CASE NAME: O’MALLEY? vs.? SANCHEZ
HEARING ON MOTION FOR SUMMARY JUDGMENT
FILED BY CHERYL SANCHEZ
* TENTATIVE RULING: *
Defendant Cheryl Sanchez?s motion for summary judgment is denied.?
The party moving for summary judgment carries both the burden of persuasion and the burden of production of evidence.? Evid. Code ?500; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. ?A defendant moving for summary judgment bears the burden of proving one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2014) ?10:224.?? Defendant has not met her burden of persuasion.
Defendant moves for summary judgment on the ground the motor vehicle/ negligence cause of action has no merit as Plaintiff cannot establish two essential elements of the negligence cause of action?breach of duty and causation.
Both pedestrians and motorists have an equal right to the use of the highway. Tomey?v. Dyson (1946) 76 Cal. App. 2d 212, 219.? ?The duties of the?pedestrian and the driver to use ordinary care while on the highway are equal and reciprocal, and the question whether either failed to exercise such care, founded on evidence from which different inferences may be drawn, is ordinarily one of fact and not of law.??Crooks v. Doeg?(1935) 4?Cal.App.2d 21, 23-24.
Although it is the duty of both the driver of an automobile and a pedestrian using a public roadway to exercise ordinary care, that duty does not necessarily require the same amount of caution from each in particular circumstances or situations. Cucinella v. Weston Biscuit Co. (1954) 42 Cal. 2d 71, 75.?? A driver operating an automobile is charged with a duty to use a greater degree of care than is the pedestrian, because the instrumentality the driver is propelling is capable of inflicting serious and fatal injuries on others using the highway.? Biggar v. Carney (1960) 181 Cal. App. 2d 22, 29-30.?? Moreover, the conduct of children is unpredictable and one operating a motor vehicle should anticipate their thoughtlessness and impulsiveness. ?The presence of children is in itself a warning requiring the exercise of care for their safety.?? Conroy v. Perez?(1944) 64 Cal.App.2d 217, 224.
Furthermore, ?Young children are held to a different and more limited and subjective standard of care than are adults. They are only required to exercise that degree of care expected of children of like age, experience, and intelligence.? 2-20 California Torts ? 20.12 citing to Daun v. Truax (1961) 56 Cal. 2d 647, 654, 659.
As to Defendant?s breach, whether or not particular acts were done or were sufficient?to meet the standard of reasonable care under the circumstances, are usually questions of fact for the jury.? Biggar v. Carney (1960) 181 Cal. App. 2d 22, 28-29. Here, Defendant maintains she never saw Dillon O?Malley prior to the accident. It is undisputed the accident occurred near a school, at a time children were being released for the day, and many children were present. ?If the evidence shows that a driver has knowledge of the?presence of children he may be held to have been responsible although it appears that he did not see the injured child in time to prevent the injury.?? Conroy v. Perez?(1944) 64 Cal.App.2d 217, 224.
Moreover, ?courts have reasoned that when one looks in the direction of an object clearly visible, he or she sees it. Thus, when there is evidence to the effect that one did look but did not see that which was in plain sight, it follows either that some part of such evidence is untrue or that the person was negligently inattentive?. (2-20 California Torts ??20.01 citing to Daun v. Truax?(1961) 56 Cal.2d 647, 651.)
Here, the evidence and the inferences that may be draw therefrom do not establish, as a matter of law, Defendant did not breach her duty of care.? (See Plaintiff?s dispute of UMF Nos. 12 and 13.)
As to the element of causation, Defendant contends she did not proximately cause Plaintiff Dillon O?Malley?s injuries as Plaintiff caused the accident. ?The evidence does not establish Dillon O?Malley is guilty of negligence as a matter of law. Here, there is conflicting evidence.? Plaintiff claims that he did look before crossing the street. (Dillon Declaration, ?3.) A witness, Jill Neumeuer, testified that she did not notice Dillon looking left or right before heading into the street.? (Depo of Neumeuer, 19:12-20.)
?It is a general rule that one who commences to cross a street intersection and fails to look at or in the direction from which automobiles maybe expected to be coming should be regarded as failing to take any precaution at all?for his own safety. In such a situation the issue of his contributory negligence is usually a question of law for the court. But where, as here, one looks but does not see an approaching automobile, or seeing one, erroneously misjudges its speed or distance, the question is usually one for the jury. (Citation) The rule just mentioned was applied in the case cited to a situation in which the plaintiff was an adult. It is especially appropriate in a case in which the plaintiff is?a child ?who is not to be held to the same degree of care as an adult but is chargeable only with such ordinary care for his own safety as a prudent person of like age, intelligence and experience would exercise under similar circumstances.?? Hart v. Irvine?(1941) 46 Cal.App.2d 805, 808.
Furthermore, ?There is no rule of law that irrespective of existing circumstances a pedestrian must look ‘continuously’ or be arbitrarily adjudged guilty of contributory negligence? Even where a right of way is given by statute, if conditions so require it to avoid injury to others, the right of way must be yielded.? Bove v. Beckman?(1965) 236 Cal.App.2d 555, 563.
The evidence does not establish, as a matter of law, Dillon O?Malley caused the accident.? Whether Dillon exercised ordinary care is question of fact for the jury. Furthermore, even if Dillon were negligent, the court in?Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, abrogated the complete defense of contributory?negligence?and substituted a judicially created system of comparative?negligence.? 6 Witkin Sum. Cal. Law Torts ? 1329.? Defendant?s motion is therefore, denied.
The court notes Terry O?Malley and Angela O?Malley dismissed their complaints, without prejudice, on May 12, 2015.
Defendant?s Objection to Evidence.
Objection #1: Overruled. ?Plaintiffs substantially complied with Cal. Rules of Court, Rule 3.1350(h).
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Objection #2:? Defendant objects to the entirety of Plaintiffs? SSUMF on the ground the response fails to comply with pleading requirements of ?437c and CRC Rule 3.1350(h). Overruled. Plaintiffs substantially complied with Cal. Rules of Court, Rule 3.1350(h).
Objection #3:? Defendant objects to the entirety of the declaration of Dillon.? Overruled.
Objection #4:? Defendant objects to the declaration of Albert Ferrari. ??Overruled.? The assumptions are based on witnesses? account of Defendant?s speed, Plaintiff?s walking speed and distance from sidewalk to impact. There is a factual basis for the opinion.
Plaintiffs? Objection to Evidence
Plaintiffs? objection to Defendant?s Supplemental Separate Statement is sustained.? See San Diego Watercrafts, Inc. v. Wells Fargo Bank?(2002) 102 Cal.App.4th 308, 316.