Dissenting Opinion Spotlight: Appeal should be re-briefed where jury found the actual tortfeasor had no liability

When majority upholds verdict finding School District but not employee is liable, a dissenting Justice asks the parties to submit new briefs

What happens in an appeal if the parties do not brief what may ultimately be the dispositive legal issue?  A remarkable dissent by Justice Richman in the First District's opinion in A.H. v. Tamalpais Union High School District (September 24, 2024) A165493 and A166684, posits that in such an instance should not decide the case on the issues actually briefed, but should instead ask for re-briefing on the most important legal issue raised by the case.

The complaint by A.H. alleged, inter alia, that he was molested by the employee of the defendant School District:

While still in middle school, A.H. began taking private tennis lessons from Burgos, and he joined the Tamalpais High School tennis team as a freshman. A.H. viewed Burgos as a mentor and the “most important person in [his] life” other than his parents. Burgos began sexually abusing A.H. in 2003. The abuse took place in Burgos’s office and later in the coaches’ locker room, both of which were next to the school’s boys’ locker room.m (Id., p. 2.)

The jury found for the plaintiff and the appellate court upheld the verdict, finding the defense had not raised any issue as to either jury instructions of the evidence admitted which required the verdict to be overturned:

On appeal, the District raises two claims: first, that the trial court improperly instructed the jury and, second, that the trial court erred in allowing A.H. to present inadmissible evidence of Burgos’s conduct with others. Finding no error, we affirm. (Id., p. 1.)

The dissent, however, found the parties had not briefed a crucial issue, and therefore dissented despite the fact it found no fault with the majority's analysis "as far as it goes."  According to Justice Richman, the crucial issue not briefed was not waived by the appellant but should in fact be re-briefed:

But there is where I part company with my colleagues. I would go further, and do something that to my knowledge this court has not done in my 18-and-a-half years’ experience here: raise on our own, and seek supplemental briefing on, an issue “not proposed or briefed by any party.” I would do this under the authority of Government Code section 68081, which provides in pertinent part as follows: 

“Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing.” (Dissent, p. 2.)

Specifically, the dissent argued the parties had not fully briefed the crucial issue of "whether the verdict allocating 100 percent responsibility for A.H.’s harm to the District, zero percent to Burgos, can support the judgment." (Id., pp. 1-2.)  The majority opinion noted that  the School District did not argue the apportionment of fault between itself and the employee was wrong, and therefore failed to make the distinct argument that the person committing the sexual assault cannot have zero liability while the party who is liable for this person's acts (for failing to supervise or properly hire him) has 100%.  

While the majority found the District had waived this argument, the dissent wanted the Appellate Court to utilize its power to order re-briefing so that this central flaw in the verdict could be considered.  As the dissent explained succinctly, it simply cannot be that the District is liable for the tort of its employee but the employee himself was not liable:

The jury went beyond the “extraordinary” request by counsel for A.H., and allocated 100 percent of responsibility for the harm to the District, zero to Burgos. That cannot be: if Burgos’s sexual battery did not harm A.H., then the District could not have been negligent in hiring him or failing to supervise him. Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023 (Ortega), a case cited by the District is, on this point, on point. (Dissent, p. 3; emphasis added.)

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Ride sharing service has no duty to perform background checks on all potential riders (Shikha v. Lyft)

California's Second District, Division Three, has ruled the general duty of due care one owes to another does not extend to include a duty owed by ride-share platforms to its drivers to perform "background checks" on all passengers. (Shikha v. Lyft (May 17, 2024, B321882.)

Writing for the court, Justice Adams summarized the factual and procedural background succinctly:

In February 2020, Al Shikha was working as a Lyft driver when he accepted a ride request through the Lyft app from passenger Ricky A. Alvarez.  During the ride, and without any warning or provocation, Alvarez repeatedly stabbed Al Shikha, causing lacerations to Al Shikha’s left hand and both legs.  In  April 2020, Al Shikha filed a complaint asserting three causes of action against Lyft: (1) failure to provide workers’ compensation insurance; (2) negligence; and (3) failure to provide a safe place of employment. (Id., pp. 2-3.)

