Filed 2/26/15 Smith v. Kern County Superintendent of Schools CA5




                   NOT TO BE PUBLISHED IN THE OFFICAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT


IAN D. SMITH,
                                                                                           F068766
         Plaintiff and Appellant,
                                                                              (Super. Ct. No. CV-272036)
                   v.

KERN COUNTY SUPERINTENDENT OF                                                            OPINION
SCHOOLS et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Kern County. Sidney P.
Chapin, Judge.
         Ian D. Smith, in pro. per., for Plaintiff and Appellant.
         Robinson & Kellar, Michael Kellar; Pollak, Vida & Fisher, Daniel P. Barer and
Anna L. Birenbaum for Defendants and Appellants
                                                        -ooOoo-
         Plaintiff Ian D. Smith sued defendants Kern County Superintendent of Schools
and California Living Museum (CLM) after he and his daughter were attacked by a
raccoon that had escaped from an exhibit at CLM. A jury returned a verdict for
defendants. Smith now argues that the trial court erred in refusing jury instructions on
strict liability (CACI No. 461) and negligence per se (CACI No. 418) requested by him
and in its handling of two instances of alleged juror misconduct. We affirm the
judgment.
                         FACTS AND PROCEDURAL HISTORY
       Smith filed a complaint in superior court on October 29, 2010. It alleged that on
January 31, 2010, Smith and his eight-year-old daughter, McKinzie Smith, were visiting
CLM when they were attacked by a raccoon, which was part of an exhibit and had
escaped from its enclosure. The complaint alleged that the raccoon had escaped
sometime earlier in the day, but CLM staff did nothing to warn or evacuate patrons.
Further, the same raccoon had bitten someone 13 days before. The complaint claimed
Smith and his daughter were both injured.
       The complaint alleged causes of action for premises liability and general
negligence. It cited Government Code sections 815.2 (public entity liable for act or
omission of its employee) and 835 (public entity liable for dangerous condition of its
property), which are provisions of the Government Claims Act.1
       The first trial on the complaint commenced on October 29, 2012. The jury was
unable to reach a verdict and a mistrial was declared on November 15, 2012.
       A second trial began on October 7, 2013, and ended with a verdict on October 28,
2013. By a vote of nine to three, the jury found that there was no dangerous condition of
property. Judgment was entered for defendants.
                                       DISCUSSION
I.     Jury instructions
       A.     Strict liability
       In the first trial, Smith requested that the jury be instructed that defendants were
strictly liable for harm caused by a wild animal owned by them. The instruction


       1The  Supreme Court has stated that “Government Claims Act” is a better short
title for Government Code section 810 et seq., than the often-used “Tort Claims Act.”
(City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 741-742.)


                                              2.
requested was CACI No. 461.2 The court ruled that strict liability for harm caused by
wild animals was a common-law doctrine; therefore, it did not apply to government
entities whose liability is limited by the Government Claims Act to statutory causes of
action. Further, defendants were not subject to vicarious strict liability for the conduct of
their employees because the wild-animal doctrine imposes this liability on wild-animal
owners, which the employees were not. The court refused to give the instruction.
       Smith did not request the instruction in the second trial. At one point during the
second trial, his counsel observed that the court had ruled in the first trial that strict
liability was inapplicable, so he was requesting an instruction on negligence per se
instead (which is discussed below).
       Smith argues that the court erred in refusing the strict-liability instruction.
Defendants argue that Smith forfeited the issue by not requesting the instruction in the
second trial. We will assume, however, that any such request would have been futile.
The court’s view was that, as a matter of law, Smith could not sue defendants on a theory
of strict liability. There is no reason to think the court would have considered ruling


       2CACI   No. 461 reads as follows:

       “[Name of plaintiff] claims that [name of defendant]’s [insert type of
       animal] harmed [him/her] and that [name of defendant] is responsible for
       that harm.

       “People who own wild animals are responsible for the harm that these
       animals cause to others, no matter how carefully they guard or restrain their
       animals.

