Filed 3/13/24 Gonzalez v. Hettinga Transportation CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

RICARDO GONZALEZ et al.,

Plaintiffs and Appellants,

v.

HETTINGA TRANSPORTATION, INC.,

Defendant and Respondent, 

ZENITH INSURANCE COMPANY,

Intervenor and Appellant.

F083948

(Super. Ct. No. VCU277573)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. David C. 

Mathias, Judge.

Ball, Bonholtzer & Evans, Stephen C. Ball; Law Offices of James B. Kropff, 

James B. Kropff, for Plaintiffs and Appellants Ricardo Gonzalez et al. 

Chernow, Pine and Williams, Jeffrey J. Williams, for Intervenor and Appellant 

Zenith Insurance Company. 

Horton, Oberrecht & Kirkpatrick, Kimberly S. Oberrecht; Gordon & Polscer, 

Brian C. Hickman; Sagaser, Watkins & Wieland, William M. Woolman, for Defendant 

and Respondent. 

-ooOoo-
2.

In this negligence case, involving questions, among others, about the standard of 

care and causation, the trial court granted nonsuit. Judgment was entered in favor of 

defendant and this appeal followed. We reverse and remand with directions for a new 

trial. 

FACTUAL AND PROCEDURAL BACKGROUND

In 2017, and for several years before, Ricardo Gonzalez (Gonzalez) worked at AC 

Enterprises, a dairy operation in Tipton that was owned and run by Carl Brasil. This case 

arose out of an incident that occurred in the early morning hours of April 29, 2017, at the 

AC Enterprises dairy when Gonzalez, as part of his job duties, dislodged bales of hay 

from a haystack to feed the cows at the dairy. The night before the accident, Hettinga 

Transportation, Inc. (Hettinga), a company based in Pixley, had delivered the hay by 

truck to the dairy; Hettinga employees had unloaded and stacked the hay upon delivery. 

After Gonzalez downed a few bales of hay from the stack in order to process the hay and 

feed it to the cows, other haybales toppled onto him, grievously injuring him.

On February 28, 2019, Gonzalez and his wife, Hortencia Gonzalez (plaintiffs),

filed the complaint initiating this matter against Hettinga, the defendant. The complaint 

alleged two causes of action: negligence and loss of consortium. As to the negligence 

cause of action, the complaint alleged that on April [28], 2017, Hettinga delivered and 

negligently stacked haybales at AC Enterprises such that once Gonzalez subsequently 

dislodged bales of hay from the haystack to feed the dairy cows, other haybales fell on 

him and severely injured him. The complaint also alleged a claim for loss of consortium 

on behalf of Gonzalez’s wife, Hortencia Gonzalez. 

As for remedies, with respect to the negligence claim, the complaint sought 

damages resulting from the accident, including damages for past and future medical 

expenses, wage loss, and impaired future earning capacity. With regard to the loss of 

consortium claim, the complaint similarly sought monetary damages. 
3.

On August 8, 2019, AC Enterprises’ insurer, Zenith Insurance Company (Zenith 

or intervenor), filed a complaint-in-intervention against Hettinga. Zenith’s complaint-inintervention sought to recover from Hettinga—assertedly a potentially liable third 

party—worker’s compensation benefits paid by Zenith on Gonzalez’s claim after he was 

injured at work at AC Enterprises. 

The case proceeded to jury trial on December 1, 2021, in the Tulare County 

Superior Court. On December 2, 2021, Hettinga filed a motion for nonsuit arguing that 

the work-completed-and-accepted doctrine was applicable in this matter and precluded 

any negligence claim, because when the haystack toppled and injured Gonzalez, it had 

already been accepted by AC Enterprises and was no longer under Hettinga’s control. 

The court reserved ruling on Hettinga’s nonsuit motion until the close of plaintiffs’ and 

intervenor’s cases-in-chief (both of which proceeded concurrently). 

I. Trial Evidence in Plaintiffs’ and Intervenor’s Jointly-Presented Cases-inChief

A. Trial Testimony of Steve Hettinga

Steve Hettinga, Vice President of Hettinga Transportation, Inc., testified in 

plaintiffs’ and intervenor’s concurrent cases-in-chief. He described his company as 

follows: “[I]t’s a trucking company. We purchase dairy commodities, products, sell 

them to other dairies and, um, we transport it.” Hay was one of the commodities handled 

by Hettinga and the hay business comprised “50 percent” of Hettinga’s business. 

