DUCEY v. State of California, Defendant and Appellant.

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Court of Appeal, First District, Division 4, California.

Dennis DUCEY et al., Plaintiffs, Appellants and Respondents, v. ARGO SALES CO., Defendant and Respondent, State of California, Defendant and Appellant.

Civ. 40718.

Decided: March 07, 1978

Claude W. Heavin, San Leandro, for Dennis Ducey, et al.; Richard Simons, Hayward, of counsel. Robert E. Friedrich, San Francisco, for Argo Sales Co.; Jay R. Mayhall, San Francisco, of counsel. Harry S. Fenton, Chief Counsel, Sacramento, John P. Horgan, Robert J. DeFea, Kenneth G. Nellis, Robert E. Brown, Thomas J. Brandi, San Francisco, for State of California.

After trial by jury, the State of California appeals from a judgment, and from an order denying a motion for judgment notwithstanding the verdict, where $480,000 was awarded to plaintiff Patricia Ducey and $30,000 to plaintiff Dennis Ducey for injuries suffered in a freeway accident. The Duceys have at the same time appealed from a judgment based on a verdict in favor of another defendant, Argo Sales Co.

Shortly before noon on February 28, 1972, Mark Hunter entered Highway 17 (the Nimitz Freeway) at the northbound Thornton Avenue onramp in Fremont and found that traffic was heavily backed up in both northbound lanes. In the backed-up traffic was a vehicle driven by Terry Kelsey. The cause of the congestion was a pickup being driven by a 13-year-old “mentally retarded or emotionally disturbed boy” who had decided to visit his doctor. The pickup was swerving erratically from the oleander bushes in the median, across both lanes to the oleander bushes on the right-hand shoulder of the highway.

Both Hunter and Kelsey managed to pass the weaving pickup. Hunter and Kelsey then gradually slowed their respective vehicles, forcing the pickup to a stop.

Behind the vehicles just mentioned, Rick McEwen was driving at 65 miles per hour in the fast, northbound lane. He saw that traffic in front of him slowed and then came to a “pretty quick halt”; he slowed without any difficulty, but saw in his rearview mirror a blue Maverick “coming up quite fast” behind him.

McEwen next saw the front of the Maverick dip as though the brakes were set; the car traveled across the median “just like a blue blur,” and violently struck the oncoming Ducey vehicle.

Patricia Ducey, who was driving the Ducey car, suffered severe personal injuries and brain damage and has no recollection of the accident. Dennis Ducey, who was riding in the front passenger seat, was looking into the back-seat area, and did not see the oncoming car; after the impact he remained unconscious for some time. Dolores Glass, the driver of the Maverick, was killed.

Analysis of skid marks and other physical evidence supported expert opinion that Mrs. Glass had lost control of her car in a centrifugal skid on the pavement before it crashed through the median area into opposing traffic.

State Route 17, in the vicinity of the accident in question, consisted of two 12-foot, northbound lanes and two 12-foot, southbound lanes, separated by a 46-foot-wide dirt median area planted with oleander bushes. The freeway was built in 1958. From 1965 to 1969, traffic along the stretch of Highway 17 between Warm Springs Boulevard and Jarvis Avenue in the City of Fremont, which includes the site of the Ducey-Glass accident, grew in volume by more than 40 percent.

There was evidence that a properly built median barrier effectively eliminates all cross-median freeway accidents. The criteria and factors considered by the state in determining whether a median barrier should be installed in a given stretch of freeway are called “warrants,” in the manuals which the Department of Transportation issues for the guidance of its planning staff. Prior to 1964, the department's standards provided that a median barrier was warranted when average daily traffic on a freeway reached 60,000 automobiles. The 1965 standard was that a median barrier would be warranted when average daily traffic reached 40,000 and the median area was less than 46 feet wide. Under the 1968 standard, a median barrier was justified where the median area on an existing highway was 46 feet and average daily traffic was 40,000 vehicles. The 1970 standard provided that a median barrier was justified where the median area was less than 50 feet and average daily traffic had reached 40,000 vehicles. Under these standards, a median barrier should have been installed on the stretch of highway in question after November of 1968.

