Parsons v. Crown Disposal Co.

KENNARD, J.

I dissent.

I agree generally with Justice Mosk’s dissenting opinion, and I agree with Justice Werdegar’s concurring opinion insofar as it states that in this case we should not depart from the normal negligence standard of care and that the cases the majority cites do not support a departure from that standard.

I write separately to explain and emphasize these points:

1. The majority’s attempt in this case to articulate a particular rule of tort liability for situations in which a machine frightens a horse, resulting in personal injury, continues a misguided trend of this court to set particular standards of care for various factual situations.

2. The particular standard of care the majority enunciates purports to be a general rule of nonliability for negligence, but upon examination it proves to be a rule that generally bars only strict liability while generally imposing liability for unreasonable (that is, negligent) conduct.

3. To the extent the majority’s particular standard of care does establish a general rule of nonliability for negligence, it is not supported by the weight of the decisions from this and other jurisdictions.

4. The majority misapplies established law on the standard and burden of proof on motions for summary judgment to conclude, erroneously, that defendant is entitled to summary judgment in this case.

Particularized Negligence Standards of Care

Generally speaking, under the law of negligence every person has a duty to refrain from acting in a manner that causes foreseeable injury to another. *495 (See Civ. Code, § 1714.) Whether in certain situations one person owes another a duty to avoid a particular kind of harm is an issue of law (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124 [ 211 Cal.Rptr. 356 , 695 P.2d 653 , 32 A.L.R.3d 496 ]), and this court has articulated certain considerations that are relevant in deciding these issues in doubtful cases (Rowland v. Christian (1968) 69 Cal.2d 108, 112-113 [ 70 Cal.Rptr. 97 , 443 P.2d 561 , 32 A.L.R.2d 496 ]). But if the existence of a duty of care is not in question (and usually it is not), then whether particular conduct breaches the acknowledged duty of care is determined by measuring that conduct against the applicable standard of care. “In most cases, courts have fixed no standard of care for tort liability more precise than that of a reasonably prudent person under like circumstances.” (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546 [ 25 Cal.Rptr.2d 97 , 863 P.2d 167 , 27 A.L.R.5th 899 ].) Deciding whether a person’s conduct conformed to this standard of care on a particular occasion is generally a question of fact for the jury.

It has long been recognized that duty issues and standard-of-care issues are closely related and that most standard-of-care issues can, but should not, be recast as duty issues. (See Coffee v. McDonnell-Douglas Corp. (1972) 8 Cal.3d 551, 559, fn. 8 [ 105 Cal.Rptr. 358 , 503 P.2d 1366 ], quoting Prosser, Law of Torts (4th ed. 1971) p. 324.) Because I have recently discussed this issue at some length (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 837-844 [ 59 Cal.Rptr.2d 756 , 927 P.2d 1260 ] (dis. opn. of Kennard, J.)), I will not here reiterate why it is generally undesirable to treat duty and standard of care as interchangeable concepts, or to judicially articulate special standards of care for the myriad particular situations that may result in claims of negligence. I note only that the majority’s decision in this case represents yet another misguided attempt to prescribe a particular standard of care for a superficially similar but factually diverse group of negligence cases.

The Majority’s Standard of Care

Referring to a group of earlier decisions by the appellate courts of California and other jurisdictions, the majority states: “. . . [T]he courts developed a remarkably uniform rule, holding that a plaintiff whose horse ‘shied’ or ‘spooked’ and caused damage because of the noise, sight, or odor caused by the defendant’s regular and necessary conduct, cannot state a cause of action for negligence, because the defendant in such a case has breached no duty of care.” (Maj. opn., ante, at p. 466, italics in original.) In other words, the majority has drawn the conclusion that in this group of cases the courts have not imposed negligence liability for conduct that is “regular and necessary.” But when have courts ever imposed negligence *496 liability for conduct that is “regular and necessary”? Isn’t negligence, by definition, conduct that, when measured against the standard of a reasonably prudent person’s conduct in like circumstances, is in some way irregular or unnecessary?

