Thomas v. Steward
Filed 12/5/12 Thomas v. Steward CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
AARON R. THOMAS,
Plaintiff and
Respondent,
v.
F.R. STEWART, as Trustee etc., et al.,
Defendants and
Appellants.
G046016
(Super. Ct.
No. 30-2008-00113818)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Gregory H. Lewis, Judge. Affirmed.
Gray Duffy, and Kevin H.
Park; Pollak, Vida & Fisher, and Daniel P. Barer, for Defendants and
Appellants.
Frank P. Barbaro &
Associates, and Sherri L. Honer, for Plaintiff and Respondent.
F.R. Stewart, as trustee
of the F.R. Stewart Trust, and John Moore, as trustee of the John M. Moore and
Caryll D. Moore Trust (hereafter collectively defendants, unless the context
indicates otherwise), appeal from a judgment awarding Aaron R. Thomas damages
in this personal injury action. Thomas
was severely injured in a commercial building owned by defendants, which he was
viewing to possibly lease, when he fell from the top of a fixed ladder leading
to the building’s roof after the roof hatch slammed shut on his head. On appeal, defendants contend the trial court
abused its discretion by admitting evidence of:
(1) a safety regulation promulgated under the California Occupational
Safety and Health Act (Cal-OSHA) (Lab. Code, § 6300 et seq.) pertaining to a
fixed ladder’s relationship to a safe access hatch; and (2) defendants’ failure
to inspect or repair the roof hatch after the accident or to inform subsequent
prospective tenants about Thomas’s accident.
We find no prejudicial abuse of discretion and affirm the judgment.
On February 14, 2008,
Thomas, his girlfriend, his aunt, and one of his employees, Noel Thomas (no
relation to Thomas and for convenience hereafter referred to as Noel), went
with a real estate agent to look at the building, built in 1987 and owned by
defendants, as a potential leased space for his furniture making business. The agent gave Thomas and Noel permission to
inspect the roof, which was accessed from an interior fixed ladder that led to
a steel roof hatch. The ladder and steel
roof hatch were part of the original construction of the building. The approximately three-foot by
three-foot roof
hatch weighed about 20 pounds. It had a
handle mechanism to open the hatch when one was standing on the ladder. A cable on one end of the hatch supported it
so it would not fly open all the way. On
either side of the hatch were piston-lifting devices which defendants’ expert
explained were spring shocks and which appeared to be part of the original
hatch assembly when installed.
Noel went up first,
opened the roof hatch, looked around, and came back down, leaving the hatch
open for Thomas. Thomas went up
next. After briefly inspecting the
building’s roof, Thomas stepped onto the ladder to come back down. While at the top of the ladder, the roof
hatch slammed down on Thomas’s head causing him to fall off the ladder, hitting
face first on the concrete floor 25 feet below. Thomas suffered extensive fractures to his
face, teeth, and skull, and broke his nose.
He had bleeds in parts of his brain, traumatic brain injury, and
permanent frontal lobe damage. One of
his knees was shattered, and both of his hands were broken.
Noel testified he had
prior experience climbing ladders and poles from when he worked for a telephone
company. He also sometimes climbed
ladders as part of his work for Thomas.
Noel also had experience opening roof hatches because at Thomas’s then current
location, there were two roof hatches he and Thomas sometimes accessed to get
onto the roof. In Noel’s experience, he
would open the roof hatches by turning or pulling an apparatus to unlock the
hatch, upon which it would spring part way open. He could then push the hatches all the way
open and they would open fully and stay up.
When Noel closed the roof hatches, they would pull down to a certain
spot where they would bounce and there would be resistance. At that point, the hatch would not close further
unless pulled the rest of the way—the hatches would not slam shut on their own.
When accessing
defendants’ building’s roof on the day of Thomas’s accident, Noel unlatched the
roof hatch when he reached the top of the ladder. The hatch did not spring open; rather Noel
had to push it open the entire way. Once
the hatch was open past 90 degrees, it stayed open. Noel was not concerned it could slam back
down because of his past experience with roof hatches.
