Supreme Court of California Justia
Citation 51 Cal. 4th 764, 248 P.3d 1170, 122 Cal. Rptr. 3d 313

Cabral v. Ralphs Grocery

Filed 2/28/11

IN THE SUPREME COURT OF CALIFORNIA

MARIA CABRAL,
Plaintiff and Respondent,
S178799
v.
Ct.App. 4/2 E044098
RALPHS GROCERY COMPANY,
San Bernardino County
Defendant and Appellant.
Super. Ct. No. RCV089849

A truck driver working for Ralphs Grocery Company (Ralphs) stopped his
tractor-trailer rig alongside an interstate highway in order to have a snack.
Plaintiff‘s husband, decedent Adelelmo Cabral, driving his pickup truck home
from work, veered suddenly off the freeway and collided at high speed with the
rear of the stopped trailer, resulting in his own death. (Cabral was not intoxicated
at the time; experts opined he either fell asleep at the wheel or lost control due to
an undiagnosed medical condition.) The jury found both decedent and the Ralphs
driver to have been negligent and to have caused the accident, but allocated 90
percent of the fault to decedent and only 10 percent to the Ralphs driver. The trial
court denied Ralphs‘s motion for judgment notwithstanding the verdict and
entered a judgment awarding plaintiff damages for the wrongful death of her
husband.
The Court of Appeal reversed, holding Ralphs owed no legal duty to avoid
a collision between a negligent driver and the company‘s stopped truck. We


disagree with the Court of Appeal‘s conclusions. California law establishes the
general duty of each person to exercise, in his or her activities, reasonable care for
the safety of others. (Civ. Code, § 1714, subd. (a).) While this court may and
sometimes does find exceptions to the general duty rule, the recognized grounds
for doing so (Rowland v. Christian (1968) 69 Cal.2d 108, 112-113) are lacking
here. That drivers may lose control of their vehicles and leave a freeway for the
shoulder area, where they may collide with any obstacle placed there, is not
categorically unforeseeable. Nor does public policy clearly demand that truck
drivers be universally permitted, without the possibility of civil liability for a
collision, to take nonemergency breaks alongside freeways in areas where
regulations permit only emergency parking.
Were we to recognize the categorical exemption from the duty of ordinary
care Ralphs seeks, no liability could be imposed even when a driver unjustifiably
stops his or her vehicle alongside the freeway in particularly dangerous
circumstances. For example, parking a tractor-trailer for the night immediately
next to the freeway traffic lanes on the outside of a poorly lit downhill curve,
merely in order to save the cost of a spot in a truck stop, could well be considered
negligent. Yet the parking truck driver in that scenario would as a matter of law
bear no responsibility for a collision if, as Ralphs contends, no duty exists to
exercise reasonable care, in parking alongside a freeway, for the safety of
motorists who may unintentionally leave the freeway. We therefore decline to
create a categorical rule exempting those parking alongside freeways from the
duty of drivers to exercise ordinary care for others in their use of streets and
highways.
The general duty of ordinary care being applicable, it was for the jury to
determine whether the Ralphs driver breached that duty, whether decedent Cabral
was also negligent, whose negligence caused the collision, and how to allocate
2
comparative fault between the parties. As Ralphs does not contend the evidence
was insufficient to support the finding the company breached its duty of ordinary
care and bore one-tenth of the total fault for the accident, we do not decide that
question.
FACTUAL AND PROCEDURAL BACKGROUND
On the day of the accident, February 27, 2004, Hen Horn was employed by
Ralphs as a tractor-trailer truck driver. On that evening, while driving his delivery
route eastbound on Interstate 10, Horn stopped just beyond the Interstate 15
crossing to have a snack. He regularly made a brief stop at this location to eat part
of the meal his wife had prepared for him. Horn stopped the tractor-trailer rig off
the paved roadway, on what the investigating California Highway Patrol officer,
Michael Migliacci, described as ―the dirt portion of the shoulder.‖ There is a large
dirt area at that location between the eastbound Interstate 10 lanes and a transition
road from northbound Interstate 15. In 2001, at the request of the California
Highway Patrol, the California Department of Transportation (CalTrans) had
placed an ―Emergency Parking Only‖ sign in the area. Horn saw the sign from
where he stopped, about 16 feet from the outermost traffic lane.1
Decedent Adelelmo Cabral was driving home from work alone in his
pickup truck, eastbound on Interstate 10. Juan Perez, driving on the freeway
behind him, saw decedent‘s vehicle, which was traveling around 70 or 80 miles
per hour, swerve within its lane, then change lanes rapidly and pass other vehicles.

1
Horn testified he pulled over to check his brakes because of fluctuations on
the pressure gauge. He was impeached on this point, however, by his statements
at the time of the accident to the investigating California Highway Patrol officer
and, later, to an investigator hired by plaintiff, as well as by his admission he never
told Ralphs of the asserted problem and by expert testimony that the fluctuations
described were normal.
3


Finally, the pickup truck abruptly crossed the outermost lane of traffic and left the
freeway ―as if he was trying to get off the interstate.‖ Decedent‘s vehicle then
traveled parallel to the road along the adjacent dirt until it hit the rear of Horn‘s
trailer. Perez saw no brake lights or other indications of an attempt to slow down
before the collision.
A toxicology report on Cabral, who died at the scene, was negative. In the
absence of evidence of intoxication, suicide, mechanical defects or a medical
condition, and considering how long Cabral had been awake on the day of the
accident (which occurred in the evening), an expert witness called by plaintiff
believed Cabral had fallen asleep while driving. A defense expert, believing
Cabral‘s reported lane and speed changes were inconsistent with the results of
fatigue, opined the accident probably resulted from an unknown medical
condition.
Cabral‘s widow, plaintiff Maria Cabral, sued Ralphs for wrongful death,
alleging the company‘s employee, Horn, had caused decedent‘s death through his
negligence in stopping for nonemergency reasons on the freeway shoulder.
Ralphs cross-complained for damage to its tractor-trailer. The jury found both
Cabral and Horn were negligent, both their negligent acts were substantial factors
in causing Cabral‘s death, and Cabral‘s negligence was a substantial factor in
causing the damage to Ralphs‘s tractor-trailer. The jury assigned 90 percent of the
responsibility for the accident to Cabral and 10 percent to Horn. Plaintiff‘s total
economic damages were fixed by the jury at $480,023; noneconomic damages
were $4.33 million. After reduction for Cabral‘s 90 percent comparative fault and
offset by the $4,725 awarded Ralphs on its cross-complaint, plaintiff‘s net damage
award was $475,298.
Ralphs appealed from the judgment on the jury verdict and from the trial
court‘s denial of its motion for judgment notwithstanding the verdict. A divided
4
panel of the Court of Appeal reversed, agreeing with Ralphs that the company was
entitled to judgment notwithstanding the verdict because it ―owed no duty to
Decedent.‖ The majority rested its holding primarily on its conclusions that the
possibility of a driver losing control of his or her vehicle and colliding with a
tractor-trailer stopped off the freeway, in an area in which emergency parking is
permitted, is too remote to be considered foreseeable and that the societal burden
of imposing a duty would be great, as parked motorists or neighboring property
owners could be held liable for failure to provide a ―safe landing‖ for drivers
leaving any type of roadway.
We granted plaintiff‘s petition for review.
DISCUSSION
―A motion for judgment notwithstanding the verdict may be granted only if
it appears from the evidence, viewed in the light most favorable to the party
securing the verdict, that there is no substantial evidence in support. [Citation.]
[¶] . . . As in the trial court, the standard of review [on appeal] is whether any
substantial evidence—contradicted or uncontradicted—supports the jury‘s
conclusion.‖ (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62,
68.) In part II, post, we will consider whether substantial evidence supports the
jury‘s verdict as to causation. We first must decide whether Ralphs owed plaintiff
a duty of reasonable care to avoid injury to her husband, decedent Adelelmo
Cabral. Duty is a question of law for the court, to be reviewed de novo on appeal.
(Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213; Ann M. v. Pacific Plaza
Shopping Center (1993) 6 Cal.4th 666, 674.)
I. Duty
The general rule in California is that ―[e]veryone is responsible . . . for an
injury occasioned to another by his or her want of ordinary care or skill in the
5
management of his or her property or person . . . .‖ (Civ. Code, § 1714, subd. (a).)
In other words, ―each person has a duty to use ordinary care and ‗is liable for
injuries caused by his failure to exercise reasonable care in the circumstances
. . . .‘ ‖ (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472, quoting
Rowland v. Christian, supra, 69 Cal.2d at p. 112 (Rowland).) In the Rowland
decision, this court identified several considerations that, when balanced together,
may justify a departure from the fundamental principle embodied in Civil Code
section 1714: ―the foreseeability of harm to the plaintiff, the degree of certainty
that the plaintiff suffered injury, the closeness of the connection between the
defendant‘s conduct and the injury suffered, the moral blame attached to the
defendant‘s conduct, the policy of preventing future harm, 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 the availability, cost, and
prevalence of insurance for the risk involved.‖ (Rowland, at p. 113; accord, e.g.,
Castaneda v. Olsher, supra, 41 Cal.4th at p. 1213; John B. v. Superior Court
(2006) 38 Cal.4th 1177, 1192; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465,
477; Parsons v. Crown Disposal Co., supra, 15 Cal.4th at p. 473.) As we have
also explained, however, in the absence of a statutory provision establishing an
exception to the general rule of Civil Code section 1714, courts should create one
only where ―clearly supported by public policy.‖ (Rowland, at p. 112; accord,
John B., at p. 1191; Merrill v. Navegar, at p. 477.)2