Thus, I do not understand why the majority characterizes this as a “general rule of nonliability.” (Maj. opn., ante, at p. 469.) It can be so only if one is referring to strict liability rather than negligence liability. If there is general rule of nonliability for horse-fright injuries, it is a rule denying strict liability (that is, liability without fault), not negligence liability.

The majority states that this “general rule of nonliability” is subject to “ ‘exceptions,’ ” one of which occurs when “the defendant conducts or uses a train, automobile, or other device in a careless or imprudent manner . . . .” (Maj. opn., ante, at p. 469.) 1 In other words, under this general rule there is no strict liability, but this general rule is subject to the exception that there is liability for conduct that is careless (that is, failing to act in the manner to be expected of a reasonably prudent person under like circumstances).

Carefully examined, the majority’s newly discovered “rule” with its various “exceptions” turns out to be not a general rule of liability or nonliability, but a tortured restatement of the usual negligence standard of care.

Prior Decisions on Machine-Frightens-Horse Injuries

Decisions from California and other jurisdictions do not support a general rule of nonliability in negligence for injuries in machine-frightens-horse situations. To the extent the majority may be understood to establish such a rule, it does so without the benefit of substantial precedent. An examination of decisions from California and other jurisdictions indicates that courts have declined to impose strict liability while recognizing normal negligence liability for injuries in machine-frightens-horse situation.

Typical are the automobile cases. For example, the majority cites the following statement in Tyler v. Hoover (1912) 92 Neb. 221 [ 138 N.W. 128, 133 ]: “The law . . . does not denounce the use of an automobile on a public highway; and the appellant is not guilty of negligence [merely] because he used one on the streets of the city of Lincoln.” (Maj. opn., ante, at p. 468, fn. *497 7.) Stated otherwise, an automobile driver is not strictly liable for injuries caused by a horse taking fright, and the mere driving of the automobile, without more, does not constitute negligence. Other authorities are in accord. As another court phrased it, the driver of an automobile is “not an insurer against the fright of horses passing over the road at the same time.” (Nelson v. Halland (1914) 127 Minn. 188 [ 49 N.W. 194, 195 ].)

But the same authorities recognize negligence liability under the usual “reasonable person" standard of care. Thus, the driver of an automobile is “charged with the exercise of reasonable care to avoid frightening [horses], and if necessary to prevent an accident and injury from such fright to slow down or stop his automobile.” (Nelson v. Halland, supra, 149 N.W. 194, 195 ; accord, Eddy v. Stowe (1919) 43 Cal.App. 789, 795 [ 185 P. 1024 ]; Haynes Automobile Co. v. Sinnett (1910) 46 Ind.App. 110 [ 91 N.E. 171, 172 ].) Whether in a particular case the driver exercised the required care is normally a jury question. (Hontou v. Orvis (1941) 42 Cal.App.2d 585, 588 [ 109 P.2d 395 ]; Eddy v. Stowe, supra, 43 Cal.App. 789, 797 ; Cresswell v. Wainwright (1912) 154 Iowa 167 [ 134 N.W. 594, 597 ].)

In California, the Legislature has codified court decisions describing the scope of tort liability for injuries occurring when an automobile frightens a horse. Vehicle Code section 21759 provides: “The driver of any vehicle approaching any horse drawn vehicle, any ridden animal, or any livestock shall exercise proper control of his vehicle and shall reduce speed or stop as may appear necessary or as may be signalled or otherwise requested by any person driving, riding or in charge of the animal or livestock in order to avoid frightening and to safeguard the animal or livestock and to insure the safety of any person driving or riding the animal or in charge of the livestock.” This code section is by no means an anomaly. To the contrary, most states have similar provisions, which are generally deemed to be declaratory of existing common law. (See, e.g., McDonald v. Yoder (1909) 80 Kan. 25 [ 101 P. 468, 468-469 ].)