In June of 1967, a member of the department's engineering staff sent a memo to District 4 headquarters (responsible for the San Francisco Bay Area) requesting “that (median) barriers be installed at all locations meeting barrier warrants unless reconstruction will cause the removal of the barrier within three years of the barrier installation for cable barriers or within five years for beam barriers.” In response, District 4 personnel prepared a report (hereinafter the “Greene Report”) which it submitted to Sacramento headquarters on November 30, 1967, for review and possible presentation to the Highway Commission for funding. The report stated that the “warrants” for construction of a median barrier had then been met. It reviewed accident history and traffic volumes in a 16.55-mile area of Highway 17, and pointed out that, in the past 31/2 years, 18 cross-median accidents had occurred in the 8.44-mile stretch of Highway 17 which included the accident site in question. The report recommended construction of a cable-type median barrier along both this 8.44-mile stretch and the adjacent 8-mile stretch of Highway 17 south of the accident site area.

The Greene Report formed the basis of a request by the Department of Transportation to the Highway Commission for funds to build a median barrier as recommended. On July 12, 1968, the Highway Commission approved the request and authorized the allocation of $220,000 for the construction of the median barrier. On or about November 15, 1968, a construction contract in that amount was awarded to U.S. Steel Corporation. But by a change order the stretch of freeway where the accident occurred was deleted from the project upon a determination that a future widening project would include construction of a metal beam barrier. Unfortunately, that work had not been done by the time of the accident, three years later.

I

Appellant State of California contends that the trial court should have granted the state's motion for a nonsuit and for a judgment notwithstanding the verdict because there is no substantial evidence to support a finding that a “dangerous condition” existed or that, if a dangerous condition did exist, it was the proximate cause of the Duceys' injuries.

In order to establish the liability of a public entity for a dangerous condition of public property under the Tort Claims Act of 1963 (Gov. Code, s 810 et seq.), a plaintiff must prove that (1) the property was in a dangerous condition at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which occurred; and (4) the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (See Gov.Code, s 835;1 Baldwin v. State of California (1972) 6 Cal.3d 424, 427, 99 Cal.Rptr. 145, 491 P.2d 1121; Callahan v. City and County of San Francisco (1971) 15 Cal.App.3d 374, 378, 93 Cal.Rptr. 122.)

A dangerous condition of public property is defined as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property . . . is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov.Code, s 830, subd. (a); see Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 30, 90 Cal.Rptr. 541.)

The determination as to whether a condition is “dangerous” within the meaning of section 830, subdivision (a), of the Government Code is ordinarily a question of fact for the jury. (See Gov.Code, s 830.2; De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, 745, 94 Cal.Rptr. 175; Callahan v. City and County of San Francisco, supra, 15 Cal.App.3d 374, 379, 93 Cal.Rptr. 122; Bakity v. County of Riverside, supra, 12 Cal.App.3d 24, 30, 90 Cal.Rptr. 541.)

The state argues that the lack of a nontraversable median barrier is not a sufficient basis for a finding that anything about the roadway created a substantial risk of injury to users exercising due care. It is also urged that there is no evidence that any condition of the roadway was a proximate cause of the Duceys' injuries. It is the state's contention that the sole cause of respondents' injuries was the negligent driving of Glass. (See Shipley v. City of Arroyo Grande (1949) 92 Cal.App.2d 748, 208 P.2d 51.)

Viewing the evidence in the light most favorable to respondents, as this court must, there was evidence from which the jury could reasonably find that, considering the traffic volume that had developed on this section of the freeway prior to the time of the accident, the predictable rate of cross-median accidents had reached a point where the absence of a median barrier constituted a dangerous condition for drivers, like respondents, exercising due care. There was evidence also that the state had notice of the condition.