Steve Hettinga confirmed that Hettinga had delivered alfalfa hay to Carl Brasil’s 

dairy in April 2017. The bales of hay delivered to Carl Brasil’s dairy in April 2017 

measured “3 by 4 by 8” (three feet by four feet by eight feet). Bales with these 

dimensions are referred to as “big bales,” and each big bale weighs “1100 pound[s] or 

more” on average. Hettinga had picked up the hay that was delivered to Brasil’s dairy, 

from White Mountain Ranch in Nevada. The hay was transported on a truck with a “flat 

deck” and an additional flatbed trailer behind the truck. Hettinga employee, Bobby 
4.

Maestaz, drove the Hettinga truck. A total of 45 big bales were delivered to Brasil’s 

dairy; the 45 bales had an aggregate weight of 52,200 pounds or 26.10 tons. Hettinga 

employee and hay squeeze operator, Greg Brinkley, met the truck upon its arrival at 

Brasil’s diary, and unloaded and stacked the hay using Hettinga’s hay squeeze (a 

“squeeze” is a motorized loader that is used to unload bales of hay from trucks and to 

stack them). The delivery and stacking occurred on the evening of April 28, 2017. 

Intervenor’s counsel and Steve Hettinga had the following exchange regarding the 

unloading and stacking of the big bales:

“Q. All right. And, um, what training, if any, did Hettinga Transportation 

provide to Greg Brinkley, um, with regard to whether the hay is stacked in 

this case on the 4-foot side or the 3-foot side?

“A. I’m sorry. Say it again.

“Q. Did you provide Mr. Brinkley with any training on whether to stack 

the hay on the 3-foot side or the 4-foot side?

“A. Um, it would be training as to what is safe and what is not safe.

“Q. Okay.

“A. And that would be something that we would be training him to say –

or not sa[y] but training him to do and not say to be on a 3-by-8 edge [sic].

“Q. So Hettinga Transportation trained Mr. Brinkley to not stack the hay 

on the 3-foot edge because it would be dangerous?

“A. Correct.

“Q. Okay. And why would it be dangerous?

“A. They could fall.

“Q. Okay. The, um, training that you provided to Mr. Brinkley on whether 

to stack the bales on the 3-foot or the 4-foot side, did you follow that up 

with any recurrent training?

“A. I mean, there’s – the training is just pretty much we talk to each other, 

I guess you could say. It’s a verbal – nothing like we’re doing exercises. I 
5.

just would make sure that [it’s] not being done, whatever, that way, he 

never did it that way.

“Q. And how do you know that?

“A. I’ve never seen him do it that way. [¶ ] ... [¶ ]

“Q. Okay. Did Hettinga Transportation provide Mr. Brinkley with any 

training or instruction on how high and tall he could stack the hay that he 

was unloading on your customers’ property?

“A. No.

“Q. And, um, what did Hettinga Transportation consider to be a safe 

height, if any, for hay bales?

“A. Um, the – whatever was on the truck.

“Q. Okay. So if, for example, on the truck they were stacked on the 4-foot 

side three high – okay? We saw a picture of a truck this morning. [¶ ] Do 

you recall that?

“A. Correct. 

“Q. Um, that’s 9 feet tall. My math is correct; right? [¶ ] ... [¶ ]

“A. Okay. Yes.

“Q. Right. It would be three bales 3 feet high [each] stacked on the 4-foot 

side is 9 feet?

“A. Correct.

“Q. And so if it’s pulled off of the truck at 9 feet tall and placed on the 

ground 9 feet tall—

“A. Correct.

“Q. – that’s a safe height for Hettinga.

“A. Correct.

“Q. On the ground. Anything taller than that is not safe? [¶ ] ... [¶ ]

“A. I’m not 100 percent sure exactly what somebody considers safe and 

not. So I really – I couldn’t answer that. 
6.

