TRAVELERS INDEMNITY COMPANY v. CITY OF REDLANDS REDEVELOPMENT AGENCY

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Court of Appeal, Fourth District, Division 2, California.

TRAVELERS INDEMNITY COMPANY of Illinois, Plaintiff and Appellant, v. CITY OF REDLANDS REDEVELOPMENT AGENCY, Defendant and Respondent.

No. E020531.

Decided: October 19, 1998

Breidenbach, Buckley, Huchting, Halm & Hamblet, Gary Hamblet and Kendall Caudry, Los Angeles, for Plaintiff and Appellant. Best, Best & Krieger, LLP, Howard B. Golds and Cynthia M. Germano, Riverside, for Defendant and Respondent.

OPINION

Plaintiff Travelers Indemnity Company of Illinois brought this subrogation action against the City of Redlands Redevelopment Agency to recover for damages resulting from a dangerous condition of public property, and for negligence.   On November 12, 1996, a jury found for defendant.   Travelers appeals.

FACTS

Travelers had issued a fire insurance policy to BDM International, Inc. BDM leased a portion of a large warehouse formerly used for packing citrus from the City of Redlands Redevelopment Agency for use as a storage and testing facility.   The remainder of the warehouse was vacant.   On December 27, 1990, a fire destroyed the warehouse and Travelers paid BDM's fire insurance claim of approximately $193,000.   Travelers then commenced this subrogation action to recover the benefits it had paid BDM.

Traveler's subrogation action is based on the theory that there was a dangerous condition of the property, that the City of Redlands Redevelopment Agency was aware of a dangerous condition on the property, and that the agency failed to reasonably respond to the dangerous condition.

The evidence established that the fire started on December 27, 1990, as a result of transients trespassing on the vacant portion of the warehouse and setting a fire to keep warm.   Similar fires had occurred on January 17, 1990, and December 20, 1990.1  A fireman who also had a contractor's license testified that he was employed by the redevelopment agency to secure the building on two occasions in 1989 and 1990.   He boarded up potential entrances and charged $50 and $77, respectively, for the repairs.   He thought that the building was completely secured when he left on each occasion.   However, he conceded that campfires in an unsecured building could constitute a fire hazard.

There had also been several other unauthorized entries to the building in 1989 and 1990.   In February 1990, the manager of BDM notified the redevelopment agency of the problems and asked it to take action.   An expert witness for Travelers opined that the agency was negligent in failing to inspect the property, in failing to supervise the work which secured the property, and in failing to properly secure the property from trespassers.

The jury was instructed on the theories of a dangerous condition of public property and negligence.   As noted above, it entered a defense verdict.

THE REFUSAL TO GIVE A RES IPSA LOQUITUR INSTRUCTION

 The sole issue on appeal arises from Travelers' contention that the trial court erroneously refused to give the jury an instruction on res ipsa loquitur.   Basically, Travelers argues that the instruction should have been given because “a reasonable juror could conclude from [the] facts that the fire here was most likely the result of the defendant's conduct --- its failure to properly secure the building.”   It finds the fact that the fire was probably set by a third party --- a trespassing transient --- irrelevant:  “There was evidence that itinerant activity, and the dangers it presented, were patent, foreseen and ignored by [defendant].   Where the only reasonably probable causes of the accident are due to the conduct of defendant and a third party, and where defendant is legally responsible for the conduct of the third party, the second condition is satisfied since the defendant is then responsible for all probable instrumentalities that caused the injury.  [Citations.]”  (Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 779-780, 142 Cal.Rptr. 1.)

Travelers relies heavily on the Levy-Zentner case.   In that case, a warehouse in the Southern Pacific rail yard in San Francisco burned down, destroying or damaging adjacent buildings.   Itinerant activity was the single most likely source of the fire.   The court found “there was ample substantial evidence to sustain the verdict based on Southern Pacific's negligence.   Southern Pacific neglected the rudiments of basic fire protection and inspection in the old wooden warehouse and in violation of its own regulations failed to take precautions against continuing itinerant activity that had also caused [an earlier] fire.”  (Levy-Zentner Co. v. Southern Pac. Transportation Co., supra, 74 Cal.App.3d 762, 776, 142 Cal.Rptr. 1.)   In that case, the trial court gave a conditional instruction on res ipsa loquitur and Southern Pacific contended that the trial court erred in doing so.   The appellate court disagreed, holding that the instruction was properly given.   Before discussing the holding further, we examine the applicable legal principles.

