McCormack v. PG &E
Filed 4/15/13 McCormack v. PG &E CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
HEATHER McCORMACK et al.,
Plaintiffs and
Appellants,
v.
PACIFIC GAS & ELECTRIC
COMPANY,
Defendant,
Cross-Complainant and Appellant;
QUYEN NGUYEN,
Defendant,
Cross-Defendant and
Respondent.
H035217
(Santa Clara
County
Super. Ct.
No. CV071436)
Introduction
Appellant,
cross-complainant, and defendant Pacific Gas and Electric Company (PG&E)
appeals from an order by the trial court granting a partial new trial after a
jury returned a verdict finding PG&E negligent but not a substantial cause
of Santa Clara County Fire Department Captain Mark McCormack’s death. Captain McCormack suffered fatal injuries
while responding to a house fire on February
13, 2005, after he touched a downed electrical power line. Plaintiffs and appellants are Heather McCormack,
Captain McCormack’s widow, and Jack and Shirley McCormack, Captain McCormack’s
surviving parents. The McCormacks
brought suit against PG&E, as well as defendants, cross-defendants, and
respondents Quyen Nguyen and Dam Mac, for wrongful death and negligence. Nguyen owned the residence that caught on
fire, and Mac, Nguyen’s ex-husband, inadvertently started the fire.
On appeal,
PG&E argues that the McCormacks’ claims are barred by the common law
firefighter’s rule. PG&E
additionally claims that the trial court’s order granting the new trial is
reversible per se as the court failed to supply a sufficient statement of
reasons with its order. In the
alternative, PG&E contends that even if this court were to find the trial
court’s statement of reasons adequate, this court should reverse the order as
the trial court erred in granting the motion since sufficient evidence
supported the jury’s verdict and because the jury’s verdict was not against the
law. Lastly, PG&E asserts that the
trial court tainted the jury by allowing improper expert testimony from Dr.
John Palmer, one of the McCormacks’ expert witnesses.
For the
reasons set forth below, we find the firefighter’s rule inapplicable to this
case. We further find that the trial
court did not abuse its discretion in granting the motion for new trial on the
basis of insufficient evidence, nor
did it err in allowing Dr. Palmer’s testimony. We therefore affirm the new trial order and
the judgment.
Factual Background
Hill Road Property and the Initial 2003
Fire
Nguyen
purchased her home on 15700 Blossom Hill Road
(hereafter “Blossom Hill Road
propertyâ€) in 1985, where she lived with her now ex-husband Dam Mac. The original structure was approximately
2,920 square feet in space, but Nguyen and other various owners constructed
additional rooms to the home over time.
The construction efforts added approximately 2,192 square feet to the
house, including numerous outbuildings.
Nguyen utilized portions of the main house and outbuildings as a storage
area for artifacts.
In 2003,
the Blossom Hill Road
property caught on fire for the first time.
Santa Clara County Building Official Thomas Whisler testified at trial
that building inspector Tom Avon inspected the Blossom
Hill Road property after this initial fire.
issued “red tag†notices designating certain portions of the home as unsafe for
human occupation. These red tags
included danger warnings and a statement that read: “This Building is Deemed Unsafe for Human
Occupancy.†The department placed red
tags on several areas of the Blossom Hill Road
property, including the room where the fire originated.
Inspection in 2004 and PG&E’s Easement
PG&E possessed
two easements over the Blossom Hill Road property that allowed the company to
suspend electrical lines over the house.
The electrical lines placed by PG&E included a 12 kilovolt (kV)
line that ran across the house, directly over its second story.
Nguyen
testified at trial that she complained to PG&E several times about the
overhead power lines located directly above her home. Nguyen said she personally went to PG&E’s
Cupertino office and informed them that she wanted the lines moved. Nguyen claimed that PG&E told her that
they would take her request under consideration, though the lines were never
moved.
Mac,
Nguyen, and their children were all at the house on February 13, 2005, during
the Tet holiday, the Vietnamese new year.
Mac lit an incense stick and left the stick in a bowl of sand in one of
the red-tagged rooms in the house as he went to take a shower. At trial, PG&E’s expert witness James
Hall estimated that the incense stick fell out of the bowl at some point
between 1:30 and 1:45 a.m. Nguyen
testified she realized the house was on fire when she smelled smoke and called
911 within five minutes of her discovery.
Nguyen’s testimony clashed with Hall’s, who testified that the fire was
discovered sometime between 1:50 a.m. and 2:00 a.m., and that therefore
approximately 20 minutes elapsed before Nguyen called 911 at 2:19 a.m. Hall testified that Nguyen and other
residents in the house tried to put out the fire themselves with buckets and a
garden hose prior to contacting the authorities.
Fire
engines arrived at the scene of the fire at 2:26 a.m., seven minutes after
Nguyen called 911. The first
firefighters that arrived estimated that around 70 to 80 percent of the second
floor was ablaze, so the incident commander present at the scene ordered the
rest of the firefighters to get into “defensive mode.†This meant that firefighters prioritized
preventing the fire from spreading to neighboring homes over saving the Blossom
Hill Road property itself.
The 12kV
electrical line located above the second story of the house broke and fell down
shortly after the firefighters’ arrival.
The line separated, with both halves of the line falling into the area
of the Blossom Hill Road property commandeered by the fire department. One half of the line (Wire 1), fell into a
tree next to the driveway of the home, suspended at “about chest or mid-abdomen
level.†The second half of the line
(Wire 2), fell onto a hill next to the home.
Santa Clara County Fire Department Assistant Chief Ken Kehmna described
Wire 1 as a bare copper wire, greenish in color, smaller than a pencil, and
approximately an eighth of an inch thick.
Captain
Carol Miller, one of the responding firefighters, was assigned “Branch 1†of
the fire scene, which consisted of the side of the property facing Blossom Hill
Road. Branch 1 included the area where
Wire 1 lay. Captain McCormack arrived at
the scene at approximately 2:29 a.m. and was assigned Branch 2, which faced the
dirt road and hillside to the back of the property. Captain Miller and fellow firefighter Captain
Jim Swanson discussed methods to possibly secure Wire 1, but decided it was
impractical to completely close off the driveway since firefighters were using
the area. Captain Swanson ultimately
tied caution tape in a semicircle around Wire 1. Captain Miller retrieved a pole stick with
the intent to push Wire 1 into the tree, but she later stated in a deposition
that “I knew it was live and I wasn’t going to kill myself trying to move [the
wire].â€
At some point,
firefighter Dwayne Drake, working in the driveway close to Wire 1, left the
driveway to turn on the lights in a fire truck due to the lack of visibility in
the area. Drake testified that the smoke
in the area was so thick that “[w]e could not see the house anymore and we
could not see in front of our face[s].â€
At
approximately 3:25 a.m., Captain McCormack walked up the driveway, contacted
Wire 1, and instantly fell to the ground.