At his deposition, Noel
testified he saw Thomas, as he stood on the top of the ladder, turn with one
hand to close the hatch, before it slammed shut on him. Noel clarified at trial he was assuming
Thomas was trying to close the hatch—he could not actually see that Thomas was
trying to close the hatch. What he saw
was Thomas’s arm reaching up towards the hatch, “like he was shielding
himself,†right before being struck by the hatch. Sometime after Thomas’s accident, Thomas told
him the wind blew the roof hatch shut.
Thomas testified he also
had experience climbing ladders, from working in the construction industry, and
knew to keep three parts of his body on the ladder at all times for
safety. Thomas also had experience
operating roof hatches because he had used them at the building he was renting,
and had used them at other locations as well.
Thomas explained that when he opened a roof hatch by turning a lever,
the hatch “basically explodes upward,†and then slowly raises to the open
position. When the hatch is closed,
there is tension, so that the user must pull the hatch hard to close it and
then slam and hook it so that it will not pop back open. Of the 20 or so different roof hatches Thomas
had opened over the years, all operated similarly. On the day of the accident, Thomas got to the
top of the ladder, went through the already open hatch, climbed onto the roof,
and inspected the roof. When he went to
climb back inside, he lowered himself down from the top of the ledge onto the
ladder. Thomas then stepped down to a
lower rung and had his hands on the top rung.
His head and shoulders were still above the roof hatch opening when the
hatch lid slammed down on his head.
Thomas testified he was not in the process of trying to close the hatch
when it shut on him. He could not recall
if it was windy that day.
Defendant John Moore,
who had a degree in mechanical engineering and was in the building demolition
business, testified defendants acquired the property in 2002, and he managed
it. Moore
had personally used the hatch approximately 10 times before Thomas’s
accident. To open the hatch, Moore
would unlatch the hatch and have to push on the hatch to open it, and between
his lifting the hatch and the hatch’s own operation, the hatch would lift open
and stay open. When Moore
closed the hatch, he would feel resistance when the hatch was open past 90
degrees, and had to pull the hatch to get it past 90 degrees. But once the hatch was closed past 90 degrees
he could feel the weight of the hatch wanting to close down, so he would keep
his hand on the hatch as he lowered it back down over his head, to make sure it
did not fall on his head. From 2002
until the time of trial, there were no changes, alterations or repairs to the
roof hatch, and Moore did not
clean, lubricate, or adjust the pistons on the hatch to make sure they were
working properly. No previous tenants
ever informed Moore about any
problems with the roof hatch. A roofer,
who worked on the roof before the accident, did not complain of any problem
with the hatch. After learning about
Thomas’s accident, Moore did not
“make any special trip to the property to inspect the ladder or the roof hatch
to see if it was operating properly,†nor did he tell subsequent tenants about
the accident. There were no signs or
warnings near the roof hatch explaining how it operates.
Thomas’s expert witness,
John Martinet, was a registered deputy building inspector and licensed general
contractor. He was experienced in safety
issues as they relate to construction in general and roof hatches in
particular. Martinet testified that
since approximately 1972, all roof hatch manufacturers make their roof hatches
to meet at least the minimum standards set forth in Cal-OSHA regulations and
federal-OSHA, on which Cal-OSHA is based.
He explained there are federal and Cal-OSHA regulations concerning fixed
ladders, in which there is a reference to roof hatch standards and a diagram
demonstrating what is an acceptable “counterweight[ed]†roof hatch. The relevant Cal-OSHA regulation, California
Code of Regulations, title 8, section 3277, subdivision (f)(7),
refers to the relationship between a fixed ladder and “an acceptable hatch coverâ€
as illustrated in Figure 9 of the regulation (hereafter referred to as Diagram
9).
Martinet explained the
Cal-OSHA regulation’s Diagram 9 depicts an
old-fashioned,
counterweighted roof hatch in which a counterweight, weighing more than the
roof hatch, was located behind the hinge point of the hatch. Because there was more weight behind the
hatch’s hinge point, as soon as the hatch was opened, the extra weight would
cause the hatch to automatically spring open.
