Tamas v. T.L Pavlich Construction
Filed 5/21/13 Tamas v. T.L Pavlich Construction CA2/7
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and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
JOE TAMAS,
Plaintiff and Appellant,
v.
T.L. PAVLICH CONSTRUCTION,
INC.,
Defendant and Respondent.
B236044
(Los Angeles
County
Super. Ct.
No. PC034177)
APPEAL from
a judgment of the Superior Court
of
County, Randy Rhodes, Judge.
Affirmed.
The Ehrlich
Law Firm and Jeffrey Isaac Ehrlich for Plaintiff and Appellant.
Horvitz
& Levy, David S. Ettinger, Karen M. Bray; Schaffer, Lax, McNaughton &
Chen, Clifford L. Schaffer and Kara A. Pape for Defendant and Respondent.
_______________
Joe Tamas was injured when his car collided with a parked
motor grader owned by T.L. Pavlich Construction, Inc. After the jury returned a verdict in favor of
Pavlich Construction, Tamas moved for a new trial on the ground jurors had
engaged in misconduct by using toy cars to reenact the accident. The trial court denied the motion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The
Accident
From 2001 to 2003 Pavlich
Construction was a contractor on a Los Angeles Department of Water and Power
project to install a 96-inch diameter main water line along Sepulveda
Boulevard in the San Fernando Valley. The project required use of several large
construction vehicles including a motor grader, which is a piece of excavation
equipment with a protruding steel blade.
On December
20, 2002 two of the three southbound traffic lanes on Sepulveda Boulevard had
been incorporated into the median to create a work area—known as work area
14—where the accident occurred. The work
area was 72 feet wide.
name="_ftnref1" title="">[1] At about 5:15 p.m., after construction had
been completed for the day, Tamas was driving northbound when he was sideswiped
on the passenger side by a car that was trying to avoid a collision with a
third car. Tamas swerved and collided
with a motor grader parked inside the work area, three feet from the line
dividing it from the northbound traffic lane.
Tamas sustained several injuries, including broken ribs and a fractured
femur, and suffered a heart attack. In
March 2004 Tamas filed a first amended
complaint asserting various claims including one for negligence against
Pavlich Construction.
name="_ftnref2" title="">[2]
2.
After the jury in the first
trial was unable to reach a verdict, trial before a second jury began in late
April 2011. William Beardsley testified
he was the traffic engineer retained by Pavlich Construction to design the
traffic control plan for the construction project. Beardsley’s design was predicated in part on
plans prepared by the Department of Water and Power indicating the location of
the pipe to be installed and the minimum work area required; specifications
from the Los Angeles Department of Transportation as to the number of lanes
that should be available for traffic and the size of the work area required;
and the California Traffic Manual. The
plan for work area 14, which was approved by the Los Angeles Department of
Transportation in July 2002, did not require use of concrete barriers, known as
K-rails,
area.
Javier
Corona testified he was a superintendent with Pavlich Construction responsible
for overseeing the Sepulveda Boulevard project in December 2002. He instructed employees to park all vehicles
and equipment “side-by-side,†as close together as possible and at least two
feet from the line dividing the traffic lane from the work area—the minimum
distanced required by the Department of Transportation—to prevent cars from
crossing through the construction site after hours and to increase the
visibility of the equipment. Because of
this practice, the motor grader could not be parked farther than three feet
from the traffic lane on the day of the collision. Corona, who testified inspectors from the
Department of Water and Power and Department of Transportation were at the
jobsite daily, agreed with the statement in Pavlich Construction’s safety
manual that equipment had to be stored in a manner to reduce collisions with
vehicles that run off the road whenever practical. He further testified Pavlich Construction
would have been required to use K-rails to barricade any excavation within five
feet of a traffic lane to prevent a car that might veer out of the traffic lane
from falling into the excavation.
Weston
Pringle, a traffic engineer retained by Tamas to testify as an expert witness,
opined Pavlich Construction created a dangerous condition by parking the
construction equipment side by side so close to a traffic lane. Based in part on guidelines published by the
United States Department of Transportation, the California Department of
Transportation (Caltrans) and the American Association of State Highway and
Transportation Officials, Pringle testified the construction equipment should
have been parked in a linear, parallel configuration as close as possible to
the center of the median to create a “clear zone†that would allow “an errant vehicle
driver [to] recover without hitting anythingâ€: “I think the 12 feet that Caltrans referred to
would be reasonable. I would like to see
even farther. But it seemed to me, based
on what the plans show, there was a lot of room there to keep the equipment
away from the travel way; so the farther, the better.â€
been shielded with a K-rail, which is designed to redirect vehicles back onto
the roadway with little impact. Pringle
conceded, however, Pavlich Construction did not violate any rule, law or
ordinance by parking the motor grader only three feet from the traffic lane.