Captain Miller broadcasted by radio that a firefighter was “down†at
3:25 a.m., and firefighters moved Captain McCormack from the scene. Hospital personnel pronounced Captain
McCormack dead at 4:14 a.m. Captain
McCormack’s tragic death in the line of duty was the first in the Santa Clara
County Fire Department’s history, which spans back to 1947.
Response to the Fire
As
firefighters responded to the fire alarm and arrived at the scene of the blaze,
county communications also notified PG&E by calling PG&E dispatcher
Gene Brooks at approximately 2:34 a.m., after the fire raised a second
alarm. Brooks first called Paul Lopez, a
PG&E gas serviceman. Lopez testified
that he received Brooks’ call between 2:30 and 3:00 a.m. Lopez waited until his vehicle’s FAS computer
booted up and confirmed the address of the fire. Lopez acknowledged the job tag on his FAS
computer system at approximately 3:06 a.m.
Blossom Hill property, and arrived at the fire at around 3:10 a.m, where a
firefighter informed him that an electric power line had fallen. Lopez did not have the necessary equipment to
deal with a high-voltage electric line, so he called Brooks to tell him that an
electric power line was down. Brooks
told him that an electric troubleman was on his way.
Brooks
testified that he called the electric troubleman, Bob Mayer sometime between
2:50 a.m. and 3:00 a.m. Mayer booted up
his FAS system at 3:19 a.m., and set off for the scene of the fire. Mayer arrived at 3:40 a.m., around 15 minutes
after Wire 1 electrocuted McCormack. Upon his arrival, Mayer manually cut down the
lines and reported that the lines were “cut and clear†at approximately 4:05
a.m., around 25 minutes after his arrival.
At the time
of the fire, PG&E possessed the technology to de-energize its electric power
lines. It takes 15 to 60 seconds to
de-energize a power line, and an equal amount of time to re-energize a power
line. PG&E’s system operators are
trained to de-energize power lines if instructed to by fire or police
commanders, but it is the company’s general policy to wait for an electric
troubleman to arrive on scene before doing so.
Tomoro was the only system operator on duty at the time of the fire, and
he was not notified of the electrical emergency until after Mayer arrived at
the scene around 3:40 a.m., after Captain McCormack had already been
killed.
Background
The
McCormacks’ Complaint and PG&E’s Demurrer
The McCormacks filed a complaint for wrongful death and
negligence against PG&E, Mac, and Nguyen on September 19, 2006.
McCormacks failed to state a cause of action since the firefighter’s rule
barred all their claims. On February 6,
2007, the trial court overruled PG&E’s demurrer in part, finding that the
McCormacks’ complaint brought their cause of action into the “independent
cause†exception of the firefighter’s rule.
The trial court then sustained PG&E’s demurrer with leave to amend
on the grounds that the McCormacks lacked capacity to bring the cause of action
on Captain McCormack’s behalf.
On February
9, 2007, the McCormacks filed their first amended complaint for wrongful death
and damages against PG&E and Nguyen.
The McCormacks’ argued that PG&E negligently managed, maintained,
inspected and controlled their easement over the Blossom Hill Road property,
and that PG&E negligently failed to exercise the appropriate level of care
and urgency in de-energizing the electrified 12kV power line. The
complaint also alleged that Nguyen and Mac were negligent in the construction,
management, and maintenance of their home on 15700 Blossom Hill Road. The McCormacks attached a declaration to their
first amended complaint describing their capacity to bring a cause of action as
Captain McCormack’s successors in interest.
PG&E
thereafter filed a cross-complaint against Mac and Nguyen for indemnification,
apportionment of fault, and declaratory relief.
On September 29, 2008, PG&E moved for summary
judgment against the McCormacks.
PG&E argued that the undisputed facts established that the
McCormacks’ complaints were barred by the firefighter’s rule, and that “[a]ll
of the elements for the firefighters rule are satisfied in this case and no
exceptions apply.†The McCormacks filed
an opposition to PG&E’s motion for summary judgment, arguing that
exceptions to the firefighter’s rule applied.
The trial
court denied PG&E’s motion for summary judgment, finding that the
firefighter’s rule did not bar the McCormack’s complaint. PG&E filed a motion for reconsideration,
which the trial court denied on March 12, 2009.
Trial and Jury Verdict
Trial
against PG&E, Nguyen, and Mac commenced on October 2, 2009. A multitude of witnesses testified, including
the McCormacks’ expert Dr. John Palmer, who testified over PG&E’s
objections. Dr. Palmer testified a
combination of the air, smoke, and flame coming out of the burning house
contributed to the 12kV wire breaking due to a phase-to-phase arc. Dr. Palmer also testified that if PG&E
had installed a fuse to the 12kV line, the fuse would have tripped and the 12kV
line would have automatically de-energized when it fell. Further, Dr. Palmer offered the opinion that
the placement of the 12kV line over the home constituted a hazard since those
doing work on the roof might accidentally encounter the live wire, and that in
the event of a fire the wire could fall, creating a danger to first responders
such as firefighters.
When asked
if the placement of the 12kV wire over the home complied with California Public
Utilities Commission standards that “conductors shall be arranged so as to not
endanger workers or firefighters who are performing their duties,†Dr. Palmer
answered that he believed it did not, basing his opinion on the fact that
“there were conductors extending over [the] two-story structure [that] had been
there for a number of years, and that no action was taken to mitigate the
hazard associated with those lines.â€
PG&E
expert witness Michael O’Connor called into question much of Dr. Palmer’s
testimony, and testified that in his opinion, a phase-to-phase arc could not
have occurred under the conditions of the 2005 fire.