The extra weight would then cause resistance the entire time the roof
hatch was being closed, so if at any time before the hatch was actually
latched, it was released, the counterweight would cause the roof hatch to
spring back open, instead of slamming shut on top of the person accessing the
roof hatch. Martinet explained this
counterweight system was essential for safety because a roof hatch is always at
the top of a ladder, and the person accessing the roof hatch is always in a
precarious position while trying to close the hatch. Martinet explained the counterweighted roof
hatch depicted in the Cal-OSHA regulation’s Diagram 9 demonstrated the safety
standard that is modernly used. But the
drawing itself was “old fashioned†because the hatch as drawn had an actual
separate catch or hold-open device. Such
a device would lock the roof hatch into place once it was opened to prevent
external forces (such as gust of wind) from closing the roof hatch until the
hatch was intended to be closed. That
actual style of hatch had not been manufactured since at least 1972. The more modern roof hatches, including the
roof hatch at issue in this case, use pistons or springs to serve as the
“functional equivalent†of the old-fashioned counterweight—the pistons or
springs will cause the roof hatch to spring open as soon as it is unlatched,
and to resist the entire way down until it is locked shut.
Martinet conducted an
on-site inspection of the subject roof hatch in July 2009. (Moore testified there had been no
alternations or changes to the roof hatch since the accident or since 2002 when
the trustees purchased the property, and the roof hatch operated the same way
after the accident as it did before.)
When Martinet unlatched the roof hatch, it did not spring open at
all. He attempted to lift the roof hatch
three times by pushing it open approximately 15 degrees, and each time the
hatch stayed in contact with his hand.
Each time he released the hatch, there was no resistance, and it slammed
back down. Because the roof hatch failed
to open and close properly, Martinet considered it to be dangerous, and for
safety reasons he did not open the hatch the entire way. Martinet saw piston-type devices on both
sides of the hatch, but concluded they were not functioning properly because
they failed to spring the hatch open when it was unlocked and failed to provide
any resistance when the roof hatch was closing.
Martinet observed there was no separate catch or hold-up device on the
hatch. Accordingly, the pistons, if
properly functioning, should have acted as a catch or hold-open device, which
they did not. Martinet noted that when a
roof hatch is opened past 90 degrees its own weight will keep it open, unless
some external force, such as a gust of wind, was applied to the hatch causing
it to slam closed.
Based on the foregoing,
Martinet opined the subject roof hatch at issue, operated properly when
installed in the late 1980’s, but was not functioning properly and was unsafe
at the time of the accident, because it failed to spring open when unlatched,
failed to stay open, and lacked resistance the entire way down. He believed the roof hatch was blown shut by
a gust of wind, due to the lack of a properly operating catch or hold-open
device. Martinet opined the hatch failed
to operate properly because of a lack of maintenance. Moreover, he opined defendants had knowledge
of the dangerous condition of the roof hatch prior to the accident because
Moore stated he used the roof hatch numerous times before the accident, each
time he used it he had to push the roof hatch open, and when closing the hatch,
could feel the weight of the steel hatch coming down on him (i.e., not
resisting). Martinet testified it takes
three to four hours to replace a defective roof hatch with a properly operating
one, at a cost of approximately $1,500.
Defendants’ expert
witness, Marc Viau, also was a licensed contractor and building inspector. Although he testified he had experience using
roof hatches, there was no testimony as to how many times he had inspected or
even accessed roof hatches.
Viau agreed roof hatches
are manufactured to comply with the minimum standards of Cal-OSHA and
federal-OSHA, both of which require roof hatches have counterweights or have
their functional equivalent. Viau
disagreed with Martinet as to what the counterweight, in particular the pistons,
were supposed to do. Viau considered the
counterweight on a roof hatch to be the equivalent of a shock absorber on a car
hood. The counterweight, or pistons,
should provide some tension while closing the hatch, and when the hatch reaches
a certain point, the hatch should release and want to slam down. Viau testified it was not until after the
late 1990’s that roof hatches were designed to resist closing the entire
way. (Martinet disagreed with Viau’s
opinion, pointing out a roof hatch should not behave the same way a car hood
does, because unlike a car hood, a person standing on a ladder is always
underneath the roof hatch.)
Viau inspected the
subject roof hatch almost two years after Thomas’s accident. The roof hatch complied with the Uniform Building
Code, although Viau agreed those standards do not deal with the proper
operation of a roof hatch. When Viau
unlatched the roof hatch, there was some spring to the hatch, but he had to
push it open; it did not spring open.