Marc
Firestone, an accident reconstruction expert with a Ph.D in physics, testified
on behalf of Pavlich Construction that a 52-foot skid mark in the road
demonstrated Tamas had been driving in the middle lane—not the lane closest to
the work area as he had testified—when he was sideswiped by another car. Tamas’s car skidded diagonally at about a 12
degree angle across the lane toward the median and then turned to the left,
hitting the motor grader at a combined angle of about 68 degrees. Firestone testified Tamas would not have hit
the motor grader if his car had continued skidding in the initial
direction. He further testified the damage
to Tamas’s vehicle would have been the same whether he hit the motor grader or
a K-rail because K-rails are designed to deflect vehicles that collide at
angles of 20 degrees or less. The
president of Pavlich Construction, Tommy Pavlich, testified, if Tamas “hadn’t
hit the motor grader, he would have probably hit a loader if the motor grader
wasn’t parked there. Or if nothing was
parked there, he would have wound up in a 15, 20 foot ditch.â€
3. The
Verdict
On Friday, May 13, 2011, the
jury began its deliberations. On May 18,
2011 the jury announced it was deadlocked and was instructed with CACI No. 5013
to continue deliberating. After
deliberating on May 19, 2011 the jury was excused for a few days so a juror
could attend his son’s graduation. On
May 25, 2011, the day after deliberations had resumed, the jury asked for
clarification of special verdict question number 1—was Pavlich Construction
negligent? Within minutes of being
advised to refer to the jury instruction concerning negligence, the jury
reached a 9-3 verdict in favor of Pavlich Construction.
4. The
Trial Court’s Denial of Tamas’s Motion for New Trial
Tamas moved
for a new trial on the grounds the evidence did not support the verdict and the
jurors had engaged in misconduct by using toy cars to reenact the
accident. An affidavit from juror
Kathleen Jacinto stated, “Near the end of our deliberations, when we were still
undecided, a juror brought in toy cars and we attempted to reconstruct what
happened by moving the cars in different directions and trying to reconstruct
where [Tamas’s] car would have gone if the motor grader had not been parked
where it was at the time of the collision.
After we did our testing inside the deliberation room, we took another
vote and for the first time, the vote was 9 to 3 for the defense.†Affidavits from two other jurors were
substantially similar. The court denied
the motion without comment on the juror misconduct
issue after hearing argument during which the attorneys also did not raise the
issue.
DISCUSSION
1. Law
Governing New Trial Motions Based on Juror Misconduct; Standard of Review
“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
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.
whether the facts establish misconduct. Finally, assuming misconduct is found, the
court must determine whether it was prejudicial. (People v. Duran (1996) 50 Cal.App.4th
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
misconduct.†(Hasson 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 (Collins)). However, we “‘accept the trial court’s
credibility determinations and findings on questions of historical fact if
supported by substantial evidence.’†(
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. (People v. Ault (2004) 33 Cal.4th 1250, 1260-1263.)
2. The Jury Did Not Commit Misconduct by Using Toy Cars To Reenact the
Accident
For more than a century courts have
addressed the kinds of experiments jurors may conduct during
deliberations: “From the venerable
authority of Higgins [
159 Cal. 651] and its progeny, several principles emerge. Not every jury experiment constitutes
misconduct. Improper experiments are
those that allow the jury to discover new evidence by delving into areas
not examined during trial. The
distinction between proper and improper jury conduct turns on this
difference. The jury may weigh and
evaluate the evidence it has received.
It is entitled to scrutinize that evidence, subjecting it to careful
consideration by testing all reasonable inferences. It may reexamine the evidence in a slightly
different context as long as that evaluation is within the “‘scope and purview
of the evidence.’†[Citation.] What the jury cannot do is conduct a new
investigation going beyond the evidence admitted.†(Collins,
supra, 49 Cal.4th at p. 249
[holding juror’s use of home computer to make a diagram of relative positions
of defendant and victim at time of shooting and demonstration during
deliberations how victim may have sustained wound with downward trajectory not
misconduct].)
Tamas concedes jurors were
permitted to enact physical demonstrations in Collins, supra, 49
Cal.4th 175 and People v. Cooper (1979)
95 Cal.App.3d 844, 853-854 (reenacting demonstration by arresting officer
showing how defendant tossed bag of heroin).
Relying in large part on Bell v.
State of California (1998) 63 Cal.App.4th 919 (Bell), a decision by our colleagues in Division Four of this court,
Tamas attempts to distinguish these cases on the ground the demonstrations
involved relatively simple variables that could be re-created and were
supported by the physical evidence—the distance between the shooter and the
victim; their height and body position—whereas reconstruction of an automobile
accident involves the interplay of physical forces that cannot be simulated in
the jury room such as the mass, velocity and curving trajectories of the
vehicles. Bell, however, cannot be reduced to such a simple proposition
broadly eliminating a jury’s ability to reconstruct an automobile accident
using demonstrative aids.