A second group of cases involves machines and other inanimate objects left in or near a street. In one such case, personal injuries resulted when a horse took fright at a disabled steamroller left along a public street. Noting that the municipality that owned the roller “is not an insurer of the safety of travelers upon its streets” (District of Columbia v. Moulton (1901) 182 U.S. 576, 578 [ 21 S.Ct. 840, 840-841 , 45 L.Ed. 1237 ]), the United States Supreme Court held that negligence had not been proved because the municipality had exercised “due care in the deposit of the machine when not in use” and had given “due notice and warning to the public of the presence of such machine” (id. at p. 580 [ 21 S.Ct. at p. 841 ]).

*498 Another case involved a hanging platform used by workers painting a bridge. A horse passing in the evening, after the workers had left for the day, took fright, causing injury to the horse’s owner. Addressing the question whether the workers’ employer had exercised due care, the Supreme Judicial Court of Massachusetts stated: “Assuming that the defendant had a right, on the ground of necessity or otherwise, to occupy a part of the highway while painting its bridge, yet that right must be exercised with due regard to the public safety and convenience. Even if it was necessary to make use of some kind of a staging to do this work, it was the duty of the defendant to employ one which would not unnecessarily obstruct the way, or be of such an unusual character as would be likely to frighten horses. It was also its duty not to maintain the staging for more than a reasonable time; and while it was in the highway, to use due skill and care to prevent injury to travelers, and to provide warning signals during periods of darkness.” (Hurley v. Boston & M. R. R. (1917) 228 Mass. 365 [ 117 N.E. 591, 592 ].)

In a third case, injuries resulted when a “horse took fright at a pile of stones, partially obscured by weeds, lying in the street, but outside of the improved and traveled portion thereof.” (Patterson v. City of Austin (1897) 15 Tex.Civ.App. 201 [ 39 S.W. 976, 977 ].) “The stones had been placed in the street under the authority of the city for the purpose of enlarging and improving [a] bridge, and had been there ten days or two weeks.” (Ibid.) The trial court granted judgment for the city, finding that it had not been negligent, even if the stones were likely to frighten horses of ordinary gentleness, because the city had a right to repair the bridge and the placement of the stones was necessary for that purpose. The appellate court reversed, stating that when “material is naturally calculated to frighten horses of ordinary gentleness, and thereby endanger the lives and limbs of the traveling public, it becomes the duty of the municipality either to so place the material as that it cannot be seen by such animals, or to temporarily close the street, so as to prevent its use by persons traveling in [horse-drawn] vehicles or on horseback; and a failure to discharge these duties would justify a finding of negligence.” (Ibid.; see also Rodgers v. Harper & Moore (1910) 170 Ala. 647 [ 54 So. 199, 200 ] [referring to the “general principle that one placing objects within the limits of a public highway, which are calculated to frighten horses of ordinary gentleness, is liable therefor”]; Butler v. Easton & A. R. Co. (1908) 76 N.J.L. 703, 706 [ 71 A. 276, 278 ] [stating that “it is negligence for a railroad company to leave standing in a public highway, unnecessarily and for an unreasonable time, an object naturally calculated to frighten horses of ordinary gentleness”]; City of Boulder v. Stewardson (1920) 67 Colo. 582, 583 [ 189 P. 1 , 2] [affirming judgment on jury verdict awarding damages for injuries when horse was frightened by steamroller and coal wagon “negligently permitted to remain” *499 on a public street].) In this situation also—a machine or other object left in or near a roadway frightening a horse, causing injury—the question whether the owner of the fright-inducing object exercised due care is normally one for the jury. (Boos v. Northfield Tp. (1915) 186 Mich. 386, 396 [ 152 N.W. 1042, 1045 ]; Bussian v. Milwaukee, L. S. & W. Ry. Co. (1882) 56 Wis. 325 [ 14 N.W. 452, 455 ]; Butler v. Easton & A. R. Co., supra, 76 N.J.L. 703, 706 [ 71 A. 276, 278 ]; Hurley v. Boston & M. R. R., supra, 228 Mass. 365 [ 117 N.E. 591, 592 ].)