2
California law accords in this respect with that of American jurisdictions
generally as reflected in recently published portions of the Restatement Third of
Torts. Section 7 of the Restatement‘s summary of personal injury liability states:
―(a) An actor ordinarily has a duty to exercise reasonable care when the actor‘s
conduct creates a risk of physical harm. [¶] (b) In exceptional cases, when an
articulated countervailing principle or policy warrants denying or limiting liability

(footnote continued on next page)
6


Before applying the Rowland considerations to the duty question posed
here, we note an important feature of the analysis: the Rowland factors are
evaluated at a relatively broad level of factual generality. Thus, as to
foreseeability, we have explained that the court‘s task in determining duty ―is not
to decide whether a particular plaintiff‘s injury was reasonably foreseeable in
light of a particular defendant‘s conduct, but rather to evaluate more generally
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 . . . .‖
(Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6; accord, Parsons v. Crown
Disposal Co., supra, 15 Cal.4th at p. 476; Jackson v. Ryder Truck Rental, Inc.
(1993) 16 Cal.App.4th 1830, 1841.)
In applying the other Rowland factors, as well, we have asked not whether
they support an exception to the general duty of reasonable care on the facts of the
particular case before us, but whether carving out an entire category of cases from
that general duty rule is justified by clear considerations of policy. Thus in
Rowland itself, considering whether the traditional property-law categories of
invitee, licensee and trespasser should govern a property owner‘s duty of care, we

(footnote continued from previous page)
in a particular class of cases, a court may decide that the defendant has no duty or
that the ordinary duty of reasonable care requires modification.‖ (Rest.3d Torts,
Liability for Physical and Emotional Harm, § 7 (2010).) One exception to the
accord is that while California law considers foreseeability of injury a major factor
in determining duty, the Restatement, as just quoted, would consider only ―an
articulated countervailing principle or policy,‖ as distinct from foreseeability.
(Ibid.; see id., com. j, p. 82 [―The extent of foreseeable risk depends on the
specific facts of the case and cannot be usefully assessed for a category of cases;
small changes in the facts may make a dramatic change in how much risk is
foreseeable. Thus, . . . courts should leave such determinations to juries unless no
reasonable person could differ on the matter.‖]
7


observed that while in particular cases the certainty of injury, the burden of
exercising due care, or the availability and cost of insurance may be greater as to
one class of persons entering real property than as to another, such particular
instances ―do not warrant the wholesale immunities resulting from the common
law classifications.‖ (Rowland, supra, 69 Cal.2d at p. 119; see also Knight v.
Jewett (1992) 3 Cal.4th 296, 315-320 [danger of chilling participation in active
sports justifies a categorical exception to the duty of ordinary care for participants‘
careless acts toward coparticipants]; Parsons v. Crown Disposal Co., supra, 15
Cal.4th at pp. 474-475 [societal burden of imposing a duty to guard against fright
to a horse when properly using a vehicle or machine justifies not recognizing such
a duty]; Castaneda v. Olsher, supra, 41 Cal.4th at pp. 1216-1217 [declining to
recognize a landlord‘s duty not to rent to gang members in light of the burdens
that recognizing such a duty would create].)
By making exceptions to Civil Code section 1714‘s general duty of
ordinary care only when foreseeability and policy considerations justify a
categorical no-duty rule, we preserve the crucial distinction between a
determination that the defendant owed the plaintiff no duty of ordinary care, which
is for the court to make, and a determination that the defendant did not breach the
duty of ordinary care, which in a jury trial is for the jury to make. We explained
the distinction as to foreseeability in Ballard v. Uribe, supra, 41 Cal.3d at page
573, footnote 6: While the court deciding duty assesses the foreseeability of injury
from ―the category of negligent conduct at issue,‖ if the defendant did owe the
plaintiff a duty of ordinary care the jury ―may consider the likelihood or
foreseeability of injury in determining whether, in fact, the particular defendant‘s
conduct was negligent in the first place.‖ An approach that instead focused the
duty inquiry on case-specific facts would tend to ―eliminate the role of the jury in
negligence cases, transforming the question of whether a defendant breached the
8
duty of care under the facts of a particular case into a legal issue to be decided by
the court . . . .‖ (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 724,
fn. 13 [determining the scope of duty of an officer pulling over a vehicle for a
moving violation].)
On the facts of a particular case, a trial or appellate court may hold that no
reasonable jury could find the defendant failed to act with reasonable prudence
under the circumstances. Such a holding is simply to say that as a matter of law
the defendant did not breach his or her duty of care, i.e., was not negligent toward
the plaintiff under the circumstances shown by the evidence. But the legal
decision that an exception to Civil Code section 1714 is warranted, so that the
defendant owed no duty to the plaintiff, or owed only a limited duty, is to be made
on a more general basis suitable to the formulation of a legal rule, in most cases
preserving for the jury the fact-specific question of whether or not the defendant
acted reasonably under the circumstances.3

3
Again, California law accords with the Restatement view. ―No-duty rules
are appropriate only when a court can promulgate relatively clear, categorical,
bright-line rules of law applicable to a general class of cases.‖ (Rest.3d Torts,
Liability for Physical and Emotional Harm, § 7, com. a, p. 78.) ―Sometimes
reasonable minds cannot differ about whether an actor exercised reasonable care
. . . . In such cases, courts take the question of negligence away from the jury and
determine that the party was or was not negligent as a matter of law. . . . [¶] In
other situations, reasonable minds could differ about the application of the
negligence standard to a particular category of recurring facts, but under the rubric
of duty courts render a judgment about that category of cases. . . . In conducting
its [duty] analysis, the court may take into account factors that might escape the
jury‘s attention in a particular case, such as the overall social impact of imposing a
significant precautionary obligation on a class of actors. These cases are properly
decided as duty or no-duty cases. When no such categorical considerations apply
and reasonable minds could differ about the competing risks and burdens or the
foreseeability of the risks in a specific case, however, courts should not use duty
and no-duty determinations to substitute their evaluation for that of the factfinder.‖
(Id., com. i, pp. 81-82.)
9


