Gill v. TamalpaisUnionHigh School Dist.

Filed 1/18/08 Gill v. Tamalpais Union High School Dist. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Plaintiff Jennifer Gill suffered a cut on her face when she collided with the metal pole supporting an outdoor basketball backboard. The pole was on premises of defendant Tamalpais Union High School District (Tamalpais). While still on Tamalpais property awaiting first aid treatment from Presidio Sport & Medicine (Presidio), Gill fell off a raised counter and suffered additional injuries. A jury found for Gill, apportioning 60 percent of the responsibility for her damages to Tamalpais and 40 percent to Presidio. The jury awarded Gill approximately $477,000 for economic and non-economic losses. After applying Proposition 51, the court entered judgment for Gill against Tamalpais in the amount of $336,932. On Tamalpaiss cross-complaint against Presidio for indemnification, the judge entered judgment in favor of Tamalpais for $50,572.80. All parties have appealed, and the appeals have been consolidated.

On Tamalpaiss appeal, we reject its contentions that the trial court committed instructional error, and conclude that substantial evidence supports the jurys allocation of fault between Presidio and Tamalpais.

On Gills appeal, we reject her contention that the trial court misapplied Proposition 51 when it declined to make Tamalpais liable for all of the non-economic damages awarded by the jury. We also conclude that the court did not err in declining to award her interest on a judgment that was prematurely and erroneously entered.

On Presidios appeal, we find without merit its contention that it was entitled to judgment as a matter of law because there was no competent evidence from which the jury could conclude that Presidio committed professional negligence.

In light of these conclusions, we affirm the judgment and the order denying Presidios motion for judgment notwithstanding the verdict.

BACKGROUND

The Facts

The salient circumstances are largely without dispute. Viewed most favorably to Gill as the prevailing party (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787), the evidence shows the following:

On November 1, 2001, Gill was 15 years-old and a sophomore at Redwood High School, which is part of the Tamalpais District. Gill wanted to be on the Redwood High girls junior varsity basketball team. She believed it would make a favorable impression on the teams coach, and thus improve her chances of making the team, if she attended the open gyms held at Redwood High.[1]

On the afternoon of November 1, after regular school hours, Gill was participating in basketball drills that were conducted on outdoor courts at Redwood High. Each of the basketball backboards was attached to the end of a hollow gooseneck-shaped metal pole. The poles can be covered with pads, and for certain events are required to be covered with pads, which Tamalpais had. On November 1, the pads were not in use.[2]

Robin Goddard was the Redwood High girls basketball coach and the person in charge of the open gym. After stretching and running drills, Goddard directed about two dozen girls present to begin lay-up drills, which led to the incident here.

As described by Gill, the drill required each girl to run the length of the court while dribbling the ball until she was near the basket, and then launch a hook shot off one foot. Next, [y]ou run back through under the basket and collect your ball, and then just run to the other side and repeat it. About the third or fourth time Gill approached the basket, I was running . . . towards the basket . . . and the sun caught in my eyes, and I was looking back to see if I had made the shot, and I hit the pole. The collision gave her a cut right underneath my right eyebrow, and it was bleeding pretty profusely. Stunned and disoriented, Gill was escorted off the court, and over to Coach Goddard, who told Gill to go to the training room in the gymnasium to get patched up.

When Gill arrived at the training room, she saw it was full, i.e., all of the training tables were occupied, and the trainer, Kendra Jordan, was attending to someone else. Gill told Jordan what had happened: Hey, I hit my head on a pole, can you help me? [] . . . [] . . . There was a wooden counter against one of the walls, and she [Jordan] directed me towards it. She patted on the counter, she said Hop up here and I will help you out in a minute. 

Gill got up on the counter, from where she watched Jordan walk into another room. At that point, Gill testified I lost my vision and I said out loud, I dont feel good. I feel dizzy. And thats all I remember. Gill fainted. She fell to the floor on her face.[3] One of her teeth was knocked out, and two others were hanging by a thread. All of the teeth were front teeth on Gills upper jaw. The school nurse was summoned; she examined Gill, and made the decision that the injuries were sufficiently serious to warrant taking Gill to a nearby hospital.[4] Gill needed assistance to stand and walk, and was vomiting as Goddard took her to a hospital.

Gill spent the night at the hospital. The cut on her face required three stitches, and left a scar. The tooth that was knocked out is permanently lost; two others were badly damaged and needed root canals to be saved. A bridge was made for the missing tooth, but Gill suffered an allergic reaction to it; her gums became inflamed as a result. Even so, she had to live with it for about a year and a half. Gill will need a new bridge every three to five years, unless she gets implants for all three teeth.

Gill missed attending school for about ten days because she was suffering migraines and toothaches, and because she had constant trips to the dentist. For about six weeks, Gill could not eat any food that required the use of her missing and damaged front teeth. For seven months she could eat only soft foods that did not require use of those teeth. When Gill returned to school, she was still suffering from migraines, and taking pain medication. Her grades suffered, and she was dropped from the basketball team in a publicly humiliating way. She also developed an acute fear of dentists, a fear that required counseling.[5]

Contra Costa Firefighter and Paramedic Dan Colbath testified as an expert on first aid, particularly with respect to head injuries. He gave his opinion that the conduct of both Goddard and Jordan, each of whom is Red Cross-certified on first aid and CPR, fell below the first aid standard of care. According to Colbath, Goddard should first have sat Gill down and checked to she if had suffered a concussion. Goddard should have stayed with Gill to the training room, and not delegatedshirking it, was Colbaths characterizationthe task to other players. Also, Goddard should have gone with Gill so that she could have told [Jordan] the sport trainer exactly what happened, She was running at full speed, hit her head on the pole. 