A third group of cases deals with construction or similar operations conducted in or near a roadway. An early California decision provides support for the proposition that a person whose excavation work in a roadway is likely to frighten a gentle horse must take appropriate precautions, such as stationing a lookout to warn of approaching horses, so that the work may be suspended until the horses have passed. (Fallon v. United Railroads (1915) 28 Cal.App. 60, 64-65 [ 151 P. 290 ].) Decisions from other jurisdictions have also indicated that ordinary negligence principles apply in these circumstances. In one such case, a city-owned steamroller was being driven along a public street. The court stated: “No reason appears why the day was selected for the purpose instead of the night. But the roller was taken through the street at a time when it was being used by the public, and when its passage was necessarily attended with danger. The circumstances required the exercise of a high degree of care, and the use of every reasonable precaution to avoid accident. The necessity of such care was recognized by the persons under whose orders the machine was moved, and who accordingly directed that a mounted policeman should go in advance to notify persons in the street to prevent their horses from being frightened by avoiding it.” (City of Denver v. Peterson (1894) 5 Colo.App. 41 [ 36 P. 1111 , 1113]; see also Butman v. City of Newton (1901) 179 Mass. 1 [ 60 N.E. 401, 403 ] [act of dumping a load of stone upon the wooden platform of a stone crusher, and letting off steam, properly found to be negligent when a horse was 25 feet away in plain view].) If workers in or near a street actually observe a horse taking fright, they must use ordinary care to prevent injury, which may require that they temporarily stop their activities. (Hoover v. Fulton (1914) 177 Mo.App. 95 [ 163 S.W. 292, 293 ].) In all such cases, the question of negligence is normally an issue of fact for the jury. (City of Denver v. Peterson, supra, 5 Colo.App. 41 [ 36 P. 1111 , 1113-1114].)

Accordingly, decisions from California and other jurisdictions do not support the proposition that an owner or operator of machinery has no duty to guard against injuries caused by horses taking fright. Rather, review of the relevant authorities reveals that courts have conducted a case-specific analysis of the pertinent facts to determine whether a reasonable trier of fact *500 could find that the time, place, and manner of operation of the machine was (or was not) reasonable (i.e., nonnegligent) in light of the facts then known to the machine’s operator.

Standard and Burden of Proof on Summary Judgment

A defendant moving for summary judgment must show either (1) “that one or more elements of the cause of action . . . cannot be established” or (2) “that there is a complete defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (o)(2).) Thus, “[t]he moving defendant bears the burden of proving the absence of any triable issue of material fact, even though the burden of proof as to a particular issue may be on the plaintiff at trial.” (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1465 [ 55 Cal.Rptr.2d 415 ].)

Under the 1992 and 1993 amendments of Code of Civil Procedure section 437c, a defendant moving for summary judgment may discharge its burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff’s case. (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 713 [ 52 Cal.Rptr.2d 821 ].) This does not mean, however, that “a moving defendant may shift the burden simply by suggesting the possibility that the plaintiff cannot prove its case.” (Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 186 [ 48 Cal.Rptr.2d 197 ].) Rather, “before the burden of producing even a prima facie case should be shifted to the plaintiff in advance of trial, a defendant who cannot negate an element of the plaintiff’s case should be required to produce direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case.” (Ibid.)

Until the moving defendant has discharged its summary judgment burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing “that a triable issue of one or more material facts exists as to that cause of action.” (Code Civ. Proc., § 437c, subd. (o)(2).)

On a motion for summary judgment, the moving party’s supporting documents “ ‘are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.’ ” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35-36 [ 210 Cal.Rptr. 762 , 694 P.2d 1134 ], quoting Slobojan v. *501 Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432, 436-439 [ 74 Cal.Rptr. 895 , 450 P.2d 271 ].)