The Second District explained there was no justification for imposing such a duty despite the general rule that all persons owe a duty of due care to others to act reasonably. (See, e.g., Civil Code section 1714.1.)   As the Second District opinion teaches, the statutory duty to verify the criminal record of a driver does not extend to doing so for passengers. As to any common-law duty, Shikha found no duty was owed to its own drivers even though Lyft was admittedly in a "special relationship" with these persons.  This conclusion required analysis of the factors enunciated by the Supreme Court in 1969's Rowland v. Christian, including the crucial factor of foreseeability:

To depart from the general principle that all persons owe a duty of care to avoid injuring others . . . ‘involves the balancing of a number of considerations’: ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ [Citation.]” (Brown, supra, 11 Cal.5th at p. 217, citing Rowland, supra, 69 Cal.2d at pp. 112– 113; accord, Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1021 (Kuciemba).)  We consider the Rowland factors at “ ‘a relatively broad level of factual generality.’ [Citation.]” [Citation.] . . . Before analyzing the Rowland factors, we must identify the specific duty Al Shikha asserts Lyft should undertake. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214 (Castaneda).)  The complaint alleges Lyft has a duty to conduct “basic, inexpensive public record background checks on passengers to determine whether they pose a risk of harm to drivers (or to obtain consent from drivers that they may be transporting a known criminal).” On appeal, Al Shikha argues Lyft is required to “either warn drivers about riders with serious criminal histories[ ] or otherwise exclude such riders from its network.” 

“ ‘The most important factor to consider in determining whether to create an exception to the general duty to exercise ordinary care . . . is whether the injury in question was foreseeable.’ [Citations.]” (Regents, supra, 4 Cal.5th at p. 629.) In assessing the Rowland factors in cases involving a defendant’s duty to prevent third party criminal conduct, courts have employed a “sliding-scale balancing formula.” [Citation.]  (Id., pp. 8-10.)

Discussing cases involving the duty to prevent the criminal acts of third parties, such as Ann M. v. Pacific Plaza v. Pacific Plaza Shopping Center (1993) 6 Cal. 4th 666, the Second District explained that in deciding whether to impose a duty of due care, the "burden" of preventing the plaintiff's harm must be balanced against the effectiveness of the proposed precautions.  Here, this analysis indicated no duty of due care was owed given the proposed precaution (background checks) was both burdensome and of "dubious" effectiveness:

Al Shikha contends conducting criminal background checks on all potential rideshare passengers would entail minimal costs and would not be highly burdensome. Lyft, in contrast, asserts the obligation would impose significant financial and social burdens. Lyft argues screening each passenger would require a “huge and unwieldy infrastructure”; that it would expose Lyft to liability because there is no guarantee it would successfully identify people inclined to violence; it would be impossible for passengers to download and sign up for the app at the time a ride is needed; it would burden those with criminal histories who are not inclined to violence but still need transportation; it would unfairly discriminate against broad segments of the population; it would have an “unfair or even unlawful[ly] discriminatory effect on minorities and marginalized populations”; and it would conflict with the strong public policy of maintaining consumer privacy. As the court determined in Castaneda, we similarly conclude here that conducting criminal background checks on all rideshare passengers would be “a burdensome, dubiously effective and socially questionable obligation . . . .” (Castaneda, supra, 41 Cal.4th at p. 1217.) (Id., p. 17.)

The Shikha  court noted that not only did plaintiff fail to provide any cogent argument as to why and how a background check would prevent future injuries, but logic dictated background checks cast a very wide net, as nearly one in three adult Californians have an arrest record. (Id., p. 19.)

It should also be noted Shikha discussed the recent case of Kuciemba v. Victory Woodwork, involving the supposed duty owed by a landowner to the spouse of someone working on the land to prevent the worker's exposure to COVID-19.  The  California Supreme Court unanimously held the spouse's was limited to a workers compensation remedy.

Of course, plaintiff in Shikha argued there was a "failure to warn" of the potential harm from the violent passenger.  However, in Moses v. McKeever a visitor to a condo similarly argued they were owed the duty to be "warned" about a defect in the HOA's common area because such an injury to those entering and exiting the condo was "foreseeable."  However, the appellate court found there was no duty owed by an individual owner or tenant to warn of defects in the HOA's common area.

Analysis

When looking at both practicalities and public policy, it appears the result in Shikha could not have been otherwise.  Indeed, if the duty plaintiff sought to impose were imposed on ride-sharing services, a whole host of persons who do not have access to their own vehicle could potentially be barred from using these services.  This includes not only convicted felons but also, more broadly, those who have been arrested for a wide variety of offenses even if not ultimately charged or convicted.