The trial
concluded on November 12, 2009, after the jury returned a special verdict. The jury’s special verdict found PG&E
negligent by a 10 to 2 vote, but also found that PG&E’s conduct was not a
substantial factor in causing Captain McCormack’s death. The special verdict similarly found Nguyen
and Mac negligent, and that Nguyen and Mac’s negligence was not a substantial
factor in Captain McCormack’s death.
With regards to PG&E’s cross-complaint against Nguyen and Mac, the
jury found that Nguyen and Mac were negligent, and that Mac’s negligence was a
substantial factor in causing damage to the overhead power line while Nguyen’s
negligence was not. The trial court
entered the jury’s verdict on November 30, 2009.
McCormacks’ Motion for New Trial
On December
24, 2009, the McCormacks filed a motion
for new trial as to their causes of action against PG&E, seeking a
partial new trial on the issues of causation, damages, and apportionment of
responsibility.
title="">[6] The McCormacks argued that the jury’s
determination that PG&E was negligent must certainly have resulted in a
finding that PG&E was a substantial factor in causing Captain McCormack’s
death. PG&E filed an opposition to
the motion for new trial, contending that the jury did not need to find
PG&E a substantial factor in Captain McCormack’s death simply because it
found PG&E negligent. In its
opposition, PG&E again reiterated its position that the McCormacks’
complaint was barred by the firefighter’s rule from the beginning, and that it
would be “unjust to require PG&E to defend a lengthy, expensive trial twice
without appellate examination of the Court’s ruling on the firefighter’s rule.â€
Trial Court’s Order Granting the McCormacks’ Motion for New Trial
On January
27, 2010, the trial court granted the McCormacks’ motion for new trial on all
issues, not just the issues the McCormacks initially sought in their
motion. The 14-page ruling included a
brief outline of the court’s findings and a summary of the evidence presented
to the jury. The trial court first
reasoned that the plaintiff’s theories can be summarized into four distinct
theories:
First, that
PG&E was unreasonably slow in getting an electric troubleman to the scene
of the fire since the company was notified of the fire at 2:32 a.m. and that
there was a live, 12kV power line in a tree close to the fire scene at 3:00
a.m.
Second,
that PG&E was unreasonably slow in remotely de-energizing the 12kV power
line since it possessed the technology to do so but declined to because of
policy reasons.
Third, that
PG&E unreasonably failed to install fuses on its 12kV power line, despite
the fact that PG&E installed fuses on its transformers on the same line.
The McCormacks further contended that if PG&E installed the fuses, the
deadly 12kV power line would have automatically de-energized when it fell.
Fourth,
that PG&E failed to move the 12kV power line. The McCormacks argued that if the power lines
were moved prior to 2005, they would not have been in the path of the fire and
would not have broken, ultimately killing Captain McCormack.
The court
then reasoned that at the center of these four theories was the argument that
PG&E possessed a legal duty to control and de-energize the 12kV power line,
and that PG&E breached this duty.
The trial court’s order summarized that there was considerable testimony
from both sides on all of the issues, and that the jury elected to find
PG&E negligent. The trial court
reasoned that since the only basis of negligence alleged against PG&E was
the company’s failure to either de-energize the 12kV line or ensure the 12kV
line was not in the path of the fire, it seemed that “the jury’s finding that
PG&E was not a substantial factor in causing Captain McCormack’s death
cannot be reconciled with its finding that PG&E was negligent,†and further
found that the “two findings are inherently inconsistent and illogical.â€
In support
of its conclusions, the trial court outlined evidence it believed was laid out
with considerable proof during the trial, including testimony by various
witnesses covering a range of topics including the timeline of events the night
of the fire and PG&E’s processes and procedures for remotely de-energizing
power lines. The trial court ultimately
concluded that there was overwhelming evidence of both negligence and
causation, and that the jury was “clearly†wrong in not finding PG&E a
substantial factor of Captain McCormack’s death.
The trial
court also noted that though it “may or may not have agreed with a verdict of
‘no negligence’ on the overall record,†it would have been “bound to deny a
motion for new trial had the jury found no negligence†but that since in this
case the jury did find negligence but
failed to find causation, it was compelled to grant the motion for new trial.
PG&E
filed a timely notice of appeal over the trial court’s order granting the
McCormack’s motion for new trial and the underlying jury verdict on January 28,
2010. The McCormacks filed a protective
cross-appeal on February 10, 2010.
Discussion
PG&E
raises four main arguments on appeal.
First, PG&E argues that the trial court erred in allowing the case
to go before a jury, as the firefighter’s rule clearly applies. Second, PG&E claims that the trial
court’s order granting the McCormacks’ motion for new trial must be reversed
since the court’s statement of reasons was insufficient and failed to
specifically discuss the trial evidence regarding causation. Third, PG&E contends that the trial court
abused its discretion in granting the motion for new trial because there was
sufficient evidence to support the jury’s verdict finding negligence but
verdict was not “against [the] law.â€
Lastly, PG&E contends that the trial court improperly admitted Dr.
John Palmer’s testimony since his theories were not generally accepted within
the scientific community.
We first
address the merits of PG&E’s appeal.
I. PG&E’s Appeal
1. Applicability
of the Firefighter’s Rule
A.
Standard of Review
On appeal,
PG&E contends that the McCormacks’ complaint is barred by the firefighter’s
rule, which in certain situations abrogates the traditional duty of care owed
to first responders from third parties.
Whether PG&E had a duty of due care to Captain McCormack is a
question of law that we will review de novo.
(See Eric M. v. Cajon Valley Union
School Dist. (2009) 174 Cal.App.4th 285, 293.)
B. Overview
of the Firefighter’s Rule
The Firefighter’s Rule
Our Supreme
Court recognized the existence of the common law firefighter’s rule in
In Knight, the Supreme Court
explained that “[i]n its most classic
form, the firefighter's rule involves the question [of] whether a person who
negligently has started a fire is liable for an injury sustained by a
firefighter who is summoned to fight the fire; the rule provides that the
person who started the fire is not liable under such circumstances. [Citation.]
Although a number of theories have been cited to support this
conclusion, the most persuasive explanation is that the party who negligently
started the fire had no legal duty to protect the firefighter from the very
danger that the firefighter is employed to confront. [Citations.]
Because the defendant in such a case owes no duty to protect the
firefighter from such risks, the firefighter has no cause of action even if the
risk created by the fire was so great that a trier of fact could find it was
unreasonable for the firefighter to choose to encounter the risk. This example
again demonstrates that primary assumption of risk is not the same as
‘reasonable implied assumption of risk.’ â€
(Id. at pp. 309-310, fn. 5.)