Application of Summary Judgment Standard and Burden of Proof

In support of its motion for summary judgment, defendant in this case submitted parts of plaintiff’s deposition testimony. (Defendant also submitted a copy of plaintiff’s complaint and a copy of its own response to plaintiff’s interrogatories, but neither item is material here.) In the offered parts of the deposition, plaintiff testified as follows:

On the morning in question, plaintiff rode his horse out of the Los Angeles Equestrian Center and turned left onto the dirt bridle path. As he did so, he looked to his right and saw defendant’s trash truck 10 feet away. The truck was not moving forward or backward but the driver was in the process of inserting the truck’s forks into the corresponding slots on a trash bin. The trash bin was just six inches from the bridle path, with a chain link fence between. Plaintiff had restrained his horse to a walking pace because it was a very dangerous area. After seeing the trash truck, plaintiff almost immediately sensed his horse beginning to tense up. Using the truck’s forks, the driver lifted the trash bin to the level of the truck’s windshield and proceeded to shake the bin up and down, apparently to settle the contents of the bin. As the noise increased, plaintiff’s horse began to spin and bolt. At this point, plaintiff saw the driver in the truck’s side view mirror and thought to himself, “Oh, my God. You know, shut it down, you’re scaring my horse to death.” The driver did not stop but proceeded to lift the bin above the trash truck, producing “the loudest noise” as bottles and cans fell from the bin into the truck. Plaintiff’s horse then bolted, spinning and bucking. Plaintiff was thrown off the horse; he landed on the concrete pavement of an adjacent street.

After plaintiff had submitted his opposition to the summary judgment motion, defendant lodged with the trial court a copy of the deposition of the driver, its employee. The deposition included the following passage, a portion of which the majority cites (maj. opn., ante, at p. 462, fn. 2):

“Q: When did you first notice that he [i.e., plaintiff] was bleeding?

“A: Since I saw him on the ground.

“Q: When you first saw him on the ground, you noticed that he was bleeding?

“A: No. Then I saw him that he was just lying on the ground.

*502 “Q: But you noticed that he was bleeding when you saw him?

“A: Right away after.

“Q: What was the first thing you did when you saw this man?

“A: I asked to myself, ‘What could have happened?’

“Q: What did you tell yourself?

“A: I didn’t think anything.

“Q: Did you think that maybe your emptying the trash had something to do with it?

“A: No.”

This showing was insufficient to sustain defendant’s burden of proof on its motion for summary judgment. Defendant failed to demonstrate either that plaintiff cannot establish one or more elements of his negligence cause of action or that defendant has a complete defense to that cause of action.

The members of this court agree that defendant’s moving papers did not establish an affirmative defense, and that the only element of plaintiff’s negligence cause of action defendant challenged through the moving papers was breach of the applicable standard of care. It also seems beyond dispute that defendant did not rely in its moving papers on factually devoid discovery responses by plaintiff. Rather, defendant undertook to prove its entitlement to summary judgment by means of affirmative evidence. Although at trial plaintiff will have to prove that defendant’s driver’s actions were not those of a reasonably prudent person under like circumstances, defendant, when it moved for summary judgment, assumed the burden of producing affirmative evidence, sufficient to convince any reasonable trier of fact, that its driver’s actions satisfied the normal negligence standard of care. Neither the part of the driver’s deposition that majority cites nor the parts of plaintiff’s deposition that defendant introduced, both of which we must strictly construe against defendant, establish that defendant’s driver’s conduct was necessarily that of a reasonably prudent person.

To explain why it concludes that defendant was entitled to summary judgment, the majority states: “There is no evidence that defendant operated its garbage truck in anything but the regular and necessary manner of a garbage truck [citation]. Nor is there evidence that defendant’s employee *503 knew, in time to take appropriate countermeasures, that plaintiff’s horse actually had become frightened by the operation of the truck’s mechanical forklifts, and that the operator thereafter neglected to take reasonable steps to avoid increasing the risk to plaintiff.” (Maj. opn., ante, at p. 477, fns. omitted, italics added, original italics omitted; see also id. at p. 478 [“there is no evidence in the present case that defendant’s operator proceeded in the face of knowledge that plaintiff’s horse actually had become frightened”].)

