What Supports a Wrongful Death Claim in California Related to a Job Site?

This question was answered in the recent California appellate decision in Lorenzo v. Calex Engineerging, Inc., where Plaintiffs Francisco Lorenzo and Angelina Nicolas appealed from a grant of summary judgment in favor of defendants Core/Related Grand Avenue Owner, LLC (Core/Related), Tishman Construction Corporation of California (Tishman), and Calex Engineering, Inc. (Calex).

Defendants were, respectively, the owner, general contractor, and excavation contractor for a construction project in downtown Los Angeles.

Plaintiffs sued defendants for wrongful death after Stanley Randle, a subcontractor’s employee driving a dump truck from his home to a staging area, struck and killed plaintiffs’ two minor daughters, Amy and Marlenne Lorenzo.

Plaintiffs presented evidence that Core/Related represented to the City of Los Angeles (the City) that all dump trucks would be staged on-site at the construction project, with no more than 20 trucks present at a time.

The City granted an excavation permit on that basis, with the condition that staging be on-site only. There was evidence that public safety was an important factor in the City’s approving the on-site construction site and related hauling routes.

In contravention of that permit and Core/Related’s representations to the City, defendants’ trucking subcontractor set up an off-site staging area miles from the construction project.

On the day of the accident, Calex ordered 90 dump trucks to that unpermitted staging area.

Plaintiffs’ theory of liability is defendants’ decision to establish an unpermitted staging area and direct 90 dump trucks to it was negligent, and led to the death of the two girls.

The trial court granted summary judgment upon concluding defendants did not owe a duty of care to the decedents.

The appellate court disagreed.

Civil Code section 1714 establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.

The California Supreme Court has recognized, however, that public policy concerns may justify absolving defendants of that general duty of care, and has provided a series of factors, commonly called the Rowland factors, for courts to consider when deciding whether to apply such an exemption.

Here, defendants had a general duty to conduct their construction project with reasonable care for the safety of others.

The question is whether the Rowland factors justify an exception to that duty when defendants implement an unpermitted staging area for construction vehicles.

The appellate court answered that question in the negative.

Defendants’ decision to establish an unpermitted dump truck staging area, without the City assessing the site and the streets approaching it for safety or implementing additional safety measures, foreseeably created a risk a truck driving to the unpermitted area would strike a pedestrian.

Although the direct cause of the accident was the truck driver, case law makes clear a defendant nonetheless owes a duty to the extent the defendant’s negligence increases the risk of the third party’s conduct, in this case, unsafe driving through streets that have not been assessed for safety given the location and usage of the unpermitted staging site.

Defendants were morally blameworthy for violating their permit and misrepresenting their staging plan to the City. Recognizing a duty in this case will not unduly burden developers and contractors—rather, it will encourage them to comply with their permitting obligations.

Core/Related is the owner of a three-acre parcel of real property in Los Angeles bounded by Grand Avenue, First Street, Second Street, and Olive Street. In 2018, Core/Related planned to construct two mixed-use high-rise towers on the property (the project).

The City required Core/Related to obtain a haul route and soil exportation permit to excavate and haul dirt away from the project site (the exportation permit).

As part of the permit application, the City required Core/Related to specify the location of a truck staging area—the location where trucks wait before receiving excavated dirt from the site—and the number of trucks that will be staged.

The City also required a haul route map showing the project site, all involved streets along the hauling route, and the direction of travel to and from the end of the route.

In determining whether to grant the permit, the City will consider, among other matters, the effect of the hauling plan on vehicular and pedestrian traffic in the affected area.

In response to an application, the City’s Department of Public Works may recommend conditions to be imposed on the hauling operations to protect the public health, safety and welfare, and the City’s Department of Transportation may recommend any traffic control measures deemed necessary to protect the public health, safety and welfare.

A City engineer testified the relevant City agencies, upon review of the permit application, might say they don’t like a proposed staging area, or that the staging area is not allowed or allowed only with a set number of trucks.