The doctrine of res ipsa loquitur has been codified as a presumption affecting the burden of producing evidence.  (Evid.Code, § 646.)  “If the evidence ․ would support a res ipsa loquitur presumption and the defendant has introduced evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence, the court may, and upon request shall, instruct the jury to the effect that:  [¶] (1) If the facts which would give rise to a res ipsa loquitur presumption are found or otherwise established, the jury may draw the inference from such facts that a proximate cause of the occurrence was some negligent conduct on the part of the defendant;  and [¶] (2) The jury shall not find that a proximate cause of the occurrence was some negligent conduct on the part of the defendant unless the jury believes, after weighing all the evidence in the case and drawing such inferences therefrom as the jury believes are warranted, that it is more probable than not that the occurrence was caused by some negligent conduct on the part of the defendant.”  (Evid.Code, § 646.)

 “Res ipsa loquitur is a rule of evidence allowing an inference of negligence from proven facts.  [Citations.]   It is based on a theory of ‘probability’ where there is no direct evidence of defendant's conduct, [citations], permitting a common sense inference of negligence from the happening of the accident.  [Citations.]   The rule thus assists plaintiffs in negligence cases in regard to the production of evidence.  [¶] The applicability of the doctrine depends on whether it can be said the accident was probably the result of negligence by someone and defendant was probably the person who was responsible.  [Citations.]   In the absence of such probabilities, there is no basis for an inference of negligence serving to take the place of evidence of some specific negligent act or omission.  [Citation.]  [¶] A plaintiff must produce the following evidence in order to receive the benefit of the doctrine:  1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence;  2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant;  and 3) the accident must not have been due to any voluntary action or contribution on the part of the plaintiff.  [Citations.]”   (Gicking v. Kimberlin (1985) 170 Cal.App.3d 73, 75-76, 215 Cal.Rptr. 834.)

There must be some evidence which would support a finding of the existence of the three conditions necessary for the application of the presumption before the instruction is given.  (BAJI No. 4.00, Use Note.) If there is such evidence, the jury must determine whether or not the three conditions exist before the instruction is given.   In other words, “[w]henever the evidence can be said to be conflicting or subject to different inferences, it is a question of fact whether the conditions exist necessary to bring into operation the doctrine of res ipsa loquitur and the question must be submitted to the jury under proper instructions.”  (BAJI No. 4.00, Comment.)

In this case, the trial court refused to give BAJI No. 4.00, the conditional instruction on the necessary conditions for the application of res ipsa loquitur,2 because it concluded that the second condition was not met, i.e., it concluded that defendant did not have exclusive control over the structure.

Plaintiff contends that the trial court erred in this determination, and that the jury should have been given the opportunity to decide whether the res ipsa loquitur presumption applied.

 We agree.   The determination of the trial court not to give the res ipsa loquitur instruction would be proper only if there was no evidence to support giving of the instruction.   Since there was some evidence that each of the three conditions was met, the trial court should have allowed the jury to determine the issue by properly instructing with BAJI Nos. 4.00 and 4.02.

Case law supports this conclusion.   Returning to the discussion in Levy-Zentner Co. v. Southern Pac. Transportation Co., supra, 74 Cal.App.3d 762, 142 Cal.Rptr. 1, we note that Southern Pacific argued that all three conditions must be conclusively satisfied before an instruction is proper.   The appellate court disagreed, holding that the jury must determine whether the conditions for the application of the res ipsa loquitur presumption are present.  (Id., at p. 777, 142 Cal.Rptr. 1.)   If the jury finds that the three conditions exist, an inference then arises from the happening of the incident to a conclusion that some negligent conduct on the part of the defendant was a proximate cause of the accident.  (Id., at pp. 777-778, 142 Cal.Rptr. 1.)