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Res ipsa loquitur does not apply to ordinary negligence claim (Howard v. Accor)

 

Hotel operator not liable for showerhead malfunction under res ipsa loquitur theory

The Second District, Division Eight has affirmed a grant of summary judgment by the Hon. Jill Feeney, Judge Presiding, of the Los Angeles County Superior Court. (Howard v. Accor Management (April 3, 2024) B320603.)  The plaintiff alleged two theories of negligence, claiming that:

As Monique Howard went to shower during her hotel stay, the handheld shower head fell apart. Howard cut herself and fell. Later she sued the hotel for negligence and premises liability. The trial court granted summary judgment. We affirm because Howard failed to mount a triable issue of material fact on the key issue of notice and failed to establish the applicability of a venerable but inapt doctrine—res ipsa loquitur. (Id., pp. 1-2.)

Specifically, plaintiff alleged the shower head malfunctioned not after she used it in the morning but after she did so later in the day, and thus only after her hotel room had been cleaned, and that on this second use the shower head fell apart:

As soon as I stepped in the shower and turned the water on I noticed that it was spraying me in the face, which was a little odd for me because I had took a shower earlier that day. I was -- kind surprised me, plus I had full makeup on. It was spraying me in my face. When that happened I went to take the shower off of the shower handle and that is when it just dismantled and fell apart.” (Id., p. 2)

Defendant Accor moved for summary judgment, which the trial court granted. The appellate court affirmed, finding plaintiff had not shown there was a triable issue as to the issue of whether the hotel had any notice of the defect in the shower head as plaintiff could not show either actual or constructive notice.

The appellate court also found that plaintiff could not show the doctrine of "res ipsa loquitur," Latin for "the thing speaks of itself," applied.  This doctrine may be used to show the negligence of the defendant from the factual scenario, i.e., that it was "more likely than not"  defendant was negligent, without the need to provide more specifics as to what the defendant actually did that breached the standard of care.  The Second District rejected this argument, noting the plaintiff had not proven the elements of the doctrine because, inter alia, the trial court had sustained objections to the proferred testimony of the plaintiff's safety expert, Brad Avrit, on the grounds his statements involved improper legal opinion.

Importantly, the court noted res ipsa did not apply because the facts did not show it was more likely the defendant's negligence, as opposed to some other cause, caused the injury:

Howard’s papers ask us to make many leaps of logic to infer it was more likely than not that the housekeeper’s negligence caused the shower wand to break. [Citation.] Howard’s deposition testimony leads to reasonable inferences the cause was something else: the shower head sprayed Howard because it was facing her, and Howard’s quick reach for the wand or an inherent defect could have caused its dismantling. There is no inconsistency between these causes and Howard’s and her boyfriend’s statements about the care they took with their earlier showers. The evidence does not show the shower wand was broken before Howard grabbed it. When describing the incident at her deposition, Howard did not say the wand was sharp or broken then. Nor does Howard’s declaration say she was cut before the wand fell apart. (Id., pp. 7-8.)

Conclusion and analysis

The opinion of Justice Wiley affirmed the grant of judgment in favor of hotelier Accor, finding the trial court made no errors of law and that the rulings upon the objections to Mr. Avrit's opinions were well within that court's sound discretion.  The key portion of the opinion is the discussion of res ipsa loquitur, which the trial court found was only applicable to show negligence when there was evidence, and not mere speculation, to show that all of its elements applied.  These elements, which the Howard court strictly construed, were summarized at pages nine and ten: 

. . . [A]s our Supreme Court has explained it, “certain kinds of accidents are so likely to have been caused by the defendant’s negligence that one may fairly say ‘the thing speaks for itself.’ ” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825.) The doctrine has three requirements: (1) the accident was of a kind that ordinarily does not occur absent someone’s negligence; (2) the instrumentality of harm was within the defendant’s exclusive control; (3) the plaintiff did not voluntarily contribute to the harm. (Id. at pp. 825–826 & 836.)

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Short take-away: Release by bicycle rider absolved city of liability for injury from pothole

 

The First District has held that under California law a municipality may be absolved of liability by a release signed by a participant in a bicycle ride. (Ty v. White (Feb. 13,2024) A164483.)  The allegation, of course, was that the city failed to maintain the roadway:

Plaintiff Ty Whitehead sued defendant City of Oakland for injuries he suffered after his bicycle hit a pothole during a training ride for the AIDS LifeCycle fundraiser. Prior to the training ride, plaintiff signed an agreement releasing the “owners/lessors of the course or facilities used in the Event” from future liability. The trial court granted defendant’s motion for summary judgment, concluding the release was enforceable. Plaintiff appeals, arguing the release was invalid because it concerned a matter of public interest. (Id., p. 1.)

