Filed 7/9/19
               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION EIGHT



MACKENZIE BAKER-SMITH,               B282946

       Plaintiff and Appellant,      (Los Angeles County
                                     Super. Ct. No. BC587234)
                   v.

DROR SKOLNICK et al.,

       Defendants and Respondents.



     APPEAL from a judgment of the Superior Court of Los
Angeles County, Michele E. Flurer, Judge. Reversed and
remanded.
     Effres & Associates, Justin Jacob Effres, Esner, Chang &
Boyer, and Stuart B. Esner for Plaintiff and Appellant.
     Macdonald & Cody LLP, Scott L. Macdonald, and Douglas
M. Carasso for Defendants and Respondents.
                  __________________________
       A flying mattress made Mackenzie Baker-Smith swerve on
the freeway and crash at high speed. She sued a company for
failing to secure the mattress. The jury ruled against her, but
heard an incorrect jury instruction about negligence per se. This
doctrine presumes defendants are negligent if they violate a law.
A special exception excuses law violations if a defendant can
prove it tried but could not comply with the law. Giving that
excuse instruction here was error. We reverse and remand.
                                  I
       We summarize the case in the trial court. The first
essential point is the Vehicle Code requires cargo to be secured to
vehicles. We return to this secure-the-cargo law shortly.
                                 A
       Baker-Smith was driving on the freeway when a mattress
suddenly flew at her car. She veered to avoid it and hit a barrier.
Two eyewitnesses chased a truck to get the license number. One
called 911 with the truck’s description and plate. An officer
stopped that pickup, which was towing a trailer. The driver was
Dror Skolnick, the owner of G&L Design Building & Landscape,
Inc. We refer to Skolnick and G&L collectively as G&L.
       Skolnick gave different accounts about a mattress in his
trailer.
       When he was pulled over, Skolnick told police he was
unaware of anything flying out of his truck but admitted there
“may” have been a mattress in the back. Skolnick was pulling a
four-wheel uncovered trailer with seven foot sides. Skolnick
opened the trailer’s back doors for the officer. There was no
mattress. According to the officer, Skolnick added Skolnick
“wasn’t aware if for sure there was a mattress because the guys
he says he works with or works for, do the loading of the vehicle.”




                                 2
       At trial, Skolnick’s equivocation changed to certainty:
there was no mattress. Skolnick testified his trailer was
“[e]mpty, for sure,” that day. Skolnick told the jury he used the
trailer to pick up trash a day or two before the crash. At the
dump, Skolnick unloaded everything from the trailer and cleaned
it with a broom. Then he took it and left it at a job site. A couple
days before the crash, Skolnick directed his employee Juan Lopez
to put tools in the trailer, but then Skolnick changed his mind
and told Lopez to “make sure it’s nothing in there.” Skolnick said
Lopez told him the trailer was empty. Skolnick later retrieved
the trailer from the job site because, the day after that, he
planned to use the trailer to pick up plants from a nursery. G&L
is a landscaping business and Skolnick was buying plants for a
job. He towed the trailer to his house, parked it out front
overnight, and left for the nursery from his house the next
morning, which was the day of the crash.
       At trial, Skolnick admitted, on the day of the crash and
after police pulled him over, Skolnick said “maybe” his trailer
contained a mattress. Skolnick also admitted he did not check
his trailer before leaving home that morning, but checking would
have been “quick and easy.”
       Baker-Smith said the mattress came from a white dump
truck, while the G&L truck was blue and the trailer was black.
       Lopez died before trial.
                                   B
       Baker-Smith sued G&L. The main theory at trial was
negligence per se, which is the doctrine that a defendant
breaking a law is presumptively negligent. Baker-Smith claimed
G&L broke the secure-the-cargo law: Vehicle Code section 23114,
subdivision (a) requires vehicles be loaded so contents stay put.




                                 3
Baker-Smith contended G&L broke this law because
eyewitnesses saw the mattress leave G&L’s vehicle. G&L
claimed it did not break this law because the eyewitnesses were
wrong: Skolnick never carried a mattress that day, and the
eyewitnesses were untrustworthy, so the mattress came from
elsewhere. Alternatively, even if the mattress did fly out of
Skolnick’s trailer, G&L maintained Skolnick was not negligent
because he asked Lopez to empty the trailer and Lopez confirmed
it was empty, so Skolnick had been diligent and knew nothing
about a mattress, which excused him.
                                  C
       The focus of this appeal is three jury instructions, which we
quote as delivered. All were California Civil Jury Instructions, or
CACI, instructions.
       Two instructions were about negligence per se: CACI 418
and CACI 420. The third is CACI 400, which is about burden of
proof and the elements of negligence generally.
       We begin with CACI 418, which states the basic doctrine of
negligence per se. This instruction does not mention the burden
of proof. In material part, it stated:
     “If you decide:
      1.     That Dror Skolnick violated [California Vehicle Code
section 23114, which requires vehicles to be loaded so as to
prevent their contents from escaping] and
      2.     that the violation was a substantial factor in bringing
about the harm,
      then you must find that Dror Skolnick was negligent.
      “If you find that Dror Skolnick did not violate this law or
that the violation was not a substantial factor in bringing about




