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Court of Appeal:
Party Fails to Justify Special Causation in Case Over Rockfall
Opinion Says Summary Judgment Was Properly Entered Against Plaintiff Who Sued Multiple Defendants on Theory That Stones Fell Onto Roadway From One of Their Properties, Finding Insufficient Evidence of Joint Malfeasance
By Kimber Cooley, associate editor
Div. Three of the Fourth District Court of Appeal has held that a trial judge properly granted summary judgment in favor of a defendant who argued that the plaintiffs, who asserted negligence claims against three property owners whose land overlooked the area where large rocks allegedly rolled onto a roadway, failed to establish group liability based on a theory of joint malfeasance in not protecting the parcels against landslide risks.
The court said, in an opinion filed June 11 and certified for publication yesterday, that the plaintiffs failed to trigger a special rule—established in the 1948 California Supreme Court case of Summers v. Tice—which allows for an alternative theory of causation where multiple parties acted tortiously and circumstances make it impossible to determine which one caused the injuries.
In the Summers case, two hunters negligently fired guns in the direction of the plaintiff at about the same time, resulting in the victim being struck in the eye by a single pellet. The high court ruled that both defendants could be held jointly and severally liable, and that the burden of proving causation in that case shifted to the shooters to prove that they were not the cause of the resulting injury.
The question of causation arose after plaintiff Anthony Mitchell’s Ferrari allegedly struck multiple “boulders” on Crown Valley Parkway in Dana Point on May 20, 2020. Mitchell and his passenger, Scott Sieverts, filed a complaint against Gail B. Hutchinson and two other parties, each of whom owns a property with a yard sloping down to the roadway, asserting that the defendants “are liable as joint tortfeasor[s] for indivisible harm.”
Allegations in Complaint
In the pleading, the plaintiffs alleged:
“Defendants…failed to inspect, repair, maintain the premises in question, causing the boulders on their property to roll into the roadway and damage Plaintiff’s car. Defendants had notice of the boulders on their property and failed to protect against them rolling into the below roadway….[T]he property was not maintained or fenced in to provide protection to motorists on the adjacent roadway.”
After Hutchinson filed a motion for summary judgment, arguing that the plaintiffs could not establish causation. Mitchell and Sieverts pointed to a 24-year-old geological report indicating that the slope was prone to landslides and images of a tattered tarp on the hill as evidence of the defendants’ negligence in failing to ensure that rocks did not fall from the hillside onto the busy thoroughfare.
Orange Superior Court Judge Walter P. Schwarm found the evidence insufficient to establish a triable issue of material fact as to the property owners’ negligence and granted the defendant’s motion. Justice Martha K. Gooding wrote the opinion, joined in by Acting Presiding Justice Maurice Sanchez and Justice Thomas A. Delaney, affirming the ensuing judgment.
Proof of Negligence
Gooding wrote:
“The key to shifting the burden in alternative causation cases is proof of defendants’ negligence. ‘The alternative liability theory acts only to shift the burden of proof from plaintiff to proven wrongdoers—plaintiff must still prove that all defendants acted tortiously.’ ”
Saying that Hutchinson met her “initial burden” on summary judgment to show that plaintiffs cannot prove causation, she noted that the defendant introduced “evidence in the form of deposition testimony…as well as an expert declaration demonstrating there is no way to tell from which property the rocks fell and plaintiffs have no evidence to prove the rocks came from Hutchinson’s property.”
Turning to the plaintiffs’ response, she remarked:
“The burden shifted to plaintiffs to produce admissible evidence sufficient to create a triable issue of material fact as to whether the rocks came from Hutchinson’s property or, alternatively, whether the property owner defendants, including Hutchinson, acted tortiously toward plaintiffs. Plaintiffs did neither.”
She pointed out that the plaintiffs’ expert witness, geotechnical consultant Gregory Axten, did not offer any opinion on the origin of the rocks other than averring that they likely came from one of the three properties and entered the roadway due to “unencumbered passage from a lack of barriers and/or landslide suppression methods.”
The jurist acknowledged that the defendant did not object to the admissibility of the geological report but concluded:
“[T]he Report does not support Dr. Axten’s conclusion that Hutchinson had notice the slope was prone to landslide activity, and plaintiffs introduced no other evidence to support this opinion. For instance, plaintiffs did not introduce evidence that Hutchinson received the Report or evidence explaining the significance of what it said with respect to rock slides that may occur some 24 years later. Moreover, the Report showed Hutchinson’s property was susceptible to a low propensity for a landslide, and there was no evidence of any rocks rolling down the hillside after 1996 and leading up to the incident.”
Speculative Assertions
She added:
“[A]lthough Dr. Axten stated in his declaration he reviewed Hutchinson’s deposition testimony and the exhibits to her deposition in preparing his declaration, he did not refer to or attach any testimony by Hutchinson, Hutchinson’s deposition transcript was not filed with the opposition, and Dr. Axten did not mention the Report in his declaration and attempt to tie it to his opinions. Accordingly, Dr. Axten’s opinion that defendants were on notice the hillside was prone to releasing rocks was without foundation and speculative, and we find no error in the trial court’s conclusion that plaintiffs’ evidence failed to create a triable issue of material fact that defendants negligently maintained their property.”
As to the allegations of a canvas on the hillside, Gooding said:
“[T]here was some suggestion by plaintiffs that there was a tattered tarp on the hillside seen by Mitchell and photographed by plaintiffs’ expert, but there was no admissible evidence tying this tarp to Hutchinson’s property or explaining how the existence of the tarp alone supports plaintiffs’ theories of negligence and premises liability. Plaintiffs’ argument that the tarp ‘constituted an attempt, albeit insufficient, at stopping these known rolling rocks’ is entirely without foundation and speculative.”
Under these circumstances, she declared:
“[P]laintiffs’ opposition did not shift the burden back to Hutchinson to prove the rocks did not come from her property.”
The case is Mitchell v. Hutchinson, G063331.
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