The appellate court affirmed the grant of summary judgment despite plaintiff's claim the release violated California's Civil Code section 1668,  barring the effect of a release where the transaction implicates the "public interest."  The Ty court rejected this argument, noting that this was not analogous to a release imposed by a charitable hospital, but, rather, involved an activity that was purely voluntary:

In this case, the overall transaction was plaintiff’s signing of a release of liability so that he could participate in the AIDS LifeCycle fundraiser and its organized training rides on defendant’s streets. We cannot, as plaintiff urges, ignore this aspect of this case. Likewise, it cannot reasonably be concluded that a cycling fundraiser is an essential service such that plaintiff was robbed of his free will in deciding whether to sign the release. (Id., p. 12.)

The plaintiff also argued the release was unenforceable because the defendant was grossly negligent and such cannot be waived by a release. The First District, however, found the release was valid because the city's alleged mistakes did not constitute gross negligence, i.e., "there is no evidence that these select mistakes substantially or unreasonably increased the inherent risk of the cycling activity at issue." (Id., p. 20.)

This opinion is of import because it not only reiterates the viability of agreements releasing municipalities from harm, but also because upholding the grant of summary judgment encourages trial courts to give motions for summary judgment and adjudication based on a release serious attention.  A contrary result from the appellate court, finding there were "triable issues" as to the effect of the release and that plaintiff was entitled to proceed to trial, would have discouraged trial courts from ruling a release is valid as a matter of law.

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Short Take-Away - Insured Must Arbitrate UIM Claim Even Though Bad Faith Suit Has Already Been Filed Against the Insurer

 

The First Appellate District, Division Two, has held an insurer may demand arbitration of an underinsured motorist claim (UIM) made after the insured settled with the uninsured motorist (UM) and then made a claim for the UIM policy limits; indeed, the insured was required to arbitrate even though the insured had already filed a claim for bad faith against the insurer. (Tornal v. CSAA Ins. (Jan. 11, 2024) A167666.)  As Tornal explained:

Plaintiff’s policy provided UM/UIM coverage of up to $300,000 per accident. Plaintiff made a written demand to defendant under the policy for $275,000—the policy limits of $300,000, less the $25,000 she had already received from the settlement with the UIM. Defendant [insurer] refused to tender the $275,000 demanded. (Id., p. 3.)

Plaintiff and insured Tornal then filed a bad faith suit against CSAA, and the latter filed a petition to compel arbitration pursuant to the insurance policy and California's Insurance Code section 11580.2.  The trial court denied CSAA's request to compel arbitration of the underlying UIM claim and CSAA appealed.

Justice Richman and his colleagues reversed, finding the trial court erred in denying the petition.  The appellate court noted that CSAA was not challenging the right of its insured to sue for breach of contract and bad faith, but, instead, was seeking adjudication of the amount owed under its policy.  Said policy and California law provided that this should be resolved by way of arbitration and not a "bad faith" suit:

. . . [B]ecause the parties disagreed over the amount of UIM damages owed to plaintiff, defendant was entitled under section 11580.2, subdivision (f) and the terms of the policy to arbitrate the issue of UIM damages. (Id., p. 22.)

Commentary

A contrary result would have meant, of course, that an insured unable to settle a UIM or UM claim to their liking could stymie the request of the insured to arbitrate this issue by first filing a suit alleging bad faith breach of the insurance policy.

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One-year MICRA Statute of Limitations Applies to Claim Against Ambulance Driver Who Read-Ended Another Motorist (Gutierrez v. Tostado)

 

The one-year Statute of Limitations in California's MICRA regime bars untimely claim against driver of ambulance who rear-ended third-party motorist while transporting another patient

Plaintiff Gutierrez was driving on the I-280 when he was rear-ended by an ambulance driven by defendant Tostado.  The driver and ambulance operator brought a motion for summary judgment based on the statute of limitations found in California's Medical Injury Compensation Reform Act (MICRA).  This statute was passed by the voters in 1975 and limits the amounts recoverable due to alleged negligence in providing medical services.  

The Hon. Christopher J. Rudy of the Santa Clara County Superior Court granted the motion.  On appeal, the Sixth Appellate District upheld the grant of summary judgment over the dissent of one Justice. (Gutierrez v. Tostado (December 1, 2023) H049983.)

Upon appeal, the issue was whether the one-year MICRA statute of limitations found in Code of Civil Procedure section 340.5, as opposed to the general two-year statute of limitations for tort actions, applied.  In other words, did MICRA's provisions apply where the negligence of medical providers was directed at a non-patient such as fellow motorist Gutierrez, who just happened to be driving in front of defendants' ambulance?