Accordingly,
“[u]nder the firefighter’s rule, a member of the public who negligently starts
a fire owes no duty of care to assure that the firefighter who is summoned to
combat the fire is not injured thereby.
[Citations.]†(
8 Cal.4th 532, 538 (Neighbarger).) However, the firefighter’s rule does not
serve to bar all lawsuits brought by firefighters and first responders for
injuries sustained in the line of duty.
“The firefighter does not assume every risk of his or her
occupation. [Citation.] The rule does not apply to conduct other than
that which necessitated the summoning of the firefighter or police officer, and
it does not apply to independent acts of misconduct that are committed after
the firefighter or police officer has arrived on the scene.†(Ibid.)
The
policy considerations in support of the firefighter’s rule. First, “firefighters may not complain of the
very negligence that makes their employment necessary.†(Neighbarger,
supra¸8 Cal.4th at p. 540.) Second, “public safety employees receive
special public compensation for confronting the dangers posed by [those who
started the fire] negligence†and “that the abolition of the firefighter’s rule
would embroil the courts in relatively pointless litigation over rights of
indemnification among the employer, the retirement system, and the defendants’
insurer.†(Ibid.) Additionally, the
firefighter’s rule is largely “ ‘based upon a public policy decision to meet the
public’s obligation to its officers collectively through tax-supported
compensation rather than through individual tort recoveries. This spreads the
costs of injuries to public officers among the whole community, making the
public in essence a self-insurer against those wrongs that any of its members
may commit.’ [Citations.]†(
18 Cal.4th 1057, 1062 (Calatayud).) “[P]ublic safety officers are compensated
through public benefits for injuries sustained in the line of duty. If they were also permitted private recovery
for those injuries, the public would in effect pay the bill twice: first through taxes and then from insurance. [Citations.]â€
(Yamaguchi v. Harnsmut (2003)
106 Cal.App.4th 472, 479-480.)
Exceptions to the
Firefighter’s Rule
There are
exceptions to the firefighter’s rule: an
exception expressly codified under Civil Code section 1714.9, and a common law
independent cause exception.
First, the
exception under Civil Code section 1714.9, subdivision (a), provides that “any
person is responsible not only for the results of that person’s willful acts
causing injury to a peace officer, firefighter, or any emergency medical
personnel employed by a public entity, but also for any injury occasioned to that
person by the want of ordinary care or skill in the management of the person’s
property or person . . . . [¶] (1) Where the conduct causing the injury
occurs after the person knows or should have known of the presence of the peace
officer, firefighter, or emergency medical personnel.â€
Civil Code
section 1714.9 expressly does not abrogate or impinge upon the common law
independent cause exception to the firefighter’s rule illustrated in
(1993) 16 Cal.App.4th 658 (Donahue). (Civ. Code, § 1714.9, subd. (e).) In Donahue,
a firefighter sued the San Francisco Housing Authority (SFHA) after slipping
and breaking his arm after a routine fire safety inspection. (Donahue,
supra, 16 Cal.App.4th at p.
661.) The firefighter’s fall occurred
after he arrived on the premises of an apartment building he was meant to
inspect. (Ibid.) During his
inspection, the firefighter noticed that the floor of the stairwell was wet, so
he traversed the stairs with caution but ended up slipping and injuring
himself. (Ibid.) He sued over his
injuries, and SFHA moved for summary judgment citing the firefighter’s
rule. (Ibid.) The appellate court
in Donahue found that “the
firefighter’s rule did not apply because it does not bar recovery for
independent acts of misconduct which were not
the cause of the plaintiff's presence on the scene. [Citations.]â€
(Id. at p. 663.)
The
that plaintiff was injured while in the regular course of his duties as a
fireman and that the hazard was one normally encountered as part of his job,
are not dispositive. The negligent
conduct at issue was SFHA’s failure to install nonslip adhesive treads on the
stairs, coupled with the improper maintenance practice of hosing down the
stairs. Neither of these acts was the
reason for plaintiff's presence.
Plaintiff was not summoned to the scene to inspect the slipperiness of
the stairs, he was there to inspect for fire code violations. Since the injuries were not caused by an act
of negligence which prompted plaintiff’s presence in the building, the
firefighter’s rule does not bar the present claim. [Citation.]â€
(Donahue, supra, 16
Cal.App.4th at p. 663.)
Another
illustration of an independent cause exception can be found in
Cal.3d 362 (Lipson). In Lipson,
a firefighter responded to the scene of a chemical boil over. (Id.
at p. 365.) The firefighter asked the
owners of the plant whether or not the boil over contained toxic substances. (Ibid.) He was told the boil over was safe, though it
actually contained toxic chemicals. (Ibid.) The firefighter ultimately suffered injuries
in the process of trying to contain the boil over, and thereafter brought suit
against the plant owners, who asserted that the firefighter’s rule barred the
firefighter’s complaint. (
recover damages for personal injuries sustained as a result of a defendant’s
negligent or intentional misrepresentation of the nature of the hazard which
the fireman is called to confront. While
the fireman’s rule shields a defendant from liability for negligently or
recklessly causing or for failing to prevent a fire, it does not provide
protection to a defendant who commits independent acts of misconduct after the
firefighters have arrived on the premises.â€
(Id. at p. 373, fn. omitted.)
We find,
however, as the Third Appellate District did in Terry v. Garcia (2003) 109 Cal.App.4th 245 (Terry), that there are essentially two situations in which the
firefighter’s rule does apply and the
exceptions to the firefighter’s rule do
not apply even though the alleged negligence did not summon the firefighter
or peace officer and the negligence occurred after the firefighter or peace
officer arrived at the scene. (
The first
situation is one in which the responding firefighter or peace officer arrives
on the scene of an emergency, during which time a second emergency arises and
the firefighter or peace officer injures him or herself while responding to the
second emergency. This situation is
illustrated in Seibert Security Services,
Inc. v. Superior Court (1993) 18 Cal.App.4th 394. In Seibert,
an officer escorted a suspect to a hospital and suffered injuries after he
helped subdue another patient at the facility.
(Id. at p. 403.) There, the appellate court found that the
independent cause exception did not apply.
