Metropolitan News-Enterprise


Friday, July 2, 2010


Page 3


C.A. Throws Out $15 Million Verdict Against City of Los Angeles


By a MetNews Staff Writer


This district’s Court of Appeal yesterday threw out a $15 million verdict against the City of Los Angeles that followed a collision between a motorcyclist and a dump truck owned and operated by a man working under a city contract.

Div. Four said instructional error likely prejudiced the jury’s determination that the truck’s owner, Tommie Wyatt Jr., was a city employee rather than an independent contractor when he rolled through a stop sign in Northridge in October 2004, colliding with Barry Bowman.

The justices also ruled that Los Angeles Superior Court Judge Holly E. Kendig erred in allowing the jury to find that Wyatt’s carriage of loads of asphalt involved a “peculiar” risk of harm. They further concluded that Kendig erred in instructing that the city was the “motor carrier” as a matter of law, and agreed with the city that the jury’s finding that defects in the truck’s brakes caused the collision was not supported by the evidence.

Bowman was severely injured in the collision and sued both Wyatt and the city. At the time of the collision, Wyatt was under contract with the city’s Bureau of Street Services to deliver asphalt to work sites on an as-needed basis, and was returning to a city yard.

A jury found that Wyatt caused the accident by negligently making a left turn in front of Bowman. It further found that Wyatt was a city employee, that the city breached a duty to inspect and maintain the truck’s brakes, that the truck was controlled by the city and was in a dangerous condition, and that Wyatt’s work involved a special risk of harm.

On the city’s appeal Justice Steven C. Suzukawa wrote that Kendig erred in instructing the jury with California Civil Jury Instructions No. 3704 because the instruction did not correctly state the law insofar as it told a jury that the right of control, by itself, was dispositive to determining whether one was an employee or an independent contractor.

Noting that case law “consistently endorse[s] a multi-factor test,” he said the erroneous instruction likely prejudiced the jury’s determination that Wyatt was a city employee.

Suzukawa also said Kendig erred in allowing the jury to find that Wyatt’s work involved a peculiar risk of harm as a matter of law because the collision resulted from the truck’s ordinary use and there was no direct relationship between a risk inherent in hauling asphalt and the collision with Bowman.

Turning to the findings that defects in the truck’s braking system were a proximate cause of the collision and that the city failed to inspect them, the justice noted that Bowman did not introduce any direct evidence that faulty brakes caused the collision, but asked the jury to infer from defects discovered after the collision that they existed beforehand.

Suzukawa further opined that the trial court erred in instructing the jury that the city was the truck’s motor carrier because Wyatt’s contract, although one-year long, did not provide for a “lease” of the truck where it did not actually give the city a right of possession, much less an exclusive right.

In a separate part of the opinion, the justice rejected Wyatt’s arguments that reversal was required on the basis that Kendig erred in admitting disputed evidence that his motor carrier permit was suspended at the time of the collision. Suzukawa concluded that it was not likely that Wyatt would have received a more favorable result if the evidence was not admitted.

He also ruled that Kendig did not abuse her discretion in excluding expert testimony about what a normal motorcyclist would have done where Wyatt failed to explain its substance, purpose and relevance, and that she did not err in admitting the opinion testimony of a witness to the collision as to whether Bowman could have avoided it.

Presiding Justice Norman L. Epstein and Justice Thomas L. Willhite, Jr. joined Suzukawa in her opinion.

The city was represented by Pasadena attorney John P. DeGomez, and Feris M. Greenberger, Carolyn Oill and Sheila A. Wirkus of Greines, Martin, Stein & Richland in Los Angeles.

Bowman was represented by Los Angeles attorneys Robert S. Gerstein and T. Sean Butler, and Robert H. Tourtelot of Tourtelot & Butler in Santa Monica.

Wyatt was represented by San Marino attorney Stephen S. Talt.

The case is Bowman v. Wyatt, 10 S.O.S. 3715.


Copyright 2010, Metropolitan News Company