Filed 3/20/18 Certified for Publication 4/12/18 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                              DIVISION THREE


PAULA J. NOVAK,
         Plaintiff and Appellant,
                                                                   A149494, A150751, A150752
v.
CONTINENTAL TIRE NORTH                                             (Alameda County
AMERICA et al.,                                                    Super. Ct. No. RG13704748)
         Defendants and Respondents.


         Plaintiff Paula J. Novak appeals defense summary judgments in her wrongful
death action against a tire manufacturer, Continental Tire North America (Continental),
and an auto mechanic, Chi Tai (collectively defendants). Plaintiff alleges defendants
failed to warn about the dangers of rubber degradation in old tires, which led to a tire
blowout in 2005 that injured her father. Plaintiff further alleges that those injuries
impaired his mobility, necessitated his use of a motorized scooter with limited
maneuverability, and led to his death in 2011 after his scooter was struck by a vehicle in a
crosswalk. The trial court found the evidence insufficient to establish a causal link
between defendants’ conduct alleged to have caused one traffic accident and decedent’s
death years later following a separate traffic accident. We shall affirm the defense
judgments.




                                                          1
                                        Background
       In September 2005, 81-year-old Alex Novak was seriously injured when the car in
which he was a passenger suffered a tire blowout and collided with a power pole.1 Novak
filed an action for strict product liability and negligence against defendants for failure to
warn that tires degrade with age and should be replaced even if the tire shows good tread
depth. (Novak v. Continental Tire North America, Inc. (A133073, May 24, 2013)
[nonpub. opn.].) Defendants obtained a defense judgment but we reversed the judgment
upon finding evidentiary and instructional errors. (Ibid.)
       Novak died while the case was on appeal. Novak had been disabled as a result of
the accident involving the tire blowout and required the use of a three-wheel motorized
scooter as a mobility aid. In November 2011—six years after the tire blowout accident—
87-year-old Novak was injured when a car making a right hand turn collided with his
scooter in a crosswalk. Novak died eight days later. His strict liability and negligence
action was not retried. Novak’s daughter Paula filed this wrongful death action against
Continental and Tai, faulting them for the 2005 tire blowout and resulting collision and
extending that fault to her father’s death years later following a different collision.2
               Evidence Presented on Motions for Summary Judgment
       A detailed account of the facts is drawn from the parties’ separate statements of
undisputed facts and evidence submitted in support of them.
       On September 12, 2005, Novak was a passenger in a 1988 Chevrolet Van being
driven by Milagros Ibarra that collided with a power pole located near the intersection of
Coronado Avenue and Cerritos Avenue in Fremont, California. The 1988 Chevrolet van

       1
       We refer to decedent Alex Novak by his last name. We refer to his daughter
Paula Novak as plaintiff.
       2
         Novak’s other daughter, Wanda Gillooly, did not join the action and was listed as
a nominal defendant to protect her hereditary interest in any recovery. (Code Civ. Proc.,
§ 382.) Plaintiff argues Gillooly was a party to the action who should have been served
with defendants’ motions for summary judgment. Gillooly never appeared in the case and
the record contains no evidence she was served with the complaint. In any event, it is
conceded that any error in failing to serve Gillooly with defendants’ motions was
harmless as she had actual knowledge of the motions.


                                              2
was equipped with a “General Road Tamer LX” tire that had been manufactured in 1993
by Continental’s predecessor. Plaintiff alleges that the September 12, 2005 accident was
caused by a sudden failure of the “General Road Tamer LX” tire, including sudden tread
separation and sudden deflation (“blow-out”) of the tire. Plaintiff alleges defendants
failed to warn Ibarra that old tires lose “resiliency” with age, making them prone to blow-
outs. Plaintiff further alleges that as a result of the September 12, 2005 accident, Novak
required the use of a three-wheel scooter “to go about the community.”
       On November 18, 2011, Novak was riding his three-wheel scooter on Fremont
Boulevard when he collided with a 1997 Toyota Corolla driven by Mea MD Abdul
Quader. The collision occurred in the crosswalk at the intersection of Mowry Avenue and
Fremont Boulevard. Prior to the collision, Quader’s Corolla was heading east on Mowry
Avenue in the right turn lane approaching Fremont Boulevard where he was intending to
turn right onto southbound Fremont Boulevard, while Novak was on his three-wheel
scooter on the sidewalk ramp at the entrance to the crosswalk at the southwest corner of
the intersection. Novak paused at the southwest corner of the intersection before entering
the crosswalk. As Quader approached the intersection, he stopped his vehicle prior to the
painted white crosswalk limit line while waiting for traffic to clear. When westbound
traffic cleared, Quader looked to his right and observed Novak stopped on the sidewalk at
the southwest corner of the intersection in his three-wheel scooter. Quader saw that
Novak was waiting to cross the roadway. Quader then looked left for southbound traffic
and did not see anyone approaching, so he released his foot from the brake and
accelerated forward. Novak did not see Quader’s car beginning to move. Novak entered
the intersection and his scooter collided with the front-quarter panel of the passenger side
of Quader’s car, according to a police officer who investigated the accident. The officer
determined that Quader failed to yield the right-of-way to Novak and that “the fault for
the accident” rested with Quader, not Novak. (Veh. Code, § 21950, subd. (a).) The force
of the collision knocked over the scooter and Novak fell to the ground.
       A mechanical engineer and expert in accident reconstruction tested the scooter
operated by Novak and found it “takes 3.2 feet to come to a gradual stop after the forward