Once open, the springs held the roof hatch open. When Viau closed the roof hatch, there was
tension on it, and when the hatch got to one-half or
three-quarters of
the way down, he could feel it wanted to slam shut. Viau opined the accident was caused by the
roof hatch reaching a certain point and wanting to slam down. But he believed the roof hatch operated
properly because that was what a hatch of that era was supposed to do. The winds were gusting up to 13 miles per
hour on the day of the accident.
Thomas’s complaint
alleged premises liability/negligence against defendants. A jury returned a special verdict finding
defendants were negligent in the use or maintenance of the property, the
negligence was a substantial factor in causing Thomas harm, and Thomas was not
negligent. The jury awarded Thomas a
total of $1,297,874.90, but the amount was later modified to reduce past
medical expenses by subtracting amounts billed but not owed. The modified damages award was $1,245,796.45,
comprised of $105,103.07 reduced past medical expense damages; $244,693.40
future medical expenses; $471,000 past noneconomic loss; and $425,000 future
noneconomic loss. The trial court denied
defendants’ motions for new trial and for judgment notwithstanding the
verdict. The court awarded Thomas
$45,776.20 in costs, which included expert witness fees, and $115,396.58 in
prejudgment interest, pursuant to Civil Code section 3291 and Code of Civil
Procedure section 998.
DISCUSSION
Admissibility of OSHA Regulations
Defendants contend the
trial court abused its discretion by allowing Thomas’s attorney to question
expert witnesses regarding OSHA regulations.
They contend the evidence should have been excluded under Evidence Code
section 352. Defendants have waived the
contention because no such objection was ever raised by them.
Before trial began,
defendants filed a motion in limine to exclude evidence of “workers
compensation law standards†and in particular evidence concerning California
Code of Regulations, title 8, section 3277. Defendants argued Thomas intended to use the
Cal-OSHA regulation to establish negligence per se.
regulation could not be used to establish a standard of care, and it could not
be used to establish negligence per se, because Thomas was not in the class of
persons the regulation was meant to protect.
The motion made no mention of Evidence Code section 352. At argument on the motion, defendants’
counsel explained he was objecting in particular to the introduction of Diagram
9—the drawing of a counterweighted roof hatch—because there was nothing in the
Cal-OSHA regulation that said a roof hatch had to be counterweighted, so there
could be no argument defendants “violated a labor code by this particular roof
hatch . . . .†Thomas’s attorney argued
there were two aspects to the use of the regulation: one was to establish negligence per se, the
other was to demonstrate generally how a safe roof hatch should work. Counsel explained regardless of whether there
was a violation of the OSHA regulation, Thomas’s expert would testify all roof
hatches (including the one at issue) are manufactured to meet the OSHA
standards, i.e., to have a counterweight or its functional equivalent to
prevent them from slamming shut. The evidence
would go to whether this roof hatch was properly maintained.
admissibility of OSHA regulations to establish negligence per se, the trial
court ruled Thomas could not use the OSHA regulations to establish negligence
per se,
title="">[4]
but he could use the regulations to show the hatch was negligently
maintained.
At the beginning of
Thomas’s expert’s testimony, when Thomas’s counsel asked about a military
construction project Martinet worked on early in his career and whether it had
to “meet any sort of [Cal-OSHA] regulation,†defendants’ counsel objected to
the question as being not relevant and “vague and ambiguous.†The court overruled the objection and stated
it would “treat this as a continuing objection.†Later, when defendants’ counsel objected to
admission of Diagram 9 into evidence “based on our earlier discussion,†the
court overruled the objection and admitted the document.
Defendants now contend
the evidence of the Cal-OSHA regulation and Diagram 9 in particular should have
been excluded under Evidence Code section 352, which allows the trial court
discretion to “exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption
of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.â€
Defendants argue the OSHA regulation had little probative value because
Thomas’s expert could have opined on how a roof hatch was supposed to work
without making any mention of the OSHA regulation. And defendants argue reference to the OSHA
regulation was highly prejudicial because it conveyed an erroneous impression
defendants were held to the standards of employers “rather than the lower
standard of care of a landlord showing a vacant building to a prospective
business tenant[,] and “gave Thomas’s expert’s opinion the imprimatur of being
based on an inapplicable public regulation.â€
We decline to consider
defendants’ argument because they failed to raise their Evidence Code
section 352 objection below. (Evid.