Turning to the case before us, we observe that no question as to breach of
the duty of ordinary care is presented. The issue of Horn‘s negligence was
submitted to the jury, which found him to have breached his duty of care under the
particular circumstances shown by the evidence, but assessed his comparative
fault as slight, 10 percent to decedent‘s 90 percent. Ralphs does not contend
substantial evidence of Horn‘s negligence or the allocation of fault was lacking,
i.e., that on these specific facts no reasonable jury could have found Ralphs was
even 10 percent at fault in the accident.
On the duty question that is presented here, the factual details of the
accident are not of central importance. That Horn parked 16 feet from the
outermost traffic lane, rather than six feet or 26 feet; that parking for emergencies
was permitted in the dirt area he chose; that Adelelmo Cabral likely left the
highway because he fell asleep or because of some unknown adverse health event,
rather than from distraction or even intoxication—none of these are critical to
whether Horn owed Cabral a duty of ordinary care. These facts may have been
important to the jury‘s determinations of negligence, causation and comparative
fault, but on duty California law looks to the entire ―category of negligent
conduct,‖ not to particular parties in a narrowly defined set of circumstances.
(Ballard v. Uribe, supra, 41 Cal.3d at p. 573, fn. 6; see also Jackson v. Ryder
Truck Rental, Inc., supra, 16 Cal.App.4th at p. 1841 [rejecting, as an improper
―ultra-specific manner‖ of defining risk, the defendant‘s claim that ―it was not
reasonably foreseeable that the decedent would be struck by an errant vehicle
‗while standing on the shoulder of the roadway four feet inside the fog line.‘ ‖].)
To base a duty ruling on the detailed facts of a case risks usurping the jury‘s
proper function of deciding what reasonable prudence dictates under those
particular circumstances.
10
Ralphs contends Horn ―owed Cabral no duty to avoid stopping near the
freeway for a nonemergency,‖ while plaintiff claims truck drivers generally, and
Horn specifically, owe other drivers ―a duty of reasonable care . . . concerning the
manner in which they park their trucks alongside California freeways.‖ We take
the issue between the parties to be whether a freeway driver owes other drivers a
duty of ordinary care in choosing whether, where and how to stop on the side of
the road. Because the general duty to take ordinary care in the conduct of one‘s
activities (Civ. Code, § 1714, subd. (a)) indisputably applies to the operation of a
motor vehicle, the issue is also properly stated as whether a categorical exception
to that general rule should be made exempting drivers from potential liability to
other freeway users for stopping alongside a freeway.
A. Foreseeability and Related Factors
We examine here the first three related considerations identified in
Rowland: ―the foreseeability of harm to the plaintiff, the degree of certainty that
the plaintiff suffered injury, [and] the closeness of the connection between the
defendant‘s conduct and the injury suffered . . . .‖ (Rowland, supra, 69 Cal.2d at
p. 113.)
In the generalized sense of foreseeability pertinent to the duty question, that
a vehicle parked by the side of a freeway may be struck by another vehicle leaving
the freeway, resulting in injury to either vehicle‘s occupants, is clearly foreseeable.
Drivers are supposed to control their vehicles and keep them on the traveled
roadway, but common experience shows they do not always do so. Freeway
drivers may be intoxicated, distracted, blinded by the weather or sun, sleepy or
sick, and for any of these reasons or others may drive off the roadway.
Mechanical problems with their vehicles can also force motorists to suddenly
leave the freeway. If they do so at freeway speeds and collide with another
11
vehicle parked alongside the road, they are likely to be injured or injure other
occupants of the vehicles, or both. This general foreseeability is reflected in the
Official Reports, in that numerous decisions have involved collisions between
vehicles leaving a highway and vehicles or other obstacles on the roadside.4 As
we observed in Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58 (albeit in
discussing an issue of breach, not duty), ―it is not uncommon for speeding and/or
intoxicated drivers to lose control of their cars and crash into poles, buildings or
whatever else may be standing alongside the road they travel—no matter how
straight and level that road may be.‖
Evidence at trial showed that safety standards and guidelines have been
formulated with the goal of avoiding collisions between vehicles leaving freeways
and trucks or other obstacles alongside the freeway. A highway engineer testified
that freeway safety standards disapproved placing any ―massive obstacle‖ within
30 feet of the traffic lanes. Where feasible, existing obstacles—objects massive or
large enough to cause rapid deceleration or change in direction to a vehicle leaving
the freeway—are to be removed. Where they cannot be removed, relocated or

4
See, e.g., Lugtu v. California Highway Patrol, supra, 26 Cal.4th at pp. 708-
709 (pickup truck drifted out of the fast lane of a freeway into the median area,
striking another vehicle that a highway patrol officer had pulled over for
speeding); Bryant v. Glastetter (1995) 32 Cal.App.4th 770, 774-775 (tow truck
driver killed while preparing to remove a vehicle from the shoulder of an interstate
highway); Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal.App.4th at p. 1835
(truck driver stopped alongside the highway due to a mechanical problem was
struck by a vehicle veering off the highway); Scott v. Chevron U.S.A. (1992) 5
Cal.App.4th 510, 513-514 (drunken driver drifted off the highway, hit a guardrail
placed to block a fixture on the adjoining property, and veered back across the
center line); Whitton v. State of California (1979) 98 Cal.App.3d 235, 239
(drunken driver drove off the freeway at 45 to 50 miles an hour, colliding with a
California Highway Patrol vehicle stopped on the shoulder). We cite these
decisions here only for their facts, not their holdings.
12


redesigned to bend or break, they are to be protected with guardrails or similar
devices.5 The Ralphs transportation manager in charge of driver training and
discipline testified that when he learned Ralphs drivers were stopping on the
freeway side for nonemergency reasons he instructed them not to do so. He
regarded such stopping as a danger to the drivers themselves and to other
motorists ―should they leave the roadway.‖ The existence of guidelines seeking to
keep the shoulder area free of massive obstacles supports a conclusion the

5
Published guidance from the California Department of Transportation
(CalTrans) is to the same effect. ―An area clear of fixed objects adjacent to the
roadway is desirable to provide a recovery zone for vehicles that have left the
traveled way. Studies have indicated that on high-speed highways, a clear width
of 30 feet from the edge of the traveled way permits about 80 percent of the
vehicles leaving the roadway out of control to recover. Therefore, 30 feet should
be considered the minimum, traversable clear recovery area for freeways and high-
speed expressways.‖ (CalTrans, Traffic Manual (2008) ch. 7, Traffic Safety
Systems, § 7-02.1, p. 7-2, accessible at
<http://www.dot.ca.gov/hq/traffops/saferesr/devices.htm> [as of Feb. 28, 2011].)

We granted plaintiff‘s request to take judicial notice of this section of the
CalTrans Traffic Manual over Ralphs‘s objection that the Traffic Manual was not
introduced as evidence or presented for judicial notice in the trial court. We
consider the CalTrans Traffic Manual here not to supplement the factual record of
the case, but only as it bears on the legal issue of existence of a duty of care in
stopping alongside a freeway. In determining de novo what the law is, appellate
courts routinely consider materials that were not introduced at the trial, including
publications containing expressions of viewpoints and generalized statements
about the state of the world. These are considered not as a substitute for evidence
but as an aid to the court‘s work of interpreting, explaining and forming the law.
As the Law Revision Commission has explained, the Evidence Code does not
restrict courts in their consideration of materials for the purpose of determining the
law: (Cal. Law Revision Com. com., 29B pt. 1 West‘s Ann. Evid. Code (1995
ed.) foll. § 450, p. 420; see also Rest.3d Torts, Liability for Physical and
Emotional Harm, § 7, com. b, p. 79 [―Courts determine legislative facts necessary
to decide whether a no-duty rule is appropriate in a particular category of
cases.‖].) We could have considered the CalTrans manual as background to our
determination of the law without taking formal notice of it; plaintiff‘s request,
while not improper, was thus unnecessary.
13