The City might also determine that only on-site staging is permissible. The engineer stated that safety of the public is a factor in approving a staging plan.

In its application for the exportation permit, Core/Related represented that the truck staging area would be at the project site, and that no more than 20 trucks would be staged on-site at one time.

During the City’s review of the application, an agent for Core/Related responded to a City engineer’s inquiry about a staging plan by stating that all trucks hauling the dirt will be staging on site foot print and that a secondary staging area would not be needed.

The record does not indicate the City’s application process sought, nor did Core/Related provide, descriptions or maps of routes that truck drivers would travel to the staging area at the project site prior to commencing a day’s work. The City approved the exportation permit application on the condition, among others, that staging be allowed on site only.

Calex hired Commodity Trucking (Commodity) to broker trucks to haul dirt away from the project site.

Commodity has a “For Hire” motor carrier permit issued by the California Department of Motor Vehicles and is licensed by the United States Department of Transportation as a common carrier of property (except household goods) by motor vehicle.

Commodity, which owned about 70 dump trucks at the time, subcontracted with Los Morales to provide additional trucks for the project. According to the contract, Los Morales and its employees were not employees of Commodity. Los Morales employed Randle as a dump truck driver.

Notwithstanding the condition in the exportation permit requiring that truck staging for the project be on-site, Commodity selected and used the intersection of 23rd Street and Broadway in Los Angeles as a staging area for the project’s dump trucks.

On the morning of April 4, Randle drove an empty double bottom dump truck owned by Los Morales from his residence toward the staging area. A bottom dump truck is a truck with a trailer into which dirt is loaded from above the trailer and from which dirt is released from the trailer’s underside.

A double bottom dump truck has two such trailers and can be 50 to 60 feet long. According to one witness, these trucks have considerable blind spots and require the driver to make very wide right turns.

As he made a right-hand turn onto northbound Broadway—14 blocks away from 23rd and Broadway—he struck and killed Amy and Marlenne.

Although the circumstances surrounding the children’s deaths were not clear in the record, the parties agreed that the deaths were caused, at least in part, by Randle’s negligence.

Defendants provided evidence that the incident resulted in Randle’s conviction of two counts of vehicular manslaughter.

In July 2019, plaintiffs filed the underlying complaint for wrongful death based on a single cause of action for negligence against Los Morales, Randle, and Doe defendants.

The complaint alleged the defendants were negligent because they owned, leased, hired, maintained, inspected, entrusted, delegated, managed, regulated, controlled, directed, entrusted and operated the subject tractor trailer combination so as to cause it to collide with Amy and Marlenne.

Plaintiffs brought an action for wrongful death, the elements of which are a tort, such as negligence, and resulting death.

To establish a cause of action for negligence, the plaintiff must show that the defendant had a duty to use due care, that the defendant breached that duty, and that the breach was the proximate or legal cause of the resulting injury.

Here, defendants’ motions for summary judgment addressed only the first element, duty.

Recovery for negligence depends as a threshold matter on the existence of a legal duty of care.

Whether such a duty exists and the scope of that duty are questions of law, which the appellate courts consider de novo.

Civil Code section 1714 sets forth, in relevant part, the general rule of duty: Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

This statute establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.

The rule of Civil Code section 1714, though broad, has limits.

It imposes a general duty of care on a defendant only when it is the defendant who has created a risk of harm to the plaintiff, including when the defendant is responsible for making the plaintiff’s position worse.

The law does not impose the same duty on a defendant who did not contribute to the risk that the plaintiff would suffer the harm alleged. Generally, the person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another from that peril.

Even when Civil Code section 1714 otherwise would apply, public policy concerns may outweigh that broad principle and justify a departure from Civil Code section 1714’s default rule of duty.

Plaintiffs’ theory of liability is that defendants negligently arranged and/or approved an unpermitted staging area requiring dump trucks to maneuver through pedestrian-heavy streets, leading to the fatal accident.