The dangerous condition of the highway also must have been a cause of respondents' injuries in order for respondents to recover under section 835. Even though Glass' negligence was one proximate cause of the accident, the state would be liable under section 835 if the dangerous condition of its property concurred in producing, or contributed to, the injury. (Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 173, 71 Cal.Rptr. 275; see Baldwin v. State of California, supra, 6 Cal.3d 424, 428 at fn. 3, 99 Cal.Rptr. 145, 491 P.2d 1121; Bakity v. County of Riverside, supra, 12 Cal.App.3d 24, 32, 90 Cal.Rptr. 541; also see Callahan v. City and County of San Francisco (1967) 249 Cal.App.2d 696, 701, 57 Cal.Rptr. 639.) The jury could reasonably have found that the lack of a nontraversable median barrier, sufficient to have prevented the Glass automobile from crossing the median, was a contributing cause of respondents' injuries.

We recognize that, in similar cases, the New York courts have held that the state's failure to erect a median barrier cannot be a proximate cause and that the sole proximate cause is the act of the negligent driver in traversing the median strip. (See Stuart-Bullock v. State (1971) 38 A.D.2d 626, 326 N.Y.S.2d 909, affirmed 33 N.Y.2d 418, 353 N.Y.S.2d 953, 309 N.E.2d 419; Natina v. Westchester County Park Com. (1966) 49 Misc.2d 573, 268 N.Y.S.2d 414, 418; Warda v. State (1964) 45 Misc.2d 385, 256 N.Y.S.2d 1007.) But under the California statute a contrary rule is already established in this state by the authorities we have reviewed.

II

The State of California contends that it was error for the trial court to receive in evidence, despite a hearsay objection, the “Greene Report.” A statement or conduct of a party contrary to his position in the lawsuit is admissible against the party under the admissions exception to the hearsay rule. (See Evid.Code, s 1220; Witkin, Cal. Evidence (2d ed. 1966) ss 496-500, pp. 467-472.) The report was prepared as an official document of the Department of Transportation. It contains traffic volume data and accident rates on the subject stretch of highway. It also contains a recommendation for the installation of a median barrier. Although the report contains largely factual material, the state contends that those portions of the Greene Report which constitute opinion evidence (e.g., the recommendation that a median barrier be constructed) are not admissible under the admissions exception to the hearsay rule.

Apparently the present state of California law is that the opinion rule that exists for a witness testifying in court is also applicable to the exceptionally admissible hearsay of a party. (See Dillenbeck v. City of Los Angeles (1968) 69 Cal.2d 472, 478, 72 Cal.Rptr. 321, 446 P.2d 129; Breidert v. Southern Pac. Co. (1969) 272 Cal.App.2d 398, 412, 77 Cal.Rptr. 262; Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 709, 39 Cal.Rptr. 64; see Jefferson, California Evidence Benchbook (1972) Exceptions to Hearsay Rule, s 3.5, pp. 60-62; Witkin, Cal. Evidence, supra, s 499, pp. 470-471.) Nevertheless, the state's challenge to the Greene Report under the admissions exception to the hearsay rule must be rejected. Even though the report contained opinions, the employees who prepared the report were experts in their field; thus, their statements, in the report, were admissible though the statements were both hearsay and opinion. (See Dillenbeck v. City of Los Angeles, supra, 69 Cal.2d 472, 478 at fn. 2, 72 Cal.Rptr. 321, 446 P.2d 129; Jefferson, California Evidence Benchbook, supra, s 3.5, at p. 61.)

III

The state next contends that “Assuming the Greene Report was properly admitted into evidence, it was prejudicial error to prohibit the cross-examination of plaintiffs' experts Israel and Schultz with respect to major errors contained in the report.” Appellant contends that such cross-examination would have revealed that the number of cross-median accidents was not unusually high and that in preparing the Greene Report Fuller used non-cross-median accidents and cross-median accidents in arriving at his opinion that the cross-median accident rate was unusually high.