“Q. So I think you mentioned a moment ago that Hettinga Transportation 

considered a safe height to be whatever the height of the bales [was] on the 

truck....

“A. Yes.

“Q. Okay. So what’s the maximum height you could put on the truck?

“A. Um, it would be 10 feet. [¶ ] Like the top, like, when it’s on the 

truck?

“Q. Yes.

“A. Fourteen feet. 

“Q. Okay. I’m sorry. On top of the flatbed.

“A. Yeah. Well, the top of our flatbed is a 3 feet – little over 3 feet tall or 

something like that. 31⁄2 feet. And so that 14 feet minus that 31⁄2 feet, so 

whatever that would be.

“Q. Ten to 11 feet, something like that?

“A. Right.

“Q. So if the hay was stacked on a customer’s property at a height in 

between 10 to [11] feet –

“A. Uh-huh.

“Q. – that would be within Hettinga Transportation’s expectation about a 

safe height?

“A. The feet I really can’t say because it all depends on how the bales are 

configured. If they weren’t in a safe manner, then 3 feet is too tall.” 

Steve Hettinga noted that Greg Brinkley had been unloading and stacking hay 

since Brinkley was a teenager and he was now retired, so Brinkley was a veteran at the 

job when he unloaded and stacked the hay in April 2017 at AC Enterprises. 

Hettinga’s paperwork regarding the hay delivery to AC Enterprises in April 2017 

showed that Lorenzo Ocampo, an employee of the dairy, signed off on the delivery. 
7.

Steve Hettinga testified: “Mr. Ocampo’s signature indicates that [the load] was received 

in good condition.” 

Steve Hettinga observed he first heard about the accident involving Gonzalez 

sometime in 2019, two years after the accident had occurred. The first news came via a 

letter from Gonzalez’s attorney. Hettinga had continued to sell hay to Carl Brasil’s dairy 

well after April 2017 and had only recently stopped doing so. 

B. Trial Testimony of Robert Maestaz

Robert Maestaz, who had driven trucks for 30 years including for nine years for 

Hettinga, testified at trial. With regard to the delivery to AC Enterprises in April 2017, 

Maestaz picked the hay up at White Mountain Ranch in Nevada on April 27, 2017, and 

delivered it to the dairy on April 28, 2017. Maestaz did not remember making that 

particular delivery to AC Enterprises. Maestaz confirmed he had no recollection with 

respect to the loads at issue or the configuration of the bales that comprised that delivery. 

Generally, with a hay delivery, Hettinga’s hay squeeze operator, Greg Brinkley, 

would tell Maestaz “where to park and drop the hay” at the delivery point. Typically, hay 

bales were stacked on the truck in nine-foot-high columns (that is, the bales were stacked 

three bales high, with each bale resting on its wider, four foot by eight foot side). The 

hay would be taken off the truck and then stacked on the ground outdoors or in a barn in 

the same configuration as had existed on the truck. Thus, when Maestaz brought hay to a 

delivery site, Brinkley would “regularly” stack the bales in columns that were three bales 

high (nine-feet high overall), with the bales resting on their wider, four foot by eight foot 

bases (stacking bales on their wide or flat bases is referred to as stacking them “flat”). 

The bales would be taken off the truck in batches of two columns, comprising a total of 

six bales, at a time. Maestaz was asked by plaintiffs’ counsel: “When Mr. Brinkley takes 

the hay off the truck into the yard, the dairy yard, for instance, does he ever stack it 

higher than three bales?” Maestaz answered in the affirmative, indicating that Brinkley 

would follow any specific instructions from the customer. Maestaz had seen Brinkley 
8.

stack bales as high as “[s]ix high with another six high on top”—in other words, 12 bales 

stacked flat, to a total height of 18 feet—in a spot designated by the customer, in special 

circumstances. 

In the case of the April 2017 delivery to AC Enterprises, the load comprised of 45 

bales. Maestaz initially indicated the bales were stacked in columns that were three bales 

high, with seven columns or 21 bales on the truck and eight columns or 24 bales on the 

trailer. The hay bales were picked up from White Mountain Ranch. Maestaz said he had 

picked up loads of 45 haybales from White Mountain Ranch “[l]ots of times” before 

April 2017, and “[e]very single time” the bales were loaded onto the truck and trailer in 

seven and eight columns respectively, with each column being three bales high. 