possibility of vehicles leaving the freeway and colliding with obstacles is
generally foreseeable.
Ralphs cites Whitton v. State of California, supra, 98 Cal.App.3d 235, as
holding a collision between a vehicle leaving the freeway and one stopped
alongside is not foreseeable absent site-specific circumstances making an accident
particularly likely at the location. But Whitton, heard on the plaintiff‘s appeal of a
defense verdict, held only that substantial evidence supported the jury‘s finding
highway patrol officers acted nonnegligently in stopping a speeding motorist and
conducting sobriety tests while stopped on the freeway shoulder (where the patrol
vehicle was hit by a drunken driver, injuring the motorist who had been pulled
over). (Id. at pp. 242-243.) Whitton, in other words, decided a question of breach,
not one of duty.
In the course of its discussion, the Whitton court rejected the plaintiff‘s
contention ―that irrespective of the fact that the jury found on solid and substantial
evidence that the officers acted reasonably, there is some sort of absolute liability
on the part of the CHP officers‖ (Whitton v. State of California, supra, 98
Cal.App.3d at p. 242, italics added) because of a possibility a drunken driver
would crash into the stopped vehicles, reasoning that such a possibility did not
make the officers ―negligent as a matter of law‖ or render them ―insurers of the
motorists‘ safety from drunken drivers‖ (ibid., italics added). No such issue of
negligence as a matter of law or absolute liability is involved here, of course.
Here the jury found defendant‘s driver did act negligently, and defendant contends
it had no duty of care towards plaintiff or her husband. Whitton, as noted, did not
question the existence of such a duty of care. Indeed, as we have previously
explained, the Whitton court ―explicitly recognized that the CHP officers, in
making the traffic stop, had a duty ‗to perform their official duties in a reasonable
manner‘ ‖ (Lugtu v. California Highway Patrol, supra, 26 Cal.4th at p. 717,
14
quoting Whitton, at p. 241), but held the evidence at trial sufficient to show they
had done so.
Ralphs contends CalTrans‘s prior placement of an ―Emergency Parking
Only‖ sign at the accident site showed it was a safe place to park in an emergency,
and hence ―a safe place to stop, period,‖ making a collision there unforeseeable.
Relying on Richards v. Stanley (1954) 43 Cal.2d 60 and its progeny, Ralphs
argues that for an accident to be considered foreseeable there must be ―evidence of
specific circumstances that make an accident in a particular place likely to
happen.‖
We disagree. To be sure, the evidence at trial showed Horn stopped his
tractor-trailer at a location where the freeway was bordered with a dirt area, and
there was no evidence the spot he chose entailed danger beyond the normal risk
posed by parking on the shoulder of a freeway. These circumstances probably
played a role in the jury‘s decision to assign Horn and Ralphs only a minimal
share of responsibility for the collision, but they do not show lack of foreseeability
for the entire category of negligent conduct at issue here. (Ballard v. Uribe,
supra, 41 Cal.3d at p. 573, fn. 6.) As discussed earlier, the foreseeability question
for duty purposes is not whether Horn could reasonably have foreseen an accident
at that exact spot along the highway, but whether it is generally foreseeable that a
vehicle stopped alongside a freeway may be hit by one departing, out of control,
from the road.
Moreover, that emergency parking was permitted where Horn stopped, and
would presumably not have been considered negligent, does not imply a collision
at that spot was unforeseeable. The reasonable care required by negligence law
depends on all the circumstances, and there are many acts prudent to do under the
pressure of exigency that would be negligent but for the emergency. (See, e.g.,
Lane v. Jaffe (1964) 225 Cal.App.2d 172, 176 [evidence supports finding that a
15
driver who parked his car with a flat tire on a narrow median was not negligent].)
The difference between parking a truck alongside the freeway in an emergency
and parking in the same location to eat a meal or make a telephone call does not
lie in the type or degree of foreseeable risk; in both cases it is foreseeable, in the
general sense pertinent to duty, that a vehicle might depart from the freeway and
hit the stopped truck. The difference lies instead on the justification side of the
negligence balance. As plaintiff observes, in the emergency situation ―[s]ociety
tolerates that risk because allowing drivers to stop in an occasional emergency
outweighs the risk.‖ The balance is different—or, at least, juries may find it so—
when the stop is made for discretionary personal purposes.6
Nor do Richards v. Stanley, supra, 43 Cal.2d 60 (Richards), and our
subsequent key-in-the-ignition cases stand for the proposition that absent special
circumstances a collision between a vehicle parked alongside the freeway and one
departing out of control from the freeway is unforeseeable. The Richards line of
cases involves significantly different facts.
In Richards, the defendant had left her parked car unlocked, with the
ignition key in the lock. A thief took the car and, driving carelessly, injured the
plaintiff. (Richards, supra, 43 Cal.2d. at pp. 61-62.) Relying on the principle that
ordinarily, ―in the absence of a special relationship between the parties, there is no
duty to control the conduct of a third person so as to prevent him from causing
harm to another‖ (id. at p. 65), and the corollary rule that ―an automobile owner is

6
In this connection, we note the evidence showed there were two truck stops
in the immediate vicinity of the accident site, one about a mile west of where Horn
stopped and one two or three miles to the east. In light of that evidence, the jury
may well have believed Horn was particularly unjustified in routinely stopping
alongside the freeway at this location for his snack.
16


not ordinarily negligent if he lends his car to another; except in certain special
circumstances‖ (id. at pp. 65-66), we concluded the defendant‘s ―duty to exercise
reasonable care in the management of her automobile did not encompass a duty to
protect plaintiff from the negligent driving of a thief‖ (id. at p. 66). In later
decisions we distinguished Richards, finding special circumstances in the
characteristics of the vehicle or piece of equipment, or in the manner or location in
which a vehicle was left vulnerable to third party driving, that warranted
recognition of a duty. (See, e.g., Ballard v. Uribe, supra, 41 Cal.3d at p. 573;
Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 184-186;
Richardson v. Ham (1955) 44 Cal.2d 772, 776.)
Richards‘s limitation on the duty of a vehicle owner ―to protect third parties
from the unauthorized use of the vehicle by another‖ (Ballard v. Uribe, supra, 41
Cal.3d at p. 572), a limitation derived from the principle that in the absence of a
special relationship there is ordinarily no duty to control the dangerous conduct of
another person (Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at pp.
184-185; Richards, supra, 43 Cal.2d at pp. 65-66), has no application to the type
of negligent conduct at issue in this case. That the risk created by a thief‘s
negligent driving was deemed unforeseeable in Richards does not tend to establish
that the risk created by Horn‘s own negligence in stopping, with inadequate
justification, by the side of a freeway should also be deemed unforeseeable. (See
Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal.App.4th at pp. 1843-1844
[distinguishing Richards, where the defendant‘s own negligence led to the plaintiff
being stopped by the side of the freeway, creating a risk of collision with vehicles
leaving the roadway].)
Richards reasoned in part that the defendant, by leaving her car unlocked
and unguarded, did not increase the risk of an accident over the risk that would
have existed had she intentionally entrusted her car to another. (Richards, supra,
17
43 Cal.2d at p. 66.)7 But parking a tractor-trailer rig alongside the freeway in what
CalTrans calls the ―recovery zone‖ (CalTrans, Traffic Manual, supra, ch. 7,
Traffic Safety Systems, § 7-02.1, p. 7-2), as Horn did, does increase the risk of a
collision over the risk existing when no obstacle is present. Richards, which
concerned conduct that merely allowed a third party to take a vehicle and injure
the plaintiff, does not stand for the proposition that special circumstances should
be required for the instant, very different category of negligent conduct.
As the above discussion suggests, the question of ―the closeness of the
connection between the defendant‘s conduct and the injury suffered‖ (Rowland,
supra, 69 Cal.2d at p. 113) is strongly related to the question of foreseeability
itself. Richards‘s holding could fairly be characterized as resting on a too
attenuated connection between the defendant‘s negligent conduct, leaving the car
unlocked, with the ignition key available, and the plaintiff‘s injury in a collision
caused by a negligently driving thief. (See Bryant v. Glastetter, supra, 32
Cal.App.4th at pp. 781, 782, fn. 2 [noting relationship between foreseeability and
closeness-of-connection factors]; Jackson v. Ryder Truck Rental, Inc., supra, 16
Cal.App.4th at p. 1844 [relating foreseeability and closeness-of-connection
considerations in discussion of Richards].) Generally speaking, where the injury
suffered is connected only distantly and indirectly to the defendant‘s negligent act,
the risk of that type of injury from the category of negligent conduct at issue is

7
One might well question the Richards court‘s apparent assumption that car
thieves, as a class, are no worse drivers than persons to whom vehicles are
intentionally loaned. As Richards is distinguishable on more fundamental points
here, however, we again have no occasion to reconsider its validity. (See Ballard
v. Uribe
, supra, 41 Cal.3d at p. 572, fn. 5, and Palma v. U.S. Industrial Fasteners,
Inc.
, supra, 36 Cal.3d at p. 186, fn. 13 [both noting, but not resolving, questions
about Richards‘s continued viability].)
18


likely to be deemed unforeseeable. Conversely, a closely connected type of injury
is likely to be deemed foreseeable.
Bryant v. Glastetter, supra, 32 Cal.App.4th 770, which Ralphs cites on the
foreseeability factor, is best understood as resting on a lack of close connection
between the defendant‘s conduct and the injury suffered. In Bryant, a tow truck
driver working to remove a vehicle from the shoulder of a freeway was fatally
struck by a passing vehicle. His surviving wife and children sued the original
driver of the vehicle he was removing, who had earlier been pulled over and
arrested for drunken driving at that location. (Id. at pp. 774-775.) The appellate
court held the defendant (the drunken driver) owed no duty to the decedent to
prevent the injury he suffered. The defendant owed decedent, like anyone else
potentially injured by her driving while intoxicated, a duty to refrain from doing so
(id. at p. 779), but the connection between her negligence and the type of injury
that resulted—an errant vehicle striking the tow truck driver called to remove her
car from the freeway—was too indirect and attenuated, for ―there is no logical
cause and effect relationship between that negligence and the harm suffered by
decedent except for the fact that it placed decedent in a position to be acted upon
by the negligent third party.‖ (Id. at p. 782.)8