There are two rulings of the trial court of which the state complains. The first occurred during cross-examination of plaintiffs' expert witness, Israel, a former state highway engineer. Israel had prepared a chart which displayed accident data and traffic volumes from 1964 through mid-1967. In preparing the chart, Israel had relied upon the accident data utilized in the Greene Report. During the cross-examination of Israel, counsel for the state asked Israel if the .60 rate used in the Greene Report, which was based on 18 accidents involving the median, was improperly compared with the .46 rate given in another report, in that the .46 rate in the latter report only involved accidents with oncoming vehicles. Counsel for the Estate of Glass objected that the “whole line of questions (was) irrelevant in view of the fact that the state relied on the Greene Report.” The trial court sustained the objection. The objection appears to us to have been unsound and the ruling thereon error; but the error was not prejudicial. The discrepancies in the cross-median accident figures had already been revealed in the cross-examination of Israel. The Duceys' own counsel had earlier brought out the fact that the state questioned the cross-median accident figures used in compiling one of the tables in the Greene Report. It is not reasonably probable that a different ruling by the court would have affected the verdict of the jury. Therefore, there was no miscarriage of justice, and reversal of the judgment is not called for (Cal.Const., art. VI, s 13.)

The second ruling complained of by the state occurred during the cross-examination of plaintiffs' expert witness, Dr. Thomas Schultz. Upon cross-examination of Dr. Schultz, counsel for the state asked whether Schultz had noticed “any error with respect to the compilation of fatals.” The court sustained an objection on the ground of relevancy. That ruling was correct; the witness had testified on the basis of warrant history and traffic volume, rather than accident data.

IV

Appellant State of California contends that the trial court erred when it admitted evidence of prior and subsequent accidents without establishing that the accidents occurred under substantially similar circumstances. Evidence of prior accidents may be admitted to show a defective or dangerous condition, knowledge or notice thereof, or to establish the cause of an accident. (See Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 121-122, 117 Cal.Rptr. 812, 528 P.2d 1148; Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 220, 331 P.2d 617; Fuller v. State of California (1975) 51 Cal.App.3d 926, 943-944, 125 Cal.Rptr. 586; Witkin, Cal. Evidence, supra, s 351, p. 310.) Evidence of subsequent accidents is admissible for the purpose of establishing that the condition was in fact dangerous or that the injury was caused by the condition. (See Ault v. International Harvester Co., supra, 13 Cal.3d at pp. 121-122, 117 Cal.Rptr. 812, 528 P.2d 1148; Fuller v. State of California, supra, 51 Cal.App.3d at pp. 943-944, 125 Cal.Rptr. 586; Witkin, Cal. Evidence, supra, s 353, pp. 313-314.) Evidence of prior and subsequent cross-median accidents in the present case was also relevant on the issue of the reasonableness of the state's decision to withhold constructing a median barrier at the site after having let a contract for such construction. (See Gov.Code, s 835.4.)2 Such evidence, however, must relate to accidents which are substantially similar to the accident in question. (See Ault v. International Harvester Co., supra, 13 Cal.3d 113, 121-122, 117 Cal.Rptr. 812, 528 P.2d 1148; Witkin, Cal. Evidence, supra, s 352, pp. 312-313.) The question of admissibility of prior and subsequent accidents rests primarily in the sound discretion of the trial court. (Martindale v. City of Mountain View (1962) 208 Cal.App.2d 109, 116, 25 Cal.Rptr. 148.)

Since median barriers are designed to protect against all cross-median accidents, regardless of cause, the required foundation of similarity for admission of the evidence was met when the prior and subsequent accidents were determined to be cross-median accidents. The court's ruling was not error.

