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. NOV AK, Plaintiff and Appellant,

v. CONTINENTAL TIRE NORTH AMERICA et al., Defendants and Respondents. A149494 , A150751, A150752
(Alameda County Super. Ct. No. RG137047 4 8)

Plaintiff Paula J. Novak appeals defense summary judgment s in her wrongful
de ath action against a tire manufacturer, Continental Tire North America (Continental)
, and an auto mechanic, Chi Tai (collectively defendants) . Plaintiff allege s defendants
fail ed to warn about the da ngers of rubber degradation in o ld 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 h is scooter was struck by a vehi cle 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 t he 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 negli gence 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 j udgment 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 m otorized

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 w as 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 passe nger 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 Gil lo o ly, 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 Gillo o ly w as 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. I n any event, it is conceded that any error in failing to serve Gillooly with defendants’ motion s was harmless as she had actual kn owledge of the motions.3

was equipped with a “General Road Tamer LX” tir e that had been manufactured in 1993 by C ontinental’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 S eptember 12, 2005 accident, Novak required the use of a three

- wh eel 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 intersect ion of Mowry Avenue and
Fremont Boulevard. Prior to the collision, Quader’s Corolla was heading east on Mowry Avenue in the right tu rn lane approaching Fremont Boulevard where he was intending to turn right on to southbound Fremont Bou levard, while Novak wa s 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, h e 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 cor ner of the intersection in h is 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 ca r 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 forward4

movement lever is released by the operator.” The engineer opined that “the ability to stop this scooter is substantially impaired a s 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 n o 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 an d 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 fr actures 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 questi on. ” ( 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 Chu rch ( 2017) 3 Cal.5th 1077, 1083 .)5

At issue here is causation. The trial court found that “p laintiff 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 a rgues 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 f ather 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 de ath. Plaintiff’s argument is primarily focused on just one as pect 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 anteced ent of an event.” ’ ” ( State D ept. of S tate Hospitals v. Superior Court (2015) 61 Cal.4th 339, 3 52 .) “ 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 somethin g 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 in jury 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 t his 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 ha s imposed additional “ limitations on liabili ty other than simple causality.” [Citation.] “ These additional limitations are related not only to the degree of6

connection between the conduct and the injur y, but also with public policy.” [Citation.] Thus, “ pro ximate cause ‘ is ordinarily concerned, not with the fact of causation, but with
the various consideration s 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 w hich 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 D ept. of State Hospitals
v. Su perior Cour t, supra, 61 Cal.4th at p. 353.) One p olicy 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. Ralph s Grocery Co. (2011) 51 Cal.4th 764, 771

- 773.) The concepts of duty and proximate cause are each expressions of public po licy 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 promu lgate relatively clear, categorical, bright

- line rules of law applica ble to a general class of cases.” ( Cabral v. Ralph s 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 t he particular context in w hich 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 ev ent 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]t here
must be some reasonable connection between the original negligence and its7

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 a n intervening force is a

supers eding 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 vie w 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 t he 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

m otorist who failed to yield, was not a foreseeable consequence of defendants’ failure to
warn that old tire s on another vehicle driven years earlier by another motorist were prone to blowouts. The connection between defendants’ conduct and the injury suffe red is too attenuated to show the lat er accident to be within the scope of the risk created by
defendants’ conduct : “t he injury suffered is connected only distantly and indirectly to the
defendant ’ s negligent act .” ( Cabral v. Ralph s 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 supers eding 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 caus ation, the question is one of law, not of
fact. ’ ” ( State D ept. of State Hospitals v. Superior Cour t, 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 defendan t 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 stan ding on a platform of defendant’ s railroad after buying a ti cket 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, j umped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door ope n, 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 t he 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 assis ting 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

s eries of events have someti mes 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 d ecided, 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 the9

package is too tenuous; in the old language, she is too remote. The combination of events and circumstances necessary to injure her is too improbabl e, too fantastic.” ( Ibid. ) Our Supreme Court has likewise observed that determinations of liability are
sometimes foun ded on duty principles when the determination properly rests on the
attenuated causal c onnection between the defendant ’ s conduct and the injury suffered. ( Cabral v. Ralph s Grocery Co., supra, 51 Cal.4th at pp. 779

- 780 & fn. 8.) The high court
summarized on e 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 negligenc e and the type of injury that resulted

— an errant vehicle striking the tow tr uck driver called to remove her car from the freeway

— was to o 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 i njury. In
Wawanesa Mutual In s. 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 t respassed 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 ] y ounger 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 were10

going to fall. The boys started to run, though perhaps more out of laughter than of fear. One of the y ounger 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
retrie ve 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 sa w flames at the base of the logs .” ( Id. at
p. 585.) The court found “no valid basis” to hold Timothy liable ( i d. at p. 586 ) upon concluding that “ the concatenation between Tim othy’ s in itial act of giving Eric a packet of cigarettes and the later fire is si mply too attenuated to show the fire was reasonably within the scope of the risk created by the initial act ” ( i d. at p. 588 )

. In the present case, the causal connection between defendants’ conduct and the injury suffered is even more tenuous than that pre sented 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 neg ligent third party. ’ ” ( Cabral v. Ralph s 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

ac cident 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 th e physical condition of another’ s body, the actor is a lso 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 con sequence of the original injury ” and “ leaves open the question of the actor’ s liability for a second11

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). ) A s previously discussed, t he facts here show that the second accident is not a normal consequence of the original injury and t he negligence of a third person

— the motorist who failed to yield to
Novak in the crosswalk

— was the supers eding 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. RG137047 4 8)

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 defendant s and respondent s 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