Subsequently, on examination by Hettinga’s counsel, Maestaz changed or 

modified his testimony. Maestaz indicated he had picked up hay from White Mountain 

Ranch “[p]retty often” before April 2017, and their hay would “[p]retty much” always be 

configured as “four high flat.” Maestaz explained that “four high flat” meant the 

haybales were stacked on their four foot by eight foot surfaces, that is, they were wide 

side down, in four-bale-high stacks. Maestaz was asked by Hettinga’s counsel: “When 

you would go to White Mountain Ranch to pick up hay, did they ever cross-bale it? 

Cross-tie it?” Maestaz answered, “No.” Counsel next asked Maestaz: “Was it always in 

the same fashion every time you got there?” Maestaz responded, “Yes.” Maestaz 

testified that the trailer was “8-foot wide” and approximately “4 feet” off the ground, and 

the maximum legal height of the truck/trailer and its load was 14 feet.1 

1 To the extent Maestaz testified the haybale stacks from White Mountain Ranch 

were “four high flat,” the height of each stack would be 12 feet. The 12-foot-stack 

height, coupled with the truck bed/trailer bed height of four feet, would exceed the 14-

foot maximum height referenced by Maestaz. 
9.

C. Trial Testimony of Greg Brinkley

Greg Brinkley was retired at the time of trial, but he had worked as a squeeze 

operator for “[p]robably 20 years”; prior to retiring, he worked for Hettinga for eight or 

nine years. Brinkley did not remember the hay delivery to AC Enterprises in April 2017 

and could not say how he had stacked the bales on the day in question. Brinkley knew 

Carl Brasil; typically, Carl Brasil wanted his hay stacked “[t]hree high.” Brinkley could 

usually unload a load of 45 haybales in “[a]bout 15 minutes,” unloading two columns of 

haybales at a time. The highest Brinkley had ever stacked haybales, at the behest of a 

dairyman, was eight bales high in a barn. As for stacking outdoors, Brinkley observed: 

“Usually if you [un]load it outside, they’re going to feed it right away, so you just set it 

off three high.” 

Brinkley described how a hay squeeze works: “They got two rams [forks or 

clamps] on the bottom, and they open up, and you go in and clamp – excuse me – clamp 

the six bales and pick it up and go wherever you’re going to put it.” Brinkley said the 

rams or clamps could go out and back in but they could not rotate. Brinkley explained 

that in offloading a truck with a typical load,2 he would clamp six bales—that is, two 

columns of three bales each—with the squeeze and simply set them down at the desired 

spot.) Then he would “open the forks and do it again.” 

Brinkley stated that if the load on the truck was configured with the bales resting 

on their four foot by eight foot surfaces, he would set them down in the same 

configuration upon unloading them; it would take much longer to rearrange them to sit on 

their three foot by eight foot surfaces instead, so there was no incentive to do so. 

Brinkley added: “White Mountain put [the bales] four high, and they set them on [the 

wide edge so each bale was] three [feet] high. And there’s nobody going to do any extra 

work for free.” 

2 Brinkley was referring to a photo of a typical truck/trailer loaded with haybales 

that he was shown by Hettinga’s counsel. 
10.

In the course of his testimony, Brinkley was asked: “[I]n [the] 20 years [that you 

worked as a squeeze operator,] did you gain an understanding of how dairy workers 

would take down the bales of hay after they had been stacked?” Brinkley responded: 

“Depends on what dairy you’re talking about.” Brinkley was then asked a follow up 

question: “Carl Brasil’s dairy, for example?” Brinkley answered: “Pushed it down 

[with] the loader.” 

