Ponzu v. Radio Controls Ltd

Filed 6/6/06 Ponzu v. Radio Controls Ltd. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Louis P. Etcheverry, Commissioner.

Horvitz & Levy, Peter Abrahams and Nina E. Scholtz; Borton, Petrini & Conron and George F. Martin for Defendant and Appellant.

Law Offices of John C. Hall and John C. Hall for Plaintiff and Respondent.

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Appellant, Railroad Controls Limited (RCL), seeks reversal of a judgment in favor of respondent, Kellie Lynn Ponzo, for personal injuries sustained in an automobile accident. The jury found that a malfunctioning railroad signal system maintained by RCL was the cause of the accident and that RCL was 100 percent liable. RCL contends it was denied a fair trial due to alleged instructional and evidentiary errors.

As discussed below, the jury was properly instructed. Further, the trial court acted within its discretion in making the disputed evidentiary rulings. Accordingly, the judgment will be affirmed.

BACKGROUND

Kern County (County) installed a traffic signal control system at the intersection of Airport Drive and Norris Road. A railroad track crosses Airport Drive just south of Norris Road. The crossing gate is maintained by RCL. Since the railroad crossing is close to the Norris Road/Airport Drive intersection, the electronic warning system for the gate arms and the County's traffic control system are linked. When a train is approaching, the railroad's warning system sends a preemption signal to the County's traffic control system. This preemption causes the traffic signals to change so as to clear the intersection.

In late November 2002, the crossing gate at Norris Road and Airport Drive was sheared off when a car plowed into it. On December 16 and 17, 2002, an RCL employee installed a new unit and the crossing gate was placed back in service.

The next day, December 18, the signals at the intersection malfunctioned. The lights for eastbound and westbound Norris Road alternated between yellow and red while the light for northbound Airport Drive appeared green. At the same time, the railroad crossing gate was moving down part way and then up repeatedly.

The drivers traveling on Norris Road were treating the intersection as a four-way stop. However, as Ponzo approached the intersection traveling northbound on Airport Drive she observed the traffic signal controlling her direction as green. Ponzo's view of the intersection was partially blocked as she approached.

Terrell Sears was driving eastbound on Norris Road. His view of the intersection was also obscured. Sears stopped and then entered the intersection thinking that the traffic signals were operating as a four-way stop. He did not know that northbound Airport Drive had a green light.

Sears and Ponzo collided in the intersection. By the time they became aware of the hazardous situation, there was not enough time for either one of them to react and avoid the collision.

California Highway Patrol officer Richard Taggart arrived shortly after the accident. Taggart observed the malfunctioning traffic signals and called the County's road department. Traffic signal technician Gerald Sherwood responded.

Sherwood noticed that one of the railroad gate arms was vibrating and that the lights on the arm were flashing dimly. When Sherwood checked the traffic control box, he saw that the No. 9 LED was intermittently flashing. This indicated to Sherwood that there was a false preemption signal coming from the railroad equipment. To prevent another accident, Sherwood put the traffic signals on red flash.

Thereafter, Taggart called RCL. RCL employee Jose Gomez arrived at the scene and adjusted the vibrating gate arm.

The next morning Gomez and Sherwood met at the intersection. Gomez made further repairs to the crossing gate. No repairs were made to the County's equipment in response to the December 18 malfunction.

Ponzo filed a complaint for personal injuries against Sears, RCL and the County. Ponzo alleged that RCL's recent work on the railroad crossing arm caused the traffic signal malfunction. With respect to the County, Ponzo alleged that it should have been aware of this dangerous condition of public property.

At trial, RCL took the position that the County's equipment caused the signal malfunction whereas the County argued that it was the railroad equipment that was responsible. The jury agreed with the County. The jury found that RCL was negligent and that its negligence was a substantial factor in causing Ponzo's damages. Although a dangerous condition of public property existed, the jury concluded that the County did not have notice of that condition. The jury determined that neither Sears nor Ponzo was negligent and that RCL was 100 percent at fault. Ponzo was awarded $1,410,000 in economic and non-economic damages.

DISCUSSION

1. The trial court properly refused to give a negligence per se instruction.

At trial, RCL argued that the evidence supported a finding that Ponzo had violated Vehicle Code section 21451, subdivision (a), and therefore the jury should be instructed that Ponzo was presumed to be negligent under Evidence Code section 669, subdivision (a). Vehicle Code section 21451, subdivision (a), provides that a driver facing a circular green signal â€