In Anthony Toste v. CalPortland Construction, et al. (No. B256946, filed 3/2/16), the California Court of Appeal for the Second Appellate District affirmed the power of the jury to determine causation as an issue of fact in a wrongful death action involving a construction truck driver who tested positive for marijuana use after backing his truck over the project’s general contractor. In reaching its decision, the Court of Appeal considered whether a clear violation of federal law left room for deliberation on the issue of causation.
This action arose from an accident occurring on a road paving project in which a truck driver working for a rock transport company backed over the project’s general contractor, who subsequently died. The driver had a high level of marijuana in his system at the time of the accident, which he explained was used two days before to treat a headache. The decedent’s son brought a wrongful death action against the driver and the related construction companies. Evidence presented at trial reflected the driver showed no signs of impairment at the time of the accident. Further, an accident reconstruction expert testified the decedent was standing in a blind spot behind the truck and the truck’s back-up alarm was audible for 200 feet.
Prior to their deliberation, the trial court instructed the jury on Federal Motor Carrier Safety Regulation 49 CFR § 382.213, which prohibits truck drivers from using Schedule I drugs. The jury found the driver was negligent, but that his negligence was not a substantial factor in causing the decedent’s harm. A motion for new trial was subsequently brought and denied. The trial court awarded expert witness fees in accordance with the defendant parties’ pretrial offers to compromise made pursuant to Code of Civil Procedure (CCP) § 998.
On appeal, the decedent’s son argued that because the jury found the driver was negligent after being instructed on the aforementioned federal regulation, causation must have also been found as a matter of law. The Court of Appeal disagreed, stating the regulation could be used to prove a duty of care, but that courts have long abandoned a liability without causation theory. It found that based on the facts presented, the jury could have reasonably concluded the fatality was caused by the conduct of the decedent rather than the driver, and “when reasonable minds can differ as to the inferences to be drawn from the evidence, causation must be decided by the jury as an issue of fact.” As such, the Court found no basis to determine the jury verdict was unsupported or that the trial court abused its discretion in denying the motion for new trial. Notably, the Court further found that recent changes to CCP § 998 precluding the award of pre-offer expert witness fees apply to cases pending on appeal, and accordingly reversed the trial court’s award to the extent it granted fees incurred prior to the offer dates.
Overall, the Toste opinion provides an important reminder that statutory violations alone do not establish causation for injuries, and that in the event of a favorable judgment, parties can no longer seek pre-offer expert witness fees pursuant to CCP § 998.
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