Colbath further testified that Jordan also failed to take necessary and ordinary first aid steps. Jordan should have spoken with Gill to get an idea of the injury and its seriousness. And she should not have walked away from Gill, because a person with a head injury should never be left alone. Moreover, Jordan should have put Gill on one of the training tables (even if it meant displacing someone with a potentially less serious injury), and not on the counter. The potential for Gill falling was a distinct possibility because head injuries commonly produce dizziness and a drop in blood pressure. Both Goddard and Jordan should have called 911 at once, most certainly after Gills fall from the counter: As Colbath vividly described it, it was criminal, ludicrous, and insane that they didnt call 911 after the second injury. There was no justification for not having experienced paramedics transport Gill to the hospital.

Coach Goddard testified why she did not ask that the pads be put on the poles: I didnt think it was necessary, and I didnt even know if anybody was around from the PE department sobecause it was after school. According to Goddard, Gill seemed totally fine when she came up to Goddard after striking the pole. Goddard sent Gill to the trainer because she (Gill) asked . . . if she could go with her friends to the physical trainers office to get a Band-Aid, so I said sure. Gill also agreed because that Jordan was kind of the expert in injuries, and had a lot more training than I do. When Goddard heard of the accident minutes later, she canceled the open gym, and assisted Gill getting to the hospital.

Kendra Jordan, who herself graduated from Redwood High in 1995, testified that among her responsibilities was assessing and treating injuries suffered by athletes at Redwood High. Jordan testified that when she first saw Gill at the door of the training room, She seemed to be perfectly balanced, and nothing seemed odd to me. Jordan did not think it necessary to make room for Gill on one of the training tables because Gill was upright, coherent, and she didnt appear to be dizzy, wasnt slurring her speech, everything was completely normal.

Jordan further testified that Gill got up on the counter on her own initiative; Jordan did not direct Gill to do so. Jordan was leaving to get gloves and material to stanch the blood from Gills cut when Gill fell to the floor. Jordan testified that she did ask one of the adults who came into the room after the fall to call 911. She did not consider moving another student to put Gill on one of the training tables, nor did she think of calling 911 before Gills fall because [i]t just wasnt an emergency situation at that time.[6]

The evidence also showed that Presidio conducted its operations at Redwood High pretty much on its own, pursuant to an Agreement for Consultant Services. Among the services Presidio agreed to provide were the assessment and treatment of athletic injuries and first aid, for approximately 30 hours per week. It was Presidio that hired the persons, paid them, and sent them to Redwood High to maintain a clinic. Presidio also set up the training room and provided day-to-day operating supplies for it, but not the training tables. As far as Jordan knew, her job performance was never evaluated by officials at Redwood High or Tamalpais. And there was no evidence that Tamalpais possessed the authority to direct Presidios personnel or operations at Redwood High. Jordan testified that she was certified in first aid and CPR, and that her training included evaluation and treatment of head injuries.

The Proceedings Below

Gill filed a complaint seeking damages from Tamalpais. The complaint had two causes of action. As to the first cause of action, for general negligence, the trial court granted Tamalpaiss motion for judgment on the pleadings; it is not at issue here. The jury considered only Gills second cause of action, entitled Premises Liability in the complaint, but in reality a claim that Tamalpais had maintained a dangerous condition of public property (Gov. Code,  835). Tamalpais filed a cross-complaint against Presidio for indemnification should Tamalpais be liable to Gill.

The evidentiary phase of the trial began on November 3, 2005, and concluded on November 15. The jury began deliberating on the morning of November 18, and that afternoon returned a special verdict answering special interrogatories.[7] The jury found that Tamalpais did maintain a dangerous condition of property; that Tamalpais had notice of the condition and could have protected against it; that it was reasonably foreseeable the condition would cause harm; and that the condition was a substantial factor in causing harm to Gill. The jury further found that Presidio was negligent, and that its negligence was a substantial factor in causing . . . harm to Gill. Gill herself was not found negligent.

The jury fixed Gills damages for Past economic loss, including medical expenses at $27,232.61; for future economic loss, including future medical expenses at $99,700; for Past non-economic loss, including physical pain and mental suffering at $250,000; and future non-economic loss, including pain and mental suffering at $100,000. The jury fixed Tamalpaiss responsibility at 60 percent, with the remaining 40 percent assigned to Presidio.[8]

Judgment on the verdict was entered that day, but the court subsequently vacated the judgment.

The court was then deluged with a flurry of motions. Tamalpais moved for judgment notwithstanding the verdict (NOV) against Gill on the ground that the evidence showed there was no dangerous condition as a matter of law. Tamalpais also moved for a new trial against Gill on the same ground. Tamalpais also moved for judgment NOV against Presidio on the ground that the apportionment by the jury of the damages between Tamalpais . . . and Presidio . . . is not supported by the evidence. Tamalpais moved for a partial new trial on the grounds that the damages assessed against it, vis‑‑vis Presidio, were excessive, and that the court committed instructional error.