With regard to the second factor, exclusive control, the court said:  “[T]here can be no dispute [as to this factor], as Southern Pacific was responsible for policing the area around and underneath the warehouse, and everything occurred on its property.   Southern Pacific acknowledged a duty to maintain the boards and screens around the base of the warehouse.   Southern Pacific regulations directed its agents to ‘energetically follow up’ any evidence of itinerant activity under the wooden platforms.”   (Levy-Zentner Co. v. Southern Pac. Transportation Co., supra, 74 Cal.App.3d 762, 779, 142 Cal.Rptr. 1.)

As noted above, the court went on to observe that the fact that the fire was caused by a third party was insufficient to relieve Southern Pacific of responsibility because it was legally responsible for the activities of third parties on its premises.  “It is now well established that California law requires landowners to maintain land in their possession and control in a reasonably safe condition.  [Citations.]   In the case of a landlord, this general duty of maintenance, which is owed to tenants and patrons, has been held to include the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.  [Citations.]”  (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674, 25 Cal.Rptr.2d 137, 863 P.2d 207.)   On the other hand, “[w]here the only reasonably probable causes of the injury are traced solely to conduct of the defendant and a third party, a res ipsa loquitur instruction is properly refused if the defendant is not legally responsible for the third party's negligence since that negligence is an ‘equally probable’ cause for the accident.  [Citation.]   Where the defendant is legally responsible for the negligence of the third party, the instruction must be given since the defendant is then responsible for all probable instrumentalities that caused the injury.  [Citations.]”  (Pappas v. Carson (1975) 50 Cal.App.3d 261, 268, 123 Cal.Rptr. 343.)

The Levy-Zentner court therefore held that the giving of the conditional res ipsa loquitur instruction was proper because there was evidence supporting each of the three conditions.   The court also cited Roddiscraft, Inc. v. Skelton Logging Co. (1963) 212 Cal.App.2d 784, 28 Cal.Rptr. 277, in which the court held that the evidence was sufficient to submit to the jury the question of the applicability of the res ipsa loquitur rule.   Noting that it was required to evaluate the evidence in the light most favorable to the party offering the instruction, the court evaluated each of the three conditions.   First, it considered whether there was evidence that the accident must be of a kind which ordinarily does not occur in the absence of negligence.   The court found that the accident there, a forest fire, falls within that category because it is a matter of common knowledge that, except for lightning strikes, a forest fire does not ordinarily happen unless someone has been negligent.   It said:  “It thus becomes the plaintiff's task to present sufficient evidence from which the jury may draw the conclusion that negligence is the most likely explanation of the accident.”  (Id., at p. 797, 28 Cal.Rptr. 277.)   Here, the only probable explanation for the fire was that it resulted from a fire set by transients to warm themselves.   Accordingly, the first condition was met.

Roddiscraft then addressed the second condition, the need to show that defendant is probably the one responsible for the fire.   It found that the purpose of the second requirement is to eliminate the possibility that the accident was caused by someone other than the defendant.  (Roddiscraft, Inc. v. Skelton Logging Co., supra, 212 Cal.App.2d 784, 798, 28 Cal.Rptr. 277.)   Although the immediate cause of the fire here was the actions of a third person, Levy-Zentner makes it clear that the second condition is satisfied when defendant is legally responsible for the conduct of the third person, an itinerant trespasser.  (Levy-Zentner Co. v. Southern Pac. Transportation Co., supra, 74 Cal.App.3d 762, 779, 142 Cal.Rptr. 1.)

Since there was evidence that the redevelopment agency had been notified of previous security problems in its portion of the building, and had taken ineffective measures to exclude transients from the building, there was at least a probability that its actions contributed to the fire.   Because there was conflicting evidence submitted on this subject, the jury should have been allowed to decide whether it would apply the res ipsa loquitur presumption.   “Whenever the evidence can be said to be conflicting or subject to different inferences, it is a question of fact whether the conditions exist necessary to bring into operation the doctrine of res ipsa loquitur and the question must be submitted to the jury under proper instructions.  [Citations.]”  (BAJI No. 4.00, Comment.)