       “To establish [his/her] claim, [name of plaintiff] must prove all of the
       following:

       “1.     That [name of defendant] owned a [insert type of animal];

       “2.     That [name of plaintiff] was harmed; and

       “3.     That [name of defendant]’s [insert type of animal] was a substantial
       factor in causing [name of plaintiff]’s harm.”

                                               3.
differently the second time. (See Cates v. Chiang (2013) 213 Cal.App.4th 791, 816 [law
does not require litigants to engage in futile acts as prerequisite to seeking relief from
court].)
       Nevertheless, we conclude that no reversible error has been shown. We first
consider the issue of defendants’ direct liability. Smith has not cited any authority
supporting the proposition that, under California law, governmental defendants can be
subjected to the common-law doctrine imposing strict liability for harm caused by wild
animals. He cites a number of cases in which this doctrine (or the similar doctrine for
animals, whether wild or not, that are known to have dangerous propensities) was
applied, but all of these involved private defendants. (Opelt v. Al G. Barnes Co. (1919)
41 Cal.App. 776; Baugh v. Beatty (1949) 91 Cal.App.2d 786; Hillman v. Garcia-Ruby
(1955) 44 Cal.2d 625.)
       Under the Government Claims Act, a “public entity is not liable for an injury,”
“[e]xcept as otherwise provided by statute.” (Gov. Code, § 815.) The effect of this
doctrine is “‘to confine potential governmental liability to rigidly delineated
circumstances .…’” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.)
Absent any contrary authority, we can only conclude that the nonstatutory doctrine here
at issue cannot be a basis for direct liability of governmental entities.
       Smith cites a federal case from out of state, Long v. United States (D.C.S.C. 1965)
241 F.Supp. 286, but that case does not help him. The United States was found strictly
liable when an army helicopter, flying low over Long’s farm, caused Long’s mule team
to lurch forward, leading to Long’s injury by the equipment the team was pulling. The
ruling was based on a South Carolina statute that imposed absolute liability on the owners
of aircraft when the operation of the aircraft caused injury to persons on the ground. (Id.
at p. 289.) As we have said, California’s Government Claims Act imposes direct liability
on government entities only where there is a statutory basis for the liability. A South
Carolina statute imposing strict liability on owners of aircraft is not authority for the


                                              4.
imposition of strict liability on a California government defendant for harm caused by a
wild animal.
       We turn next to the question of vicarious liability. Vicarious liability through
employees is “a primary basis for liability on the part of a public entity .…” (Zelig v.
County of Los Angeles (2002) 27 Cal.4th 1112, 1128.) This is the effect of Government
Code sections 815.2 and 820, subdivision (a), which provide, respectively, that a public
entity is vicariously liable for harm caused by an act or omission of its employees in the
course of employment, and that public employees are liable for their acts and omissions
to the same extent as private people. Smith has made no argument, however, about why
the trial court might have been wrong in stating that defendants’ employees would not be
liable under the doctrine here in question because they were not owners of the raccoon.
       It is true that the case law refers to keepers of animals as well as their owners.
(See Hillman v. Garcia-Ruby, supra, 44 Cal.2d at p. 627.) But the instruction Smith
requested, CACI No. 461, refers only to owners, and Smith did not argue during the jury
instruction conference that a strict liability instruction should be given because
defendants’ employees were keepers. The trial court cannot be faulted for failing to give
a specific version of the instruction that Smith did not request. (Barrera v. De La Torre
(1957) 48 Cal.2d 166, 170 [appellant not allowed to raise argument that trial court failed
to give specific unrequested instruction]; Hilts v. Solano County (1968) 265 Cal.App.2d
161, 171; Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1090-1091 [unlike in criminal
trial, court in civil trial has no duty to give unrequested instructions on its own motion].)
       Further, Smith has not designated as part of the appellate record the reporter’s
transcripts of the evidence given in the case. For this reason, there is no basis upon
which we could conclude that, given the facts, the trial court’s ruling was erroneous
because the jury could have found defendants vicariously liable through their employees
as keepers. The record presents us with no information at all about the roles of any of
defendants’ employees. However likely it may appear in the abstract that some employee