                                             3
movement lever is released by the operator.” The engineer opined that “the ability to stop
this scooter is substantially impaired as compared to the ability of an upright, able-bodied
person to physically stop walking.”
       Following the accident, Novak was taken to Eden Medical Center. His left leg was
sutured and a CT scan performed. The treating physician reviewed the CT scan, found no
injuries, and released Novak that day. Two days later, on November 20, 2011, Novak
self-admitted to the hospital complaining of back pain. Novak died six days later, on
November 26.
       An autopsy found Novak had sustained recent thoracic spine fractures and
hemorrhaging, which the coroner attributed to trauma sustained in the scooter-vehicle
collision. The death certificate lists the cause of death as acute cardiac insufficiency as a
result of atherosclerotic cardiovascular disease. Novak’s recent spinal fractures were
listed among “other significant conditions contributing to death but not resulting in the
underlying cause” of death. An orthopedic surgeon opined that Novak’s death “was
caused, accelerated, and hastened to occur on that date and at that time by medical
complications of the injuries sustained in the scooter accident of November 18, 2011.”
                                         Discussion
       “In reviewing a grant of summary judgment, we independently evaluate the
record, liberally construing the evidence supporting the party opposing the motion, and
resolving any doubts in his or her favor. [Citation.] As the moving party, the defendant
must show that the plaintiff has not established, and reasonably cannot be expected to
establish, one or more elements of the cause of action in question.” (Patterson v.
Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 499-500.)
       “In any action for wrongful death resulting from negligence, the complaint must
contain allegations as to all the elements of actionable negligence.” (Jacoves v. United
Merchandising Corp. (1992) 9 Cal.App.4th 88,105.) “A plaintiff in a negligence suit
must demonstrate ‘ “a legal duty to use due care, a breach of such legal duty, and the
breach as the proximate or legal cause of the resulting injury.” ’ ” (Vasilenko v. Grace
Family Church (2017) 3 Cal.5th 1077, 1083.)


                                              4
       At issue here is causation. The trial court found that “plaintiff cannot establish a
causal link between the tire failure in 2005 and the [scooter] accident” in 2011 and
Novak’s death eight days later. Plaintiff disputes this finding. She argues that defendants’
failure to warn about the dangers of rubber degradation in old tires caused the tire
blowout in 2005; the blowout caused a collision; the collision caused disabling injuries to
her father; the injuries caused her father to use a scooter; use of the scooter caused her
father to have less maneuverability than a pedestrian; the father’s impaired
maneuverability caused the 2011 collision between his scooter and a vehicle; and the
scooter collision caused her father’s death.
       Plaintiff’s argument is primarily focused on just one aspect of causation —
variously referred to as cause in fact or actual, physical or logical cause. “ ‘ “An act is a
cause in fact if it is a necessary antecedent of an event.” ’ ” (State Dept. of State Hospitals
v. Superior Court (2015) 61 Cal.4th 339, 352.) “California has definitively adopted the
substantial factor test of the Restatement Second of Torts for cause-in-fact
determinations. [Citation.] Under that standard, a cause in fact is something that is a
substantial factor in bringing about the injury. [Citations.] The substantial factor standard
generally produces the same results as does the ‘but for’ rule of causation which states
that a defendant’s conduct is a cause of the injury if the injury would not have occurred
‘but for’ that conduct.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968-
969.) We will assume, for purposes of this appeal, that defendants’ conduct set in motion
a series of events that led to Novak’s death and was, thus, a “cause in fact” of his death.
       The question is whether there is a sufficient connection between the risks created
by defendants’ conduct and the injury Novak suffered to hold defendants responsible. It
is this normative or evaluative aspect of proximate cause that the word “proximate”
imperfectly conveys. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1056 (dis. opn. of
Kennard, J.).) This aspect of causation “ ‘focuses on public policy considerations.
Because the purported [factual] causes of an event may be traced back to the dawn of
humanity, the law has imposed additional “limitations on liability other than simple
causality.” [Citation.] “These additional limitations are related not only to the degree of