The Law Revision Commission Comment to Evidence Code section 646 postulates four situations in which the doctrine of res ipsa loquitur may be applicable to a case.   One situation is the situation here:  a case “[w]here the defendant introduces evidence to contest both the conditions of the doctrine and the conclusion that his negligence caused the accident.”   In such a case, “[b]ecause of the evidence contesting the presumed conclusion of negligence, the presumptive effect of the doctrine vanishes, and the greatest effect the doctrine can have in the case is to support an inference that the accident resulted from the defendant's negligence.  [¶] In this situation, the court should instruct the jury that, if it finds that the basic facts have been established by a preponderance of the evidence, then it may infer from those facts that the accident was caused because the defendant was negligent.   But the court shall also instruct the jury that it should not find that a proximate cause of the accident was some negligent conduct on the part of the defendant unless it believes, after weighing all of the evidence, that it is more probable than not that the defendant was negligent and that the accident resulted from his negligence.”  (Evid.Code, § 646, Cal. Law Revision Com. com.)

Seizing on the latter language, defendant argues that “[t]he jury in this case held the Agency not negligent as to the fire that caused damage to Travelers' insured.   This same jury, which held the Agency to be completely free of negligence, would not have found that the fire was ‘more probably than not’ caused by the Agency's negligence as required by BAJI No. 4.02.”

However, the jury's conclusion cannot be given any weight because the jury was not properly instructed, and, more importantly, the jury was deprived of the initial opportunity to decide if the doctrine of res ipsa loquitur was applicable by the failure to allow it to determine whether the necessary factual conditions were present under the standards stated in BAJI No. 4.00.

Defendant also argues that the redevelopment agency did not have exclusive control of the instrumentality that caused the harm, i.e., the transient, because there was no evidence that “the Agency was aware of the transient being in the building at the time of the fire, or that transients in general had access to the Building at that time.”   Nevertheless, there was evidence that the agency knew that transients had set a prior fire in the building in January 1990, that the agency had secured the building on two occasions in 1989 and 1990, that the tenant had twice complained in writing of problems with attempted entries and an unsecured building, and that the agency, although it acknowledged a duty to secure the building, had no program or policy for regularly inspecting the properties it owned.   The redevelopment agency only responded when a tenant complained.   From this evidence, the trial court should have concluded that there was at least a jury issue as to whether the res ipsa loquitur doctrine applied, and it should have allowed the jury to make that determination by giving BAJI No. 4.00.

The redevelopment agency emphasizes that it did not have notice of the December 20th fire, and that it therefore did not have time to correct the dangerous condition prior to the December 27th fire.   It cites Government Code section 835, which establishes the liability of a government agency for a dangerous condition of property if the public agency had notice of the dangerous condition “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”  (Gov.Code, § 835.)   Government Code section 835 also establishes liability if the negligence of a public employee created the dangerous condition, and it should be apparent from the evidence listed in the preceding paragraph that either the negligence or the notice condition was met here.   The jury could have found that it was simply unreasonable for the redevelopment agency to simply respond when a tenant complained without regularly inspecting the properties it owned, or the jury could have found that the redevelopment agency had adequate notice of intrusions by itinerants to require it to take steps to secure the property against such intrusions.   In any event, there was sufficient evidence to allow the jury to determine whether the conditions for the application of the res ipsa loquitur doctrine had been met.   The trial court therefore erred in not submitting the issue to the jury.

Defendant also attempts to argue that the Levy-Zentner case is not controlling.   It first argues that the case does not mandate the giving of the conditional res ipsa loquitur instruction.   Defendant is correct.   However, it is the statute which mandates the giving of the instruction:  “If the evidence ․ would support a res ipsa loquitur presumption ․ the court may, and upon request shall, instruct the jury․”  (Evid.Code, § 646, subd. (c).)

