(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)
The investigating officer could not make a determination of which party was most at fault due to the lack of physical evidence or an independent witness. None of the parties were cited as a result of the accident. The traffic collision report notes the parties stated that the driver of a red pick-up truck may have been a witness to the incident. However, none of the parties obtained the witness’s contact information. Plaintiff confirmed during his deposition that he did not speak to the driver of the red pick-up truck after the vehicles pulled over following the multi-car collision.
Plaintiff commenced this action on September 9, 2005 by filing a complaint for personal injury damages against Mr. Lee, Paul Black, and Universal Market Service, Inc. Paul Black and Universal Market Service were named as the employers of Mr. Lee under a vicarious liability theory. Mr. White has filed Doe amendments to the complaint and named Mr. Brown and Miranda Towing.
On December 20, 2005, Mr. Lee, Paul Black, and Universal Market Service filed a cross-complaint for comparative indemnity and declaratory relief against Mr. Brown and Miranda Towing. An amendment to the cross-complaint named Miranda Towing.
On April 5, 2006, Miranda Towing and Mr. Brown answered the complaint and cross-complaint, and filed a cross-complaint for comparative fault, indemnity, and declaratory relief against Mr. Lee, Paul Black, and Universal Market Service.
LEGAL CONTENTIONS
Plaintiff’s theory of liability against Mr. Lee and Mr. Brown is based upon general negligence. A cause of action for negligence requires a showing of: (1) legal duty of care; (2) breach of the duty of care; (3) proximate or legal causation; and (4) injury and damages. (See Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602.) In the context of motor vehicles, automobile operators have a duty to use ordinary care to avoid colliding with visible objects in front of him or her. (See Reaugh v. Cudahy Packing Co. (1922) 189 Cal.335.) However, under the doctrine of imminent peril, a person who without negligence on his or her part is suddenly and unexpectedly confronted with peril, arising from either the actual presence, or the appearance, of imminent danger to himself or herself or to others, is not expected nor required to use the same judgment and prudence that is required of him or her in the exercise of ordinary care in calmer and more deliberate moments. (See Leo v. Dunham (1953) 41 Cal.2d 712, 714.)
The evidence shows that the subject accident was solely caused by Mr. Lee. Just prior to the collision, Mr. Brown turned on his turn signal and safely moved his vehicle from the number five lane into the number four lane. Mr. Brown looked in his rear-view mirror and saw Mr. Lee’s Ford prior to making his lane change and there was plenty of room for him to move safely. After Mr. Brown merged into the number four lane, he watched Mr. Lee’s vehicle in his rear-view mirror. Mr. Lee continued to approach the rear of Mr. Brown’ vehicle at a high rate of speed. As Mr. Lee reached the rear of Mr. Brown’ vehicle, Mr. Lee applied his brakes suddenly and swerved into the number three lane, striking plaintiff’s vehicle. (See Part 4 of 5.)
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