(Id. at p. 411.) The Seibert
officer’s injuries were the direct result of his response to second emergency
situation that, by chance, arose while he was present and responding to the
first emergency. No independent cause or
unrelated act of negligence barred application of the firefighter’s rule.
The second
situation in which the firefighter’s rule does apply is one in which the
responding firefighter or peace officer suffers injuries due to the negligence
of an officer from a jointly responding agency.
This situation is illustrated in Calatayud,
supra, 18 Cal.4th 1057. In
injured after a California Highway Patrol Officer’s shotgun accidentally
discharged while both officers attempted to subdue and arrest a resisting
suspect. (Id. at p. 1060.) The injured
officer brought suit, and the California highway patrolman unsuccessfully
argued before the trial court that the firefighter’s rule acted as a bar to the
injured officer’s claims. (
A jury awarded the injured officer damages in excess of $700,000, and
the parties appealed. (
Court reversed, finding that the Legislature did not intend the exception set
forth in Civil Code section 1714.9 to include fellow public safety members
“jointly engaged in the discharge of their responsibilities.†(Calatayud,
supra, 18 Cal.4th at p. 1072.) As
described ante, Civil Code section
1714.9 provides that “any person†is responsible for willful or negligent acts
causing injury to a peace officer, firefighter, or any emergency medical
personnel employed by a public entity.
In coming to its conclusion, the court cited numerous policy reasons for
not expanding the scope of Civil Code section 1714.9 to all individuals,
such as fellow officers, including the potential to create conflicting duties
between officers employed by different agencies, and the likelihood of damage
to the public fisc contemplated in Neighbarger. (Calatayud,
supra, at pp. 1068-1070.)
C.
of the Firefighter’s Rule to PG&E
In the trial proceedings below,
PG&E repeatedly asserted that the firefighter’s rule immunizes it from
liability, and raises this argument again on appeal. PG&E contends that its role in assisting
the fire department in emergencies supports the application of the
firefighter’s rule as a bar against the McCormacks’ claims. PG&E further argues that downed power
lines, such as the 12kV line that killed Captain McCormack, are hazards that
firefighters are trained and paid to face in their line of duty, and that as a
result, fairness supports the application of the firefighter’s rule. For reasons set forth below, we determine
that these arguments lack merit.
Independent Cause Exception to the Firefighter’s Rule Applies
PG&E
cites to Calatayud,
cases for the proposition that peace officers and other first responders cannot
file suit for injuries sustained as a result of negligence that occurred during
an emergency situation. (See, e.g.,
Cal.App.4th 1448 [holding that the firefighter’s rule applied when a police dog
controlled by California Highway Patrol officer injured a city police officer];
City of Oceanside v. Superior Court (2000)
81 Cal.App.4th 269 [holding that firefighter’s rule applied when lifeguard
employed by city was injured during cooperative rescue operation handled
negligently by Camp Pendleton lifeguards].)
Nonetheless,
PG&E’s position fails to acknowledge that the current action is dissimilar
in facts and in law to the cases it cites.
This case does not fall under the umbrella of the two situations
outlined in Terry, where the
independent cause exception and the exception outlined in Civil Code
section 1714.9 do not prevent application of the firefighter’s rule
despite the fact that the alleged negligence that caused the injury did not
summon the firefighter or peace officer and the alleged negligence occurred
after the firefighter or peace officer arrived on scene. (See ante.)
Unlike
agency whose negligence in handling the emergency situation resulted in Captain
McCormack’s injuries. Put in other
words, Captain McCormack’s death was not the result of negligence that occurred
during joint rescue operations with an assisting public agency.
firefighter’s rule to negligence committed by public safety officers that
injure fellow public safety officers, such as barring a city police officer
from bringing suit against a negligent California state highway patrol officer,
or barring a city lifeguard from bringing suit against a negligent Camp
Pendleton lifeguard. (See, e.g.,
disagree that these cases may be extended such that utilities companies must
also be exempted from liability.
Furthermore,
unlike the set of facts contemplated by the appellate court in
394, Captain McCormack’s injuries did not arise from his response to secondary
emergency situation that occurred after he arrived at the scene of the
fire. His injuries did not result from
his attempt to secure the downed power line.
In fact, the McCormacks alleged that Captain McCormack’s fatal injuries
directly resulted from an independent action by PG&E—its alleged negligent
future to de-energize the downed 12kV wire.
PG&E’s assertion that firefighters are trained to deal with power
lines as part of their duties may be true.
However, firefighters are not
trained to handle power lines that, due to an independent act of negligence,
are energized when they should not be.
Nor do we believe firefighters assume the risk of all injuries they may
incur at the scene of an emergency, including injuries arising from a third party’s
independent tortious conduct committed after firefighters’ presence at the
scene is known, as this cuts into the independent cause exception set forth in
658.
In fact, we
find that this case is similar to the facts set forth in Terry, supra, 109
Cal.App.4th 245. In Terry, a police officer received a call from dispatch regarding a
domestic violence incident. (
to use his sirens and go above the speed limit by 25 miles per hour. (Ibid.) En route to the location of the incident, he
came across a truck driver pulling an empty cattle trailer. (Ibid.) The officer attempted to avoid collision, but
the truck driver clipped the officer’s car.
(Id. at p. 249.) The officer sustained injuries after the
accident, and brought suit against the truck driver and owner for
negligence. (Ibid.) The trial court
determined that risk of an injury during a high‑speed pursuit was an
inherent part of the officer’s job, and ruled in favor of summary judgment for
the truck driver and owner. (
The officer appealed, arguing that the negligence that caused his
injuries was “independent conduct that did not create the occasion for his
employment.†(Id. at p. 252.) The court
of appeal reversed in favor of the officer, finding that the case fell squarely
into the independent cause exception to the firefighter’s rule as he was
injured due to the truck driver’s independent act of negligence. (Id.
at p. 253.)
PG&E’s
argument that the hazards of downed power lines are inherent to the scope of a
firefighter’s duties echoes the truck driver and owner’s failed arguments in
Like the officer in Terry,
Captain McCormack did not arrive at the scene of the fire in response to a
downed power line. He came to the
Blossom Hill Road property solely to battle the fire. His injuries arose from PG&E’s alleged
negligence in de-energizing the power lines, which constituted an independent
cause. The facts of this case simply
fall under the purview of the independent cause exception articulated in
658.