D. Trial Testimony of Carl Brasil

Carl Brasil had worked in the dairy business from a “young age,” well before he 

was a teenager. Brasil “received a bachelor’s of science degree in mechanical 

engineering” from Fresno State but continued to work in the dairy business. Gonzalez 

worked for Brasil for six years. On the early morning of Saturday, April 29, 2017, 

Gonzalez was injured in an accident at the dairy that occurred in connection with the hay 

delivered and stacked by Hettinga the prior evening (around 5:00 p.m.). At the time the 

dairy had a total of about 1700 animals, including both calves and mature cows. Brasil 

had ordered the hay from Hettinga to feed his cows (the purchase price included the cost 

of delivering and stacking the hay at Brasil’s dairy). Brasil was pretty much out of hay at 

the time, so the hay would be used immediately upon delivery. Brinkley did not ask 

Brasil where or how to stack the bales, or to inspect the hay once it was stacked. 

The bales delivered by Hettinga in April 2017 measured three feet by four feet by 

eight feet, with each bale typically weighing 1200 pounds. Once hay was delivered to the 

dairy, Brasil’s workers would use a Caterpillar bucket loader to “knock down the hay to 

cut it” (each bale was tied up with poly twine). More specifically, Brasil explained: 

“Once it’s delivered, all I had to unstack the hay was a wheel [or bucket] loader. Um, 

that doesn’t have a clamp that’s made – it’s – you know, it’s a bucket to scoop dry or 

loose-ingredient feed. But you can use it to manipulate a haystack and, you know, topple 

it down to the ground so that, you know, you can then scoop[] it up for – cut the – you 

know, the twine that holds it back together. Then it opens up and then you can scoop it 
11.

up. But that was the only thing I had on the dairy to – to feed the – you know, 

sufficiently feed the cows these bales of hay with.” 

Brasil further explained that, upon knocking bales down from the haystack, his 

workers would cut the twine holding the bale together, they would then scoop up the 

disaggregated bale with the bucket loader and dump it into a “processing tub” called a 

“mixer wagon,” which would process the hay into “inch and a half” pieces to make it 

easier for the cows to eat. 

Brasil testified: “Approximately two to three weeks before the incident, 

[Gonzalez] went from [a] milker [position in the milking barn] to [working] outside and 

feeding the animals rather than milking them.” The change in jobs was a promotion. 

Brasil personally trained Gonzalez for the feeding position. Brasil stated: “[T]he training 

is the most intense training I’ve ever done with anybody. Um, it was side by side, um, 

throughout the whole day workday, eight hours side by side making sure that – you know 

for two to three weeks prior to the accident, making sure that he understood, you know, 

all the, you know, nuances of the new job. Because it was a lot, you know, different from 

his old role. His old position.” Brasil added: “[W]e were both up together at 5:30 in the 

morning, and we would finish at 1:00 or 1:30 in the afternoon. And, like I said, I never 

left him, um, alone for those first two weeks ... I would call it a very intense training.” 

Among other things, the training addressed how to unstack bales of hay. By the end of 

the training Gonzalez would be alone in the cabin of the loader and Brasil would 

“monitor his performance from the ground.” Big bales were the most common type of 

bales at the dairy and were always stacked “[o]n the 4-foot side.” 

Brasil described how he would deploy the bucket loader to dislodge bales from the 

haystack when they were stacked, per normal, on the four-foot side: “I would either 

approach it with the bucket and, you know, put – because the bucket will put a lot of 

pressure or force, and I would try to ... [p]ut pressure like this and try to, you know, back 

– backpedal the loader to try to topple, or I would come in from a corner and try to push 
12.

it and topple. Whatever the loader would reach. I would say between the third, second, 

and try to topple it that way.” The maximum reach of the loader was 12 feet. 

Brasil noted that his stacks were usually cross-tied or tied: “Two stacks parallel to 

each other on the bottom then 90 degrees to that on the next layer.” He added: “That’s 

what we call the tie.” In unstacking a tied stack, one would have to change one’s 

orientation when toppling over each layer. Brasil explained: “But it’s just a little bit 

stronger. I mean, it’s, you know, a little bit safer, stronger.” Brasil continued: “They 

don’t topple as easily when you’re not trying to manipulate them. First, I mean, if 

anyone’s played Jenga, the tie – I don’t know if we want to get into the physics of why it 

works. When you tie them like that, you know, it helps [a lot].” Brasil noted that when 

hay was brought in by truck, rather than on specialized equipment, it was usually not tied

(although it would nonetheless be stacked “flat”). If the hay was to be stored for a long 

time, Brasil would ensure it was stacked in a tied configuration but not when it was going 

to be used immediately. Brasil stated: “And I’ll tie my own hay. If you know you’re 

going to store it for long period of time, you usually tie it. Take your time.” The 

Hettinga hay was intended for immediate use. 