Presidio also moved for judgment NOV, on the ground that the uncontradicted evidence [showed] that Kendra Jordan met the professional standard of care for certified athletic trainers and therefore was not negligent in the in treatment of the plaintiff. Presidio also filed a motion asking for application of Proposition 51 (Civ. Code,  1431 et seq.), so that Presidio had no liability for Gills noneconomic damages, and was liable for only 40 percent of Gills economic damages.

Finally, Gill asked for postjudgment interest in the amount of $2,835.45, allegedly having accrued since the November 18 judgment.

After hearing argument on the motions, the trial court ruled as follows:

Applying Proposition 51, the trial court held that because Gill did not sue Presidio, she could recover only 60 percent of the $350,000 non-economic damages awarded by the jury that was attributed to Tamalpais; in other words, Gill could recover only $210,000 of her non-economic damages from Tamalpais. On the other hand, Tamalpais remained jointly and severally liable to Gill for the full amount of economic damages, $126,932, awarded by the jury. However, Tamalpais was entitled to recover 40 percent of that amount, $50,572.80, from Presidio because Tamalpais prevailed on its cross‑complaint. Accordingly, Gill would have judgment against Tamalpais for $336,932, and Tamalpais would have judgment against Presidio for $50,572.80. All of the other motions were denied.

The court then entered judgment in favor of Gill against Tamalpais in the amount of $336,932 (i.e., economic damages of $126,932 and non-economic damages of $210,000); and in favor of Tamalpais on its cross-complaint against Presidio for $50,572.80 (i.e., 40 percent of the economic damages of $126,932 awarded Gill from Tamalpais).

Every party appealed from the judgment; Presidio also appealed from the order denying its motion for judgment NOV. We ordered the three appeals consolidated.

DISCUSSION

TAMALPAISS APPEAL (A112705)

Tamalpais first argues that the jurys allocation of 60 percent of the financial responsibility for Gills non-economic damages is not supported by substantial evidence. Tamalpais also argues that the trial court committed prejudicial error by (a) instructing the jury as requested by Presidio and (b) by refusing an instruction requested by Tamalpais. None of these arguments has merit.

The Jurys Apportionment of Liability is

Suppported by Substantial Evidence

Since the comparative fault doctrine was first adopted in California in Li v.Yellow Cab Co. (1975) 13 Cal.3d 804, our Supreme Court has repeatedly acknowledged that it is designed to permit the trier of fact to consider all relevant criteria in apportioning liability. The doctrine is a flexible, commonsense concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury . . ., in order to arrive at an equitable apportionment or allocation of loss.  (Knight v. Jewett (1992) 3 Cal.4th 296, 314.)  [C]omparative negligence  does not lend itself to the exact measurements of a micrometer-caliper. (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 736; [citations].) The court has also noted that juries are fully competent to apply comparative fault principles . . . . [] As one commentator has noted, [c]ourts in comparative negligence states are usually circumspect about altering determinations made by the jury. The courts will rarely disturb the jurys apportionment of negligence between parties or reverse findings for the plaintiff or defendant. [Citation.]

This court reviews the jurys apportionment of fault under the substantial evidence standard. [Citation.] As the court noted in Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 346, the jurys power to apportion fault is as broad as its duty to resolve conflicts in the evidence and assess credibility: These same considerations apply to the jurys apportionment of fault under comparative negligence rules. Furthermore, the appellate court may not substitute its judgment for that of the jury or set aside the jurys finding if there is any evidence which under any reasonable view supports the jurys apportionment. [Citation.]  (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1233-1234.)

Tamalpais first argues that it could only be held responsible for a miniscule portion of the past medical expenses, namely the stitches required to close the cut on Gills face, and none of the future medical expenses.[9] In effect, Tamalpais is conceding that it was negligent, but that any negligence attributable to it had a definite beginning, a definite end, and finite financial consequences. Put slightly differently, Tamalpais believes it should have no liability for the damages suffered by Gill after she went into the training room because everything that happened thereafter is exclusively the responsibility of Presidio. This attitude shows a profound misunderstanding of the financial responsibility a tortfeasor must bearand the law of proximate cause.

Tamalpais appears oblivious to the principle expressed in section 457 of the Second Restatement of the Law for Torts: If the negligent actor is liable for anothers bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the others injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner. This principle of the initial tortfeasors enduring liability is a feature of causation and foreseeability analysis that has long been accepted in California law. (E.g., Ash v. Mortensen (1944) 24 Cal.2d 654, 657; Dewhirst v.Leopold (1924) 194 Cal. 424, 432‑433; Blackwell v. AmericanFilm Co. (1922) 189 Cal. 689, 695-696; Maxwell v. Powers (1994) 22 Cal.App.4th 1596, 1606-1607; Hastie v. Handeland (1969) 274 Cal.App.2d 599, 604-606; 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts,  1676, pp. 1198-1199.)

Accordingly, Tamalpais cannot escape liability for what Presidio did or did not do. Tort-wise, they are joined at the hip. Presidio was only on the scene because Tamalpais put it there. When Gill started bleeding, it was an employee of Tamalpais, Coach Goddard, who steered her for aid to where Presidio was established on school grounds. If the aid was rendered in a negligent manner by Presidio, it was a foreseeable consequence of the antecedent choices and negligence of Tamalpais.