PG&E
refutes the proposition that the wire’s fall constitutes an independent cause,
since firefighters “reasonably anticipated that downed electrical lines might
be present, and were trained to treat all such wires as being energized and
dangerous.†PG&E relies on
Cal.App.3d 716, 719 (Lenthall). In Lenthall,
the appellate court held that “[the firefighter’s] rule does apply to injuries
inflicted by a participant in the event bringing the officer to the place of
injury and the act causing the injury is one which the officer should
reasonably expect to occur while he was engaged in the duty bringing him to the
place of injury.†(Id. at p. 719.) Nonetheless,
the facts in Lenthall are dissimilar to this instant case. In Lenthall,
the plaintiff, a police officer, responded to a home where it was reported
that “ ‘a 415 Family With Weapons,
possibly shots fired, was in progress.’ â€
(Id. 138 Cal.App.3d at p.
717.) The plaintiff arrived at the
scene, and defendant shot and injured him.
(Ibid.) On appeal, the court reasonably concluded
that the firefighter’s rule precluded plaintiff’s claim, as he was arriving to
the scene “to subdue a violent offense involving firearms†and therefore should
have been able to reasonably anticipate that one of the individuals at the
scene may resist using a firearm. (
these circumstances.
We further
find no merit in PG&E’s argument that the negligence did not constitute an
independent cause because the wire would not have fallen without the fire. PG&E relies on Stapper v. GMI Holdings, Inc. (1999) 73 Cal.App.4th 787 (
the plaintiff firefighter fought a fire inside a garage. (Id.
at p. 790.) Smoke, fire, and heat
eventually forced the plaintiff to attempt to leave the garage, which is when
she discovered the garage door would not open because of a defect. (Ibid.) Other firefighters eventually rescued the
plaintiff, but not before she sustained serious injuries. (Ibid.) The plaintiff sued the manufacturer of the
garage door opener for defective design, and the appellate court held that the
firefighter’s rule did not bar her complaint because “the garage door’s
malfunction was independent of the
fire, and not caused by the fire.†(
that it reserved analyzing whether or not the outcome would be different if the
plaintiff firefighter instead alleged that the fire somehow caused the garage
door’s defect. (Id. at p. 793, fn. 2.)
PG&E argues that unlike the garage door malfunction in
fire, the 12kV wire only broke because of the fire and was thus fully dependent
on the fire.
We find
this argument unconvincing. There is no
doubt that the 12kV electrical line fell because of the fire. However, PG&E’s independent acts of
were not the direct result of the
fire. Like the Stapper plaintiff, the McCormacks alleged that PG&E committed
independent acts of negligence that resulted in Captain McCormack’s death. The McCormacks’ allegations are analogous to
the Stapper plaintiff’s allegations
that the garage door manufacturers’ independent defective design caused her
injury. (Stapper, supra, 73
Cal.App.4th 787, 791.)
Furthermore,
PG&E’s contention that policy considerations support the use of the
firefighter’s rule to bar the McCormacks’ complaint is unpersuasive. It is PG&E’s view that since downed power
lines are a hazard that firefighters are trained and paid to confront in the
course of their work, public policy supports barring lawsuits over injuries
resulting from these dangers. Applying
the firefighter’s rule to bar first responders from ever bringing suit over injuries incurred because of hazards they
are trained to confront does not comport with our understanding of the
rule. Certainly, as the
sound rationale for why firefighters should not recover through civil lawsuits
for certain injuries sustained in the course of their work. But as the
independent cause exception illustrates, there are times when first responders
may be injured by hazards they are typically paid to confront, but that arise
from someone else’s independent tortious conduct. For these injuries, recovery of damages
against the tortfeasors through civil lawsuits is appropriate, as the traditional
policy reasons for applying the firefighter’s rule do not apply.
For
example, PG&E’s argument that efficient judicial administration requires
avoidance of complex litigation over alleged negligence committed by those
assisting in the fire department’s response is unavailing. Excluding all third parties and those present
at the emergency scene for all liability stemming from their tortious conduct
does not promote public policy but frustrates it. In its opening brief, PG&E posits a
scenario where an apartment dweller negligently starts a fire. Under the firefighter’s rule, the apartment
dweller would be excused from liability.
However, PG&E argues that under the trial court’s reading of the
firefighter’s rule, the responding firefighter is then free to sue any of the
other tenants in the building for injuries from the fire so long as the
“firefighter’s counsel argues they caused or failed to prevent the harm
resulting from the spread of the fire.â€
PG&E contends that courts would then be subject to the nearly
impossible task of sorting out the harms caused by ignition of the fire and by
the spread of the fire.
In a sense,
PG&E is partially correct, though we do not believe this interpretation of
the firefighter’s rule creates the widespread judicial chaos PG&E argues it
will. Allowing firefighters to bring
suit against third parties for injuries resulting from the third parties’
independent acts of negligence is the very essence of the firefighter’s rule
and the independent cause exception outlined in Donahue, supra, 16
Cal.App.4th 658 and the exception outlined in Civil Code
section 1714.9. So, the responding
firefighter in PG&E’s fictional scenario may be able to bring suit against
the tenants if they, through their independent acts of negligence, cause
injury. As we explained previously, risk
of injury may be inherent in a firefighter’s position. Nonetheless, barring firefighters from ever
bringing suit against those who intentionally, willfully, or negligently cause
harm to firefighters or first responders after their arrival at the scene of an
emergency is known does not further any public policy goal.
In sum, we
find that the independent cause exception of the firefighter’s rule
applies. We therefore conclude the trial
court did not err in finding that the firefighter’s rule did not bar the
McCormacks’ claims against PG&E.
2. The Order for New Trial on All Issues
PG&E
makes two main arguments for why the trial court’s order granting the
McCormacks’ motion for a new trial must be reversed. First, PG&E contends that the trial court’s
order fails to contain an adequate specification of reasons. Second, PG&E contends that sufficient
evidence supported the jury’s verdict.
Before we address the merits of these claims, we first briefly discuss
the trial court’s power to grant a new trial pursuant to Code of Civil
Procedure section 657.
A.