Code, § 353, subd. (a).) We reject
defendants’ argument we should infer an Evidence Code section 352
objection from their relevance objections.
(See People v. Valdez (2012)
55 Cal.4th 82, 138 (Valdez)
[defendant’s objections evidence was irrelevant, lacked foundation, and
prosecution questions leading insufficient to preserve Evidence Code
section 352 objection for appeal].)
“If a proper objection under [Evidence Code] section 352 is raised,
the record must affirmatively demonstrate that the trial court did in fact
weigh prejudice against probative value.â€
(Rufo v. Simpson (2001) 86
Cal.App.4th 573, 599.) Here, the record
does not demonstrate the trial court undertook to perform Evidence Code section
352’s weighing function. Presuming, as
we must, the trial court did not shirk its obligations, we must conclude no
objection was properly and timely made under Evidence Code section 352.
2. Admissibility of Moore’s Testimony About
Failing to Inspect or Warn After the Accident
Defendants contend the
trial court abused its discretion by allowing Thomas to question Moore about
not inspecting the roof hatch after Thomas’s accident and not telling the
subsequent tenant about the accident. We
find no prejudicial abuse of discretion.
On direct examination by
Thomas’s attorney, Moore, the person with most knowledge about the maintenance,
inspection, and repair of the building, confirmed the roof hatch was in the
same condition at the time of trial as it had been when defendants bought the
building. He was aware a realtor was
bringing someone to look at the building on February 14, 2008. Moore testified prior tenants were
responsible for building maintenance, which would include accessing the roof to
make sure roof drains were clear of debris and to maintain roof top air
conditioning units. Moore did not
provide tenants with any instructions on using the roof hatch. Following the above testimony, Thomas’s
attorney asked Moore if when he leased the building about one month after
Thomas’s accident, “[D]id you ever tell anyone at [the new tenant] about
. . . Thomas[‘s] fall?â€
Defendants’ attorney objected, “Relevance[,]†and the court overruled
the objection.
Thomas’s attorney then questioned
Moore about his use and operation of the hatch.
Moore testified he had used it about 10 times; when he unlatched the
hatch it did not “spring†open on its own, but had to be pushed open; and when
being closed, he could feel the weight of the hatch wanting to come down and
would hold it as it closed as a precaution to keep it from falling on his head
(although he never tested by removing his hand to see if the hatch really would
drop). Moore agreed he had never told
any of his tenants they should hold the hatch as it was closing. Thomas’s attorney then asked Moore, “And
after you learned . . . Thomas had fallen off the ladder,
you didn’t make any special trip to the property to inspect the ladder or the
roof hatch to see if it was operating properly, correct?†Defendants objected, “Relevance[,]†and the
court overruled the objection. On
cross-examination, defendants’ counsel elicited testimony from Moore there were
no complaints made to him by prior tenants or by “subcontractors, air
conditioning, roofers†about any problems with the roof hatch.
Defendants contend the
court abused its discretion by overruling their objections to Moore’s
testimony. Defendants argue the evidence
was character evidence made inadmissible by Evidence Code sections 1101
and 1104. They also argue the evidence
was inadmissible under Evidence Code section 1151, which generally
prohibits evidence of subsequent remedial conduct (or in this case lack
thereof) to establish negligence in connection with the event. Defendants did not object to the evidence on
these grounds—their only objection was as to relevance—and, thus, these
objections are not preserved for appeal.
(Evid. Code, § 353, subd. (a); see Valdez, supra, 55 Cal.4th
at p. 130 [objections evidence was irrelevant, cumulative, lacking in
foundation, or prejudicial insufficient inadmissible character evidence claim
for appeal].)
“[T]he trial court ‘has
broad discretion in determining the relevance of evidence [citations], but
lacks discretion to admit irrelevant evidence.’
[Citation.]†(
933; Evid. Code, § 350 [“No evidence is admissible except relevant
evidenceâ€].) Defendants contend evidence
Moore did not tell the subsequent tenant about the accident and did not inspect
the roof hatch after the accident had no tendency to prove or disprove any
disputed facts in this premises liability case (Evid. Code, § 210), and
thus was irrelevant and inadmissible.