In Bell plaintiff James Bell sustained a shoulder injury when his wrists
were held behind his back up to his neck, forcing him to bend over at 90
degrees and stand on his toes, during a wrongful arrest. (Bell
v. State of California, supra, 63
Cal.App.4th at p. 925.) During
deliberations a juror reported that she and another person (not a juror) “‘had
attempted to recreate the sequence of events when [Bell’s] arms were placed up
behind his back. She claimed that she
fell over when she tried to do it. Based
on this out of court [reenactment] of events she expressed her disbelief in
[Bell’s] testimony on this point and therefore as to his entire
testimony.’†(Id. at p. 930.) The
trial court, in a decision affirmed on appeal, granted Bell’s motion for new
trial, finding it was misconduct on several grounds: “‘first, the juror was obviously discussing
the case outside the court with other persons in violation of the direct order
of the court; second, the juror
attempted to simulate events at the scene; and, third, the fact of the experiment
and its results were passed onto other jurors.’†(Id.
at pp. 932-933.) With respect to
the reenactment itself the trial court in part found, “‘The incident the juror
was attempting to replicate is not subject to experimentation because of the
inability to accurately duplicate critical factors such as the size, strength
and height of the individuals, the amount of force involved, and the specific
or unusual physical characteristic of each individual involved.†(Id.
at p. 932.)
Unlike Bell in which the juror was attempting to realistically
duplicate—outside the presence of the other jurors with a person of unknown
height and weight—the actual, physical encounter between Bell and police
officers to determine if it could have happened the way Bell had testified,
here the jurors were not trying to realistically reenact the collision. Rather, as described in juror declarations,
they were using the toy cars to “reconstruct what happened by moving the cars
in different directions.â€
name="_ftnref6" title="">[6] Given the exceedingly general nature of the
juror declarations, it is a reasonable conclusion the jurors were simply
creating a visualization of the trial testimony to assist them in determining,
among other disputed issues, whether Tamas was driving in the lane closest to
the work area, as he had contended, or whether, as Firestone opined, Tamas had
been driving in the middle lane when he was sideswiped, skidded diagonally and
then made an unwarranted sharp turn to his left, putting him on a collision
course with the motor grader that he would not have had absent his own
negligence. This sort of reenactment did
not require the reliable simulation of difficult physics concepts as Tamas
suggests.
Tamas further contends the
experiment crossed the line between a permissible visualization of the evidence
and an impermissible “new investigation going beyond the evidence admitted†(
what would have happened if the motor grader had not been parked where it was
because there was insufficient evidence admitted on this “counter-factual
scenario.†Tamas argues Firestone’s
testimony was strictly limited to describing how the accident occurred and he
never described what might have happened if the motor grader had been parked in
a different location. Tamas further
argues Tommy Pavlich’s spontaneous utterance during cross-examination that
Tamas would have hit another piece of equipment or ended up in a ditch if the
motor grader were in a different location was simply a hypothesis unsupported
by any data.
Tamas’s argument is without
merit. What would have happened if the
motor grader was parked in a different location is essentially the same
question as whether the motor grader’s location caused Tamas’s harm, an essential
element of Tamas’s case in chief. Indeed,
during closing argument Tamas’s counsel argued, “What caused the harm is
parking a motor grader there that caused the harm, and that’s what you have to
decide as to the cause of the harm.â€
Although Corona testified he did not recall what was parked next to the
motor grader at the time of the accident, Corona had testified all the
construction equipment was parked next to each other, side by side; and
pictures of the construction site were admitted into evidence. In conjunction with Firestone’s testimony as
to the angle Tamas’s car skidded after being sideswiped, the sharp veer to the
left based on the skid mark and the estimated speed of travel, examining the
evidence in the “slightly different context†of the absence of the motor grader
was “within the ‘“scope and purview of the evidence.’â€â€ (Collins,
supra, 49 Cal.4th at p.
249.) In sum, based on the spare juror
declarations as to the use of the toy cars, Tamas has failed to carry his
burden of establishing juror misconduct. (See Donovan
v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 625.)
DISPOSITION
The judgment is affirmed. Pavlich Construction is to recover its costs
on appeal.
PERLUSS,
P. J.
We
concur:
ZELON,
J.
JACKSON,
J.
and Pavlich Construction sharply disagree whether the width of the permissible
work area was all 72 feet or approximately 62 feet as depicted by
cross-hatching on certain construction documents. We need not resolve this issue. We merely refer to the entire section of road
as the work area for convenience.
Department of Water and Power and the City of Los Angeles, which were also
named in the first amended complaint, entered into a settlement agreement with
Tamas.
