Diaz v Carcamo – Opinion
Diaz v Carcamo (2/25/10)
Negligent Hiring and Retention; Character Evidence; Willful Suppression
Carcamo was driving a truck for his employer, Sugar Transport, northbound on US 101 in the number two lane. Tagliaferri moved into the number one lane, northbound, to pass Carcamo. When she attempted to pull back into the number two lane, her rear right bumper came into contact with Carcamo’s front left tire, and she lost control of her vehicle. Tagliaferri’s car then crossed the median and struck the southbound Diaz vehicle, causing severe injuries.
At trial, liability between the two northbound defendants was hotly disputed. The jury returned a verdict in the amount of $22,566,373, in favor of plaintiff, finding Tagliaferri 45% at fault, Carcamo 20% at fault and his employer Sugar Transport 35% at fault. On appeal, Sugar Transport (ST) contended since it admitted Carcamo was in the course and scope, the trial court erred in admitting evidence of Carcamo’s prior driving and accident history, and also erred by instructing the jury on negligent hiring and retention. It also appeals the courts instruction on spoliation of evidence.
ST cited Armenta v Churchill (1954) 42 Cal. 2d 448, for the proposition that because it admitted liability for Carcamo’s conduct, evidence of his driving history was irrelevant. The Second Appellate District, Division Six, noted that the older cited case involved negligent entrustment, not negligent hiring. Also, the present case involved issues of allocation of fault under Proposition 51. The California Supreme Court earlier recognized that negligent retention is a theory of direct liability independent of vicarious liability. In Fernelius v Pierce (1943) 22 Cal.2d 226, the court noted that responsibility was not claimed to devolve up to the superiors merely through a principal/agent theory, but instead the agents were acting as an instrumentality under the control of the defendants.
California follows the view that an employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit. The rule is stated in Restatement 2nd of Agency, section 213: The principal may be negligent because he has reason to know that the servant, because of his qualities, is likely to harm others in view of the work entrusted to him. If a principal, without exercising due care in selection, employs an incompetent person to do an act which necessarily brings him in contact with others while in the performance of a duty, he is subject to liability for harm caused by his propensity. Liability results not because of the relation of the parties, but because the employer had reason to believe that an undue risk of harm would exist because of the employment. (See, Far West Financial Corp. v D & S Co. (1988) 46 Cal. 3d 796)
ST also argued that evidence of Carcamo’s employment and driving history is character evidence, inadmissible under Evidence Code section 1101(a) and 1104. The Justices pointed out that although evidence of prior accidents is inadmissible to prove Carcamo was at fault in the present accident (Evidence code section 1101(a)), it is admissible where it tends to show motive, knowledge, identity, intent, opportunity, preparation, plan, or absence of mistake or accident. (Evidence code section 1101(b), People v Brogna (1988) 202 Cal.App.3d 700)
An employer’s duty of care in hiring is breached when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed. (Federico v Superior Court (1997) 59 Cal.App.4th 1207) Where, as here, knowledge of a fact has important bearing upon the issues, evidence is admissible which relates to the question of the existence or nonexistence of such knowledge. (Larson v Solbakken (1963) 221 Cal.App.2d 410) In this case, the evidence was offered not to show Carcamo’s propensity to be involved in accidents, but to show that ST had knowledge of Carcamo’s involvement in prior accidents before he was hired.
Such evidence, of course, remains subject to exclusion under section 352, which weighs the probative value of evidence against the concerns of undue prejudice, confusion, or consumption of time. Carcamo’s prior employment and driving history had substantial probative value in determining whether ST was negligent in hiring or retaining him. The record shows that in a lengthy Evidence code section 402 hearing, the trial court carefully balanced the probative value of the evidence against the potential for prejudice resulting from its improper use by the jury. The evidence was introduced not to show Carcamo’s negligence, but to show ST’s disregard of Carcamo’s checkered past when it hired him and the unreasonable danger to which others were exposed by his driving.
Here the trial court gave the standard limiting instruction that evidence of Carcamo’s prior employment and driving history could be used only for the purpose of finding negligent hiring and retention. The Appellate Court must presume the jury followed these admonitions and limited its consideration of the evidence as instructed. If ST thought the limiting instruction was inadequate it had the responsibility to request additional clarifying language. (People v Rodriguez (1994) 8 Cal.4th 1060) The trial court did not err in admitting evidence and instructing the jury regarding those issues.
Pursuant to Civil Code section 1431.1(Proposition 51), the jury was required to apportion fault amongst the defendants to ensure each bore its share of responsibility for non-economic damages in proportion to their degree of fault. Plaintiff relied on distinct theories to implicate each defendant. Once of the theories was negligent hiring and retention, a theory which imposed greater liability on ST than just being Carcamo’s employer. Without proof on that issue apportionment of fault would be impossible. Since such proof raised the specter of prejudice, the trial judge used admonitions and instructions to the jury. There was no error.
Lastly, ST moved to exclude evidence of the disappearance of the tachograph chart in its truck. Evidence code section 413 allows the trier of fact to consider a party failing to explain or denying such evidence or facts against him, or his willful suppression of evidence relating thereto. Here the trial court instructed the jury that if it found the defendants willfully suppressed the tachograph for the subject truck, it might draw the inference there was something damaging to defendants’ case contained on that chart.
The DCA cited the California Supreme Court: “A trial is not a game where one counsel safely may sit back and refuse to produce evidence where in the nature of things his client is the only source from which that evidence may be secured. A defendant is under a duty to produce testimony adverse to himself, but if he fails to produce that which would naturally have been produced he must take the risk that the trier of fact will infer, and properly so, that the evidence, had it been produced, would have been adverse. (Williamson v Superior Court (1978) 21 Cal.3d 829)
Tachographs have been used to record truck speeds for over 60 years. Here the evidence would have been relevant to show whether Carcamo sped up to prevent Tagliaferri from passing him. Plaintiff presented evidence from which it could be inferred that ST did not merely lose the tachograph chart, but destroyed it to prevent the disclosure of damaging information. The trial court’s instruction was appropriate.
The judgment is affirmed. Respondent shall recover costs on appeal.