Overview
of Code of Civil Procedure section 657
A party to
an action may move, after a verdict, for a new trial under Code of Civil
Procedure section 657. Code of
Civil Procedure section 657 provides that a “verdict may be vacated and
any other decision may be modified or vacated, in whole or in part, and a new
or further trial granted on all or part of the issues, on the application of
the party aggrieved†for several reasons, including insufficiency of the
evidence. If a new trial is granted, the
court must “specify the ground or grounds upon which it is granted and the
court’s reason or reasons for granting the new trial upon each ground stated.†(Ibid.) “A new trial shall not be granted upon the
ground of insufficiency of the evidence to justify the verdict or other
decision, nor upon the ground of excessive or inadequate damages, unless after
weighing the evidence the court is convinced from the entire record, including
reasonable inferences therefrom, that the court or jury clearly should have
reached a different verdict or decision.â€
(Ibid.)
Furthermore,
an order granting or denying a motion for new trial must be made and entered in
accordance with Code of Civil Procedure section 660.
relied upon by the court, and may contain the specification of reasons. If an
order granting such motion does not contain such specification of reasons, the
court must, within 10 days after filing such order, prepare, sign and file such
specification of reasons in writing with the clerk. The court shall not direct
the attorney for a party to prepare either or both said order and said
specification of reasons.†(Code Civ.
Proc., § 657.)
B.
Sufficiency
of The Trial Court’s Statement of Reasons
Before
discussing the merits of the contents of the trial court’s order, we first
address PG&E’s argument that the order is reversible on its face because it
fails to include an adequate specification of reasons as required under Code of
Civil Procedure section 657.
PG&E argues that the trial court extensively discussed evidence
relating to PG&E’s negligence, but failed to discuss evidence relating to
causation.
An order
granting a new trial must contain an adequate statement of the grounds and a
specification of reasons under Code of Civil Procedure section 657. The seven listed “grounds†for a new trial
under Code of Civil Procedure section 657 include:
“1. Irregularity in the proceedings of the court, jury or adverse
party, or any order of the court or abuse of discretion by which either party
was prevented from having a fair trial. [¶]
2. Misconduct of the jury; and
whenever any one or more of the jurors have been induced to assent to any
general or special verdict, or to a finding on any question submitted to them
by the court, by a resort to the determination of chance, such misconduct may
be proved by the affidavit of any one of the jurors. [¶]
3. Accident or surprise, which
ordinary prudence could not have guarded against. [¶]
4. Newly discovered evidence,
material for the party making the application, which he could not, with
reasonable diligence, have discovered and produced at the trial. [¶]
5. Excessive or inadequate
damages. [¶] 6.
Insufficiency of the evidence to justify the verdict or other decision,
or the verdict or other decision is against law. [¶]
7. Error in law, occurring at the
trial and excepted to by the party making the application.†(See also Mercer
v. Perez (1968) 68 Cal.2d 104, 111.)
A trial court need only track the statutory language in Code of Civil
Procedure section 657 to create a sufficient statement of grounds. (Ibid.)
“The
statement of ‘reasons,’ on the other hand, should be specific enough to
facilitate appellate review and avoid any need for the appellate court to rely
on inference or speculation.†(
(2007) 41 Cal.4th 624, 634.) A statement
of reasons that simply lists “ ‘ultimate facts,’ †such as a lack of negligence
or the existence of contributory negligence, fails to comply with Code of Civil
Procedure section 657. (
(1970) 3 Cal.3d 359, 370 (Scala).) Nonetheless, a trial judge does not need to
specifically cite pages, lines in testimony, or extensively describe a
witness’s testimony in a fully compliant order.
(Ibid.) Nor are they tasked with writing a statement
of reasons that states the weight and inferences to be drawn from “ ‘each item
of evidence supporting, or impeaching, the judgment.’ †(Ibid.)
PG&E
argues that the trial court’s 14-page order fails because its specification of
reasons is inadequate. In its new trial
order, the trial court described evidence presented by both PG&E and the
McCormacks, and discussed the trial court’s assessment of the credibility and
testimony provided by certain key witnesses, and described in rather extensive
detail the testimony and facts presented to the jury by these witnesses during
trial. The court ultimately concluded
that it was “clear†that “after reviewing the entire trial record,†that while
“PG&E recognized the extraordinary danger of a downed live 12,000-volt
line[,] PG&E’s procedures, when combined with the policy that prohibited
remote de-energizing without the on-scene presence of an electric
troubleshooter cannot be viewed as either remote or trivial. (CACI 430).â€
(Capitalization omitted.)
Furthermore, the court noted that the last sentence of the CACI No. 430
jury instruction given to the jury, states that “ ‘[c]onduct is not a substantial
factor in causing harm if the same harm would have occurred without that
conduct.’ †(Capitalization
omitted.) The court reasoned that after
examination of the record, it could not see how the same harm (the
electrocution of Captain McCormack) could have occurred without PG&E’s
negligence.
The court
also briefly considered PG&E’s argument that the fire department’s response
bore significant responsibility for Captain McCormack’s death. Nonetheless, as the trial court pointed out,
PG&E did not seek a CACI No. 432 instruction
on superseding cause. The court also
concluded that the evidence presented by PG&E at trial would not have met
the requirements for a CACI No. 432 instruction. In sum, the court concluded that though
“[t]here [was] no question in the court’s mind that the jury may well have
found the fire department’s failure to protect Captain McCormack to be one of
the substantial factors in causing damage,†it found after analysis of all the
evidence that the “evidence of causation was overwhelming†and that the “jury
was clearly wrong in not finding PG&E a substantial factor in
Captain McCormack’s death.†(Emphasis in
original.)
This order
satisfies the requirements of a statement of grounds and specification of
reasons set forth under Civil Code section 657. Unlike the inadequate order contemplated in
not simply list “ ‘ultimate facts’ †or conclusions regarding negligence or
causation. The plaintiff in
after he was injured on a construction site.
(Id. at p. 362.) A jury found for the plaintiff, and the
defendant moved for a new trial on all grounds specified in Code of Civil
Procedure section 657. (
that there was insufficient evidence, and issued an order that only stated: “
‘there is no sufficient evidence to show that the defendant was negligent and
the evidence does show that the plaintiff failed to use ordinary care for his
own safety and that that failure was a proximate cause of his injuries.’ †(Id.
at p. 363.) The California Supreme Court
reversed, determining that an order that “follows that a specification of
reasons phrased, as here, in terms of such ‘ultimate facts’ as defendant’s
freedom from negligence and plaintiff’s guilt of contributory negligence
frustrates rather than promotes the legislative purpose of facilitating
meaningful appellate review of the order granting a new trial, and hence is
inadequate to comply with the mandate of Code of Civil Procedure section
657.†(Id. at pp. 369-370, fn. omitted.)
