Jesus Alaniz v. Sun Pacific Shippers, L.P.

The Privette/Hooker doctrine limits the circumstances

in which the hirer of an independent contractor can be liable for

injuries to the contractor’s employees. (Privette v. Superior Court

(1993) 5 Cal.4th 689; Hooker v. Department of Transportation

(2002) 27 Cal.4th 198 (Hooker).) In a negligence action, the hirer

of an independent contractor may be liable to the contractor’s

employee only if “the hirer retained control over safety conditions

at [the] worksite” and that “exercise of retained control

affirmatively contributed to the employee’s injuries.” (Hooker, at

p. 202, original italics.) In a premises liability action, the hirer

may be liable for injuries to the employee only if: “(1) it knows or

reasonably should know of a concealed, preexisting hazardous

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condition on its premises; (2) the contractor does not know and

could not reasonably ascertain the condition; and (3) the [hirer]

fails to warn the contractor.” (Kinsman v. Unocal Corp. (2005) 37

Cal.4th 659, 675 (Kinsman), italics added.) We conclude that the

trial court here prejudicially erred when it omitted these

limitations from its instructions on negligence and premises

liability.

Sun Pacific Shippers, L.P. (Sun Pacific), appeals from

the judgment after a jury awarded damages against it for injuries

sustained by Jesus Alaniz, an employee of one of its independent

contractors. Sun Pacific contends: (1) the trial court erred when

it did not instruct the jury on the Privette/Hooker doctrine, (2) the

court erred when it did not instruct on mitigation of damages, (3)

the court improperly denied its motion for judgment

notwithstanding the verdict (JNOV), and (4) substantial evidence

does not support the award of future medical expenses. We

reverse the judgment, remand for a new trial on the negligence

cause of action, and direct judgment for Sun Pacific on the

premises liability cause of action.

FACTUAL AND PROCEDURAL HISTORY

The accident

Sun Pacific grows mandarins at its orchard outside

Fillmore. It hires independent contractors to deliver empty bins

to the orchard, pick the fruit, and deliver full bins to the packing

house. Each contractor provides its own pickers, truck drivers,

and forklift operators.

In February 2012, Alaniz, a truck driver employed by

Navarro Trucking, delivered a truckload of empty bins to Sun

Pacific’s orchard. A forklift driven by Roberto Reynosa—who was

employed by another independent contractor, J. Antonio Rosa

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Lule—unloaded bins from the north side of the trailer. Alaniz

climbed onto the trailer and, as space became available on the

north, pulled bins over so Reynosa could unload them. No one

from Sun Pacific directed Alaniz to do this.

While pulling a stack of bins, Alaniz fell off the truck

and onto the ground. Reynosa drove forward, crushing Alaniz’s

leg under the forklift. He offered to take Alaniz to the doctor.

Alaniz declined Reynosa’s offer and chose to finish working his

shift instead. He went to a clinic four hours later, and

subsequently underwent surgery on his leg and shoulder.

Trial

Alaniz and his wife sued Sun Pacific, Lule, and

Reynosa for negligence, and Sun Pacific for premises liability. At

trial, Alaniz testified that a Sun Pacific supervisor, Filipe Merino,

told him to park at a specific location on the south side of the

road; cars parked on the road made it too narrow for a forklift to

access the trailer from the south. Alaniz also said that Reynosa

told him to climb onto the trailer and pull the bins to its north

side so Reynosa could unload them. Reynosa claimed that

“everybody [did] this so it was okay to go up there and do it.”

Alaniz asked if they could instead move the cars parked on the

north side of the road so he could park there, but Reynosa said

that would take too long. Alaniz got onto the truck and pulled

the bins to the north side of the trailer as directed by Reynosa.

Reynosa testified that Merino called him when Alaniz

arrived at the orchard and told him to tell Alaniz where to park

so he could unload the bins. Reynosa conveyed this instruction,

and Alaniz complied by backing up a short distance. Reynosa

said that cars did not block Alaniz from moving the truck so the

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forklift could reach the bins on the south. He denied telling

Alaniz to get on the trailer to move the bins.

Merino denied telling Alaniz where to park, denied

telling Reynosa to unload Alaniz’s truck, and denied talking to

either Alaniz or Reynosa before the accident. He testified that

cars were not blocking Alaniz’s truck.

