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C.A. Reverses $12.3 Million Verdict in Fatal Train Crash Case
Opinion Says Trial Court Prejudicially Erred by Not Instructing Jury on Negligence Per Se, Based on Code Section Prohibiting Escaping From Police Custody, in Action Accusing Officer of Causing Man to Fall Onto Track
By a MetNews Staff Writer
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The above screenshot, showing decedent Cesar Rodriguez, was posted on the GoFundMe website as part of a fundraising campaign. Rodriguez was killed by an oncoming train in 2017 after an encounter with a Long Beach police officer. The Court of Appeal has reversed a judgment in his favor based on instructional error by Los Angeles Superior Court Judge Gregory Alarcon. |
Div. One of this district’s Court of Appeal has held that a trial judge prejudicially erred in rejecting a defense-requested negligence per se instruction in a case accusing a Long Beach police officer of causing a man to fall off the edge of a platform and die after being hit by an oncoming train during a search incident to arrest, saying the instruction based on a Penal Code section prohibiting escaping custody would have helped the jury assess comparative fault.
In an unpublished opinion, filed Tuesday and authored by Acting Presiding Justice Helen I. Bendix, the court reversed the $12.3 million judgment based on a jury verdict in favor of the plaintiffs, saying that Los Angeles Superior Court Judge Gregory W. Alarcon should have offered the instruction based on evidence presented during the trial indicating that the decedent was attempting to get away from the officer when the accident occurred.
However, the court rejected the defendants’ assertion that they are entitled to judgment as a matter of law based on Government Code §845.8, which provides that “[n]either a public entity nor a public employee is liable for” any injury resulting from “[a]n escaping or escaped arrested person…or…[a] person resisting arrest,” noting that the jury made no findings as to whether the deceased was resisting or trying to flee.
August 2017 Tragedy
The accident occurred on Aug. 29, 2017, when Long Beach Police Department Officer Martin Ron approached Cesar Rodriguez, having been informed that the passenger had failed to pay a train fare. Ron began to search Rodriguez incident to arrest on the platform when, according to the officer, the detainee pulled away forcibly and fell into the path of an approaching train.
Following the crash, Rodriguez’s mother and his estate filed a complaint against Ron and the City of Long Beach, asserting a single cause of action for negligence in the operative complaint. In their answer, the defendants argued that “[a]ny and all alleged happenings and events, damages and injuries…were proximately caused and contributed to by the negligence of Plaintiff.”
During the ensuing jury trial, all percipient witnesses testified that Rodriguez’s fall was preceded by an attempt to get away from the officer. The parties do not dispute that Ron had probable cause to arrest and to search the decedent.
Edward Flosi, a 27-year veteran of the City of San Jose police force, testified for the defense, saying that the area Ron chose to search Rodriguez was at least three feet from the train and was a safe location. Plaintiffs offered expert testimony by Jeffrey Noble, a 28-year veteran of the Irvine police force who opined that conducting the search “so close to the platform was unreasonable.”
Requested Instruction
In California, negligence is presumed, under Evidence Code §669, if it can be shown that a party violated a statute and the breach was a substantial factor in bringing about the alleged harm. Based on that principle, the defendants requested a negligence per se instruction based on California Penal Code §836.6(b).
The statute specifies that “[i]t is unlawful for any person who has been lawfully arrested by any peace officer…to thereafter escape or attempt to escape.” The defendants asked that the jury be told:
“If Defendants prove
1. That Cesar Rodriguez violated this law and
2. That the violation was a substantial factor in bringing about the harm, then you must find that Cesar Rodriguez was negligent.”
Alarcon declined to offer the proposed instruction, and instead informed the jury:
“Martin Ron and the City of Long Beach claim that Cesar Rodriguez’s own negligence contributed to his death. To succeed on this claim, Martin Ron and the City of Long Beach must prove both of the following: One, that Cesar Rodriguez was negligent; and two, that Cesar Rodriguez’s negligence was the substantial factor in causing his death.”
The jury found in favor of the plaintiffs and found that Rodriguez had not acted negligently. They awarded the plaintiffs $12.3 million in economic and noneconomic damages.
Tuesday’s opinion, joined in by Justices Gregory J. Weingart and Michelle C. Kim, reverses the judgment.
Instructional Error
Bendix said:
“Instructional error requires reversal when it is reasonably probable the appellant would have received a more favorable verdict in the absence of the instructional error….[T]he percipient witnesses uniformly testified Rodriguez was attempting to escape. The jury, however, was not informed that if it found Rodriguez was attempting to escape, Rodriguez would be negligent. The absence of that instruction disabled the jury from properly evaluating whether Rodriguez was comparatively at fault for his death. We conclude it was therefore reasonably probable defendants would have obtained a more favorable verdict had the court instructed the jury on negligence per se.”
The plaintiffs conceded that the trial court erred in refusing the requested negligence per se instruction but argue that the mistake was not prejudicial because “[t]he jury, in determining Officer Ron was solely at fault, rejected the City’s claim that Rodriguez resisted arrest or attempted to escape.” Rejecting that contention, the jurist wrote:
“The instruction on negligence did not inform the jury in deciding whether Rodriguez was comparatively negligent, that the jury had to determine whether Rodriguez violated a statute prohibiting persons in custody from escaping….Because the jury was not instructed that Rodriguez was negligent if he was attempting to escape, the jury verdict finding that Rodriguez was not negligent does not also show the jury found Rodriguez was not attempting to escape.”
Purported Misconduct
The defendants also argued on appeal that the plaintiffs’ attorney, identified on the Los Angeles Superior Court records as Arnoldo Casillas, committed misconduct during closing argument by inflammatory references to the George Floyd case. Declining to address the challenge “given our reversal for instructional error,” Bendix still took the opportunity to offer some guidance on remand.
She remarked:
“Lest our restraint be interpreted as condoning counsel’s sharp practices during his closing argument and to assist on remand, we emphasize that closing arguments should be tethered to the evidence presented at trial and should not ‘pander to the prejudice, passion or sympathy of the jury.’ ”
Bendix continued:
“Arguments comparing this case to the criminal trial of officers involved in the death of George Floyd were improper because the jury was required to consider the evidence in this case, not evidence in another case, especially one as notorious as the George Floyd murder.”
The case is Estate of Cesar Rodriguez v. City of Long Beach, B330817.
Acting for the plaintiffs were Casillas and Daniel William Gillette of the Long Beach firm of Casillas & Associates, as well as Thousand Oaks practitioner Gerald Philip Peters. Defendants were represented by John F. Querio and Scott P. Dixler of Horvitz & Levy LLP, based in Burbank, and Matthew Millette Peters, Dawn McIntosh, and Nicholas James Masero with the Office of the Long Beach City Attorney.
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