 

Justice Greenwood, joined by Justice Grover, wrote for the majority and found that because Tostado was driving the ambulance he was providing "professional [medical] services" at the time of the accident.  Therefore, the time limitations found in MICRA applied.  This is important because under case law such as Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal. 4th 75, at 88, only actions “alleging injury suffered as a result of . . . the provision of medical care to patients” are subject to MICRA. (Gutierrez, p. 3; italics added.)

The majority answered this question affirmatively and cited to Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal. App. 4th 388, at 407, where the MICRA one-year limit applied to injury to someone injured while riding in an ambulance who was not a patient.  As Gutierrez explained at pages five to six, the MICRA time limit applied to someone not receiving medical service but who was nonetheless still injured as a result of negligence in providing such services:

 

In Canister, a police officer accompanying an arrestee in the back of an ambulance was injured when the ambulance hit a curb. At the time of the accident, the ambulance was being driven by one EMT while another attended to the arrestee in the rear of the ambulance. The officer sued for negligence. (Canister, supra, 160 Cal.App.4th at p. 392.) After finding that an EMT was a health care provider and that transporting a patient constituted professional services within the meaning of MICRA, the Canister court held that MICRA extends to “ ‘any foreseeable injured party, including patients, business invitees, staff members or visitors, provided the injuries alleged arose out of professional negligence.’ [Citation.]” (Id. at pp. 407-408.) The court concluded that it was foreseeable as a matter of law that a police officer accompanying an arrestee in an ambulance might be injured in the operation of the ambulance. (Id. at p. 408.)

 

Justice Bromberg dissented and wrote that neither the plaintiff nor the defendants could have anticipated that MICRA would apply in this situation, i.e., "a run-of-the-mill traffic accident involving an ambulance that happened to be transporting a patient on a non-emergency matter, presumably with its siren off." (Gutierrez dissent, p. 2.)  The dissent also noted the plaintiff's lawyers were unlikely to know that MICRA applied to his claim because in 1982 the MICRA provisions specifically related to paramedics were removed. (Gutierrez dissent, p. 4.)  Moreover, at the time MICRA was enacted the general statute of limitations for tort claims was one-year, meaning MICRA was not intended to shorten the time to bring claims. Rather, its purpose was to reduce the amount of monetary awards for medical malpractice to prevent a reduction in affordable and available medical care to the public.

Further review of Gutierrez

This case may ultimately be headed to the California Supreme Court, given that the case law cited by the majority and dissent lacks harmony as to when MICRA does or does not apply.

It should also be noted that earlier this year MICRA was amended by the California legislature.  The original $250,000 "cap" on claims for professional medical negligence was increased.  Wrongful death claims from medical malpractice are now "capped" at $500,000 and this amount will increase by $50,000 each January until the maximum is $1,000,000.  For other claims, the "cap" is $350,000, with yearly increases of $40,000 until the new limit reaches $750,000.

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No Duty to Warn Tenant of Obvious Water Current (Nicoletti v. Goldrich Kest)

 

Landlord had no duty to warn of open and obvious condition of water current from flowing rainwater

The Second District, Division Eight has upheld a grant of summary judgment by the Hon. Daniel Crowley, Judge Presiding, of the Los Angeles Superior Court in a tenant versus landlord tort suit. (Nicoletti v. Goldrich Kest (November 14, 2023) B319377.)  Summary judgment was granted in favor of the landowner based on the defense that the hazard was an "open and obvious" condition.  Plaintiff Nicoletti allegedly fell due to a rainwater current while walking a dog on the premises she rented from defendant Dolphin Marina apartments, sued as the DBA of Goldrch Kent:

On April 9, 2020, Nicoletti took her neighbor’s dog for a walk around Dolphin’s apartment. . . . Nicoletti observed that it was raining that day with thunderstorms. At around 3:30 p.m., Nicoletti crossed the driveway of the North Side Gate entrance that led to the underground parking lot. The apartment complex also had a South Side Gate entrance and another entrance on Panay Way. Nicoletti testified that she had gone past the North Side Gate “thousands of times” before the incident.

Before crossing, Nicoletti observed that the concrete on the North Side Gate driveway was wet, and rainwater formed a current that was running down the driveway. Nicoletti did not observe any caution tape or other warning advisements. Nicoletti proceeded to cross, and the rainwater current knocked her down. Nicoletti then fell down the North Side Gate driveway and hit the gate at the bottom of the driveway. (Id., p. 2.)

The trial court found Dolphin did not have a duty to warn of the running rainwater on the driveway because it was a dangerous condition that was sufficiently obvious.  Dolphin countered  the danger from the water current was not obvious, but the trial court nonetheless granted summary judgment.  