                                               5
connection between the conduct and the injury, but also with public policy.” [Citation.]
Thus, “proximate cause ‘is ordinarily concerned, not with the fact of causation, but with
the various considerations of policy that limit an actor’s responsibility for the
consequences of his conduct.’ ” [Citation.]’ [Citation.] As Witkin puts it, “[t]he doctrine
of proximate cause limits liability; i.e., in certain situations where the defendant’s
conduct is an actual cause of the harm, the defendant will nevertheless be absolved
because of the manner in which the injury occurred. . . . Rules of legal cause . . . operate
to relieve the defendant whose conduct is a cause in fact of the injury, where it would be
considered unjust to hold him or her legally responsible.’ ” (State Dept. of State Hospitals
v. Superior Court, supra, 61 Cal.4th at p. 353.)
       One policy consideration subsumed within the broad concept of proximate cause
is the extent to which a defendant should be held liable for unforeseeable consequences.
(Prosser & Keeton, Torts (5th ed. 1984) § 42, p. 279.) Foreseeability of harm is also
relevant when determining if the defendant owed a duty of care to plaintiff. (Cabral v.
Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771-773.) The concepts of duty and
proximate cause are each expressions of public policy and courts have taken varying
approaches in using one or the other concept to limit liability. (Prosser & Keeton, Torts,
supra, § 42, pp. 274-275.) Our California Supreme Court has held that “[n]o-duty rules
are appropriate only when a court can promulgate relatively clear, categorical, bright-line
rules of law applicable to a general class of cases.” (Cabral v. Ralphs Grocery Co., supra,
at p. 773, fn. 3.) Proximate cause rules apply in individual cases (id. at p. 780 & fn. 8)
and “take into account the particular context in which any act or injury occurred”
(Vasilenko v. Grace Family Church, supra, 3 Cal.5th at p. 1084).
       Concerning foreseeability of harm, a defendant’s “conduct may be held not to be a
legal cause of harm to another where after the event and looking back from the harm to
the actor’s negligent conduct, it appears to the court highly extraordinary that it should
have brought about the harm.” (Rest.2d, Torts, § 435(2).) For liability to attach, “[t]there
must be some reasonable connection between the original negligence and its



                                              6
consequences, between the harm threatened and the harm done.” (Prosser, Palsgraf
Revisited (1953) 52 Mich. L.Rev. 1, 32.)
       Proximate cause analysis is also concerned with intervening forces operating
independent of defendant’s conduct. (Prosser & Keeton, Torts, supra, § 42, p. 279.)
Multiple elements are weighed in determining whether an intervening force is a
superseding cause of harm to the plaintiff, thus absolving defendant from liability:
“(a) the fact that its intervention brings about harm different in kind from that which
would otherwise have resulted from the actor’s negligence; [¶] (b) the fact that its
operation or the consequences thereof appear after the event to be extraordinary rather
than normal in view of the circumstances existing at the time of its operation; [¶] (c) the
fact that the intervening force is operating independently of any situation created by the
actor’s negligence, or, on the other hand, is or is not a normal result of such a situation;
[¶] (d) the fact that the operation of the intervening force is due to a third person’s act or
to his failure to act; [¶] (e) the fact that the intervening force is due to an act of a third
person which is wrongful toward the other and as such subjects the third person to
liability to him; [¶] (f) the degree of culpability of a wrongful act of a third person which
sets the intervening force in motion.” (Rest.2d, Torts, § 442.)
       The traffic accident at issue here, in which Novak’s scooter was struck by a
motorist who failed to yield, was not a foreseeable consequence of defendants’ failure to
warn that old tires on another vehicle driven years earlier by another motorist were prone
to blowouts. The connection between defendants’ conduct and the injury suffered is too
attenuated to show the later accident to be within the scope of the risk created by
defendants’ conduct: “the injury suffered is connected only distantly and indirectly to the
defendant’s negligent act.” (Cabral v. Ralphs Grocery Co., supra, 51 Cal.4th at p. 779.) It
is “highly extraordinary” to posit defendants’ conduct as the cause of Novak’s death.
(Rest.2d, Torts, § 435(2).) The vehicle-scooter accident operated independently of any
situation created by defendants’ alleged negligence and was due to the superseding cause
of a motorist’s wrongful failure to yield when entering a crosswalk. (Rest.2d, Torts,
§ 442.)