                                              5.
of defendants must have been the raccoon’s keeper, we cannot find that the court
prejudicially erred in refusing a jury instruction where the applicability of the instruction
depended on the evidence, and the party urging reversal has not provided a record of the
evidence. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [appellant has burden of
showing reversible error, including instructional error, by an adequate record]; Soule v.
General Motors Corp. (1994) 8 Cal.4th 548, 574 [no reversal for error, including
instructional error, unless miscarriage of justice appears after examination of entire case,
including evidence].)
       B.     Negligence per se
       Smith argues that the trial court also erred in refusing his request in the second
trial for CACI No. 418, which reads:

       “[Insert citation to statute, regulation, or ordinance] states: ____________

       “If you decide

       “1.    That [name of plaintiff/defendant] violated this law and

       “2.   That the violation was a substantial factor in bringing about the
       harm,

       “then you must find that [name of plaintiff/defendant] was negligent [unless
       you also find that the violation was excused].

       “If you find that [name of plaintiff/defendant] did not violate this law or
       that the violation was not a substantial factor in bringing about the harm [or
       if you find the violation was excused], then you must still decide whether
       [name of plaintiff/defendant] was negligent in light of the other
       instructions.”
       This is the instruction given in cases in which a defendant can be held to be
negligent per se because its conduct violated a law and caused harm to a plaintiff.
       The record does not show what law Smith was claiming defendants violated. This
alone would be reason enough to reject Smith’s contention on appeal. As we have stated,
an appellant is required to demonstrate error by an adequate record.



                                              6.
       Further, Smith has not demonstrated that the trial court was mistaken in the reason
it gave for refusing the instruction. The trial court stated that liability for negligence per
se can be imposed on a government defendant under Government Code section 815.6
(public entity liable for failure to perform mandatory duty to protect public from risk of
particular injury). The court observed that the complaint did not plead a failure to
perform a mandatory duty under that section. It further stated that the case had “been
pursued throughout” by Smith upon other grounds. For this reason, the court concluded
that the requested instruction did not apply. Smith did not request leave to amend the
complaint.
       Code of Civil Procedure section 607a provides that, in a jury trial before the first
witness is sworn, the parties shall submit proposed jury instructions “covering the law as
disclosed by the pleadings.” Before closing arguments, counsel may also submit jury
instructions “upon questions of law developed by the evidence and not disclosed by the
pleadings.” The court’s statements amounted to a ruling that Smith’s request for CACI
No. 418 was a request for an instruction on a question not disclosed by his complaint and
also not developed during the trial. Smith does not now contend that the question was
disclosed by his complaint, so he can only be arguing that the court was mistaken in
believing the question was not developed by the evidence during the trial. As we have
mentioned, however, Smith has not provided transcripts of the evidence presented during
the trial. This makes it impossible to evaluate his argument, which, therefore, must be
rejected.
       In his appellate brief, Smith cites a federal regulation, 9 Code of Federal
Regulations part 3.125(a) (2013). This provision is part of a set of regulations on
facilities in which wild animals are kept. It states: “Structural strength. The facility
must be constructed of such material and of such strength as appropriate for the animals
involved. The indoor and outdoor housing facilities shall be structurally sound and shall
be maintained in good repair to protect the animals from injury and to contain the


                                              7.
animals.” It is unclear what argument Smith is making based on this provision, but we
will assume he is claiming the regulation was violated and that this supported the giving
of an instruction on negligence per se.
       The regulation is of no assistance to Smith. The appellate record provided to us
does not indicate that Smith cited this regulation in the trial court, so the issue of whether
it provides any support to any of his contentions has not been preserved for appellate
review. Further, because Smith has not designated as part of the appellate record the
reporter’s transcripts of the evidence given in the case, we cannot say a jury instruction
based on an alleged violation of the regulation would have been supported by the
evidence.3
       Smith suggests in his appellate brief that, as an alternative to negligence per se, the
court should have instructed the jury on negligence. The court did, however, give a
negligence instruction in accordance with CACI No. 400, as follows:

             “Ian Smith and McKinzie Smith claim that they were harmed by
       [defendants’] negligence. To establish this claim, Ian Smith and McKinzie
       Smith must prove all of the following:

               “1.   That [defendants were] negligent;

               “2.   That Ian Smith and McKinzie Smith [were] harmed; and

             “3.    That [defendants’] negligence was a substantial factor in
       causing Ian Smith and McKinzie Smith’s harm.”
       The court also instructed the jury in accordance with CACI No. 401, which
explains the reasonable-care standard for negligence.



       3With  his appellate brief, Smith submitted a copy of a letter to defendants from the
United States Department of Agriculture, accompanied by a form, stating that defendants
were being given a warning of a possible violation of 9 Code of Federal Regulations
part 3.125(a) (2013). On September 2, 2014, this court granted defendants’ motion to
strike this material on the ground that it did not conform to California Rules of Court,
rule 8.204(d).


                                              8.
       The verdict form, however, did not give the jury the opportunity to find defendants
liable on a theory of negligence as distinct from the theory of a dangerous condition of
property. Question No. 1 on the verdict form asks whether defendants owned or
controlled the property. The jury answered yes. Question No. 2 asked whether the
property was in a dangerous condition. The jury answered no. The form instructed the
jury that if its answer to question No. 2 was no, it should stop, answer no further
questions, and have the presiding juror sign and date the form.
       We do not know why the verdict form omitted the possibility of finding
defendants liable for negligence even if they were not liable for a dangerous condition of
property. The record designated by Smith includes no transcript of discussion between
the court and parties about the verdict form. It reflects no objection by Smith to the
omission of the option of finding defendants liable for negligence.
       We ordinarily do not consider claims of error where an objection could have been,
but was not, made in some appropriate form at trial. It is usually unfair to the trial court
and the adverse party to take advantage of an error on appeal which could have been
corrected during the trial. (People v. Saunders (1993) 5 Cal.4th 580, 590; Doers v.
Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) We conclude that
the issue is forfeited by the lack of a record of any objection in the trial court.
       Further, the lack of transcripts of the trial testimony means we cannot determine
whether the evidence warranted the inclusion in the verdict form of an option based on
the premise that defendants’ employees might have been negligent. Smith’s claim thus
also fails for lack of an adequate record upon which to evaluate it.
II.    Alleged juror misconduct
       Smith argues that we should reverse the judgment because of two incidents
involving jurors, which he describes as prejudicial juror misconduct.
       The first incident took place on October 15, 2013. Nathan Hodges, an attorney for
Smith, informed the court that he had noticed a woman, Roxanne Web, talking with Juror


                                               9.
No. 12. Web had been observing the trial and told Hodges she was an employee of SISC.
Smith’s brief informs us that SISC is Self-Insured Schools of California, an insurer of
defendants.
       The court questioned Web. Web said the juror told her it was his first time serving
on a jury. Web said it was a great opportunity and a great civil service. The juror replied
that he did not know how he got away without serving for so long. Web and the juror
said good afternoon. Web did not mention to the juror her affiliation with SISC or say
she had any connection with the case. There were no other jurors around at the time.
Web said she knew she should not talk to jurors and was trying to avoid the conversation.
       The court also questioned Juror No. 12, who said he told Web he was tired and
was happy to be doing jury duty. He did not discuss the case or the witnesses’ testimony
with Web and did not think anything happened that would affect his ability to listen and
deliberate objectively.
       The court asked Hodges and Smith’s other attorney, Greg Muir, for their
comments. The only issue raised was that Web apparently did not immediately identify
herself as a SISC employee when first contacted about the matter by the bailiff:

              “THE COURT: All right. I do not see any difficulty caused by this.
       We have to deal with it. Further admonishment to counsel, but I don’t see
       any problem created for purposes of this trial. [¶] Is there something for
       the record, Mr. Muir?

