Metropolitan News-Enterprise


Friday, September 4, 2009


Page 1


C.A. Rules Truck Repair Shop May Be Liable for Fatal 2005 Crash


By SHERRI M. OKAMOTO, Staff Writer


A Huntington Park truck repair facility may be held liable for a deadly October 2005 crash in which a commercial tow truck stolen from its service yard careened onto the sidewalk and struck 11 people at a crowded bus stop, this district’s Court of Appeal said yesterday.

Div. Three reversed Los Angeles Superior Court Judge Daniel S. Pratt’s grant of summary judgment in favor of Maurice J. Sopp & Son, explaining that the repair shop had a duty, as a matter of law, to protect against the possibility that a thief would steal a vehicle from its facility and cause harm to others.

Video taken from surveillance cameras at the Sopp & Son yard showed Raymond Bermudez enter the facility though an open gate and climb into a 2003 Nissan tow truck, within hours of his release on parole from Soledad State Prison. 

The truck then backed into another vehicle behind it and then moved forward, knocking down and dragging a large shade canopy, before moving out of the gate.

Pedestrian Struck

After striking several vehicles on 58th Street, the truck moved onto the sidewalk and plowed through a group of people waiting at a bus stop on the corner of Santa Fe and Vernon Avenues. It then sheared off a utility pole and finally stopped when it struck a second pole.

Three people—a single mother and a couple with seven children—were killed, and eight others were injured in the crash.

Bermudez subsequently pleaded guilty to three counts of murder and was sentenced to 140 years to life in prison.

The families of the victims eventually filed suit against Sopp & Son, asserting causes of action for wrongful death, negligence and loss of consortium. Sopp & Son then moved for summary judgment on the issues of duty and causation.

In opposing the motion, plaintiffs cited Avis Rent a Car System, Inc. v. Superior Court (1993) 12 Cal.App.4th 221, which held that “special circumstances” allowing the owner or bailee of a motor vehicle to be held liable for harm caused by a thief who steals that vehicle and injures a third party arise “when heavy vehicles are left unattended and available for use by those not accustomed to driving them.”

‘Special Circumstances’

To establish “special circumstances,” plaintiffs offered expert testimony indicating that Huntington Park had the highest rate of car thefts in the nation in 2004 and ranked in the top 14th percentile in the nation for violent crime.

Another expert also issued his opinion that the safe and proper operation a commercial tow truck is not a matter of common experience, due to its size and specialized equipment.

Plaintiffs further presented evidence indicating Sopp & Son executives knew there was a gang problem in Huntington Park at the time of the theft and that police had been called to the service center on 25 occasions in the last five years in response to reported thefts and break-ins.

Pratt agreed that the safe operation of a tow truck is not within common experience. But “that factor is not enough to create a duty since the thief did not attempt to use the towing equipment, but was driving the truck as an ordinary vehicle,” he concluded.

He also concluded that leaving the keys to the truck, which was parked in Sopp & Son’s fenced-in yard, during daylight hours, while employees were present, did not give rise to “special circumstances” necessary to impose liability.

Writing for the appellate court, Presiding Justice Joan D. Klein, joined by Justices H. Walter Croskey and Richard D. Aldrich, disagreed.

Klein noted that the California Supreme Court had found “special circumstances” to exist in four cases—Richardson v. Ham (1955) 44 Cal.2d 772, Hergenrether v. East (1964) 61 Cal.2d 440, Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, and Ballard v. Uribe (1986) 41 Cal.3d 564—which each involved “sizeable vehicles”—a bulldozer, two-ton truck, flatbed truck and aerial manlift—which had been left unattended and available for use by persons unfamiliar with their operation.

In light of this precedent, Klein explained that the threshold issue in determining whether special circumstances exist is the nature of the vehicle involved.

Because a tow truck is a “sizable, powerful vehicle” that is “capable of inflicting more serious injury and damage than an ordinary vehicle” and furnished with specialized equipment and controls, Klein reasoned that the safe operation of such a vehicle would not be within common driving experience.

Further, since the truck was “parked in an area plagued by vehicle thefts, with the key in the ignition, in a position that permitted Bermudez to leave the facility through the unlocked and open gate,” Klein posited that “no meaningful physical barriers prevented Bermudez from driving the truck off the premises.”

She added that public policy also favored imposition of a duty since locking the gate or removing keys from vehicles would not pose an “onerous burden” and insurance coverage for negligence claims is available.

 “The sum total of these policy considerations lead us to conclude Sopp owed a duty of care to plaintiffs herein,” she said.

Klein also emphasized the short duration of time between the theft and the harm to plaintiffs, and based on this “close temporal connection,” declined to conclude that Sopp & Son was not a legal cause of the plaintiff’s injury as a matter of law.

Arnoldo Casillas and Christian Pereira of Moreno, Becerra & Casillas, together with Daniel Michah Dembicer from The Law Office of Daniel Michah Dembicer and Andrew D. Stein and Rebecca A. Davis-Stein of Andrew D. Stein & Associates represented the plaintiffs.

David S. Ettinger and Jason R. Litt of Horvitz & Levy represented Sopp & Son, along with Kevin J. McNaughton and Yaron F. Dunkel of Schaffer, Lax, McNaughton & Chen.

The case is Carrera v. Maurice J. Sopp & Son, 09 S.O.S. 5459.


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