                                                7
       Causation is ordinarily a question of fact but “ ‘where the facts are such that the
only reasonable conclusion is an absence of causation, the question is one of law, not of
fact.’ ” (State Dept. of State Hospitals v. Superior Court, supra, 61 Cal.4th at p. 353;
accord Prosser & Keeton, Torts, supra, § 45, pp. 319-321.) A number of courts have
found, as a matter of law, that a defendant is not liable for an injury only distantly
connected to defendant’s conduct.
       The classic case is Palsgraf v. Long Island Railroad Co. (1928) 248 N.Y. 339 [162
N.E. 99].) Helen Palsgraf “was standing on a platform of defendant’s railroad after
buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for
another place. Two men ran forward to catch it. One of the men reached the platform of
the car without mishap, though the train was already moving. The other man, carrying a
package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the
car, who had held the door open, reached forward to help him in, and another guard on
the platform pushed him from behind. In this act, the package was dislodged, and fell
upon the rails. It was a package of small size, about fifteen inches long, and was covered
by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to
give notice of its contents. The fireworks when they fell exploded. The shock of the
explosion threw down some scales at the other end of the platform many feet away. The
scales struck the plaintiff, causing injuries for which she sues.” (Id. at pp. 340-341.)
Defendant railroad was found not liable because the guard’s conduct in assisting one
passenger to board a train involved no foreseeable risk to another passenger standing at
the opposite end of the platform. (Id. at p. 341.)
       Palsgraf and other cases denying liability for an injury following an unlikely
series of events have sometimes been resolved as a question of duty but, ultimately, are
founded on the lack of a close causal connection between the defendant’s conduct and the
injury suffered. “What is the true reason that so many of us feel that the [Palsgraf] case
was correctly decided, and that Mrs. Palsgraf should not recover?,” Prosser asked.
(Prosser, Palsgraf Revisited, supra, 52 Mich. L.Rev. at p. 27.) “It is that what . . .
happen[ed] to her is too preposterous. Her connection with the defendant’s guards and the


                                               8
package is too tenuous; in the old language, she is too remote. The combination of events
and circumstances necessary to injure her is too improbable, too fantastic.” (Ibid.)
       Our Supreme Court has likewise observed that determinations of liability are
sometimes founded on duty principles when the determination properly rests on the
attenuated causal connection between the defendant’s conduct and the injury suffered.
(Cabral v. Ralphs Grocery Co., supra, 51 Cal.4th at pp. 779-780 & fn. 8.) The high court
summarized one such case relevant here: “In Bryant [v. Glastetter (1995) 32 Cal.App.4th
770], a tow truck driver working to remove a vehicle from the shoulder of a freeway was
fatally struck by a passing vehicle. His surviving wife and children sued the original
driver of the vehicle he was removing, who had earlier been pulled over and arrested for
drunken driving at that location. [Citation.] The appellate court held the defendant (the
drunken driver) owed no duty to the decedent to prevent the injury he suffered. The
defendant owed decedent, like anyone else potentially injured by her driving while
intoxicated, a duty to refrain from doing so [citation] but the connection between her
negligence and the type of injury that resulted—an errant vehicle striking the tow truck
driver called to remove her car from the freeway—was too indirect and attenuated, for
‘there is no logical cause and effect relationship between that negligence and the harm
suffered by decedent except for the fact that it placed decedent in a position to be acted
upon by the negligent third party.’ ” (Cabral v. Ralphs Grocery Co., at p. 780 & fn. 8.)
       Other cases have properly denied liability on proximate cause grounds, noting the
lack of causal connection between defendant’s conduct and plaintiff’s injury. In
Wawanesa Mutual Ins. Co. v. Matlock (1997) 60 Cal.App.4th 583, “Timothy Matlock,
age [17], bought two packs of cigarettes from a gas station . . . . Tim gave one of the
packs to his friend, Eric Erdley, age [15]. Smoking as they walked, the two trespassed
onto a private storage facility in Huntington Beach, where a couple of hundred telephone
poles were stacked up high upon the ground, held in place by two vertical poles sticking
out of the ground. . . . [¶] Timothy and Eric were joined by [two] younger boys, about
[10] or [11] years old, who walked with them on the logs. Eric was smoking a cigarette
held in his left hand. Timothy began to tease the younger boys, telling them the logs were


