Weekly Law Resume - June 27, 2013: Duty of Care – Vendor’s Duty to Third Parties

by Low, Ball & Lynch
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Anthony Pedeferri, et. al. v. Seidner Enterprises, et. al.
Court of Appeal, Second District (May 15, 2013)

Does a commercial vendor owe a duty of care to persons on or near the roadway who are injured as a result of the vendor's negligence in loading and securing cargo in a vehicle in a way that distracts the vehicle's driver?

This case arises from an accident that paralyzed plaintiff Anthony Pedeferri, a California Highway Patrol officer, and took the life of Andres Parra, the man on the side of the highway with him. Defendant Jeremy White (White) careened off the northbound 101 Freeway and slammed into White’s car on the shoulder. At the time of the accident, White had "quite high" levels of marijuana in his blood. Just 90 minutes before the accident, White left Bert's Mega Mall, where Bert's employees had loaded and strapped down two dirt bikes in the bed of White's truck. As White drove on a bumpy portion of the 101 freeway, he felt and saw the bikes "hopping around a little bit in the bed of the truck." The bikes moved from side to side, as well as back and forth. White then heard a popping sound. White took his eyes off the road to glance back over his shoulder and slammed into Parra's vehicle on the side of the freeway. The jury unanimously found White to be negligent and, by a 9-to-3 vote, also found Bert's to be negligent.

Bert's moved for judgment notwithstanding the verdict (JNOV) in part on the ground that Bert's sole duty was to load and secure cargo so it would not fall out—not to load and secure cargo so it would not distract a driver. The trial court found Bert's articulation of its duty too narrow. The court ruled that "there's a duty on a commercial vendor that loads the goods in the back of [a] truck to use care so that those on or near the roadways are not harmed."

The Appellate Court found Bert’s did owe a duty of care to persons on or near the roadway who are injured. The Court had to evaluate whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party. The inquiry into foreseeability entails three considerations: "[1] the [general] foreseeability of harm to the plaintiff, [2] the degree of certainty that the plaintiff suffered injury, [and] [3] the closeness of the connection between the defendant's conduct and the injury suffered. . . .” Cabral v. Ralph's Grocery Co. (2011) 51 Cal.4th 764, 775. Here, the chain of foreseeability was both short and direct. It is foreseeable that cargo negligently loaded or secured in a vehicle could distract the vehicle's driver in a variety of ways—by making noise, blocking the driver's view, interfering with his or her control of the vehicle, or falling out. It is further foreseeable that a driver so distracted could injure others on or near the roadway.

The Court then had to assess whether other public policies militate against a duty notwithstanding the general foreseeability of the harm. The pertinent public policy considerations are: "'[1] the moral blame attached to the defendant's conduct, [2] the policy of preventing future harm, [3] the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and [4] the availability, cost, and prevalence of insurance for the risk involved.'" (Cabral, supra, 51 Cal.4th at p. 781. Bert's argued that White's marijuana use was more morally blameworthy, but the Court was dealing with the vendor's duty, which focuses on the vendor's culpability. Imposing a duty to carefully load and secure cargo, with resulting liability for the negligent discharge of that duty, would be effective in discouraging negligence and thereby preventing future harm.

The Court found that public policy does not provide a justification for a "categorical no duty rule." Bert's argued that imposing a duty would discourage vendors from voluntarily agreeing to load and secure their customers' purchases, leaving the less-experienced customers to do it themselves and risking more accidents. The Court was not persuaded by this argument. The Court agreed that jurors will have to confront, on the facts of each case, whether a vendor's particular conduct was negligent and distracted the driver. It also noted that an injured plaintiff must also prove that the vendor breached the duty of care and proximately caused his or her injury. The Court cited multiple cases where California courts have given controlling weight to considerations of public policy only where the potential for tort liability directly leads to undesirable incentives or policy outcomes.

The Court noted that Bert’s was unable to cite applicable case law supporting its position that it was unable to control the driver or that it is immune because the duty to control one’s vehicle rests exclusively with the driver. It further held that White's intervening negligence did not sever the causal link between Bert's negligence and plaintiffs' injuries. The evidence established that Bert's negligence in loading and securing the dirt bikes was a substantial factor in distracting White. Further, while deplorable, White's intervening negligence was neither "highly unusual" nor "extraordinary." The reason for holding vendors liable for negligently loading and securing cargo in a vehicle is precisely because a poorly done job can distract the vehicle's driver.

COMMENT

This case extends the duty of care to vendors for their negligence in loading and securing cargo in a vehicle in a way that distracts the vehicle's driver. While their actions may appear far removed from the accident, this Court believed that the foreseeability was both short and direct.

For a copy of the complete decision see:

http://www.courts.ca.gov/opinions/documents/B233542.PDF

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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