The appellate court affirmed, noting the general rule that landowner must “maintain land in [its] possession and control in a reasonably safe condition.” (Alcaraz v. Vece (1997) 14 Cal. 4th 1149, at 1156; emphasis added.)  However, it also reiterated that "[a] harm is typically not foreseeable if the “dangerous condition is open and obvious," citing Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal. App. 5th 438, at 446.

Upon appeal, Nicoletti further argued that an exception to this doctrine applied, namely that of "necessity."  The appellate court noted this argument was waived as it was first made upon appeal; nonetheless, the Nicoletti court considered and rejected this argument.  Writing for the majority, Justice Viramontes explained the "necessity" argument was not supported by the facts, and, more to the point, public policy indicated no duty should be imposed to place "warnings" due to temporary weather conditions:

Our holding is also consistent with our Supreme Court’s declaration that courts must assign tort duties “to ensure that those ‘best situated’ to prevent such injuries are incentivized to do so.” [Citation.]  Under these circumstances, Nicoletti was in a better position to avoid the obvious danger of walking across a current of water that formed as a result of a rainstorm that began that same day. As discussed above, Nicoletti could have chosen to use a different entrance. The burden imposed on Dolphin to constantly monitor weather conditions and immediately install warning signals is outweighed by Nicoletti’s ability to avoid a condition she should have observed as obviously dangerous. (Id., p. 9.)

Counsel for plaintiffs should note the obvious lesson that arguments destined for a Court of Appeal should first be made in the trial court.  

Defendants should be prepared to argue the applicability of the "necessity" exception to the open and obvious rule.  The defense should also be keen to address public policy issues, such as the scope of the duty the plaintiff seeks to impose, an example being the duty proffered here by the plaintiff, namely, that the landlord should have warned of the current due to the heavy rain that day.

Notwithstanding Federal admiralty law, California worker’s compensation Law applies to Injury at yacht club (Ranger v. Alamitos Bay)

State courts have concurrent tort jurisdiction under admiralty and maritime law but plaintiff is limited to worker’s compensation recovery 

Plaintiff Ranger fell at the Alamitos Bay Yacht Club in Long Beach, California, while lowering a boat into the water.  He sued in state court but his tort claims were dismissed as worker's compensation was determined to be his exclusive remedy. (Ranger v. Alamitos Bay Yacht Club (September 6, 2023) B315302.)  Specifically, the Hon. Mark C. Kim of the Los Angeles County Superior Court sustained, without leave to amend, a demurer on the grounds that plaintiff Ranger could not state a tort claim in California Superior Court.  The Second District, Division Eight, affirmed the trial court but held it did not need to decide the issue of whether or not admiralty jurisdiction applied.

As set forth in both the Constitution and maritime statutes [1], Federal courts have exclusive jurisdiction over certain claims.  At the same time, state courts may adjudicate in personam “maritime claims” as they have “concurrent jurisdiction” over such suits. (Id., p. 2.)  

As the Ranger court explained, this means the issue of whether admiralty jurisdiction applies is “supernumerary,” or excess, to deciding whether California worker’s compensation is the exclusive remedy for a worker such as Ranger injured at a Yacht Club. (Id.)

This is because Ranger was an "employee" excluded from "maritime jurisdiction" under 1984 amendments to the Longshoremen’s and Harbor Worker's Act (“Longshore Act”) found at 33 U.S.C. section 902(3) and (3)(b).  This act established Federal worker’s compensation for what Ranger termed “maritime employment.” (Ranger, p. 3, citing 33 U.S.C. sections 902 and 905.)  More specifically, workers at a “club” are defined as such “employees,” as discussed in more detail below. 

In terms of interpreting this statute vis a vis common law precedent, Ranger explained that while what it called “admiralty courts” [2] are ostensibly “common law” courts, they look primarily to legislative enactments for guidance. (Ranger, p. 3; emphasis deleted.)  At page three, Ranger therefore summarized what it called “admiralty law" including "general maritime law:"

To set out our analysis in more detail, we begin by defining admiralty law. The Constitution implicitly directed courts sitting in admiralty to proceed as common law courts. Where Congress has not prescribed specific rules, these courts developed an amalgam of traditional, modified, and new common law rules. That amalgam is the general maritime law, which is no longer the exclusive province of federal judges. Congress and the states legislate extensively in these areas. When exercising their common law authority, admiralty courts look primarily to legislative enactments for policy guidance. (Citations omitted.)