The trial
court’s order here is readily distinguishable from the order rejected by the
Supreme Court in Scala, as in this
situation the trial court appeared to
go above and beyond the bare minimum requirements. In its new trial order, the
trial court described, in rather great detail, the evidence presented at trial
and the credibility and non-credibility of certain witnesses, and did not
simply reiterate ultimate facts. The
trial court specifically and quite clearly stated the reasons behind its grant
of a new trial: (1) that the trial court
found ample evidence of PG&E’s negligence in the record, and (2) given that
the jury found negligence, the trial court felt determined there was
insufficient evidence to support the conclusion that PG&E was
McCormack’s death. The latter point is
underscored by the trial court’s explanation that since the instrument of
Captain McCormack’s death was the electrified 12kV wire, PG&E’s negligence
in failing to turn off the wire or install safeguards must have been a substantial cause to Captain McCormack’s death.
PG&E
mistakenly relies on the Second District’s decision in Devine v. Murrieta (1975) 49 Cal.App.3d 855 (Devine), to support its argument that the trial court’s order is
defective. Devine was a medical malpractice action in which the plaintiff
alleged the physician defendant’s negligence caused her injuries. (Id.
at pp. 857-858.) The plaintiff had
visited the physician defendant for a Papanicolaou smear, which was read by a
cytotechnologist at home without any supervision. (Id. at
p. 858.) The cytotechnologist incorrectly read the
smear as negative. (Ibid.) The physician
defendant contested both the claim of negligence and the claim of proximate
cause, arguing that if the plaintiff had followed up after the initial
appointment, the atypical cells would have been revealed. (Ibid.) A jury returned a verdict for the physician
defendant, and the plaintiff filed a motion for new trial, arguing that
insufficient evidence supported the jury’s verdict. (Id.
at pp. 857-858.)
The trial
court granted the plaintiff’s motion for new trial. (Devine,
supra, 49 Cal.App.3d
the trial court’s order only
addressed the physician defendant’s alleged breach of the standard of care and
failed to address the issue of causation.
(Id. at pp. 861-862.) Specifically, the appellate court found that
“[t]he order on its face fails to indicate that the trial court considered that
the verdict could have been based upon a finding that defendant’s alleged
negligence had not harmed plaintiff. The
absence of a reference to the evidence on that issue also precludes appellate
review to determine whether the evidence the trial judge had in mind was
sufficient to support a verdict in favor of the moving party.†(Id.
at p. 861.) The appellate court
concluded that “[c]learly, a verdict for the defendant cannot be set aside
solely for the reason that defendant violated the standard of care without any
consideration of causation and harm to plaintiff.†(Id.
at p. 861.)
The new
trial order issued by the trial court in Devine
was defective because it completely failed to address the issue of causation, a
vital and contested issue at trial. (
Similarly, whether or not PG&E
was a substantial cause of Captain McCormack’s death was also a contested issue
raised in trial. However, PG&E’s
argument that Devine is instructive
fails because unlike the new trial order in Devine,
the new trial order here specifically discussed the issue of causation. The trial court did not base its grant of a
new trial based solely on PG&E’s alleged negligence. The trial court explicitly explained in its
order that the evidence of PG&E’s negligence, combined with the
circumstances of Captain McCormack’s death, demonstrated that there was
insufficient evidence to support the jury’s verdict that PG&E was not a
substantial factor in Captain McCormack’s death. The trial court further specified that it
found the evidence PG&E put forth of a superseding cause insufficient.
We
therefore find the trial court’s order granting the McCormacks’ motion for new
trial sufficient under Code of Civil Procedure section 657.
C.
The Merits
of Trial Court’s Order Granting the Motion for New Trial
PG&E
argues the new trial order should still be reversed as the trial court erred in
granting the motion on the basis that the evidence was insufficient and that
the verdict was against the law.
Preliminarily, PG&E and the McCormacks offer conflicting standards
of review for this court’s assessment of the new trial order. PG&E urges that this court should review
the trial court’s order de novo because the order functions as a partial
directed verdict or judgment notwithstanding the verdict. The McCormacks argue we must review the trial
court’s order for abuse of discretion.
Code of
Civil Procedure section 657 specifies that “[o]n appeal from an order
granting a new trial the order shall be affirmed if it should have been granted
upon any ground stated in the motion, whether or not specified in the order or
specification of reasons, except that (a) the order shall not be affirmed upon
the
| Description | Appellant, cross-complainant, and defendant Pacific Gas and Electric Company (PG&E) appeals from an order by the trial court granting a partial new trial after a jury returned a verdict finding PG&E negligent but not a substantial cause of Santa Clara County Fire Department Captain Mark McCormack’s death. Captain McCormack suffered fatal injuries while responding to a house fire on February 13, 2005, after he touched a downed electrical power line. Plaintiffs and appellants are Heather McCormack, Captain McCormack’s widow, and Jack and Shirley McCormack, Captain McCormack’s surviving parents. The McCormacks brought suit against PG&E, as well as defendants, cross-defendants, and respondents Quyen Nguyen and Dam Mac, for wrongful death and negligence. Nguyen owned the residence that caught on fire, and Mac, Nguyen’s ex-husband, inadvertently started the fire. On appeal, PG&E argues that the McCormacks’ claims are barred by the common law firefighter’s rule. PG&E additionally claims that the trial court’s order granting the new trial is reversible per se as the court failed to supply a sufficient statement of reasons with its order. In the alternative, PG&E contends that even if this court were to find the trial court’s statement of reasons adequate, this court should reverse the order as the trial court erred in granting the motion since sufficient evidence supported the jury’s verdict and because the jury’s verdict was not against the law. Lastly, PG&E asserts that the trial court tainted the jury by allowing improper expert testimony from Dr. John Palmer, one of the McCormacks’ expert witnesses. For the reasons set forth below, we find the firefighter’s rule inapplicable to this case. We further find that the trial court did not abuse its discretion in granting the motion for new trial on the basis of insufficient evidence, nor did it err in allowing Dr. Palmer’s testimony. We therefore affirm the new trial order and the judgment. |
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