Second, defendant argues that the facts of this case are different.   It claims the building was different:  in Levy-Zentner the building was the oldest building in the rail yard, having been built in 1907, and characterized as hazardous by experts because of its age, design and all-wood construction.   (Levy-Zentner Co. v. Southern Pac. Transportation Co., supra, 74 Cal.App.3d 762, 770, 142 Cal.Rptr. 1.)   The building here was originally built as a citrus packing house at the turn of the century.   It had thick masonry walls and an all-wood roof.   Both buildings were next to railroad tracks and both presented a fire hazard if unsecured against transients who might set warming fires.   Both buildings had previously had transient warming fires.   The cases cannot be distinguished on the basis proposed by defendant, i.e., that the buildings were not equivalent.   Although defendant attempts to distinguish Levy-Zentner on additional factual grounds, none of its proposed distinctions make a difference.   Although the facts of Levy-Zentner were more egregious than the facts here, the only issue that concerns us is whether there was sufficient evidence presented to allow the issue of whether the conditional res ipsa loquitur presumption should apply to go to the jury.   Defendant omits a discussion of Levy-Zentner's discussion of the conditions which must be satisfied before the conditional res ipsa loquitur instruction is given.   As discussed above, we find that discussion dispositive here.

 Finally, defendant argues that the error was not prejudicial to Travelers because the jury found that the redevelopment agency was not negligent.   As noted above, no conclusion can be drawn from the decision of a jury that was not properly instructed.  “The error is prejudicial.   Given the unexplained cause of the fire, the decision in the case at bench turned upon the burdens of producing evidence placed upon the parties.   The action of the trial court in refusing instructions which would have permitted the jury, once it found the preliminary facts to be true, to place the burden upon defendant rather than upon plaintiff-appellants of necessity is prejudicial.   In these circumstances, it must be concluded that there is a reasonable possibility of a result more favorable to appellants if the correct [res ipsa loquitur] instructions had been given.”  (Pappas v. Carson, supra, 50 Cal.App.3d 261, 269-270, 123 Cal.Rptr. 343.)

“The question of negligence was a close one.   As there was conflicting testimony and disputed facts which would support a jury verdict either way, it cannot be said as a matter of law, that, had the instructions on res ipsa been given, the verdict would be for the defendants.   Thus, the refusal to instruct the jury on the doctrine was prejudicial error.  [Citations.]”  (Shahinian v. McCormick (1963) 59 Cal.2d 554, 564, 30 Cal.Rptr. 521, 381 P.2d 377.)

“The important consideration is whether the plaintiffs were entitled to the instructions on the subject of res ipsa.   If they were, it was prejudicial error for the trial court to refuse to so instruct.”  (Roddiscraft, Inc. v. Skelton Logging Co., supra, 212 Cal.App.2d 784, 803, 28 Cal.Rptr. 277.)

DISPOSITION

The judgment is reversed.   Travelers is to recover its costs on appeal.

FOOTNOTES

1.   The redevelopment agency contended that it was not notified of the December 20th fire before the December 27th fire.

2.   BAJI No. 4.00 reads as follows:  “On the issue of negligence, one of the questions for you to decide in this case is whether the [accident] [injury] involved occurred under the following conditions:  [¶] First, that it is the kind of [accident] [injury] which ordinarily does not happen unless someone is negligent;  [¶] Second, that it was caused by an agency or instrumentality [in the exclusive control of the defendant] [over which the defendant had the exclusive right of control] [originally, and which was not mishandled or its condition otherwise changed after defendant relinquished control];  and [¶] [Third, that the [accident] [injury] was not due to any voluntary action or contribution on the part of the plaintiff which was the responsible cause of plaintiff's injury.]  [¶] If, and only in the event that you should find these conditions to exist, you are instructed as follows:” This instruction is generally followed by BAJI No. 4.02, although BAJI No. 4.03 may be applicable in some cases.  (BAJI No. 4.00, Use Note.)

HOLLENHORST, Acting Presiding Justice.

McKINSTER and WARD, JJ., concur.