At 6:30 a.m. on the morning of Saturday, April 29, 2017, Brasil headed out of his 

house, jumped in a little golf cart he used to travel around his property, and proceeded to 

drive through the dairy. He testified: “And I noticed something, peculiar about the feed 

area ... because that was some of the only activity that was going on that morning. And I 

noticed that, um, the equipment was parked, and I didn’t see [Gonzalez], you know, on 

foot or in the tractor – in either of the tractors. I really couldn’t locate him. [¶ ] So, um, 

when I drove closer, I noticed that he was on the ground, um, between a few of the hay 

bales with his eyes closed with blood – dried blood covering his face.” The hay was 

stacked near him, mostly on a dirt surface, but partly on a concrete surface. Gonzalez 

was lying faceup, on the concrete and was unconscious. Gonzalez was the only person 

working on the haybales that morning. Moreover, since it was a Saturday, Brasil was the 
13.

first person to encounter Gonzalez at the scene of the accident. The loader, with its 

bucket empty, was idling; similarly, the mixer was empty and idling. 

This encounter was the first time Brasil saw Gonzalez that morning; it was also the 

first time Brasil saw the hay that had been delivered by Hettinga the night before. Brasil 

estimated the hay was delivered at 5:00 p.m. the night before and so had been on his 

property for approximately 13 or 14 hours when he saw it. Brasil initially “thought 

[Gonzalez] was dead.” He could see that Gonzalez’s legs were “really damaged.” When 

Brasil called Gonzalez’s name, Gonzalez responded stating “everything’s fine and he 

wanted to continue doing his job.” He said there was a problem with his legs and asked 

Brasil to “help him back onto the piece of equipment” so he could finish his job. Brasil 

testified: “I could see his legs, and I could tell that they were – like, past the kneecap, 

they were in a position that was not normal. They were [both], you know, contorted to 

one side ... it was not a normal position.” Brasil immediately called 911 and Gonzalez 

was soon taken away in an ambulance. 

Brasil described the scene of the accident with reference to a rough diagram he 

had drawn for investigators from the Occupation Safety and Health Administration 

(OSHA), which investigated the accident shortly after it occurred. (Ex. 451; attached to 

this opinion as Appendix A.) The hay was stacked in multiple rows of two columns 

each: each column consisted of a stack of four bales of hay. Gonzalez was lying on the 

ground at one end of the haystack, about 15 to 20 feet in front of the left-hand column of 

the row at that end of the haystack (that is, the end closest to Gonzalez). Both the rightand left-hand columns in that end row, that is, the row closest to Gonzalez, had only one 

bale remaining. Three bales were on the ground, to the right of the right-hand column of 

that end row; the twine on these three bales had been “cut and pulled” and they were 

“ready to be fed [into the mixer wagon].” Three other bales were lying in front of the 

left-hand column of that end row, around and partially above (but not touching) 

Gonzalez’s body; these three bales were untouched and were still “wrapped with twine.” 
14.

Brasil was asked to describe, with reference to the diagram, the position of the 

three bales surrounding Gonzalez as he lay on the ground. Brasil stated: “So when I 

came up, um, I found his body in between two bales, and then his head was here, and his 

feet were there. And this one was wedged like that .... [The bales] were 6 to 12 inches 

above.” The bucket loader was idling to the left of the left-hand column of the end row 

(that is, the row closest to Gonzalez’s body). Gonzalez was lying in front of the left-hand 

column of that end row, more or less in line with the bucket loader, which was further to 

the left. 