8
Because the defendant in Bryant clearly owed all users of the road,
including the decedent, a duty to refrain from driving while intoxicated, the court‘s
holding (that she did not owe the decedent a duty of reasonable care to prevent his
injury at the hands of a third party driver while he removed the defendant‘s car
from the freeway shoulder) was one limiting the scope of the defendant‘s duty
rather than a holding of no duty. Whether determinations of this sort—that the
particular injury suffered by the plaintiff was not within the range of risks created
by the defendant‘s negligent conduct—should be made by the court as part of a
duty analysis or by the jury in determining causation is debatable. (See Rest.3d
Torts, Liability for Physical and Emotional Harm, § 29, com. f, p. 500
[acknowledging different approaches and arguing most limitation-of-liability

(footnote continued on next page)
19


Resting as it does on the indirectness of the connection between the
defendant‘s drunken driving and the injury to the plaintiff, Bryant does not assist
Ralphs‘s argument. Unlike the situations in Bryant—and Richards—no third
party negligence intervened between the Ralphs driver‘s negligent conduct and
Adelelmo Cabral‘s injury. Ralphs did not merely ―place[] decedent in a position
to be acted upon by [a] negligent third party.‖ (Bryant v. Glastetter, supra, 32
Cal.App.4th at p. 782). Rather, the conduct of the Ralphs driver that the jury
found negligent, stopping his tractor-trailer alongside an interstate highway for a
nonemergency reason, placed by the roadway a massive, if temporary, obstacle not
previously there. It thus directly created the risk of a collision for any vehicle
leaving the freeway at that point, the same risk that eventuated and resulted in
Cabral‘s death.
Cabral‘s own negligence was, of course, also found to be a cause of the
accident, for which the jury assigned him 90 percent of the comparative fault.
Ralphs, however, disavows any argument that Cabral‘s negligent driving was a
superseding cause cutting off the company‘s own liability, an argument that, in
any event, would appear precluded by our reasoning and conclusion in Lugtu v.
California Highway Patrol, supra, 26 Cal.4th at pages 725-726. We held there
that the negligence of a driver whose vehicle veered into the median and hit a
vehicle negligently pulled over there by the highway patrol was not a superseding

(footnote continued from previous page)
determinations should be made by the jury because of their dependence on the
specific facts of the case]; see also Prosser, Palsgraf Revisited (1953) 52 Mich.
L.Rev. 1, 31-32 [urging courts to proceed with caution in taking cases from juries
on grounds of too attenuated a connection between negligent conduct and injury
suffered, in light of frequent disagreement among courts and commentators over
how close the connection must be].)
20


cause of the stopped driver‘s and passengers‘ injuries: ―The risk of harm posed by
the negligence of an oncoming driver is one of the foremost risks against which
[the highway patrol officer‘s] duty of care was intended to protect.‖ (Ibid.) Any
comparison of the two negligent acts, the officer‘s and the vehicle driver‘s, was to
be done by the jury in apportioning fault, not by the court as a matter of law. (Id.
at p. 726.) To the extent Horn acted negligently in stopping alongside the
freeway, as the jury found he did, it is because he unreasonably created a risk of
precisely the type of event that occurred; the connection between negligent
conduct and injury is thus sufficiently close. In urging us to hold it owed Cabral
no duty because he was injured only as a result of his own negligence, Ralphs asks
us to do under the duty rubric what we would not do in the name of causation in
Lugtu, an invitation we should again decline.
The general foreseeability of a collision between a vehicle leaving the
freeway and one stopped alongside the road, and the relatively direct and close
connection between negligent stopping and such a collision, weigh against
creating a categorical exception to the duty of ordinary care.9
B. Considerations of Public Policy
We ask next whether the public policy factors identified in Rowland—―the
moral blame attached to the defendant‘s conduct, the policy of preventing future
harm, 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 the availability, cost, and prevalence of insurance for the risk involved‖

9
The final Rowland consideration in this group, the degree of certainty
plaintiff was injured, is also satisfied here. Adelelmo Cabral was killed in the
accident, for which plaintiff undisputedly has a remedy in wrongful death if his
death was negligently caused.
21


(Rowland, supra, 69 Cal.2d at p. 113)—justify creating a duty exception
immunizing drivers from potential liability for negligently stopping their vehicles
alongside freeways. We conclude such an exception is not ―clearly supported by
public policy.‖ (Id. at p. 112.)
The overall policy of preventing future harm is ordinarily served, in tort
law, by imposing the costs of negligent conduct upon those responsible. The
policy question is whether that consideration is outweighed, for a category of
negligent conduct, by laws or mores indicating approval of the conduct or by the
undesirable consequences of allowing potential liability.
While a driver who negligently stops his or her vehicle alongside a freeway
does not act in an especially blameworthy manner, Ralphs concedes its driver
could be ticketed where, as here, the area was marked for emergency parking only.
More to the point, no state or federal law encourages or authorizes drivers to stop
their vehicles alongside an interstate highway in order to eat a meal, take a nap,
make a nonemergency telephone call, or conduct other personal business.
Stopping alongside the freeway for such discretionary purposes is hardly a heinous
act, but neither does it receive any special legal protection.
The parties dispute whether parking along a highway without exigent
reason violates Vehicle Code section 21718, subdivision (a), which generally
prohibits unnecessarily parking or stopping a vehicle ―upon a freeway.‖ Ralphs
contends the prohibition applies only to the freeway‘s traffic lanes,10 while

10
See People v. Hernandez (1990) 219 Cal.App.3d 1177, 1184 (implying the
defendant would not have violated predecessor statute had he coasted his stalled
vehicle to the freeway shoulder instead of allowing it to stop in traffic lane); Shuff
v. Irwindale Trucking Co.
(1976) 62 Cal.App.3d 180, 184 (truck driver violated
predecessor statute by parking so as to ―block[] a portion of the freeway‖).
22


plaintiff argues it applies to the freeway shoulder as well.11 We need not decide
the issue, as the question before us is only whether there is any state policy, such
as would clearly justify an exception to the general duty of ordinary care,
promoting or protecting the activity of parking alongside freeways for
nonemergency purposes. We can discern no such state policy.
Nor would recognizing negligence liability place heavy burdens on those in
Ralphs‘s circumstances or on the broader community of freeway users. As noted
earlier, Ralphs‘s driver safety manager testified the company already prohibited its
drivers from making nonemergency stops alongside the freeway. In general,
drivers will be able to find rest areas, truck stops, or other parking areas near
freeway exits where meals can be eaten, telephone calls made, luggage rearranged
in the vehicle, and so on. (In the present case, as previously noted, Horn could
have stopped at either of two truck stops in the immediate vicinity. (See ante,
p. 16, fn. 6.)) In unusual circumstances where no such exits are available for long
stretches, a stop alongside the freeway is less likely to be found negligent.
Ralphs argues that ―creating a common-law duty to avoid stopping near a
freeway for nonemergencies would adversely impact roadway safety‖ because
tired or hungry drivers, uncertain whether or not their situations qualify as an
emergency, might continue driving even when it is unsafe to do so. This argument
materially misstates the issue. The question is not whether a new duty should be