Tamalpais next argues that it had no reason to believe metal basketball stanchions constituted a dangerous condition, as opposed to a merely trivial defect posing no substantial risk, because there was only one prior incident of a student into one of the poles.

It is true that the issue of whether the property of a public entity is dangerous can be resolved as a matter of law (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148), as can whether an improvement to real property qualifies as trivial. (E.g., Johnson v. City of Palo Alto (1962) 199 Cal.App.2d 148, 151.) However, the issue is left to the trier of fact if reasonable minds could differ. (Bonanno v. Central Contra Costa Transit Authority, supra, at p. 148; Johnson v. City of Palo Alto, supra, at pp. 151-152.) The principle is codified in Government Code section 830.2: A condition is not a dangerous condition . . . if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property . . . was used with due care in a manner in which it was reasonably foreseeable that it would be used.

In twice denying Tamalpaiss motions for summary judgment, the trial court recognized that the issue of whether Tamalpais had maintained a dangerous condition in leaving the pole uncovered was one on which reasonable minds could disagree.[10] Both of these predictions were vindicated by the jury, which rejected the position Tamalpais now presents, by findingunanimouslythat the pole was a dangerous condition, that Tamalpais knew of the risk,[11] and that it could have protected against it. (See fn. 8, ante.)

The language of Government Code section 830.2 also establishes that the issue cannot be so easily compartmentalized as Tamalpais would have it. That language frames the issue of whether the condition under consideration is dangerous or trivial shall be decided with reference to all of the surrounding circumstances, namely, whether the property was used with due care and in a manner in which it was reasonably foreseeable that it would be used.

Here, the jury concluded in effect that Gill had acted with due care because it found that she had no responsibility for her injuries. Moreover, it made the unanimous findings already mentioned. Tamalpais makes no argument that any of these determinations is not supported by substantial evidence. This silence is significant, because it means that even if Tamalpais prevailed on the issue framed in its brief, it would still lose because these all those other findings relative to the surrounding circumstances clearly preponderate. Nor can Tamalpais escape the most elemental of conclusionsthat it knew of the danger, had the means at hand to mitigate it, but failed to employ those means. The jury could conclude that none of this would have occurred if the pads had been put around the pole. It was not patently absurd for the jury to conclude that Tamalpais was more culpable than Presidio. Given the inherently imprecise nature of comparative fault, and the deference extended to the jurys determination of actual percentages, we conclude there is no basis of this court disturbing the responsibility ratio reached by the jury here. (Rosh v. Cave Imaging Systems, Inc., supra, 26 Cal.App.4th 1225, 1233-1234.)

There was no Prejudicial Instructional Error

The trial court instructed the jury with a modified version of CACI 501 as follows:

A certified athletic trainer is negligent is she fails to exercise the level of skill, knowledge and care in diagnosis and treatment that other reasonably careful certified athletic trainers would possess and use in similar circumstances. [] This level of skill, knowledge and care is sometimes referred to as the standard of care. You must determine the level of skill, knowledge and care that other reasonably careful athletic trainers would use in similar circumstances, based only on the testimony of the expert witnesses, including representatives of Presidio Sport and Medicine who have testified in this case. Tamalpais argues that the instruction was error and, in the circumstances of this case, prejudicial. We do not agree.

Initially, it must be noted that this argument by Tamalpais is not directed at Gill. At trial, Gill proceeded only against Tamalpais, not Presidio. Presidio was involved only because it had been sued by Tamalpais for indemnification. Moreover, Gills theory of liability against Tamalpais was not based on the professional qualifications, or lack thereof, or professional misfeasance by any person or entity. Rather, as already mentioned, Gills sole theory against Tamalpais was based on it maintaining a dangerous condition. Moreover, backed by Colbaths testimony, Gills theory was that she had been damaged by the failure to follow simple principles of first aid (in which both Goddard and Jordan were trained). Thus, this instruction would not have been prejudicial to Tamalpais with respect to Gills claim, because Gill was in a sense indifferent to whether Jordan had also failed to comply with the standard of care for physical trainers. Accordingly, we deem this argument by Tamalpais to be directed solely against Presidio.

Even so, the instruction was likewise not prejudicial to Tamalpais. Tamalpais argues that Jordan was not a health care provider within the scope of the Medical Injury Compensation Reform Act (Civ. Code,  3333 et seq. (MICRA)), and thus there was no requirement that she had to have been shown to acted below the standard of care for a professional health care provider. Tamalpais in effect argues that the instruction was unnecessary because this situation . . . simply involved a lay persons negligence which the jury was fully able to assess without the need for expert testimony concerning a professional standard of care. As Tamalpais views it, the situation was one where  the medical facts are . . . susceptible of comprehension by a lay juristthat is, if the jury is capable of appreciating and evaluating the significance of a particular medical event.  (Quoting Gannon v. Eliot (1993) 19 Cal.App.4th 1, 6-7.)

At trial, Tamalpais objected to evidence concerning a special professional standard of care from an expert because Its irrelevant in this case.[12] The court overruled the objection, and the jury heard an expert for Presidio state his opinion that Jordans conduct had not fallen below the standard of care for physical trainers.[13] By instructing the jury with CACI 501,[14] the court was in plain effect holding Tamalpais to prove breach of a higher standard of care by Presidio than Tamalpais believed was applicable. Nevertheless, the jury still found that Presidio had breached that higher duty of care and was liable for 40 percent of Gills injuries.