               “MR. MUIR: Uhm, other than it’s the—the only thing I want to put
       on the record was it was disturbing when she was asked who she was, that
       she did not identify herself as being aligned with the parties. She
       specifically said, ‘Just an observer.’ I’m not saying she can’t observe,
       obviously, but it’s interesting that she was not straightforward about who
       she was, and that—to me, that causes some concern about her reliability as
       to what she represented. [¶] But, apparently, the juror didn’t have a—a
       terribly different view of it.

              “MR. HODGES: He doesn’t remember.

            “MR. MUIR: But he doesn’t remember. He said, ‘I don’t
       remember,’ and this and that.

                                            10.
                “THE COURT: Okay. I don’t hear that as a motion for mistrial.

                “MR. MUIR: No.”
       Smith’s counsel did not state any objection. The court admonished all counsel to
make sure that anyone present who was in any way affiliated with the parties would not
talk to jurors. No further action was taken.
       The second incident took place on October 25, 2013, during the jury’s
deliberations. Juror No. 2 told the court she was having a conflict with another juror or
jurors, felt sick, and was under stress because of family members’ illnesses:

               “THE COURT: [¶] … [¶] I understand there are some difficulties
       in the jury room.

                “JUROR NO. 2: Yes.

                “THE COURT: What’s the situation for you?

              “JUROR NO. 2: I just don’t feel like I count for anything or that
       what I say matters. [¶] And I heard one juror say something [negative]
       about me to another juror.

                “THE COURT: This happened with more than one juror?

                “JUROR NO. 2: And I’m physically getting ill.

             “THE COURT: All right. Do you have—you think it’s precluding
       your ability to deliberate on the case?

                “JUROR NO. 2: With these people, yes.

                “THE COURT: Questions, Plaintiff?

             “JUROR NO. 2: Well, there’s just one person in particular that I
       can’t—I can’t be in the same room with to deliberate.

              “THE COURT: All right. And the reporter seemed to indicate that
       there were also some personal problems.

                “JUROR NO. 2: This person said something about me to another
       juror.

                “THE COURT: But, I mean, otherwise outside of the jury context?


                                               11.
               “JUROR NO. 2: Other than that, no problems. [¶] I do have some
       family problems as far as I do have a sister in Oregon with congestive heart
       failure and renal failure, and a brother who has been readmitted, possibly,
       for another stroke in Alaska. [¶] But just physically, just coming and
       sitting physically for a week long and driving over here and back every
       night is physically about as much as I can take without all the emotional.
       [¶] And I don’t feel that they’re—I don’t feel like they are addressing the
       questions. They won’t address everything.

              “THE COURT: And I don’t want to know about the deliberations of
       the jury. [¶] Without getting into any specifics, are you able to state your
       position? Have you been able to state your position?

              “JUROR NO. 2: No.

              “THE COURT: With regard to any—I mean, some, perhaps, limited
       facts or issues in the case?

              “JUROR NO. 2: No.

              “THE COURT: Comment, or questions?

              “MR. MUIR: Did I see you tear up your notes? Was that your notes
       from the trial?

              “JUROR NO. 2: It doesn’t matter what my notes have on them.

              “[MR. MUIR]: Okay. No comment, Your Honor.

              “THE COURT: Defense?

              “MR. KELLAR: Nothing, Your Honor.”
       The court held a sidebar conference with counsel and then excused the juror. The
jury was instructed to start deliberations again from the beginning with an alternate juror.
No party objected.
       The record indicates that, in the trial court, Smith’s counsel accepted the court’s
resolution of these juror issues and made no objection of any kind. The issue of any
possible error is forfeited. (Dimmick v. Alvarez (1961) 196 Cal.App.2d 211, 217 [issue of
improper conversation between jurors and counsel forfeited by trial counsel’s failure to
object or move for mistrial].)


                                            12.
                                 DISPOSITION
    The judgment is affirmed. The parties are to bear their own costs on appeal.

                                                           _____________________
                                                                          Smith, J.

WE CONCUR:


_____________________
Detjen, Acting P.J.


_____________________
Peña, J.




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