A defense expert, Dr. Richard Rosenberg, testified

that Alaniz’s injuries would have been less serious if he had gone

to the hospital sooner. It “would [have been] so advantageous” if

he could have seen a doctor within an hour. It is about a 25-

minute drive from Fillmore to Ventura County Medical Center.

Alaniz’s expert, Dr. Robert Klapper, testified that the

seriousness of Alaniz’s leg injuries did not depend on how quickly

he got to the hospital.

Life-care planner Carol Hyland testified about future

medical care costs, including an orthopedist, a physical therapist,

gym membership, functional restoration program, and attendant

care or chore services. She said that she included those services

in her cost calculation on the recommendation of Dr. Klapper.

Dr. Klapper testified that he only had expertise in orthopedics,

however, and was responsible for only certain aspects of Hyland’s

report.

Jury instructions

The trial court instructed the jury on general

principles of negligence, but refused Lule and Reynosa’s request

for a modified version of CACI No. 1009B, the instruction that

explains negligent exercise of retained control pursuant to

Privette and Hooker. Although Sun Pacific relied on the

Privette/Hooker doctrine throughout trial, the record does not

establish that it joined Lule and Reynosa’s request.

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The trial court also instructed the jury on general

principles of premises liability. It did not instruct on a

landowner’s limited responsibility to employees of an

independent contractor pursuant to the Privette/Hooker doctrine.

Sun Pacific relied on the doctrine throughout trial, but did not

request an instruction on it.

Lule and Reynosa requested a jury instruction on

mitigation of damages based on Alaniz’s delay in seeking medical

treatment. The trial court refused the instruction, reasoning that

it would be based on speculation because there was no evidence of

how long an ambulance would have taken to reach the work site.

Verdict

The jury found for Alaniz and his wife, and assigned

40 percent responsibility to Sun Pacific, 35 percent to Lule and

Reynosa, 15 percent to Navarro Trucking, and 10 percent to

Alaniz. After reducing the award for workers’ compensation

benefits, the trial court awarded Alaniz $2,563,190 for past and

future economic and noneconomic losses. It awarded his wife

$131,250 for loss of consortium.

Motions for new trial and JNOV

Sun Pacific moved for a new trial and for JNOV on

the basis that substantial evidence did not support either

negligence or premises liability. The new trial motion also

challenged the court’s failure to give a mitigation of damages

instruction and its admission of evidence regarding future

medical expenses. The trial court denied both motions.

DISCUSSION

Privette/Hooker jury instructions

Sun Pacific contends the trial court prejudicially

erred because it did not instruct the jury on the Privette/Hooker

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doctrine as it applies to either negligence or premises liability.

The Alanizes assert Sun Pacific forfeited its contention because it

did not request the instructions at trial. We disagree with the

Alanizes because without the instructions the court incorrectly

explained the applicable law. (Suman v. BMW of North America,

Inc. (1994) 23 Cal.App.4th 1, 9 (Suman).)

Our Supreme Court’s decision in Kinsman is

controlling. There, an employee of an independent contractor

that built and dismantled scaffolding used by other trades was

exposed to airborne asbestos produced by those trades.

(Kinsman, supra, 37 Cal.4th at p. 665.) The trial court instructed

the jury on the hirer’s liability for failure to exercise ordinary

care in the maintenance of the property to avoid exposing persons

to an unreasonable risk of harm. (Id. at p. 681.) But “the usual

rules about [premises] liability must be modified, after Privette,

as they apply to a hirer’s duty to the employees of independent

contractors.” (Id. at p. 674.) The trial court’s instruction, “while

an accurate statement of premises liability generally, [was]

partly erroneous when applied” to the hirer’s liability to Kinsman

because it did “not make clear that the hazard must have been

unknown and not reasonably ascertainable to the independent

contractor that employed Kinsman and to other contractors

working contemporaneously on the premises.” (Id. at p. 682.)

Because a properly instructed jury could have concluded that the

contractors knew about the hazard, the judgment was reversed.

(Id. at p. 683.)

Similarly here, the trial court instructed the jury that

Sun Pacific was liable if its failure to use reasonable care was a

substantial factor in harming Alaniz (see CACI Nos. 400, 401 &

4310), but did not say that that principle only applied to the hirer

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of an independent contractor if its negligent exercise of retained

control over safety conditions affirmatively contributed to the

harm. (Hooker, supra, 27 Cal.4th at p. 202.) The court also told

the jury that Sun Pacific was liable if its negligent use or

maintenance of the property was a substantial factor in harming

Alaniz (see CACI Nos. 1000, 1001, 1003 & 1011), but did not say

that these principles would only apply to Sun Pacific if the

hazard were concealed. (Kinsman, supra, 37 Cal.4th at p. 675.)