In these circumstances, we cannot discern that Tamalpais was prejudiced by Presidio not being held to a lower standard of care. There was clearly a reasonable basis for the jury to determine that fault lay with both Tamalpais and Presidio. Again, we emphasize that the jury found no fault with Gill, and Tamalpais is not attacking that finding. Given the nature of the task entrusted to the jury, we cannot conclude that instructing it with CACI 501 worked a fundamental distortion. Stated another way, we see no reasonable probability that, without the instruction, the jury would have accepted Tamalpaiss argument and virtually absolved it of financial responsibility. (See fn. 9, ante.)

The trial court refused Tamalpaiss request that the jury be instructed with CACI 432, as follows: Tamalpais Union High School District claims that it is not responsible for Jennifer Gills harm because of the later misconduct of Presidio Sports & Medicine. To avoid legal responsibility for the harm, Tamalpais Union High School District must prove all of the following:

1. That Presidio Sports & Medicines conduct occurred after the conduct of Tamalpais Union High School District;

2. That a reasonable person would consider Presidio Sports & Medicines conduct as a highly unusual or an extraordinary response to the situation;

3. That Tamalpais Union High School District did not know and had no reason to expect that Presidio Sports & Medicine would act in a [negligent/wrongful] manner; and

4. That the kind of harm resulting from Presidio Sports & Medicines conduct was different from the kind of harm that could have been reasonably expected from Districts conduct. Tamalpais contends that the refusal to give this instruction removed from the jury the crucial issue of whether Presidios acts and omissions constituted a superseding cause.

The trial courts decision to refuse this instruction was not error. As already established, an initial tortfeasor remains liable for foreseeable for additional subsequent harm when the chain of causation set in motion by the original tort remains unbroken. (Hastie v. Handeland, supra, 274 Cal.App.2d 599, 606.) Aggravation of the original injury while seeking or receiving medical attention is foreseeable; it is thus not a superseding cause, even if it involves negligence or malpractice by the subsequent actor. (See Anaya v. Superior Court (2000) 78 Cal.App.4th 971, 975-976 [auto accident tortfeasor liable for death from crash of helicopter transporting victim to hospital; negligent construction or maintenance of helicopter irrelevant]; Hastie v. Handeland, supra, at pp. 605-606 [collecting cases of initial tortfeasor held liable for later death of victim during surgery necessitated by injury caused by initial tortfeasor]; 6 Witkin, Summary of Cal. Law, supra, Torts,   1196, pp. 1198-1199.) The jury was correctly instructed on this principle with CACI 3929: If you decide that Tamalpais Union High School District is legally responsible for Jennifer Gills harm, it is also responsible for any additional harm resulting from the acts of others in providing aid that Jennifer Gills injury reasonably required, even if those acts were negligently performed.[15]

GILLS APPEAL (A112830)

The Trial Court Did Not Err

In Applying Proposition 51

The heart of Proposition 51 provides: In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendants percentage of fault, and a separate judgment shall be rendered against that defendant for that amount. (Civ. Code,  1431.2, subd. (a).)

Gill first contends that the trial court erred in concluding that Proposition 51 applied to non-economic damages attributable to Presidio. Gill construes the based upon principles of comparative fault language as self-limiting, namely, that While it applies to torts arising out of common law, the statute does not apply to liability established by statute. . . . [] . . . [] As Government Code  835 makes the District statutorily liable to plaintiff for all of her damages, both economic and non-economic, it creates a legal obligation on their part to satisfy the entire judgment of the jury. As this is a legal obligation, there is nothing in the law to prevent the District from recovering that portion of the non-economic damages attributed by the jury to Presidio on its claim for equitable indemnification. This contention is untenable.

The most elemental reason why Gill cannot prevail is noted by Presidio: As stated in Aetna Health Plans of Cal. v. Yucaipa-Cailmesa Joint Unified School Dist. (1999) 72 Cal.App.4th 1175, 1190 [(Aetna)], a plaintiffs [f]ailure to name a defendant will preclude recovery of that defendants proportional share of [non-economic] damages. Because plaintiff failed to name Presidio as a defendant, plaintiff is not entitled to Presidios proportional share of non-economic damages.[16] (Accord, MarinaEmergency Medical Group v. Superior Court (2000) 84 Cal.App.4th 435, 440.)

Gill made the conscious decision not to name Presidio as a defendant, a strategy her attorney candidly admitted to the court prior to the start of the trial: because he wanted Tamalpais and Presidio to be pointing fingers at each other on the liability [issue]. Having made that deliberate choice for the benefits it provided, Gill must now live with whatever the accompanying disadvantages. It is also clear that Gills argument has no merit.

It is a truism of public law that the liability of governmental entities is entirely statutory. (E.g., Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932; County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 637.) Almost all of the statutes providing for liability of public entities are in the Government Tort Claims Act (Gov. Code,  810 et seq), including the statute imposing liability for dangerous conditions of property (id.,  835). With respect to that statute, our Supreme Court has concluded that Section 835 is the principal provision addressing the circumstances under which the government may be held liable for maintaining a dangerous condition of public property, but it is to be read against the background of general tort law. (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 809; accord, Lompoc UnifiedSchool Dist. v. Superior Court (1993) 20 Cal.App.4th 1688, 1696.) Thus, Gill is mistaken in assuming that liability under Government Code section 835 is to be determined without reference to Proposition 51.