The elements of a cause
of action for premises liability on a negligence theory are duty, breach,
causation, and damages. (
26 Cal.4th 1200, 1205.) To impose
liability for injuries suffered by an invitee due to dangerous condition on the
premises, the owner or occupier “‘“must have either actual or constructive
knowledge . . . or have been able by the exercise of
ordinary care to discover the condition, which if known to him, he should
realize as involving an unreasonable risk to invitees on his premises[.]â€â€™ [Citation.]â€
(Id. at p. 1206.)
Defendants argue the
evidence was not relevant to any of the salient issues raised by Thomas’s
premises liability cause of action, i.e., whether the property was in a
dangerous condition, whether defendants had notice of the dangerous condition,
and whether defendants failed to warn of the dangerous condition. We disagree.
The evidence was at least marginally relevant to whether defendants had
knowledge of the dangerous condition of the roof hatch and failed to warn of
the dangerous condition. Defendants
asserted they had no knowledge of any problems with the roof hatch because
there were no prior complaints or accidents.
That after this accident, defendants undertook no investigation and did
not warn subsequent tenants about problems with the roof hatch slamming closed,
was at least marginally relevant to impeach what is implied in that claim—that
had defendants known of a problem, they would have remedied it. (See People
v. Lockheed Shipbuilding & Const. Co. (1975) 50 Cal.App.3d Supp. 15, 35
[subsequent remedial measures admissible for impeachment].)
More importantly, even
if the evidence was improperly admitted, a judgment may not be reversed due to
erroneous admission of evidence unless it resulted in a miscarriage of
justice. (Evid. Code, § 353, subd. (b); see also Cal. Const., art. VI,
§ 13.) A “‘miscarriage of justice’
should be declared only when the [reviewing] court, ‘after an examination of
the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably
probable that a result more favorable to the appealing party would have been
reached in the absence of the error.†(
836; Cassim v. Allstate Ins. Co.
(2004) 33 Cal.4th 780, 800 (Cassim).)
Defendants argue they
were severely prejudiced by the evidence because it allowed Thomas’s counsel to
“vilify†them in closing argument.
Counsel mentioned in her argument that defendants presented evidence
they had no prior complaints about problems with the roof hatch. But she argued even if they had, it would not
have made any difference because they would not have done anything about it in
view of Moore’s testimony that even after the accident, no inspection was made
and no warning given to the new tenants.
But as defendants concede, there was no objection to this argument by
Thomas’s counsel and it was within the permissible wide latitude given counsel
in conducting closing argument. (
pp. 795-796.)
Moreover, there was
other unchallenged evidence in the record that supported the argument. Moore testified, without objection, that from
the time defendants acquired the property until the accident, and from the time
of the accident until trial, there have been no signs or warnings posted
explaining how the hatch operates or warning of danger associated with
operating it. Defendants’ expert, Viau,
testified without objection, that when he examined the hatch in November 2009
(a year and a half after the accident), there was no warning notice concerning
how the roof hatch operated. That
unchallenged testimony supported the argument that even after Thomas’s
accident, defendants gave no warnings about any dangers associated with the
hatch. Additionally, Moore testified,
without objection, there were no changes, alterations, or repairs to the hatch
from the time defendants acquired the building until the time of trial, which
supports an argument that had defendants received a complaint about the hatch
before the accident, it would not have been addressed.
Defendants also argue
this was an extremely close case and the erroneously admitted evidence likely
tipped the scales in Thomas’s favor. We
disagree. Defendants first point out the
jury verdict was not unanimous—the jury split 11 to 1 the question of whether
defendants were negligent, and 10 to 2 on the questions of whether Thomas was
also negligent and whether defendants’ negligence was a substantial factor in
causing Thomas’s injury. They engage in
no legal analysis of this point. We note
that while the verdict was not unanimous, it was reached fairly quickly with no
indication the jury was struggling with the evidence or the issues. After argument and instruction, the jury
deliberated for 25 minutes and then took a short break. One-half hour after resuming deliberations,
the jury asked a question about the amount that had been agreed upon as past
economic loss and where on the special verdict form it was to insert that
amount, indicating it had resolved the liability issues at that point. After being given a response to the single
question, the jury resumed deliberations for 45 minutes and then notified the
clerk it had reached a verdict.
Contrary to defendants’
assertion, this was not a particularly “close case.†Thomas introduced abundant evidence concerning
how a roof hatch is manufactured to safely operate, how this roof hatch did not
safely operate, and how defendants were put on notice the hatch did not operate
safely.