Because each instruction was “an incorrect statement of law,”

Sun Pacific has not forfeited its contention. (Suman, supra, 23

Cal.App.4th at p. 9.)

And the trial court’s error was prejudicial. Error in

instructing a jury is reversible only if “there is a reasonable

probability that in the absence of the error, a result more

favorable to the appealing party would have been reached.”

(Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, 580

(Soule).) “Thus, when the jury receives an improper instruction

in a civil case, prejudice will generally be found only ‘“[w]here it

seems probable that the jury’s verdict may have been based on

the erroneous instruction . . . .”’ [Citation.]” (Id. at p. 574.)

“‘[R]easonable probability’” means “merely a reasonable chance,

more than an abstract possibility,” a “‘probability sufficient to

undermine confidence in the outcome.’” (College Hospital Inc. v.

Superior Court (1994) 8 Cal.4th 704, 715, italics omitted.)

To determine whether that probability exists here,

we evaluate the entire record, including (1) the state of the

evidence, (2) the effect of other instructions, (3) the effect of

counsel’s arguments, and (4) any indications by the jury itself

that it was misled. (Soule, supra, 8 Cal.4th at pp. 580-581.) We

assume the jury might have accepted Sun Pacific’s evidence, and,

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if properly instructed, might have decided in its favor. (Mayes v.

Bryan (2006) 139 Cal.App.4th 1075, 1087.)

Here, a properly instructed jury might have decided

in Sun Pacific’s favor on the negligence cause of action based on

the first three Soule factors. First, the jury could have found that

Sun Pacific’s general control over aspects of the harvesting

operation, including designating the area to unload bins, did not

establish that it retained control over safety conditions for its

contractors. (See, e.g., McDonald v. Shell Oil Co. (1955) 44

Cal.2d 785, 788-790 [broad power of control over results of the

work did not constitute control over means of accomplishing the

job].) It is also reasonably probable that the jury would have

found that Sun Pacific merely permitted—rather than directed—

the manner of unloading the bins. (Hooker, supra, 27 Cal.4th at

pp. 214-215; see also McDonald, at p. 790 [owner’s “suggestions

or recommendations as to details of the work” to contractor’s

employees do not impose liability on owner].)

Second, the jury instructions that were given support

a finding of prejudice. CACI No. 1000 told jurors that “Sun

Pacific owned or controlled the property,” but did not mention

that it had to retain control over safety conditions for liability to

attach. (Cf. Khosh v. Staples Construction Co., Inc. (2016) 4

Cal.App.5th 712, 718 [to be liable pursuant to retained control

theory, hirer must “direct[] the contractor about the manner or

performance of the work, direct[] that the work be done by a

particular mode, or actively participat[e] in how the job is done”].)

CACI No. 1001 told the jury that it could consider “[t]he extent of

Sun Pacific’s control over the condition that created the risk of

harm,” but did not include the Privette/Hooker requirement that

Sun Pacific negligently exercise its retained control in a manner

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that affirmatively contributed to the harm. (Cf. Hooker, supra, 27

Cal.4th at p. 202.) Moreover, these instructions were given as

limitations on premises liability, not as limitations on negligence.

They were thus an insufficient substitute for a Privette/Hooker

instruction. (E.g., Vine v. Bear Valley Ski Co. (2004) 118

Cal.App.4th 577, 594-595, 601 (Vine) [contributory negligence

instruction did not cure failure to instruct on assumption of

risk].)

Finally, counsel for Alaniz argued general principles

of negligence, without mentioning the Privette/Hooker

limitations. He also argued that Sun Pacific was negligent for

failing to widen the area by removing trees. These arguments

aggravated the prejudicial effect of the erroneous jury

instructions. (Vine, supra, 118 Cal.App.4th at pp. 601-603

[failure to give assumption of risk instruction allowed counsel to

give legally erroneous argument]; Whiteley v. Philip Morris, Inc.

(2004) 117 Cal.App.4th 635, 660 [counsel’s arguments highlighted

prejudicial effect of instructional error].)