11
See Tannyhill v. Pacific Motor Trans. Co. (1964) 227 Cal.App.2d 512, 516
(expressly assuming predecessor statute was violated by parking on a freeway
shoulder); Lane v. Jaffe, supra, 225 Cal.App.2d at pages 175-177 (impliedly
assuming predecessor statute would be violated by parking on a freeway median
without statutorily adequate justification); Patterson v. Delta Lines, Inc. (1956)
147 Cal.App.2d 160, 163 (holding Veh. Code section requiring vehicle parked or
standing ― ‗upon a highway‘ ‖ at night to display a rear light applies to a vehicle
parked on the highway shoulder).
23


created, but whether an exception to Civil Code section 1714‘s duty of exercising
ordinary care in one‘s activities, including operation of a motor vehicle, should be
created. And the duty at issue is not one of avoiding all nonemergency freeway
stops, but the duty to use reasonable care in choosing whether, when and where to
stop alongside a freeway. This duty applies in both emergencies and
nonemergencies, though the degree of urgency created by the circumstances is, of
course, likely to be crucial in determining whether the driver exercised reasonable
care. Moreover, as just discussed, tired or hungry drivers generally have the
option of exiting the freeway and stopping to eat or rest where their vehicles will
not pose a potential danger to other drivers. Because the duty at issue is only that
of ordinary care, our rejection of the exemption Ralphs seeks does not mean all
parking alongside freeways can result in negligence liability; whether the duty of
ordinary care has been breached depends on the particular circumstances,
including those aggravating or mitigating the risk created and those justifying the
decision to stop on the shoulder or median rather than exit the freeway. Ralphs
offers no support for its assertion that juries cannot be trusted to weigh these
considerations under the particular facts of each case, as they do in deciding
negligence generally.
Finally, Ralphs maintains recognizing a duty to exercise care in parking
alongside a freeway ―would have far-reaching consequences,‖ allowing for
potential liability for a driver who parks alongside ―a suburban or rural road‖ or a
landowner who places a fixed object such as a light post or mailbox next to a road
if these vehicles or objects were later hit by a drunken or drowsy motorist on the
road. Ralphs‘s parade of horribles is unpersuasive for two reasons. First, the
consequences Ralphs posits do not follow from declining to create an exemption
from potential liability here. As plaintiff observes, ―freeways are radically
different in their purpose and design from other public roads,‖ making
24
extrapolation of liability rules from freeways to other urban, suburban, or rural
roads an uncertain exercise at best.
Second, the consequences posited are not necessarily absurd or
unthinkable. California juries and courts have, in certain circumstances, imposed
liability for collisions where the defendant has negligently parked a vehicle, or
negligently placed an obstacle such as a street light pole, along a road other than a
freeway. (See, e.g., Laabs v. Southern California Edison Co. (2009) 175
Cal.App.4th 1260 [light pole installed too close to curb]; Flynn v. Bledsoe Co.
(1928) 92 Cal.App. 145 [truck parked at wrong angle on an urban street].)
Whether or not all such cases were correctly decided, recognition of potential
liability for placement of obstacles alongside roadways is clearly not the ―radical
expansion‖ Ralphs claims it is.
The Court of Appeal majority below similarly claimed that potential
liability, if recognized here, would have no end. The dissenting justice‘s response
was a cogent one: ―[T]he majority asks, ‗If a duty is imposed under the facts of
this case, where does it end?‘ [Citation.] In turn, I ask: If a duty is not imposed
under the facts of this case, then where does it begin?‖ Indeed, one might ask
under what circumstances Ralphs would have us recognize a duty of ordinary care
in stopping alongside a freeway, if not in these. If stopping 16 feet from the traffic
lanes exempts a driver from the duty of care, does the same hold for parking six
feet from the lane? Six inches? If we are to create immunity for a truck driver
stopping for a few minutes to have a snack, should we also do so for one who
decides to sleep for hours by the roadside rather than pay for a motel room?
Would the categorical exemption Ralphs seeks still apply if a tractor-trailer driver
parked an inch from the traffic lanes, on the outside of a curve, leaving the rig
there all night without lights? To ask these questions is to see why a categorical
exemption is not appropriate. The duty of reasonable care is the same under all
25
these circumstances; what varies with the specific facts of the case is whether the
defendant has breached that duty. That question, as discussed earlier, is generally
one to be decided by the jury, not the court.12
II. Causation
Ralphs contends the evidence at trial was insufficient to show Horn‘s
negligent stopping of his tractor-trailer alongside the freeway was a but-for cause
of the collision, and plaintiff thus failed to show Horn‘s negligent conduct was a
substantial factor in causing Cabral‘s death. (See Mitchell v. Gonzales (1991) 54
Cal.3d 1041, 1052.) The company also argues that, for reasons of public policy,
Horn‘s stopping by the freeway should, as a matter of law, be deemed not a
proximate cause of the collision. (See Ferguson v. Lieff, Cabraser, Heimann &
Bernstein (2003) 30 Cal.4th 1037, 1045.)
On the question of cause in fact, Ralphs maintains the trial court should
have excluded the opinion of plaintiff‘s accident reconstruction expert that
Adelelmo Cabral was braking and turning back toward the freeway when his
pickup truck collided with Horn‘s tractor-trailer, because it rested on a
nontestifying highway patrol officer‘s report; without that testimony, Ralphs
argues, the remaining evidence is insufficient to support the jury‘s finding. We
need not, however, decide whether the trial court erred in admitting the expert
opinion. Substantial evidence independent of that opinion supports the jury‘s
implied finding that, had Horn‘s tractor-trailer not been stopped where it was,

12
The final Rowland consideration in this group, the availability of insurance,
is clearly satisfied. (Rowland, supra, 69 Cal.2d 113.) Insurance for operation of
motor vehicles is generally available and, indeed, required, and there is no reason
to believe its cost or prevalence will be significantly affected by declining to
create the duty exception Ralphs seeks.
26


Cabral likely would have come to a stop without a fatal collision like that which
occurred. The driver behind Cabral testified Cabral‘s pickup was traveling
parallel to the freeway at the time of the collision. Other evidence showed that in
the direction of Cabral‘s travel there was a large expanse of hardpacked dirt
without obstacles for Cabral to hit, ending with a gravel shoulder at a freeway on-
ramp. The nearest structure was off to the right, not in the direction of Cabral‘s
travel, and more than 400 feet away. Viewing this evidence in the light most
favorable to plaintiff (Sweatman v. Department of Veterans Affairs, supra, 25
Cal.4th at p. 68), we conclude a jury could reasonably find no fatal collision was
likely had Horn‘s tractor-trailer rig not been stopped in the shoulder area, making
Horn‘s negligent conduct a substantial factor in causing Cabral‘s death.
Ralphs further contends Horn‘s negligent conduct cannot be deemed a
cause of the collision, either as a factual matter or under a policy-oriented
proximate cause analysis, because the same collision would have occurred had
Horn stopped for emergency rather than personal reasons. ―Because the same
injuries would have occurred whether or not Horn was negligent,‖ Ralphs argues,
―as a matter of law his negligence cannot be deemed a proximate cause of Cabral‘s
injuries.‖ Again, we disagree. The negligent conduct plaintiff claimed caused her
husband‘s death was Horn‘s stopping his tractor-trailer rig at the site. The
counterfactual question relevant to but-for causation, therefore, is what would
have happened if Horn had not stopped his tractor-trailer rig there, not what would
have happened if Horn had had a better reason to stop.
Causation in fact and justification are generally independent considerations
in assessing liability. A justified shooting, for example, can be as fatal as an
unjustified one, yet, as plaintiff observes, ―If Horn shot and killed Cabral in cold
blood, he would not be able to escape liability by arguing that – under different
circumstances – he could have been acting in self-defense.‖ Similarly, stopping
27
by the side of a freeway for an emergency might be just as dangerous to other
motorists as stopping for a snack, but an emergency stop will not create liability
because it is justified. While potential liability differs in the two situations
(emergency and nonemergency), causation does not. Under the evidence at trial, a
jury could find Horn‘s stop was a substantial factor in causing the collision
whether or not it was made for an emergency—though if made for an emergency,
the stop would presumably not have been found negligent.
Capolungo v. Bondi (1986) 179 Cal.App.3d 346, upon which Ralphs relies,
does not support its argument. The defendant in Capolungo parked for several
hours in a zone restricted by city ordinance to short-term parking for freight
loading. The plaintiff, hit by a moving vehicle while swerving her bicycle to
avoid the defendant‘s parked car, alleged negligence per se based on the parking
ordinance violation. (Id. at pp. 348-349.) The appellate court rejected that claim,
upholding summary judgment for the defendant, on the ground that the ordinance
was not designed to prevent an accident of the type that occurred or to protect a
class of persons that included the plaintiff, both elements of a negligence per se
action. (Id. at pp. 350-354; see Evid. Code, § 669.) Parking time limits (in
contrast to prohibitions on parking) are designed to maintain access to the space
by multiple vehicles—to ensure one vehicle does not monopolize the space—not
to keep traffic lanes unobstructed; indeed, such a time limit ―clearly contemplates
that the zone may be legally in use by vehicle after vehicle so that traffic in that
lane might be constantly obstructed.‖ (Capolungo, at p. 352.) In a brief
discussion, the court then held that even if the plaintiff could establish the other
elements of her action, causation could not be shown because the plaintiff ―would
have had to swerve around the car in exactly the same manner whether it had been
parked there five minutes or five hours.‖ (Id. at p. 354.)
28
Capolungo‘s reasoning on causation is not entirely clear. The court‘s
assertion that the accident would have happened in the same way if the defendant
had obeyed the ordinance‘s time limit is incorrect if taken literally as a statement
of fact; had the defendant removed his vehicle after five minutes, it would not in
fact have been there when the plaintiff approached the location on her bicycle. To
the extent the Capolungo court meant the plaintiff could not show causation
because the parking space was one that, under the parking ordinance, was intended
and likely to be more or less continually occupied, its reasoning has no application
here. While emergency parking was permitted in the area where Horn stopped his
tractor-trailer, no evidence suggested the area was expected to ―be legally in use
by vehicle after vehicle‖ as in Capolungo v. Bondi, supra, 179 Cal.App.3d at page
352. To the extent the court‘s conclusion rested on a policy ground—that
statutory limits on negligence per se should not be bypassed through an expansive
construction of proximate causation—it also has no application, as the jury here
was not instructed and did not rest its verdict on a theory Ralphs was negligent as
a matter of law. Capolungo is therefore unpersuasive in the circumstances.
29
CONCLUSION AND DISPOSITION
We conclude, contrary to the decision of the Court of Appeal, that Ralphs
was not entitled to judgment notwithstanding the verdict on grounds either of lack
of legal duty or insufficient proof of causation. The judgment of the Court of
Appeal is therefore reversed.
WERDEGAR, J.
WE CONCUR:

CANTIL-SAKAUYE, C.J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.


30
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Cabral v. Ralphs Grocery Company
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 179 Cal.App.4th 1
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S178799
Date Filed: February 28, 2011
__________________________________________________________________________________

Court:

Superior
County: San Bernardino
Judge: Kenneth Andreen*

__________________________________________________________________________________

Counsel:

Bell, Orrock & Watase, Orrock, Popka, Fortino & Brislin, Stanley Orrock; Greines, Martin, Stein &
Richland, Timothy T. Coates and Lillie Hsu for Defendant and Appellant.

Shernoff Bidart Darras Echeverria, Darraslaw, Frank N. Darras, Lissa A. Martinez; Donahue & Horrow,
Michael B. Horrow; Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Plaintiff and Respondent.

Smith & McGinty and Daniel U. Smith for Consumer Attorneys of California as Amicus Curiae on behalf
of Plaintiff and Respondent.

*Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Lillie Hsu
Greines, Martin, Stein & Richland
5900 Wilshire Boulevard, 12th Floor
Los Angeles, CA 90036
(310) 859-7811

Jeffrey Isaac Ehrlich
Ehrlich Law Firm
411 Harvard Avenue
Claremont, CA 91711
(909) 625-5565

32


Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issues: (1) Does a big-rig truck driver owe a duty of care to freeway motorists not to park for non-emergency reasons in an "Emergency Parking Only" area at the side of a freeway? (2) Was the driver's act of parking in the "Emergency Parking Only" area not a substantial factor, as a matter of law, in causing plaintiff's injuries in this case?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 02/28/201151 Cal. 4th 764, 248 P.3d 1170, 122 Cal. Rptr. 3d 313S178799Review - Civil Appealsubmitted/opinion due

GONZALEZ v. SOUTHERN CALIFORNIA GAS (S188956)


Parties
1Cabral, Maria (Plaintiff and Respondent)
Represented by Frank N. Darras
Darras Law
3257 E. Guasti Road, Suite 300
Ontario, CA

2Cabral, Maria (Plaintiff and Respondent)
Represented by Michael Brian Horrow
Donahue & Horrow, LLP
1960 E. Grand Avenue, Suite 1215
El Segundo, CA

3Cabral, Maria (Plaintiff and Respondent)
Represented by Lissa Anne Martinez
Shernoff Bidart et al.
3257 E. Guasti Road, Suite 300
Ontario, CA

4Cabral, Maria (Plaintiff and Respondent)
Represented by Jeffrey Isaac Ehrlich
Ehrlich Law Firm
411 Harvard Avenue
Claremont, CA

5Ralphs Grocery Company (Defendant and Appellant)
Represented by Stanley O. Orrock
Bell Orrock & Watase, Inc.
1533 Spruce Street, Suite 100
Riverside, CA

6Ralphs Grocery Company (Defendant and Appellant)
Represented by Lillie Hsu
Greines Martin Stein & Richland, LLP
5900 Wilshire Boulevard, 12th Floor
Los Angeles, CA

7Consumer Attorneys of California (Amicus curiae)
Represented by Daniel U. Smith
Attorney at Law
P.O. Box 278
21 Rancheria Road
Kentfield, CA


Opinion Authors
OpinionJustice Kathryn M. Werdegar
ConcurChief Justice Tani Cantil-Sakauye, Justice Carlos R. Moreno, Justice Carol A. Corrigan, Justice Joyce L. Kennard, Justice Marvin R. Baxter, Justice Ming W. Chin

Dockets
Dec 18 2009Petition for review filed
Plaintiff and Respondent: Cabral, MariaAttorney: Jeffrey Isaac Ehrlich  
Dec 18 2009Record requested
 
Dec 22 2009Received Court of Appeal record
  two doghouses
Dec 28 2009Request for depublication (petition for review pending)
Plaintiff and Respondent: Cabral, MariaAttorney: Jeffrey Isaac Ehrlich  
Jan 8 2010Answer to petition for review filed
Defendant and Appellant: Ralphs Grocery CompanyAttorney: Lillie Hsu  
Jan 21 2010Petition for review granted
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jan 28 2010Certification of interested entities or persons filed
  Ralphs Grocery, appellant by Lillie Hsu, counsel
Jan 29 2010Certification of interested entities or persons filed
  Maria Cabral, respondent by Jeffrey Ehrlich, counsel
Feb 10 2010Request for extension of time filed
  respondent requesting extension until April 20, 2010 to file opening briefs on the merits. by Jeffrey Isaac Ehrlich, counsel
Feb 22 2010Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including April 20, 2010. No further extensions are contemplated.
Apr 20 2010Change of contact information filed for:
  Frank Darras of Darras Law, counsel for Maria Cabral.
Apr 22 2010Opening brief on the merits filed
Plaintiff and Respondent: Cabral, MariaAttorney: Jeffrey Isaac Ehrlich   crc.8.25(b)
Apr 22 2010Request for judicial notice filed (Grant or AA case)
Plaintiff and Respondent: Cabral, MariaAttorney: Jeffrey Isaac Ehrlich   crc.8.25(b)
May 6 2010Opposition filed
Defendant and Appellant: Ralphs Grocery CompanyAttorney: Lillie Hsu   opposition to request for judicial notice
May 6 2010Request for extension of time filed
  Appellant - Ralphs Grocery Company requesting extension until June 21, 2010 to file answer brief on the merits. by Lillie Hsu, counsel
May 12 2010Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including June 21, 2010.
Jun 22 2010Answer brief on the merits filed
Defendant and Appellant: Ralphs Grocery CompanyAttorney: Lillie Hsu   crc.8.25(b)
Jul 1 2010Request for extension of time filed
  respondent requesting extension until August 2, 2010 to file reply brief on the merits. by Jeffrey Isaac Ehrlich, counsel
Jul 7 2010Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including August 2, 2010.
Aug 3 2010Reply brief filed (case fully briefed)
Plaintiff and Respondent: Cabral, MariaAttorney: Jeffrey Isaac Ehrlich   crc.8.25(b)
Sep 3 2010Application to file amicus curiae brief filed
  Consumer Attorneys of California in support of respondent. by Daniel U. Smith, counsel
Sep 9 2010Permission to file amicus curiae brief granted
  The application of Consumer Attorneys of California for permission to file an amicus curiae brief in support of respodent is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Sep 9 2010Amicus curiae brief filed
Amicus curiae: Consumer Attorneys of CaliforniaAttorney: Daniel U. Smith   Consumer Attorneys of California in support of respondent.
Sep 28 2010Response to amicus curiae brief filed
Defendant and Appellant: Ralphs Grocery CompanyAttorney: Lillie Hsu  
Jan 6 2011Case ordered on calendar
  to be argued Tuesday, February 8, 2011, at 9:00 a.m., in San Francisco
Jan 11 2011Request for judicial notice granted
  Plaintiff's request for judicial notice, filed April 22, 2010, is granted.
Jan 18 2011Change of contact information filed for:
  Jeffrey Isaac Ehrlich address - counsel for respondent.
Feb 8 2011Cause argued and submitted
 
Feb 25 2011Notice of forthcoming opinion posted
  To be filed on Monday, February 28, 2011 at 10 a.m.

