.) "One of the elements of
a defendant's right to trial by jury includes the requirement that jurors
deliberate before reaching a verdict."
(People v. Bowers (2001) 87
Cal.App.4th 722, 733.)
We reject
Murphy's contention that the jurors refused to deliberate. Our opinion in Vomaska v. City of San Diego (1997) 55 Cal.App.4th 905 is
controlling. In that case, the jury took
a straw vote to see how they each viewed the first question on the verdict
form. Ten of the jurors agreed on an outcome, and they decided to render a
verdict rather than discuss the issue further.
(Id. at pp. 909, 912.) We stated, "This procedure is a type of
'deliberations,' in that each juror—having considered the evidence and
arguments independently—is setting forth his or her opinion, albeit without
accompanying reasons or explanations."
(Id. at p. 912.) We addressed the claim the jurors rendered
the verdict before the exhibits were delivered to the jury room, noting: "No argument is made that they did not
have an opportunity to view any specific pertinent exhibit prior to retiring
for deliberations. Nor is there any
indication of any overt conduct or statements showing jurors failed to properly
perform their duties to pay attention during trial and consider all the
evidence presented or that any jurors were compelled to render a vote before
they were ready to do so." (
Here, based
on the jury foreperson's declaration stating there was "some . . . discussion of the case, the evidence, or the
exhibits," we conclude the jury did deliberate. On this record, the foreperson's qualifier
that the discussion was not thorough is of no moment because there is no
concomitant claim that any juror was denied an opportunity to fully participate
in the deliberations. For the same
reason, and because it invades the subjective thought processes of the jurors,
we do not upset the jury's verdict based on the foreperson's opinion that the
jurors "favored a hurried decision in this case" due to their
"previous personal commitments."
Murphy
supports his claim of jury error by relying on the foreperson's declaration
that some jurors stated that defendant's lack of notice of a problem with the
retractor pump precluded a finding of negligence. Murphy claims that under the applicable jury
instructions, no requirement of notice exists for a defendant to recover for
general negligence. We reject Murphy's
claim, because it impermissibly intrudes on the jurors' mental processes. "[Evidence Code section 1150] may be
violated not only by the admission of jurors' testimony describing their own
mental processes, but also by permitting testimony concerning statements made
by jurors in the course of their deliberations.
In rare circumstances a statement by a juror during deliberations may
itself be an act of misconduct, in which case evidence of that statement is
admissible. [Citation.] But when a juror in the course of
deliberations gives the reasons for his or her vote, the words are simply a verbal
reflection of the juror's mental processes.
Consideration of such a statement as evidence of those processes is barred by
Evidence Code section 1150." (
395, 418-419.)
Based on the above, we conclude the
court did not err in denying the Murphys' motion for a new trial.
DISPOSITION
The
judgment is affirmed. Northwest Pump
& Equipment Company is awarded costs on appeal.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
name="_ftn1" title="">[1] We sometimes refer to the Murphys by their first names for
clarity. We intend no disrespect by our
use of this shorthand device.
name="_ftn2" title="">[2] The Murphys' notice of appeal states they appeal from the
judgment as well as the trial court's order denying a new trial. As they point out however, the latter order
is not separately appealable, but reviewable on appeal from the underlying
judgment. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 161, fn. 5.)