As to
there was abundant evidence a roof hatch should be counterweighted (or the
functional equivalent through springs and pistons), so that it does not slam
down. Thomas’s expert, Martinet,
explained the roof hatch is designed with a counterweight function so there is
resistance the entire time the roof hatch is being closed, so if at any time
before the hatch was actually latched shut, it was released, the counterweight
would cause the roof hatch to spring back open, instead of slamming shut on top
of the person accessing the roof hatch.
Martinet effectively refuted Viau’s testimony comparing the roof hatch
to a car hood. Viau testified that like
a car hood, a roof hatch should resist some of the way down but then release
and want to slam down at the very end.
As Martinet explained, unlike a car hood (being closed from above),
there is always a person at the top of a ladder under a closing roof
hatch. Thomas and Noel both testified to
their experience with opening and closing other roof hatches, which was
consistent with Martinet’s testimony—the hatches would resist the entire way
down and have to be pulled shut—they would not slam shut on their own.
As to the unsafe
condition of this roof hatch, and defendants’ knowledge of its condition, there
was also substantial evidence. Noel
testified the hatch did not spring open when he unlatched it—he had to push it
open—indicating the pistons were not operating properly. Martinet testified when he attempted to open
the hatch, he could feel it wanting to slam right back down, so he did not
attempt to open it all the way. Moore
testified that when he used the hatch, it did not really spring open and he had
to push it open. And when closing the
hatch, he could feel that it wanted to slam down and he would hold on to it so
it would not. Even defense expert Viau
testified the hatch did not really spring open when unlatch, it had to be
pushed all the way open, and when shutting the hatch once it got to one-half or
three-quarters of the way shut, it lost tension and wanted to slam shut. Viau opined the accident was caused by the
roof hatch reaching a certain point and wanting to slam down.
Nor can we agree with
defendants that the evidence of Thomas’s comparative fault was close. Defendants contend Thomas negligently slammed
the hatch on his own head while closing the roof hatch. But Thomas testified he was not yet trying to
close the roof hatch, he had both hands and feet on the ladder, when the hatch
slammed down and struck him. Noel
testified Thomas told him after the accident the wind blew the hatch shut. Defendants’ make much of Noel’s deposition
testimony that Thomas was reaching up to close the hatch when he fell, but at
trial he clarified he was assuming Thomas was trying to close the hatch—but he
could not actually see that Thomas was trying to close the hatch. What he saw was Thomas’s arm reaching up
towards the hatch, “like he was shielding himself,†right before being struck
by the hatch. Furthermore, even if Thomas
had been reaching up in the process of closing the hatch, the uncontroverted
evidence was that this 20-pound steel hatch lacked tension when closing and
would slam shut on its own, rather than having to be pulled shut by the person
below. In sum, we cannot say it is
reasonably probable that had the trial court excluded Moore’s testimony he did
not inspect the roof hatch after the accident and did not tell the new tenant
about Thomas’s accident, defendants would have achieved a more favorable
result. (Cassim, supra, 33 Cal.4th at p. 800.) Accordingly, we must affirm the judgment.
DISPOSITION
The judgment is
affirmed. Respondent is awarded his
costs on appeal.
O’LEARY,
P. J.
WE CONCUR:
RYLAARSDAM,
J.
FYBEL, J.
name="_ftn1" title="">[1] The corresponding
federal-OSHA regulation is found at 29 C.F.R. § 1910.27(c)(7), and refers
to the relationship between a fixed ladder and “an acceptable counterweighted
hatch cover†as illustrated in figure D-6 of that regulation. The illustration is identical to the
illustration found in the Cal-OSHA regulation.
name="_ftn2" title="">[2] The negligence per se
doctrine, as codified in Evidence Code section 669, creates a presumption
of negligence if four elements are established:
“(1) the defendant violated a statute, ordinance, or regulation of a
public entity; (2) the violation proximately caused death or injury to person
or property; (3) the death or injury resulted from an occurrence of the nature
of which the statute, ordinance, or regulation was designed to prevent; and (4)
the person suffering the death or the injury to his person or property was one
of the class of persons for whose protection the statute, ordinance, or
regulation was adopted.†(
1410, 1420.)