V

The state contends that the trial court erred when it rejected a request that the jury be directed to determine the separate degree of culpability allocable to each of the named defendants, so that responsibility to pay the award to the Duceys could be apportioned accordingly. But the decision of the California Supreme Court in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, has not abolished the statutory rule of joint and several liability among joint tortfeasors. (See American Motorcycle Assn. v. Superior Court (1978) Cal., 143 Cal.Rptr. 692, 574 P.2d 763.)

VI

The Duceys have not appealed from the judgment rendered in their favor and against the state. However, they seek to raise the issue of the state's liability for interest on the judgment from the date of entry of judgment.

If such a controversy arises between the parties, the matter is more properly raised in post-judgment proceedings. “Matters occurring after entry of judgment are ordinarily not reviewable: The appeal reviews the correctness of the judgment or order as of the time of its rendition, leaving later developments to be handled in subsequent litigation.” (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, s 220, at p. 4210.) As the court stated in In re Marriage of Folb (1975) 53 Cal.App.3d 862, 877, 126 Cal.Rptr. 306, 316 (dis. on another pt., 17 Cal.3d 749, 131 Cal.Rptr. 879, 552 P.2d 1175): “But we must reiterate that matters occurring after judgment are generally not reviewable on appeal, particularly when relief is sought by a nonappealing party . . . (Citations.) The trial court remains the more appropriate forum in which to litigate these subsequent developments.”

The Duceys contend that the judgment in favor of Argo Sales Co. must be reversed because the evidence demonstrates as a matter of law that Dolores Glass was acting within the scope of her employment while driving home from work on the day of the accident. The argument is that the evidence shows, as a matter of law, that the use of her personal vehicle was an implied condition of Glass' employment.

Under the doctrine of respondeat superior, an employer is liable for the torts of his employees committed within the scope of their employment (see Civ.Code, s 2338; see also Vind v. Asamblea Apostolica, Christo Jesus (1957) 148 Cal.App.2d 597, 604, 307 P.2d 85; 1 Witkin, Summary of Cal.Law (8th ed. 1973) s 155, p. 754). The burden of proof is on the plaintiff to demonstrate that the negligent act was committed within the scope of employment (29 Cal.Jur.3d, Employer and Employee, s 100, p. 648). Whether an act is within the scope of employment is a question of fact (see Harvey v. D & L Construction Co. (1967) 251 Cal.App.2d 48, 52, 59 Cal.Rptr. 255; De Mirjian v. Ideal Heating Corp. (1954) 129 Cal.App.2d 758, 771, 278 P.2d 114).

Under the so-called “going and coming rule,” an employee is not regarded as acting within the scope of his employment while going to or coming from his place of work. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961, 88 Cal.Rptr. 188, 471 P.2d 988; Harris v. Oro-Dam Constructors (1969) 269 Cal.App.2d 911, 912, 75 Cal.Rptr. 544; Harvey v. D & L Construction Co., supra, 251 Cal.App.2d 48, 51, 59 Cal.Rptr. 255; 1 Witkin, Summary of Cal.Law, supra, s 167, at p. 766.) The courts, however, have recognized several exceptions to the “going and coming” rule.

In the “going and coming” cases, the California courts often cite tort and worker's compensation cases interchangeably. As Mr. Witkin points out, however, “This practice has been questioned, for compensation rules were developed from a distinct social philosophy, with fault eliminated as a test, and liberal construction of the act required.” (1 Witkin, Summary of Cal.Law, supra, s 167, p. 766; see Church v. Arko (1977), 75 Cal.App.3d 291, 142 Cal.Rptr. 92; Harris v. Oro-Dam Constructors, supra, 269 Cal.App.2d 911, 914, 75 Cal.Rptr. 544; McGarvey v. Pacific Gas & Elec. Co. (1971), 18 Cal.App.3d 555, 563, 95 Cal.Rptr. 894; 29 Cal.Jur.3d, supra, Employer and Employee, s 105, p. 663.) In Hinman v. Westinghouse Elec. Co., the California Supreme Court relied upon worker's compensation cases, stating that “Although the test under the workmen's compensation law of ‘arising out of and in the course of the employment’ (Lab.Code, s 3600), is not identical with the test of ‘scope of employment’ under the respondeat superior doctrine . . . the two tests are closely related . . . .” (2 Cal.3d at fn. 3, p. 962, 88 Cal.Rptr. p. 191, 471 P.2d p. 991.)