Key to deciding Ranger were the 1984 amendments to the Longshore Act.  This act excluded many persons defined as an “employee” from Federal worker’s compensation, expressly providing the employee of a “club” is such an excluded employee:

In 1984, Congress responded by introducing a degree of clarity: Congress sharpened the Longshore Act’s focus to exclude employees who, although they happened to work on or next to navigable waters, lacked a sufficient nexus to maritime navigation and commerce. In response to the experiences of many witnesses, Congress adopted what it called a “case-specific approach.”

We now quote the textual result: the pertinent provision— subsection three of section 902 of the Longshore Act—as it stands after the 1984 amendments. Our italics highlight key words.

“The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, . . . but such term does not include—

. . . 

 “(B) individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet. . .  (Ranger, p. 4-5; original emphasis.)

The Second District therefore disregarded oft-cited Federal common-law precedent that did not adequately address the 1984 language quoted above even though such cases have not been expressly overruled by Federal courts.  These included Green v. Vermilion Corp. (5th Cir. 1998) 144 F. 3d 332, and Southern Pacific Co. v. Jensen (1917) 244 U.S. 205, the Ranger court noting the later featured a “celebrated” dissent by Justice Oliver Wendell Holmes.

Justice Wiley, writing for the Ranger court, succinctly summed up the court’s holding that, pursuant to California’s Labor Code sections 3351 and 3600, Ranger’s remedy was limited to a worker’s compensation claim:  

 . . . California’s workers’ compensation law is Ranger’s exclusive remedy. Congress in 1984 decreed this state law aptly covers his situation. A core part of the state workers’ compensation bargain is that injured workers get speedy and predictable relief irrespective of fault. In return, workers are barred from suing their employers in tort. The trial court correctly dismissed Ranger’s tort suit against his employer. (Ranger, p. 13.)

Tips for practitioners

Those prosecuting or defending tort claims should remember the concurrent jurisdiction of state courts in regard to a personal injury involving “navigable waters” which may fall under Federal Maritime Law.  They should likewise note that despite what their law school professors may have stressed as to the supremacy of Federal law, the modern — though by no means recent — trend is to recognize “concurrent” state court jurisdiction as to personal injuries even if the claim would otherwise fall under admiralty law.  

At the same time, Ranger reminds us that tort claims that otherwise fall under this “concurrent” jurisdiction and might otherwise be decided by a state court may be pre-empted by worker’s compensation exclusivity.  Counsel on both sides should therefore look to the Longshore Act, as amended in 1984, and their state law to determine if such a tort claim is instead within the exclusive purview of the worker’s compensation scheme in their state.

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1 — Article Three, Section Two of the United States Constitution states in part:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;—between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. (Emphasis added.)

By virtue of the Judiciary Act of 1989, Federal Courts have exclusive jurisdiction over admiralty and maritime Law claims but state courts retain their own jurisdiction over common law claims:

The district courts shall have original jurisdiction, exclusive of the courts of the States, of . . . [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. (28 U.S.C. section 1333(1); emphasis added.)

2 — While the terms “admiralty” and “maritime” are often used interchangeably, the Constitution expressly gives Federal courts jurisdiction over admiralty "and" maritime law. (See note one.)  "Maritime law" may be said to have global application and encompasses international waters, while "admiralty law" encompasses commercial maritime activities and therefore includes disputes involving coastal areas and inland waterways which may be defined as “navigable waters.”

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Triable Issue as to Whether Landowner Caused Exposure to Fungi (Beebe v. Wonderful)

Defendants not entitled to summary judgment as to "substantial factor" causation because testimony of experts created triable issue as to whether contractor's employee was harmed on premises

The Fifth District has overturned a grant of summary judgment in favor of a landowner for injury to an electrical contractor’s employee from the fungi such as Histoplasma Capsulatum. (Beebe v. Wonderful Pistachios (June 6, 2023) F083502.) Plaintiff and appellant Beebe (“Beebe”) worked for an electrical contractor performing extensive work on the premises of defendant and respondent Wonderful Pistachios (“Wonderful”) and was therefore allegedly exposed to a fungus related to bird feces on a constant basis.  Specifically, Wonderful and/or its agents engaged in “hydroblasting” and other clean-up which caused the bird feces to be airborne, which is potentially dangerous because Histoplasma Capsulatum is a soil-based fungus that feeds upon bird feces.  This feces was literally everywhere, covering almost every surface in a “pole barn” area where Beebe performed his work lasting weeks at a time during which time Beebe lived in an RV near the Barn.  Beebe therefore alleged the fungus caused his Histoplasmosis and resulting surgery:  