                                 4
the harm, then you must still decide whether Dror Skolnick was
negligent in light of the other instructions.”
      The second jury instruction was CACI 420, which we call
the “excuse instruction.” Again there is no mention of the burden
of proof. As given in this case, CACI 420 stated:
       “A violation of a law is excused if the following is
true: that despite using reasonable care, a person was not
able to obey the law.”
      The third instruction was CACI 400, which set out the
essential factual elements of negligence. This instruction does
define the burden of proof. We quote it as given, emphasizing the
burden-of-proof language:
      “Mackenzie Baker-Smith claims that she was harmed by
Dror Skolnick’s negligence. To establish this claim, Mackenzie
Baker-Smith must prove all of the following:
      1. That Dror Skolnick was negligent;
      2. That Mackenzie Baker-Smith was harmed; and
      3. That Dror Skolnick’s negligence was a substantial factor
         in causing Mackenzie Baker-Smith’s harm.” (Italics
         added.)
      No other instruction mentioned burden of proof in
connection with the doctrine of negligence per se.
      In sum, the court instructed the jury Baker-Smith
had the burden of proof. The implication was no burden
shifted to G&L about whether its excuse for violating the
secure-the-cargo law was valid.
                                  D
      Next we recount the first question on the special verdict
form, which is important for this appeal:
      “1. Was Dror Skolnick / G&L . . . negligent?




                                5
       “If you answered ‘Yes,’ to question 1, then answer
question 2. If you answered ‘No’ to question 1, stop here,
answer no further questions, and have the presiding juror
sign and date this form.”
      The jury answered no to this first question. This no-
negligence finding ended the case. But this one question
created complete ambiguity about why the jury answered
no: was it because the jury believed there was no mattress,
or because it believed Skolnick had a valid excuse for
violating the secure-the-cargo law? One cannot say.
       The special verdict form did not include a question
specifically asking the jury whether G&L was the source of
the mattress. Neither was there a question asking if
Skolnick had a valid excuse, if, indeed the jury found he
had violated the Vehicle Code.
      The court entered a defense judgment. Baker-Smith
appealed. We granted her motion to augment the record.
                                  II
      The sole contention on appeal concerns jury instructions.
In this situation, we do not view the evidence in a light most
favorable to the prevailing party. Rather, to assess the
instructions’ prejudicial impact, we assume the jury might have
believed Baker-Smith’s evidence and, if properly instructed,
might have decided in Baker-Smith’s favor. (Mayes v. Bryan
(2006) 139 Cal.App.4th 1075, 1087.) Our review is independent.
      Baker-Smith correctly challenges the excuse instruction:
CACI 420. The court misinstructed the jury because the facts of
this case did not warrant this, or any, excuse instruction. CACI
420 excuses a violation of the law when a person uses reasonable
care but is unable to obey the law. Here, there is no evidence




                               6
Skolnick used reasonable care to ensure there was no mattress in
his trailer and was unable to comply with the secure-the-cargo
law. The only evidence was Skolnick asked his coworker to check
the trailer to ensure it was empty and the coworker said it was.
No evidence showed Skolnick could not obey the Vehicle Code.
       An excuse instruction is improper unless special
circumstances exist. (Casey v. Russell (1982) 138 Cal.App.3d 379,
385 (Casey).) As a matter of law, no circumstances were special
here.
       To determine whether excuse could be a defense in a
negligence per se case, California law weighs the benefits and
burdens of accident precautions. This has been true since at
least 1923. (See Berkovitz v. American River Gravel Co. (1923)
191 Cal. 195, 199 (Berkovitz) [“it cannot be the intention of the
law that a watchman must be maintained over the rear light to
observe whether it is constantly burning”].) This approach to tort
doctrine meshes with the field’s general focus on reducing the
social costs of accidents. (E.g., Escola v. Coca-Cola Bottling Co.
(1944) 24 Cal.2d 453, 462 [“public policy demands that
responsibility be fixed wherever it will most effectively reduce the
hazards to life and health inherent in defective products”]; United
States v. Carroll Towing Co. (2d. Cir. 1947) 159 F.2d 169, 173
(Carroll Towing) [defendant’s duty is a function of three
variables: (1) the probability of an accident; (2) the gravity of the
resulting injury, if there is an accident; and (3) the burden of
adequate precautions] [Learned Hand, J.]; see also, e.g., Evra
Corp. v. Swiss Bank (7th Cir. 1982) 673 F.2d 951, 958 [“The
amount of care that a person ought to take is a function of the
probability and magnitude of the harm that may occur if he does
not take care”] [Posner, J.].)