Gills reliance upon Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847 is misplaced, for several reasons. For one thing, no government entity was a party there, so anything the court said with respect to governmental liability would qualify as dictum. For another thing, the court that decided Rashtian recently characterized it as holding that Proposition 51 does not apply where liability imposed on defendant vicariously by permissive user statutes as a matter of public policy . . . . In reaching our conclusion, we noted that application of Proposition 51 necessarily requires independently acting tortfeasors who have some fault to compare.  (Bostick v. Flex Equipment Co., Inc. (2007) 147 Cal.App.4th 80, 90.) Here, with Tamalpais and Presidio sharing 100 percent of the fault for Gills injuries, there are obviously tortfeasors who have some fault to compare, and thus no issue of purely vicarious or derivative liability. (See MarinaEmergency Medical Group v. Superior Court, supra, 84 Cal.App.4th 435, 440-441.)

Most importantly, the plain language of Government Code section 835 does not preclude operation of Proposition 51 to a situation where a governmental entity and a private party are both found to have been negligent, and substantial factors, in causing a plaintiffs injury. Indeed, the legislative history of Proposition 51 demonstrates that Gills approach is contrary to the goals of the initiative.

Proposition 51 was adopted by the voters in June 1986. The statutory findings enacted with the same measure leave no room for doubting that one goal was to avoid catastrophic economic consequences for . . . local governmental bodies . . . by changing the existing rules on joint and several liability that has threatened financial bankruptcy of local governments. (Civ. Code,  1431.1, subds. (c), (a).) The analysis of the Legislative Analyst and the summary prepared by the Attorney General both emphasized that the measure if adopted would result in substantial savings to . . . local governments. (See Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1243 [appendix reproducing ballot summary, and analysis].) The arguments seen by the voters left no doubt that the measure had the overwhelming support of cities, counties, and other local governments. (Id. at pp. 1245-1246 [ballot arguments].) Indeed, the very first sentence of the proponents ballot argument show that local schools were meant to be recipients of the limitation of the existing rules of joint and several liability: Nothing is more unfair than forcing someonebe it a city, a county or the state, a school, a business firm or a personto pay for damages that are someone elses fault. (Id. at p. 1245, italics added.)

In light of the foregoing, we reject Gills argument that By its terms, Proposition 51 is unavailing to Tamalpais Union High School District because it is directed at the common law doctrine of joint and several liability, while the District liability in this case arises out of: (1) A statutory duty created by Government Code  835 . . . and/or (2) its status as a landowner with certain non-delegatible duties. The text of Proposition 51, and the history of its adoption, disclose no basis for either of the distinctions Gill identifies. Gill is unable to cite a single reported decision where Gills approach has been applied to a defendant that was a governmental entity. That absence is hardly surprising, because if Gills argument were accepted, the benefit of Proposition 51 to public schools would be illusory.

The trial court did not err by applying Proposition 51 to make Tamalpais liable only for its fault-related percentage of Gills non-economic damages.

The Trial Court Did Not Abuse Its Discretion

By Denying Gills Request for Interest

The second issue raised by Gills appeal is the trial courts denial of the approximately $2800 Gill claims is due her as accrued postjudgment interest. Gill contends that denial was error, if not an abuse of discretion. To understand why this contention is without merit, it is necessary to examine the pertinent procedural history, which was somewhat convoluted.

The jury returned its verdict on the afternoon of November 18, 2005. Immediately after the jury was dismissed, Presidios counsel told the court: I want to point out before entry of judgment and before entry of the verdict, there are some posttrial matters regarding allocation between the Defendants . . . that . . . we need to sort out. . . . and depending on peoples positions, we will need [the] Courts ruling. There was no objection to the courts suggestion to schedule a case management conference for November 22 to address any further proceedings. Nevertheless, judgment on the jury verdict was entered on November 18.

At the November 22 case management conference, Presidios counsel mentioned a number of matters left for further determination. Counsel for Tamalpais conceded these are issues, but noted [w]ithout some motion or moving paper in front of the Court, I dont know what to respond to. All parties accepted the courts suggestion that what I ought to do is give you a date on the law and motion calendar, and everybody file . . . whatever motions you deem are appropriate, and set December 19 as the date for hearing the motions.

Counsel for Presidio then raised just one procedural matter . . . . [A]s I understand it, . . . the entry of the special verdict or judgment is being stayed for argument or further consideration. And if we could just have that, if it isnt already, entered in the court minutes? The court responded: Right. I have entered, I think its in the minutes, we have entered the verdict. We have not entered a judgment.

Gills counsel then stated that [p]laintiff is entitled to have the judgment entered in order to secure interest . . . accruing at $50 or so dollars a day . . . . [] [But] if Counsel wants to agree . . . that we can . . . nunc pro tunct [sic] it back to the date of the verdict, then Ive got no problem, but I think she is entitled to those monies. Counsel for Tamalpais and Presidio did not agree to Gills proposal; both were opposed to immediate entry of a judgment because of the impact it would have on several statutory time periods involving motions [for new] trial and the like, and because the posttrial motion[s] will determine what the judgment is and . . . the amount of the judgment. The court stated it would consider this issue on the 19th.

However, on December 6, the court was advised of its error in believing that We have not entered a judgment. The court promptly filed an order vacating that entry, and ordering that Entry of verdict and judgment is stayed until this Court rules on the issues to [be] heard on December 19, 2005.

