Wednesday, June 13, 2018

Shiver v. Laramee (Cal. Ct. App. - June 12, 2018)

This might be the most personally important case in the Court of Appeal you read this year.  It's also one that conflicts with everything I've ever been taught about driving on the highway.

Here are the basic facts -- simplified for easy reference:

Trucker is driving on the slow lane of a highway.  Two cars -- one driven by Man, another driven by Woman -- are on the on-ramp, getting onto the highway.  Man passes Woman on the off-ramp, flips her off, they both get on the highway in front of Trucker, and then Man slams on his breaks.  Woman slams on her brakes in response, and avoids hitting Man, but Trucker can't stop in time, so rear ends Woman.  Man flees.  Woman sues Trucker for hitting her.

Who wins in Woman's lawsuit against Trucker?

Woman says she's not at fault since she had to (and did) brake, and that Trucker's at fault because he didn't leave enough distance to avoid the rear-ender.

Trucker says he had no reason to expect sudden braking on the highway, so he's not at fault.

You're the judge.  For whom do you rule?

The Court of Appeal says Trucker wins.  Pursuant to the "Sudden Emergency" (aka "Imminent Peril") doctrine.

That's not the rule that I thought governed this situation.  Nor am I certain it's one that makes doctrinal (or, perhaps, policy) sense.

I was always taught that you had to keep enough distance from the car in front of you to stop in time.  Period.  That way, if a kid (or squirrel, or whatever) runs into the street, and the car in front jams on its breaks, you won't rear end them.  It also has the advantage of a nice, bright-line rule.  When you rear end someone, it's almost by definition your fault (unless they backed up).  Easy to apply.

The rule that I thought existed also has a textual support:  Section 21703 of the Vehicle Code.  Which indeed requires that you maintain a reasonable distance from the car in front of you.

This opinion, by contrast, decides the other way.

I can empathize with at least part of the opinion's reasoning.  I can understand why the Court of Appeal might not want to find Trucker at fault.  Who expects someone to suddenly stop in front of you?!  Especially when it's the result of a third party's road rage?  It does indeed seem a little unfair to hold Trucker liable for something he had no substantial reason to expect, so essentially punishing him by imposing tort liability may seem a bit (or perhaps a lot) unfair.  (Mind you, the person who was rear ended was totally innocent, and she hit the brakes in time, so making her solely responsible for her injuries seems even worse than holding Trucker responsible.  So, even ignoring the existence of insurance -- another reason to potentially foist relative liability upon Trucker -- if I had to make a policy choice, I'd probably lean against creating today's rule that absolves Trucker of liability.)

But there's a harder, more concrete, point as well.  There's a statute that governs this thing.  One the Court of Appeal doesn't (in my mind) successfully address.

Section 21703 affirmatively says that, yeah, you indeed have to keep a reasonable distance from the car in front of you, and "reasonable" probably does indeed mean -- and a jury could surely so decide -- that you gotta be able to brake in time in the car in front of you suddenly stops.  Seems dispositive of the relevant rule, no?

Justice Yegan's opinion has a "creative" response to this statutory dictate.  He says (with emphasis in the original):

"Laramee [the Trucker] was under no duty to leave “a proper space cushion.” Vehicle Code section 21703 provides, “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon, and the condition of, the roadway.” (Italics added.) Laramee was not following appellant. Laramee was driving in the #3 lane of the freeway, and appellant was driving in the adjacent on-ramp lane."

On that theory, since Trucker was not "following" the person who he rear ended, Section 21703's statutory dictate ostensibly doesn't apply.

But -- with respect -- I don't think that's the right way to read Section 21703.

Appellant was indeed in a different lane (i.e., on the on-ramp) at some point.  But Trucker and the guy who was rear ended were (definitionally) in the same lane later, including at the relevant point (when they hit).  So Trucker was indeed "following" the car at that point.  "Following" in Section 21703 clearly does not mean "following" in the usual sense of "going wherever he goes".  It means "behind".  If you're behind another car, you have to leave a cushion.  So once Car came into Truck's lane, Truck has to leave a sufficient cushion.  Which he didn't.  Ergo liability under Section 21703.  Since that's what the statute says.  If you're "behind" a car, you shall not follow it more closely than reasonable.  Truck was behind Car.  So Truck's gotta leave space.  Which is what we're indeed taught when we first learn to drive, and a bright-line rule.

(Plus, it'd seem silly to hold -- as the Court of Appeal implicitly does -- that in the usual setting, 99% of the time, when a car rear-ends another that suddenly stops, there's liability, since they were both in the same lane, and hence one was "following" another, but when someone has just merged or is only halfway in a lane, all of the sudden that immunizes the other driver from a virtually identical rear end accident.  If it's reasonable to think that a guy won't instantly slam on his brakes, that's reasonable if he's just merged, or halfway (or all the way) in a lane, or has been in the same lane as you forever.  I strongly doubt the Vehicle Code intended the common law "Sudden Emergency" doctrine to govern only one, but not the other, of these scenarios.)

I can understand that there's a potential line-drawing complexity here.  Section 21804 of the Vehicle Code does indeed say that someone who's merging has to yield the right of way to the person who's already there.  So you gotta figure out at what point the "spacing" requirement is the responsibility of the merging car or the responsibility of the "following" car.  But, at best, that seems to me to indicate that both cars might potentially be contributorily negligent.  Not that the following Truck that can't brake in time totally gets off the hook.

(Can I just add, by the way, that the absolution of the Trucker here seems especially unjust.  Here's what Trucker says at his deposition:

“[W]hen you got onto the southbound 101, were you on your cell phone?” Laramee replied that he was not on his cell phone. He had a wireless Bluetooth “hands-free” phone in his cab. (Vehicle Code section 23123, subdivision (a) permits the use of a hands-free wireless phone while driving.) Appellant’s counsel asked, “Were are [sic] you talking” on the “hands-free?” Laramee replied, “Yeah, I was talking.” Respondents’ counsel interrupted, “Were you actually actively in a call when you got on the freeway, or do you remember?” Laramee replied that he did not remember."

So the guy admits that he "was talking" on the "hands-free" but says he "can't remember" whether he was "actively" on a call.  To me, that's way more than enough for a jury to find that Trucker was on the phone, distracted, and that this may have played at least a part in why he wasn't able to stop in time to avoid rear-ending the person in front of him.)

In short, I agree that Road Rage Driver is definitely at fault, and if we could find him, I'd definitely spank him.  Hard.  Maybe Woman Who Was Hit (in our hypothetical) is also at part at fault, either because she merged in a bit too close to the Truck behind her (so he couldn't stop in time) or because she was too close to the car in front of her to "slow down" easily instead of having to slam on her brakes (and hence getting hit from the car behind her).

But to absolve the Truck driver entirely -- much less as a matter of law -- seems somewhat wrong to me.  Probably from a policy perspective, and most definitely from the perspective of our existing Vehicle Code.

I think we probably do (and should) have a rule that was similar to the one I always thought existed:  That you have to give yourself enough time and room to stop if the vehicle in front of you jams on its brakes, whether for a rabbit, a kid, a ball, or a third party road raging (or incompetent) driver.  If you don't, you're potentially at fault.  Perhaps alongside other people as well.  But fault on your part there may well nonetheless be.

Even though the Court of Appeal holds to the contrary here.

But, hey, unless the California Supreme Court wants to take up a case about a simple driving matter, as of this opinion, the law is what the Court of Appeal says it is.  If you don't feel like leaving enough room to stop, I guess go ahead.  The Court of Appeal will have your back.  Even if you end up hitting a guy from behind because you can't stop in time.