1

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,

v.

CONTINENTAL TIRE NORTH 

AMERICA et al.,

Defendants and Respondents.

A149494, A150751, A150752

(Alameda County

Super. Ct. No. RG13704748)

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.
2

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.
3

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 blowouts. 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 
4

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.)
5

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 
6

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 
7

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.)
8

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 
9

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 
10

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 
11

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.
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,

Plaintiff and Appellant,

v.

CONTINENTAL TIRE NORTH AMERICA 

et al.,

Defendants and Respondents.

A149494, A150751, A150752

(Alameda County

Super. Ct. No. RG13704748)

ORDER CERTIFYING 

OPINION FOR PUBLICATION

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:

Chi Tai:

YOKA & SMITH

Walter M. Yoka

Anthony F. Latiolait

Jeffrey Gordon

Nicholas von der Lancken

HARTSUYKER, STARTMAN & 

WILLIAMSABREGO

Edward J. Rodzewich, Esq.

A149494, A150751, A150752