Because there is a reasonable probability the jury

based its negligence verdict on the erroneous instructions, the

case must be remanded for a new trial on negligence so that a

jury may evaluate whether Sun Pacific is liable pursuant to the

applicable legal standards.1

1 We would reach the same conclusion regarding the trial

court’s failure to give a Privette/Hooker instruction on the

premises liability cause of action, but, as discussed below, the

absence of evidence of a concealed hazardous condition compels

us to conclude that JNOV should have been granted as to this

cause of action. We thus need not evaluate the prejudicial effect

of that instruction’s absence.

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Mitigation of damages instruction

Sun Pacific contends the trial court improperly

refused a jury instruction on mitigation of damages based on

Alaniz’s delay in seeking medical care. The Alanizes claim Sun

Pacific forfeited its contention because it did not request the

instruction at trial. But the court refused Lule and Reynosa’s

request for the instruction (CACI No. 3930, as modified).

Because Sun Pacific was similarly situated, a request would have

been futile. (People v. Chism (2014) 58 Cal.4th 1266, 1291; M.T.

v. Superior Court (2009) 178 Cal.App.4th 1170, 1177.)

And the trial court’s refusal was error. A party is

entitled to an instruction on every theory that could be

established by the evidence most favorable to that theory. (Scott

v. Rayhrer (2010) 185 Cal.App.4th 1535, 1540.) Relevant here is

the theory that plaintiffs cannot be compensated for damages

that they could have avoided by reasonable effort or expenditure.

(State Dept. of Health Services v. Superior Court (2003) 31

Cal.4th 1026, 1042-1043.) Injured persons must use reasonable

diligence in caring for their injuries. (Christiansen v. Hollings

(1941) 44 Cal.App.2d 332, 346.) Depending on the circumstances,

it may be reasonable for the person to seek immediate medical

care. (Ibid.)

Here, Dr. Rosenberg testified that it would have been

“so advantageous” if Alaniz could have seen a doctor within an

hour, and that it is about a 25-minute drive from Fillmore to the

hospital. Reynosa offered to take Alaniz there. If the jury

credited this testimony, it could have determined that Alaniz’s

delay in seeking medical attention increased his injuries. Sun

Pacific was thus entitled to a mitigation of damages of

instruction. (Bernal v. Richard Wolf Medical Instruments Corp.

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(1990) 221 Cal.App.3d 1326, 1337-1338, overruled on another

point by Soule v. General Motors Corp., supra, 8 Cal.4th at pp.

574, 580.)

JNOV

Sun Pacific contends the trial court erred when it

denied its motion for JNOV. We agree in part.

JNOV must be granted if the verdict is not supported

by substantial evidence. (Sweatman v. Department of Veterans

Affairs (2001) 25 Cal.4th 62, 68.) Unlike an analysis of

instructional error, when reviewing the grant or denial of a

motion for JNOV we view the evidence in the light most favorable

to the party securing the verdict. (Simmons v. Ware (2013) 213

Cal.App.4th 1035, 1048.) Here, then, we credit the testimony

that Merino directed Alaniz to park at a location too narrow for

the forklift to access the bins on the south side of the trailer.

As to the negligence cause of action, there was

evidence that Sun Pacific exercised control over where vehicles

parked to load and unload bins, and exercised that control in a

way that affirmatively contributed to Alaniz’s injuries. Based on

this evidence, a properly instructed jury could have found Sun

Pacific liable for negligence. (Kinsman, supra, 37 Cal.4th at p.

683.) Accordingly, we must remand so a new jury may evaluate

the evidence in light of proper jury instructions. (McCoy v.

Hearst Corp. (1991) 227 Cal.App.3d 1657, 1659-1661.)

As to the premises liability cause of action, there was

evidence that the road where the bins were unloaded was too

narrow and constituted an unsafe condition. But this condition

was openly visible and known to Alaniz. As such, JNOV should

have been granted on the premises liability cause of action.

(Kinsman, supra, 37 Cal.4th at p. 675.) We thus direct the trial

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court to enter judgment in favor of Sun Pacific on this cause of

action. (Code Civ. Proc., § 629, subd. (c); Singh v. Southland

Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 367.)

Future medical costs

Finally, Sun Pacific contends it is entitled to a new

trial regarding damages because Hyland’s and Dr. Klapper’s

testimony did not constitute substantial evidence to support the

award of future medical costs. Our reversal of the judgment as to

liability renders resolution of this issue unnecessary.

The judgment is reversed and the case is remanded for a new trial on the negligence cause of action. The trial court is directed to enter judgment in favor of Sun Pacific on the premises liability cause of action. Sun Pacific shall recover its costs on appeal.