                                             9
going to fall. The boys started to run, though perhaps more out of laughter than of fear.
One of the younger boys ran right into Eric’s left arm. Eric dropped his cigarette down
between the logs, where it landed on a bed of sand. For about 20 seconds Eric tried to
retrieve the cigarette, but he couldn’t reach it. He stood up and tried to extinguish it by
spitting on it, and again was unsuccessful. [¶] Then Eric caught up with Timothy who
was about 10 feet ahead. They went into some bunkers about 50 feet away; when they
came out again after about 20 minutes, they saw flames at the base of the logs.” (Id. at
p. 585.) The court found “no valid basis” to hold Timothy liable (id. at p. 586) upon
concluding that “the concatenation between Timothy’s initial act of giving Eric a packet
of cigarettes and the later fire is simply too attenuated to show the fire was reasonably
within the scope of the risk created by the initial act” (id. at p. 588).
       In the present case, the causal connection between defendants’ conduct and the
injury suffered is even more tenuous than that presented in Palsgraf, Bryant and
Wawanesa. There is, in the words of Prosser, no “reasonable connection between the
original negligence and its consequences, between the harm threatened and the harm
done.” (Prosser, Palsgraf Revisited, supra, 52 Mich. L.Rev. at p. 32.) Or, as our Supreme
Court has phrased it, “ ‘there is no logical cause and effect relationship between
defendant’s negligence and the harm suffered by decedent except for the fact that it
placed decedent in a position to be acted upon by the negligent third party.’ ” (Cabral v.
Ralphs Grocery Co., supra, 51 Cal.4th at p. 780.)
       Plaintiff argues that defendants are responsible for the first traffic accident that
disabled Novak and, thus, should be held liable for his death from a second traffic
accident that would not have occurred had he not been disabled. On this point, they rely
upon the Restatement Second of Torts, section 460: “If the negligent actor is liable for an
injury which impairs the physical condition of another’s body, the actor is also liable for
harm sustained in a subsequent accident which would not have occurred had the other’s
condition not been impaired, and which is a normal consequence of such impairment.”
       The cited rule “applies only where the second accident is a normal consequence of
the original injury” and “leaves open the question of the actor’s liability for a second


                                               10
injury brought about by the negligence of a third person together with the impaired
condition of the plaintiff.” (Rest.2d, Torts, § 460, com. (b) & (c).) As previously
discussed, the facts here show that the second accident is not a normal consequence of the
original injury and the negligence of a third person—the motorist who failed to yield to
Novak in the crosswalk—was the superseding cause of the injury he suffered.
                                        Disposition
       The judgments are affirmed.



                                                  Pollak, J.


We concur:

McGuiness, P.J.*
Siggins, J.




       *
        Retired Presiding Justice of the Court of Appeal, First Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

                                             11
Filed 4/12/18
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                   DIVISION THREE


PAULA J. NOVAK,                                      A149494, A150751, A150752
        Plaintiff and Appellant,
                                                     (Alameda County
v.                                                   Super. Ct. No. RG13704748)
CONTINENTAL TIRE NORTH AMERICA
et al.,                                              ORDER CERTIFYING
                                                     OPINION FOR PUBLICATION
        Defendants and Respondents.



THE COURT:
        The opinion in the above-entitled matter filed on March 20, 2018, was not
certified for publication in the Official Reports. For good cause it now appears that the
opinion should be published in the Official Reports and it is so ordered.



Date: April 12, 2018                                         _McGuiness, J. _________
                                                 McGuiness, P.J.*




        *
        Retired Presiding Justice of the Court of Appeal, First Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
Trial court:                             Alameda County Superior Court

Trial judge:                             Honorable Stephen Pulido

Counsel for plaintiff and appellant
Paula J. Novak:                          STEPHEN F. VON TILL
                                         Von Till & Associates

                                         OSCAR R. ROESLER
                                         Law Office of Oscar Roesler

Counsel for defendants and respondents
Continental Tire The Americas, LLC:      YOKA & SMITH
                                         Walter M. Yoka
                                         Anthony F. Latiolait
                                         Jeffrey Gordon
                                         Nicholas von der Lancken

Chi Tai:                                 HARTSUYKER, STARTMAN &
                                         WILLIAMSABREGO
                                         Edward J. Rodzewich, Esq.




A149494, A150751, A150752