At the hearing on December 19, after the court addressed the other pending motions, and directed preparation of the judgment ultimately entered, Gills counsel raised the issue of interest, asking the court to award interest from the date the verdict was returned. The court responded: I dont think I can do that. First of all, we had the clerical error issue in the judgment. Its clear in the record that the day the verdict came in that we entered the verdict and I stayed the issuance of the judgment until we dealt with the issues that [we] are dealing with this morning. Gills counsel stated I agree with that, but nevertheless unsuccessfully pressed for interest, citing Phillips v. Phillips (1953) 41 Cal.2d 869. Counsel for Tamalpais opposed the request, noting that there was no sum certain upon which interest could accrue until the court did any calculations required by Proposition 51.

Gill renews her claim for interest. We conclude there was no error.

The governing statutory authority provides: When trial by jury has been had, judgment must be entered by the clerk, in conformity to the verdict within 24 hours after the rendition of the verdict, whether or not a motion for judgment notwithstanding the verdict be pending, unless the court order the case be reserved for argument or further consideration . . . . (Code Civ. Proc.,  664.)

It is clear from the courts comments that it clearly intended, and thought it had, order[ed] the case to be reserved for argument or further consideration. The initial judgment entered without the courts authorization was void (Lacoste v. Eastland (1897) 117 Cal. 673, 680; Cummings v. Ross (1891) 90 Cal. 68, 72), and the court promptly vacated it when it came to the courts attention. Gill does not argue that decision by the court was improper or in excess of its jurisdiction. The court had sensible reasons for doing so, and for denying Gills first request for interest. The court was already effectively on notice that Tamalpais and Presidio would be filing motions that could have a decisive effect on any judgment if granted. In addition, the court knew that the Proposition 51 issue would have to be addressed, even if the anticipated motions were not granted. The fact that the latter issue remained for resolution by the court was itself sufficient to prevent entry of a judgment. (E.g., Reclamation Dist. No. 556 v. Thisby (1901) 131 Cal. 572, 574; Cummings v. Ross, supra, at p. 72; Shapiro v. Equitable Life Assur. Soc. (1946) 76 Cal.App.2d 75, 99.)

It is true that Courts have inherent power to enter judgments nunc pro tunc so as to relate back to the time when they should have been entered, but will do so only to avoid injustice. (Phillips v. Phillips, supra, 41 Cal.2d 869, 875.) The language of avoiding injustice is recognized as a term of art establishing that the matter is entrusted to the trial courts discretion. (E.g., Cadlo v. MetalcladInsulation Corp. (2007) 151 Cal.App.4th 1311, 1322-1324; Scalice v. Performance Cleaning Systems (1996) 50 Cal.App.4th 221, 238-239; A-C Co. v. Security Pacific National Bank (1985) 173 Cal.App.3d 462, 473.) Here, there was no abuse of discretion in denying Gills requests.

In applying Proposition 51, the trial court was in effect required to reduce the take-home value of the verdict to plaintiff by $140,000, from the $350,000 in non-economic damages awarded by the jury to the $210,000 she could actually recover from Tamalpais. Clearly, if the court had granted Gills initial request, that ruling would have had to be modified because otherwise Gill would be receiving interest on no longer existing principal. Any interest that had accrued might subsequently be regarded as an unjustified windfall. Simply as a matter of efficiency, the court did not abuse its discretion in deferring the matter until a final judgment was ready to be entered. Once a final judgment was ready, there was no abuse in denying Gills renewed request. The court could conclude that Gill would receive adequate compensation from the judgment, or that sufficient liability had already been imposed upon Tamalpais, or that it was unjust that interest should only be assessed against Tamalpais. Any one of these considerations would be sufficient to demonstrate that the court did not exceed the bounds of reasonand thus did not abuse its discretion. (See, e.g., Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)

In her reply brief, Gill states we should find that the trial court abused its discretion in failing to state its reason for refusing to nunc pro tunc the date of the judgment back to the date of the verdict and remand the matter for the trial court to state its reasons. Gill cites no authority, and we have discovered none, requiring a trial court to state its reasons for declining to make such a discretionary award of interest. Gill did not request such an explanation from the trial court. The matter is thus subject to the general rules prohibiting reversal for matters that were not raised in the trial court. (E.g., Burden v. Snowden (1992) 2 Cal.4th 556, 570; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  394, p. 444.) In any event, the reasons for the courts decisions were obvious, and, as we have noted, were noted at the time by counsel for both Tamalpais and Presidio.

PRESIDIOS APPEAL (A113358)

Presidio states that it presents a single issue on its appeal, namely, whether the trial court erred by failing to accept as conclusive the uncontradicted testimony of Presidios qualified expert on the standard of care in a professional negligence case. The trial court twice rejected Presidios claim that it was entitled to judgment as matter of lawfirst when it denied Presidios motion for a directed verdict at the close of evidence, and then when it denied Presidios motion for judgment NOV.

Presidio is not claiming the benefit of MICRA. That scheme is restricted to claims of professional negligence against a health care provider. (See, e.g., Civ. Code, 3333.2 [limiting non-economic damages]; Code Civ. Proc.,  340.5 [statute of limitations],  425.13 [plaintiff must obtain court permission to file claim for punitive damages].) And health care provider is defined as any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code. (E.g., Civ. Code,  3333.2, subd (c)(1); Code Civ. Proc.,  340.5, subd. (1),  425.13, subd. (b).) However, athletic trainers are not certified or licensed by the State of California, as Presidios expert conceded at trial.