Defendants’ summary judgment motions require us to address two questions: Do these circumstances impose a general duty of care on defendants, and, if so, do public policy concerns justify an exception to that duty?

As to the first question, the appellate court concluded defendants’ owed plaintiffs a general duty of care. Defendants collectively initiated and/or managed a construction project requiring 90 dump trucks, some 50 to 60 feet long, to drive through downtown Los Angeles over the course of many days.

The appellate court may take judicial notice that downtown streets in Los Angeles are crowded with vehicles and pedestrians.

It is common sense that sending large numbers of heavy construction vehicles down those streets creates a risk of harm to those other vehicles and pedestrians. Defendants therefore had a duty to exercise, in their activities, reasonable care for the safety of others.

The first three Rowland factors involve foreseeability and the related concepts of certainty and the connection between plaintiff and defendant.

The remaining factors—moral blame, preventing future harm, burden, and availability of insurance—embody public policy concerns.

In considering the Rowland factors, courts do not ask 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 evaluating the foreseeability factor, for example, the appellate court does not decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather 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.

The appellate court reiterated that, based on plaintiffs’ theory of liability, the category of negligent conduct at issue is defendants’ authorization and/or implementation of an unpermitted staging area for construction vehicles. The question is whether public policy should absolve defendants of a duty to pedestrians struck by one of those construction vehicles as it drives to the unpermitted staging area.

There are triable issues as to defendants’ involvement in and approval of that decision. Core/Related obtained the excavation permit, including representing to the City through its agent that all staging would be done on-site, and the municipal code required Core/Related as owner of the project to “be responsible for the work to be performed in accordance with the approved plans and specifications and in conformance with the provisions of this Code.

Applying the first Rowland factor, the appellate court notes that foreseeability in this context is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.

One may be held accountable for creating even the risk of a slight possibility of injury if a reasonably prudent person would not do so even if that possibility is an injury caused by the negligence of a third party.

Under this standard, when, as here, the defendants establish an unpermitted staging area for construction vehicles, thus bypassing the City’s safety evaluation, there is a possibility of a traffic-related accident as those vehicles approach the staging area.

Defendants’ decision to establish an unauthorized staging area, without City approval or involvement, thus foreseeably increased the risk that one of the trucks moving towards the staging area would strike a pedestrian.

Although the direct cause of plaintiffs’ harm was the negligence of the truck driver, there nonetheless was a logical cause and effect relationship between defendants’ alleged negligence and the harm that occurred.

The foreseeability factor weighs against an exception to the duty of care.

The second Rowland factor, certainty of injury, is relevant primarily, if not exclusively, when the only claimed injury is an intangible harm, such as emotional distress. 

Wrongful death is an injury both tangible and amenable to compensation.

The second factor weighs against an exception to the duty of care.

The third factor, the closeness of the connection between the defendant’s conduct and the injury suffered, is strongly related to the question of foreseeability itself, but it also accounts for third party or other intervening conduct.

Where the third party’s intervening conduct is foreseeable or derivative of the defendant’s, then that conduct does not diminish the closeness of the connection between defendant’s conduct and plaintiff’s injury.

LESSONS:

1.         Civil Code section 1714 establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.

2.         Case law makes clear a defendant nonetheless owes a duty to the extent the defendant’s negligence increases the risk of the third party’s conduct, in this case, unsafe driving through streets that have not been assessed for safety given the location and usage of the unpermitted staging site.

3.         To establish a cause of action for negligence, the plaintiff must show that the defendant had a duty to use due care, that the defendant breached that duty, and that the breach was the proximate or legal cause of the resulting injury.

4.         The rule of Civil Code section 1714, though broad, has limits. It imposes a general duty of care on a defendant only when it is the defendant who has created a risk of harm to the plaintiff, including when the defendant is responsible for making the plaintiff’s position worse.

5.         The first three Rowland factors involve foreseeability and the related concepts of certainty and the connection between plaintiff and defendant.

6.         The remaining factors—moral blame, preventing future harm, burden, and availability of insurance—embody public policy concerns.