The majority’s analysis, which relies entirely on the absence of evidence of certain facts, ignores the reversal of the normal allocation of the burden of producing evidence that occurs when a defendant moves for summary judgment. If the issue is what the trash truck driver knew and when he knew it, it was defendant’s obligation, as the party moving for summary judgment, to come forward with evidence on that point, even though at trial plaintiff will have this burden. Discharging this burden should not have been difficult for defendant, inasmuch as the driver was its own employee and had submitted to a deposition. If the driver had testified during his deposition, or was prepared to testify thereafter, that he did not see plaintiff or plaintiff’s horse until after he had completed the operation of dumping the bin, then defendant should have submitted that testimony in the form of an affidavit, declaration under penalty of perjury, or deposition transcript. Defendant did not do so. 2 Had defendant done so, the burden would have shifted to plaintiff to come forward with contrary evidence sufficient to establish a triable issue of fact. 3 Because defendant failed to do so, the burden never shifted to plaintiff and defendant’s motion for summary judgment should have been denied by the trial court. 4

*504

Conclusion

This is a very ordinary negligence case that should have been tried to a jury (or to the court if the parties had waived a jury) so that the relevant facts could have been fully developed and so that the fact-specific question whether defendant’s driver exercised due care under all the circumstances could have been resolved as an issue of fact. The majority has short-circuited the normal trial process by (1) treating as legal questions of duty what are better viewed as factual questions of breach of the standard of care, and (2) ignoring the allocation of the burden of proof on summary judgment motions. Because I cannot agree with either the majority’s analysis or its result, I dissent.

Appellant’s petition for a rehearing was denied July 9, 1997. Kennard, J., was of the opinion that the petition should be granted.

The charging allegation of plaintiff’s complaint here is that “defendants, and each of them, negligently operated a trash collection vehicle so as to scare plaintiff’s horse, causing plaintiff to be thrown from the horse to the ground and proximately and legally cause injuries and damages to plaintiff as described below.” (Italics added.) This allegation fits squarely within the “exception” that the majority has articulated.

In the portion of the driver’s deposition that the majority quotes, and which I have quoted at greater length, the driver was referring only to his thoughts and observations after first seeing plaintiff on the ground. The driver was not asked whether he had previously seen plaintiff on horseback, nor do his responses relate to this crucial issue. The majority reaches the opposite conclusion only by taking the testimony out of context and ignoring the rule that on a motion for summary judgment the moving party’s evidence must be strictly construed against the moving party and in favor of the right to jury trial.

Because defendant produced no evidence that its driver was unaware of plaintiff’s presence throughout the emptying of the trash bin, there is no need to decide what evidence would have sufficed to create a triable issue of fact. Thus, there is no need to decide whether plaintiff’s testimony that he saw the driver in the side view mirror is sufficient to raise an inference that the driver also saw plaintiff. Nor is it necessary to decide whether a reasonable trier of fact might conclude that if the driver was aware of the proximity of the bridle path, the driver had a duty to look toward the path to determine the presence or absence of horses before commencing operations likely to frighten a gentle horse.

On one point I agree with the majority: The doctrine of assumption of risk, and in particular the opinions of various members of this court in Knight v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ] and Ford v. Gouin (1992) 3 Cal.4th 339 [ 11 Cal.Rptr.2d 30 , 834 P.2d 724 , 34 A.L.R.5th 769 ], are not relevant to the issues presented here. I note, *504 however, that the majority has incorrectly characterized then Justice George’s lead opinion in Knight , in which only Chief Justice Lucas and Justice Arabian joined, as an opinion of the court. (See maj. opn., ante, at p. 479 et seq.)