Nor does Presidio rely on any other statute. Rather, its argument is founded purely upon common lawbecause the trial court allowed Presidio to present an expert to testify that Jordans performance did not fall below the standard of care for an athletic trainer, and because it instructed the jury with CACI 501 on that standard of care, Presidio makes the assumption that, in the absence of conflicting expert testimony, the case against it was legally deficient. We are not persuaded.

It is generally true that a cause of action for professional negligence requires the plaintiff to prove that the defendant failed to use such skill, prudence, and diligence as possessed by other members of that profession. (E.g., Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077; Budd v. Nixen (1971) 6 Cal.3d 195, 200.) And it is also true that such proof is usually provided by expert witnesses who testify as to the professional standard of care. (E.g., Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001 (Flowers).) From these broad principles, Presidio reasons it is entitled to claim the protection of the correlative principle requiring a fact finder to accept uncontradicted expert testimony as conclusive . . . in professional negligence cases where the standard of care must be established by expert testimony. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632; see Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844 [summary judgment in malpractice action proper where plaintiff did not offer rebuttal expert opinion regarding standard of care].)

Presidio paints with too broad a brush.

The need of expert testimony is the general rule, but it is not an invariable one. The law relaxes the requirement of expert testimony against a professional when  the conduct required by the particular circumstances is within the common knowledge of the layman.  (Landeros v. Flood (1976) 17 Cal.3d 399, 410.) Citing Flowers, 8 Cal.4th 992, Presidio seems to treat this common knowledge exception as restricted only to cases where the plaintiff is relying on the doctrine of res ipsa loquitur. But the Supreme Court in Flowers stated only that the common knowledge exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur. (Id. at p. 1001, italics added.) Principally limited is hardly the same as exclusively limited. When a layperson  is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised, expert testimony is not required. (Ibid.; Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 141 [same]; see also Evid. Code,  801 [expert testimony permitted only where subject is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.].)

The Flowers court also stated:  [N]egligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. [Citation.] Thus, as a general proposition one is required to exercise the care that a person of ordinary prudence would exercise under the circumstances. [Citations.] Because application of this principle is inherently situational, the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances. . . . [] With respect to professionals, their specialized education and training do not serve to impose an increased duty of care but rather are considered additional circumstances relevant to an overall assessment of what constitutes ordinary prudence in a particular situation. (Flowers, supra, 8 Cal.4th 992, 997-998, fn. omitted.)[17]

Broadly speaking, this is what the trial court appears to have done. It permitted Presidio to introduce testimony from an expert on the standard of care for an athletic trainer, but it did not view that testimony as setting the benchmark for the jurys consideration. The nature and extent of the specialized knowledge and experience Jordan had acquired as an athletic trainer were treated as additional circumstances that the jury could consider. The trial court apparently[18] concluded that putting a person with a bleeding head wound on top of a counter that was four feet above a concrete floor and then leaving that person unattended constituted a situation when a layperson is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.  (Flowers, supra, 8 Cal.4th 992, 1001.) Stated in the negative, the court could conclude that this was not a situation where the professional significance of underlying facts seem[ed] beyond lay comprehension. (Franz v. Board of Medical Quality Assurance, supra, 31 Cal.3d 124, 141.)

Presidio claims that two decisions from other states support its position, but those decisions are readily distinguishable. It is true that in Searles v. Trustees of St. Josephs College (Me. 1997) 695 A.2d 1206, 1210, the Supreme Court of Maine indicated that the standard of care applicable to an athletic trainer who treats physical injuries or who must make judgments about the severity of a physical condition does not ordinarily lend itself to common knowledge. However, it is notable that the court did not impose a hard-and-fast rule that expert testimony would always be required; in fact, the court noted that certain of the plaintiffs claims would not require expert testimony. (Id. at p. 1211.) Moreover, unlike California, Maine licenses physical trainers (Id. at p. 1210), so the claimed need for expert testimony would obviously have a firmer basis.

And in Cerny v. Cedar Bluffs Public School (Neb. 2001) 628 N.W.2d 697, the Supreme Court of Nebraska reversed the dismissal of a high school athletes complaint against two football coaches and the school because the trial court had excluded the testimony of three certified athletic trainers offered as witnesses by the plaintiff concerning whether the coaches, who had to have passed a course in the care and prevention of athletic injuries, were negligent. (Id. at pp. 705-706.) In other words, the trial court should have allowed the athletic trainers to testify about the standard of care of the coaches for the jury. The court did not address the converse situation presented here. In sum, neither Searles nor Cerny supports an inflexible rule requiring expert testimony as advocated by Presidio.

The trial court did allow expert opinion to be presented to assist Presidio, but the absence of conflicting expert testimony was not fatal for Gill. Accordingly, we conclude that the trial court did not, as Presidio insists, commit an error of law so patently egregious that it requires entry of judgment for Presidio.

DISPOSITION

The judgment, and the order denying Presidios motion for judgment NOV are affirmed. The parties shall bear their respective costs of appeal.

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Richman, J.

We concur:

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Kline, P.J.

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Lambden, J.

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