                                 7
       Precedent shows when excuse can be a valid defense to
negligence per se and when it cannot.
       An example of a permissible excuse is Berkovitz, where at
2:00 a.m. two couples in a Dodge were breaking the speed limit
and then rear-ended a gravel truck going about 10 miles per
hour. People in the Dodge sued the truck company, claiming the
truck’s tail light was out, which violated the law requiring a
night light and thus was negligence per se. The truck driver had
checked the tail light three or four blocks before the accident
scene and saw it working then. (Berkovitz, supra, 191 Cal. at p.
198.) So the light must have failed in those three or four blocks –
just moments before the crash. The Supreme Court ruled that,
under these circumstances, the truck company was entitled to an
excuse instruction. (Id. at pp. 199–200.)
       Berkovitz permitted the excuse defense because it, in effect,
decided the trucker’s conduct was efficient. The trucker made
sure his light was working just before the accident. There was no
other better and yet practical way for the trucker to check his tail
light: in 1923, dashboard alerts about failed running lights were
things of the future. In that year, the only way the trucker could
have been more cautious would have been to maintain a
watchman “over the rear light to observe whether it is constantly
burning.” (Berkovitz, supra, 191 Cal. at p. 199.) This watchman
notion was obviously preposterous in the court’s view. It would
have been socially uneconomical. The precaution cost would have
been extreme while the accident risk posed by a briefly unlit tail
light was small. Under these special circumstances, the
Berkovitz decision allowed the excuse defense.
       An opposite example is Casey, which disallowed the excuse
defense. There a driver broke the law by failing to honk the horn




                                 8
when approaching a blind curve on a narrow mountain road.
(Casey, supra, 138 Cal.App.3d at p. 385.) Honking a horn is
quick and easy, like checking the trailer before heading for the
freeway, while a head-on collision on a mountain curve can be
like flying freeway cargo: very serious. It is socially efficient for
drivers on curves to obey the law and to honk when approaching
blind curves, just as it is for drivers to check the trailer. The
Casey decision barred the excuse defense on those facts.
       The same result obtains here: no excuse can be allowed.
The appropriate calculus shows these circumstances were not
special and excuse cannot be a defense for G&L. (Cf. Carroll
Towing, supra, 159 F.2d at p. 173 [defendant’s duty is a function
of three variables: (1) the probability of an accident; (2) the
gravity of the resulting injury, if there is an accident; and (3) the
burden of adequate precautions].) When towing a trailer at
freeway speeds, it is probable unsecured items like mattresses
can fly free. When that happens, the gravity of the resulting
injury is apt to be great. Items flying towards a windshield at
freeway speeds are dangerous. The same holds for sudden
evasive swerving in traffic, as illustrated here. And the burden of
adequate precautions is slight. Skolnick admitted checking his
trailer would have been quick and easy. Under such lopsided
conditions, the circumstances were not special.
       Skolnick says he took care to instruct coworker Lopez, who
assured Skolnick the trailer was empty. This is not an excuse.
Skolnick could have avoided this hazard at reasonable cost. As
between the parties, Skolnick was the only one who could have
done so. It thus was error to give CACI 420, no matter what
Skolnick claimed Lopez told him. Tort law must confront
Skolnick and others like him with the right precautionary




                                 9
incentive if it is to perform its proper function of minimizing the
social costs of accidents.
       Moreover, G&L conceded in oral argument that CACI 420,
as given in this case, was worded incorrectly. California law
forced G&L to concede error, for this excuse instruction failed to
explain the burden shifts to the defendant to establish the
defendant’s excuse. In 1958, Chief Justice Gibson explained
people who violate a statute have the burden of proving their
conduct was excusable. (Alarid v. Vanier (1958) 50 Cal.2d 617,
624 (Alarid).) By failing to make that point, the CACI instruction
erred.
       The Alarid view accords with the Restatement Third of
Torts (§ 15, com. c, p. 173.). Our Supreme Court has recently
stressed the value of the Restatement as a source of California
tort law. (See Southern California Gas Leak Cases (2019) 7 Cal.
5th 391, 407.)
       Under “Sources and Authorities,” CACI 420 pinpoint cited
this Alarid decision and quoted the key language about the
burden of proof. But the text of CACI 420 did not explain the
burden of proof shifts to the defendant who seeks to use it as a
rebuttal to a negligence per se instruction. G&L exploited this
error in the corresponding jury instruction by arguing Baker-
Smith failed to meet her burden of proof.
       Because it is equally probable the jury found for G&L on an
erroneous excuse theory as it is that jurors found G&L had no
mattress, we cannot say these errors were harmless. (Casey,
supra, 138 Cal.App.3d at p. 386.) We therefore must reverse the
judgment and remand the case. (Ibid.) On retrial, the court
must give neither CACI 420 nor any other excuse instruction
based on these facts. It would also be appropriate to include a




                                10
question on a special verdict form, if one is used again, to isolate
the jury’s determination about whether G&L did or did not break
the secure-the-cargo law.
       We have examined the parties’ other contentions. G&L’s
claim that Baker-Smith waived rights by approving the verdict
form is incorrect, because she protested the jury instruction at
issue. “It would unduly lengthen this opinion” to say more than
the parties’ other contentions are insubstantial and do not alter
our analysis. (Berkovitz, supra, 191 Cal. at p. 200.)
                             DISPOSITION
       The judgment is reversed and the case is remanded for a
new trial or other appropriate proceedings. Baker-Smith is
entitled to costs on appeal.



                                           WILEY, J.

WE CONCUR:



            BIGELOW, P. J.




            STRATTON, J.




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