The toxic substance(s) were allowed to accumulate and become airborne by Defendants’ actions and/or omissions herein. The substance(s) contained fungi including, but not limited to, Histoplasma Capsulatum. Plaintiff is informed and believes and based thereon alleges that when inhaled, said substance(s) caused Plaintiff’s lung infection which spread to other parts of Plaintiff’s body.” The complaint further noted: “On or about November 24, 2015, Plaintiff reported to the hospital due to symptoms including, but not limited to, weakness and numbness in his extremities. Plaintiff was admitted to the hospital and imaging scans were performed. Subsequently, lesions were discovered on, among other locations, Plaintiff’s brain, such that Plaintiff required surgical intervention. The lesions were biopsied in or about February 2016. Plaintiff was then diagnosed with Histoplasmosis. (Id., pp. 3-4.) 

Wonderful and the other defendants then brought a motion for summary judgment, arguing plaintiff could not provide their actions were a “substantial factor” in the harm, arguing the fact Beebe presented with symptoms sometime after exposure to the fungus at their location indicated Beebe might have contracted Histoplasmosis from exposure somewhere else.  The motion was granted by the Hon. David R. Lampe of Kern County Superior Court and Beebe timely appealed.  

Beebe explained a plaintiff does not have to preclude all other causes to bring a claim for “substantial factor” before the jury

Justice Smith wrote the opinion for the Fifth District and explained there was in fact a triable issue as to whether the defendants were the “cause in fact” of the harm.  Beebe distinguished the prior case of Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal. App. 4th 1326, upon which the trial court relied.  Miranda upheld summary judgment in favor of the defendant from an employee’s injury due to “valley fever” and the alleged exposure to the endemic Cochi fungus, finding it relevant the fungus could be carried over large areas by strong winds.  The Beebe court noted that here, by contrast, there was evidence supported a much stronger inference the employee was exposed to the fungus at Wonderful’s premises:

Here, Beebe adduced ample evidence showing that WP&A’s Firebaugh Facility was on a migratory route for flocks of swallows that had been nesting at the Facility for years, particularly in the pole barn. Hundreds of swallows would nest there for long periods every year, including the entire time Beebe worked at the Facility. There can be no doubt that the presence of the birds was significant and problematic, given that WP&A personnel made various attempts (some ill-advised) in the relevant time period, to prevent the birds from roosting in the pole barn and other areas of the Facility. 

The evidence also showed that the accumulation of bird feces was an extreme problem at the Facility, with some spots having layers of feces an inch or two thick. The accumulations interfered, at times, with the work the Braaten electricians [such as Beebe] were performing at the site (Beebe himself had to personally remove bird droppings at times). Although efforts were made to dry sweep or use leaf blowers to clear feces off the floor of the pole barn, the feces were simply deposited on the surrounding soil and not removed from the site. Beebe testified he was not exposed to concentrated accumulations of bird feces anywhere other than the Firebaugh Facility. (Id., pp. 30-31.)

Beebe stressed that in order to prove factual causation a plaintiff must prove the case of the harm with “reasonable probability,” meaning factual causation involves “reasonable medical probability.” (Id., p. 24; emphasis added.)  A plaintiff does not have to prove that no other causes could have contributed to the harm, and, consequently, does not have to provide factual causation with “certainty.” (Id.)

Crucially, the appellate court found the trial court had improperly excluded two of Beebe’s experts on the grounds their testimony was “speculative;”  Even though a trial court’s ruling on evidentiary matters is viewed through the lens of an “abuse of discretion” standard, the trial court’s ruling did not survive analysis under this standard and plaintiff’s expert’s conclusions should not have been excluded.  Therefore, the appellate court considered the declarations proffered by both sides, which declarations created triable issues of material fact as to the factual cause of Beebe’s harm. 

Lessons for practitioners when dealing with issues of causation raised in a motion for summary judgment

Such motions often become a “battle of the experts” to the same extent as would a trial.  For example, in Beebe the experts disagreed on a number of crucial issues, such as the prevalence of injury from Histoplasmosis in the area or whether exposure to Histoplasma Capsulatum would ordinarily cause symptoms immediately or if they might present later. 

Beebe thus illustrates how difficult it is to obtain summary judgment based upon a “cause in fact” argument where the defendant alleges there are other possible causes of the harm such that the defendant’s conduct was not a “substantial factor” in the harm.  Which possible causes were more likely to be the actual cause of the harm is ordinarily a triable issue the parties address at trial by the use of expensive — and sometimes difficult to obtain — expert witness testimony.