2015-00174780-CU-PA

People of the State of Ca vs. Gary Wayne Spallino

Nature of Proceeding: Motion for Summary Judgment

Filed By: Sharpe, Linda J.L.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the Issues identified in the Notice of Motion and which of the Undisputed Material Facts offered by the moving defendant and/or the Additional Material Facts offered by plaintiff will be addressed at the hearing and the parties should be prepared to point to specific evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendants Leon Johnston (“Johnston”) and Road and Highway Builders of California’s (“RHBC”) (collectively “Defendants”) motion for summary judgment is ruled upon as follows.

This is a negligence action brought by California Department of Transportation (“CalTrans”). CalTrans alleges that on May 22, 2012, Johnston, a heavy equipment operator employed by RHBC, improperly loaded an excavator on a low boy trailer owned by co-defendant Yreka Transit Mix Concrete, Inc. (“Yreka”). The trailer was being hauled on a truck driven by Yreka’s employee, co-defendant Gary Wayne Spallino (“Spallino”). Spallino was driving on Northbound I-5 when the boom collided with the Walker Lane Overcrossing girders destroying the east span over I-5. CalTrans alleges that Johnston and Spallino failed to check the height of the boom.

CalTrans alleges that Defendants owed it a duty of care to properly load the equipment and control the vehicles in a manner that would not cause damage to CalTrans’ property. It alleges that Defendants breached this duty by allowing the excavator boom to be positioned above legal height limits, and that Spallino and Johnston failed to check the height of the excavator boom.

Trial is scheduled for August 27, 2018.

Defendants move for summary judgment on the ground that pursuant to Vehicle Code

§§ 17301 and 17302 liability for damage to a highway or bridge rests with the driver and owner of the vehicle, and that Defendants did not cause the damage.

Vehicle Code §§ 17301-17302:

Vehicle Code §17301 provides:

(a) Any person driving any vehicle, object, or contrivance over a highway or bridge is liable for all damages which the highway or bridge may sustain as a result of any illegal operation, driving or moving of the vehicle, object, or contrivance, or as a result of operating, driving, or moving any vehicle, object, or contrivance weighing in excess of the maximum weight specified in this code which is operated under a special

permit issued by the Department of Transportation.

(b) Whenever the driver is not the owner of the vehicle, object, or contrivance but is operating, driving, or moving the same with the express or implied permission of the owner, the owner and driver are jointly and severally liable for the damage.

Vehicle Code §17302 provides:

The driver, or the owner and driver, jointly, as the case may be, are also liable for all damages that any highway or bridge sustains as the result of any operation, driving, or moving of any vehicle that exceeds any of the limitations imposed by Division 15 (commencing with Section 35000), Chapter 1 (commencing with Section 29000) of Division 13, Section 21461 with respect to a sign erected under Section 35655, and Sections 21712 and 23114 even though the vehicle is exempted from the limitations by Section 35001, 35104, 35105, 35106, 35108, 35250, 35400, 35414, or 36615.

According to Defendants, because it is undisputed that Yreka owed the truck (UMF 4) and Spallino drove the truck (UMF 3), only Yreka and Spallino may be liable for the damage.

As CalTrans correctly notes, however, the above Vehicle Codes do not limit liability solely to the driver and owner of the vehicle. Additionally, CalTrans’ complaint does not assert a cause of action based on the Vehicle Codes, CalTrans only asserts a common law negligence action. Further, CalTrans’ allegations of duty and breach go beyond mere transporting the excavator, it also includes allegations that Defendants improperly loaded the excavator onto the trailer. Defendants’ fail to address common law negligence, and, therefore fail to satisfy their initial burden.

Thus, Defendants’ motion for summary judgment on the ground that they cannot be liable pursuant to Vehicle Code §§ 17301 and 17302 is DENIED.

Causation

Defendants next move for summary judgment on the ground that they did not cause CalTrans’ damage.

A “plaintiff meets the causation element by showing that (1) the defendant’s breach of its duty to exercise ordinary care was a substantial factor in bringing about plaintiff’s harm, and (2) there is no rule of law relieving the defendant

of liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) “These are factual questions for the jury to decide, except in cases in which the facts as to causation are undisputed.” (Id.)

“A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.” (1-400 CACI 430 (2018).) “Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” (Id.)

Defendants set forth the following UMFs to show that they were not the “cause” of

CalTran’s harm:

· Spallino was driving the truck and trailer involved in the collision. (UMF 3)

· Yreka owned the truck and trailer that Spallino was driving on 5/22/12. (UMF 4)

· Johnson has never been a truck driver transporting a piece of equipment like an excavator. (UMF 12)

· Spallino’s job responsibility was to pick up the excavator and haul it to the job site. (UMF 13)

· Prior to the collision Spallino had hauled an excavator at least a dozen times. (UMF 15)

· Prior to the collision Spallino was aware that the legal limit for a load height was 14 feet. (UMF 16)

· Johnston had no understanding as to the height limitations for excavators when they are being transported. (UMF 17)

· Johnston left before the excavator was secured on the trailer. (UMF 20)

· After the excavator was loaded onto the lowboy trailer on 5/22/12, Spallino secured the excavator by putting chains on it. (UMF 21)

· Johnson did not secure the excavator on the trailer that Spallino hauled. (UMF 22)

· Spallino did not expect Johnston to inspect the excavator after it was loaded onto the lowboy and Spallino was going to transport it to the job site. (UMF 25)

· It was not Johnston’s job to check the height of the excavator after it was loaded. (UMF 30)

· Johnston suggested that Spallino check the height of the boom. (UMF 35)

· Spallino understood that as the driver hauling heavy equipment, he was responsible for measuring the load he was hauling. (UMF 26)

· Spallino understood that if he thought a load was too high, he could make the decision not to haul it. (UMF 28)

· Prior to transporting the excavator on 5/22/12 Spallino did not measure the height the excavator. (UMF 29)

· Spallino selected the route that he took to transport the excavator on 5/22/12. (UMF 31)

The Court is not persuaded that the above UMFs show that there is no triable issue of material fact that Defendants’ conduct was not a substantial factor in bringing about

CalTrans’ damages. If anything, the above UMFs go mainly to issues of duty and breach of duty, rather than causation. Defendants have not affirmatively shown that there no triable issue of material fact that Defendants’ conduct was not a substantial factor in bringing about CalTrans’ damages.

Moreover, CalTrans has demonstrated a triable issue of material fact as to whether Defendants’ conduct was a substantial factor to CalTrans’ harm. Here, is undisputed that Johnston drove the excavator onto the trailer, spun the cab around, and put the boom down. (AMF 5.) As Johnston was getting into his own truck to leave, he told Spallino that the load was too high and that Spallino should measure it. (AMF 6.) Johnston testified that if Spallino checked the height and it was over height, Johnston “would have come back.” (AMF 7.) Johnston left immediately after he loaded the excavator and before it was secured. (AMF 9.)

The Court concludes that given the above facts, whether Defendants’ conduct was a substantial factor is a factual question for the jury to decide.

The motion for summary judgment is DENIED.

The Court declines to rule CalTrans’ objections to evidence as the objected to evidence was not material to the disposition of the motion. (CCP §437c(q).)