Judge Elaine W. Mandel, Case Number: 23SMCV02780, Date: 2024-11-07 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV02780, Date: 2024-11-07 Tentative Ruling

Case Number: 23SMCV02780 Hearing Date: November 7, 2024 Dept: P

Tentative Ruling

Rub v. Dondel, Case no. 23SMCV02780

Hearing date November 7, 2024

Defendant Dondel’s Motion for Summary Judgment

Plaintiffs Barry and Shelly Rub sue defendants Dondel Inc. dba Angelenos Service and Transport, American Automobile Association, Automobile Club of Southern California and tow truck driver Duplessis for injuries arising from plaintiff Barry Rub’s fall from a tow truck cab. Defendant Dondel moves for summary judgment, arguing no triable issue of fact exists as to whether Dondel is directly or vicariously liable for plaintiff’s injuries.

A court determining a summary judgment motion applies a three-step process: (1) identifying the issues framed by the complaint, (2) determining whether moving party made an adequate showing that negates the opponent’s claim, and (3) determining whether opposing party raised a triable issue of fact. Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662. A defendant has met the burden of showing a cause of action has no merit if they show one or more elements of the cause of action cannot be established, or there is a complete defense to that cause of action. Code Civ. Proc. §437c(p)(2).

Plaintiff Barry alleges negligence, general negligence and negligent entrustment. Plaintiff Shelly alleges loss of consortium. Plaintiffs argue the tow truck driver negligently failed to assist Barry out of the tow truck and/or failed to instruct him how to safely exit the vehicle, causing him to fall, sustaining injuries.

“The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.’” Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 “Breach is the failure to meet the standard of care.” Coyle v. Historic Misson Inn Corp. (2018) 24 Cal.App.5th 627, 643 “The element of causation requires there be a connection between the defendant’s breach and the plaintiff’s injury.” Id.

Dondel asserts it is not a common carrier, and its owed duty of care was only that of a reasonably prudent person. Plaintiffs argue Dondel, as a tow truck company, is a common carrier, so owed the highest duty of care to plaintiff. CACI 901, et seq.

Plaintiffs offers the declaration of tow truck industry expert Enriquez, asserting the driver of a tow truck has a duty to provide for the safety of passengers. Decl. Enriquez paras. 7-9, 14, 17-18. Plaintiffs also offer the declaration of engineer/risk assessment expert Solomon, who opines that without explanation or instruction, it was “reasonably foreseeable” that plaintiff might exit the cab in a dangerous manner. Decl. Solomon, para 7. A triable issue of fact exists as to the duty of care owed to plaintiff Barry.

Dondel argues even if it owed a common carrier’s heightened duty of care, its driver did not breach that duty. Dondel asserts plaintiff Barry entered the tow truck unassisted. UMF 28. Dondel asserts plaintiff Barry did not disclose any health issues to the driver. UMF 36. Dondel asserts plaintiff Barry chose to exit the tow truck unassisted, opened the door, then was pulled from his seat when the door opened. UMF 44-49.

Plaintiffs argue plaintiff Barry was only able to enter the tow truck because of a raised curb that decreased the height gap. SSMF 28. Plaintiffs argue plaintiff Barry informed Dondel’s employee of numerous health issues that would make it difficult for him to exit the tow truck. SSMF 36. Plaintiffs assert plaintiff Barry had a handicap sticker on the car being towed, which should have put Dondel’s employee on notice of his limitations. SSMF 45. Plaintiffs argue plaintiff Barry had no choice but to exit the tow truck unassisted and received no instruction as to how to exit safely, resulting in his fall and injury. SSMF 44-49.

A triable issue of material fact exists as to whether Dondel, via its employee’s inaction, breached its duty of care to plaintiff Barry. Further, a triable issue of material fact exists as to what duty of care was owed to plaintiff Barry, whether a regular duty based on a simple negligence standard or a heightened duty of care imposed on a common carrier. DENIED.