The courts have recognized an exception to the “going and coming” rule where the employer compensates the employee for travel time. (Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 159, 104 Cal.Rptr. 456, 501 P.2d 1176; Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d 956, 962, 88 Cal.Rptr. 188, 471 P.2d 988.) An exception has also been recognized where a negligent act was committed while the employee was engaged in a special errand for the employer. (See Trejo v. Maciel (1966) 239 Cal.App.2d 487, 48 Cal.Rptr. 765; 29 Cal.Jur.3d, Employer and Employee, s 106, p. 664.) In the present case, Argo Sales Co. did not defray Glass' travel expenses or compensate her for travel time. She was not engaged in a special errand for her employer at the time of the accident.

The “going and coming” rule has also been held inapplicable, however, in cases where the employer requires an employee to furnish a vehicle of transportation on the job. (See Hinojosa v. Workmen's Comp. Appeals Bd., supra, 8 Cal.3d 150, 160, 104 Cal.Rptr. 456, 501 P.2d 1176; Smith v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 814, 73 Cal.Rptr. 253, 447 P.2d 365; Richards v. Metropolitan Life Ins. Co. (1941) 19 Cal.2d 236, 120 P.2d 650; Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 807, 99 Cal.Rptr. 666.) The evidence does not establish as a matter of law that the company required Glass, as a condition of her employment, to commute to work in her personal car. The job was not one that embraced driving, and Glass was not required to use her vehicle for field work. Although there was evidence that she occasionally ran errands for her employer, these trips were not conclusively shown to be a condition of her employment. The jury could reasonably have believed that Glass was acting as a volunteer in running occasional errands for replacement items. She was not engaged in such an errand at the time of the accident. There is no evidence that Glass was required to go from location to location during the day. (Cf. Hinojosa v. Workmen's Comp. Appeals Bd., supra, 8 Cal.3d 150, 161, 104 Cal.Rptr. 456, 501 P.2d 1176.) Although Glass transported cleaning materials in her car to her place of work, the evidence does not establish as a matter of law that Glass was required to transport that equipment. The employer provided “ample storage space” and garages at each tract in which cleaning equipment could have been stored. The jury could have found that the taking of equipment home each night was for the personal benefit and convenience of Glass, who worked at other cleaning jobs, and was thus merely incidental to her employment. (See Hinson v. Workmen's Comp. Appeals Bd. (1974) 42 Cal.App.3d 246, 251, 116 Cal.Rptr. 792.) The evidence does not establish as a matter of law that Argo Sales Co. should have been held liable for the results of Glass' negligent conduct.

Affirmed. The Duceys will recover their costs on appeal from the State of California. Argo Sales Co. will recover their costs from the Duceys.

FOOTNOTES

1.  Government Code section 835:“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:“(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or“(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

2.  Government Code section 835.4:“(a) A public entity is not liable under subdivision (a) of Section 835 for injury caused by a condition of its property if the public entity establishes that the act or omission that created the condition was reasonable. The reasonableness of the act or omission that created the condition shall be determined by weighing the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of taking alternative action that would not create the risk of injury or of protecting against the risk of injury.“(b) A public entity is not liable under subdivision (b) of Section 835 for injury caused by a dangerous condition of its property if the public entity establishes that the action it took to protect against the risk of injury created by the condition or its failure to take such action was reasonable. The reasonableness of the action or inaction of the public entity shall be determined by taking into consideration the time and opportunity it had to take action and by weighing the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of protecting against the risk of such injury.”

CHRISTIAN, Associate Justice.

CALDECOTT, P. J., and RATTIGAN, J., concur.