Briefs
Apr 22 2010Opening brief on the merits filed
Plaintiff and Respondent: Cabral, MariaAttorney: Jeffrey Isaac Ehrlich  
Jun 22 2010Answer brief on the merits filed
Defendant and Appellant: Ralphs Grocery CompanyAttorney: Lillie Hsu  
Aug 3 2010Reply brief filed (case fully briefed)
Plaintiff and Respondent: Cabral, MariaAttorney: Jeffrey Isaac Ehrlich  
Sep 9 2010Amicus curiae brief filed
Amicus curiae: Consumer Attorneys of CaliforniaAttorney: Daniel U. Smith  
Sep 28 2010Response to amicus curiae brief filed
Defendant and Appellant: Ralphs Grocery CompanyAttorney: Lillie Hsu  
Brief Downloads
application/pdf icon
2-appellants-answer-to-petition--for-review.pdf (174456 bytes) - Appellants Answer to Petition for Review
application/pdf icon
4-respondents-request-for-judicial-notice.pdf (104018 bytes) - Respondents Request for Judicial Notice
application/pdf icon
5-appellants-opposition.pdf (356391 bytes) - Appellants Opposition
application/pdf icon
6-appellants-answer-brief-on-the-merits.pdf (546744 bytes) - Appellants Answer Brief on the Merits
application/pdf icon
CAOC Cabral v. Ralphs Amicus Brief.pdf (166734 bytes) - Application and Brief of Amicus Curiae Consumer Attorneys of CA
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 24, 2011
Annotated by Laura Finley

Facts:

On February 27, 2004 a truck driver employed by Ralphs Grocery Company (Ralphs) stopped his tractor-trailer on the shoulder of Interstate 10 to eat a snack. This portion of the road was an “Emergency Parking Only” area, and the truck driver saw the sign designating it as such when he stopped. The decedent, Adelelmo Cabral, was driving home alone from work in his pickup truck eastbound on Interstate 10 at this same time. A witness driving behind the decedent said he saw the pickup swerve within its lane, change lanes abruptly and cross onto the shoulder of the Interstate. The pickup traveled parallel to the traffic lanes on the Interstate until it hit the rear of the Ralphs trailer. The witness said he did not see break lights or an attempt to slow down before the impact. A toxicology report on the decedent was negative, and two expert witnesses suggested that the decedent had either fallen asleep at the wheel or was suffering from an unknown medical condition at the time of the accident.

Procedural History:

The Decedent’s widow sued Ralphs for wrongful death on August 26, 2005 alleging that the Ralphs truck driver caused her husband’s death by stopping on the shoulder of the Interstate for nonemergency reasons. The jury found both the Decedent and the truck driver negligent, assigning 90 percent of the responsibility to the decedent and 10 percent of the responsibility to the defendant. Total economic damages of $480,023 were awarded to the plaintiff. Ralphs appealed both the jury’s verdict and the trial court’s denial of its motion for judgment notwithstanding the verdict. The Court of Appeals reversed the lower court’s decision, stating that Ralph’s was entitled to judgment notwithstanding the verdict because it owed no duty of reasonable care to the decedent. The California Supreme Court granted plaintiff’s petition for review.

Issues:

1. Since a duty of reasonable care for the safety of others applies to the operation of a motor vehicle, does a categorical exception to this general duty exist to exempt drivers from potential liability to other freeway users for stopping for non-emergency reasons alongside a freeway?
2. Does substantial evidence support the jury’s verdict that the truck driver caused, as a matter of law, the accident at issue by stopping his vehicle on the side of the road?

Holding:

The Court affirmed the holding of the trial court. The Court found that the defendant was not entitled to a categorical exception to the general duty of reasonable care because 1) the accident was foreseeable, 2) there was a close connection between the conduct of the defendant and the injury to the Decedent and 3) there were minimal negative public policy consequences to assigning liability. In addition, the Court found that the defendant was the proximate cause of the accident.

Analysis:

a. Duty

Since the Court recognized that a general duty exists to exercise reasonable care for the safety of others when operating a motor vehicle, they looked to the factors embodied in California Civil Code section 1714 to establish whether a categorical exception from this general duty was justified for drivers parking alongside a freeway. The Court found that the most relevant factors included: foreseeability of harm to the plaintiff, the closeness of the connection between the defendant’s conduct and the injury suffered, and the consequences to the community of imposing a duty to exercise care with resulting liability for breach. For purposes of a categorical exception, the Court reasoned that the question of foreseeability should not be whether the truck driver could reasonably have foreseen an accident at that exact spot on the freeway. Instead, the question should be whether it is generally foreseeable that a vehicle stopped on the shoulder may be hit by one departing, out of control, from the road. The Court then reasoned that both the plethora of court decisions involving similar collisions and the existence of guidelines seeking to keep the shoulder area free of massive obstacles supports the conclusion that the accident at hand was generally foreseeable.

The Court then observed that there was a direct connection between the Decedent’s death and the defendant’s conduct. The defendant argued that the Decedent’s negligent driving was a superseding cause of his injuries, but the Court countered by citing its decision in Lugtu v. California Highway Patrol, (2001) 26 Cal. 4th 703. In that case, the Court held that the negligence of a driver whose vehicle veered into the median and hit a vehicle negligently pulled over there by the highway patrol was not a superseding cause of the stopped driver’s injuries. The Court also distinguished Bryant v. Glastetter, (1995) 32 Cal.App.4th 770, and Richards v. Stanley, 43 Cal.2d 60, by noting that both cases involved third party negligence as an intervening factor between the plaintiff’s injury and the defendant’s conduct. No such third party intervention existed in this case; the Ralphs driver did much more than merely place the Decedent in a position to be acted upon by a negligent third party.

The Court also found that there were minimal negative public policy consequences to not creating an exception. To come to this conclusion, the Court first noted that while not a heinous act in itself, there are no laws in existence that promote the behavior of stopping alongside the freeway. In addition, the Court found no undue burden on the defendant to not pull over on the road, because the Ralphs safety manager testified that the company already prohibited its drivers from making nonemergency stops alongside the freeway. Lastly, the Court concluded that there were not far reaching negative consequences to imposing liability. In fact, liability had already been imposed for collisions where the defendant negligently parked a vehicle along roads other than freeways. Consequently, recognition of potential liability for placement of obstacles alongside roadways was not the radical expansion that Ralphs claimed. Since the Court found foreseeability, a direct connection between the defendant’s conduct and the Decedent’s injury and minimal public policy implications, the Court held that an exception to the general duty was not justified.

b. Causation

The Court held that there was substantial evidence proving that the defendant’s having stopped his truck on the shoulder was the but-for cause of the accident. Evidence showed that the nearest structure on the shoulder was off to the right, not in the direction of the Decedent’s travel, and more than 400 feet away. As such, the Court stated that it was reasonable for the jury to conclude that no fatal collision was likely had the driver’s tractor-trailer not been stopped alongside the freeway, making his negligent conduct a substantial factor in the Decedent’s death. The defendant argued that the driver’s negligent conduct couldn’t be deemed a cause of the collision because the same collision would’ve occurred had he stopped for emergency reasons. The Court, however, found that the defendant’s argument only looked to potential liability and not causation. The Court reasoned that even if the driver had stopped for emergency reasons, his doing so would still be the cause in fact of the accident.

Thus, the Court held that Ralphs was not entitled to judgment notwithstanding the verdict on grounds for either a lack of legal duty or insufficient proof of causation.

Links to Similar Cases:

Jackson v. Ryder Truck Rental, Inc., (1993) 16 Cal.App.4th 1830
http://law.justia.com/cases/california/caapp4th/16/1830.html

Lugtu v. California Highway Patrol, (2001) 26 Cal. 4th 703
http://scocal.stanford.edu/opinion/lugtu-v-california-highway-patrol-32208

Bryant v. Glastetter, (1995) 32 Cal.App.4th 770
http://law.justia.com/cases/california/caapp4th/32/770.html

Richards v. Stanley, (1954) 43 Cal.2d 60
http://scocal.stanford.edu/opinion/richards-v-stanley-29617

Capolungo v. Bondi, (1986) 179 Cal.App.3d 346
http://law.justia.com/cases/california/calapp3d/179/346.html

Tags:

Cabral, Ralphs Grocery Company, vehicles at rest, use of highway, duty of reasonable care, wrongful death, injuries from operation

By Laura Finley