Brasil had noted, on the diagram he made for OSHA, the dimensions of the 

haybales in the columns comprising the haystack. Asked to explain the dimensions he 

had noted, Brasil testified: “Um, that’s just showing dimensions of [each] bale when I 

found them as far as the stack. And, you know, when you approached it looking at that 

call, it was 8 foot, and it was sitting on a 3-foot base and then 4 foot high.” (Ex. 451.) In 

other words, it was stacked on the narrow end. Brasil was then asked: “On Exhibit 451 

... there appear to be more bales shown on here behind the two front bales.... [¶ ] Talk 

to us about those.” Brasil responded: “Those were the rest of the load. Um, and they 

were in two columns, and they were stacked on the 3-foot end four high, so that would be 

16 feet in the air. And, I mean, I didn’t count them ... that day, but if we take the load 

count, which was roughly 45 to 50, and in two columns ... each face [or row] contained 

eight bales.” Brasil added: “So if we divide that out, I think it was five or six faces [or 

rows].” In other words, looking at the scene post-accident, the end row closest to 

Gonzalez’s body had two columns that were only one bale high each, and behind that row 

were five or six other rows with two columns, each four bales high. 

After Gonzalez was taken away in an ambulance, Brasil turned to the task of 

feeding the cows. Brasil first turned his attention to the three bales that were around 

Gonzalez’s body. One was not quite on the ground, so Brasil maneuvered it until it 

rested safely on the ground. He then “cut” those three bales and dumped them, along 
15.

with the three other bales that had already been “cut,” into the nearby mixer wagon and 

fed the resulting mix to the cows. Over the next few hours and days, Brasil proceeded to 

take down the remaining columns of haybales until all the hay was used up. 

Brasil described his experience in handling the haystack: “Well, that day 

immediately – the first time that I handled the hay with the loader, um, after 

Mr. Gonzalez had left the scene, um, I noticed that [the] hay was, um, very sticky. And 

one face or – wanted to stick to the other face, the back of it. It was just like it had been 

mated with each other for a very long time. So I -- and then I had hindsight of 

Mr. Gonzalez’s accident. So I just proceeded with extreme caution while – while 

maneuvering the bales.” 

Brasil was asked: “Did you notice any instability in the hay when you were 

personally taking down the hay bales?” Brasil answered: “Well, the first time I tried to 

manipulate, it must have only been um, an hour after, um, Mr. Gonzalez had left in an 

ambulance. I had to essentially do the same thing that Mr. Gonzalez had to do with – and 

by that I mean drive the loader and rip off a layer of the bales, because the loader, like we 

said, was the only tool that we had on the dairy to, um, you know, bring these bales down 

to ground height so we can cut them and feed them.” Brasil continued: “And what I 

noticed was, um, after I tried to rip a layer off and I was, um, -- I was toppling the 

outermost layer, I noticed that the layer behind that, um, was leaning. And what I did, 

um, was I kind of jerked the wheel of the wheel loader to create momentum so that, you 

know, they would separate. Like, create an [opposite] reaction so that they would 

separate. And they did, but I had the hindsight of, you know, Mr. [Gonzalez] and the 

accident, so....” 

Brasil was asked, in light of all the hours he spent working with that haystack in 

the days following the accident, whether he had any doubt in his mind at all that the bales 

were stacked on their three-foot sides and not their four-foot sides? Brasil responded: 

“There’s no doubt [they were] stacked on [their] 3-foot side[s].” Brasil was further 
16.

asked: “Based on what you observed when you found Mr. Gonzalez lying on the ground, 

was there any limitation that you saw in the area where the hay was stacked that would 

have prevented the hay from being stacked as low as two high instead of four?” Brasil 

answered: “No.” 

A couple of months after the accident, Brasil was contacted by OSHA, which was 

investigating the accident; Brasil submitted a report to the agency. In the report, Brasil 

wrote that Gonzalez “separated hay bales from a stack to ground level, so he could cut 

twine around [the] bale.” Brasil added in the report that Gonzalez “ ‘created a lean on 

some of the bales left in the stack,’ ” and “ ‘when he went to cut the bales on the ground, 

the stack fell and the bale hit him.’ ” Brasil further explained in the report: “ ‘The root 

cause of this incident was poor hay stacking by the trucking company. The bales should 

have never been stacked in the position in the extreme height.’ ” 

Brasil noted that, following the accident, he stopped using the bucket loader to 

dislodge haybales from haystacks, at his dairy. Rather, he switched to a “whole different 

loader,” with a “different attachment.” The new loader was a squeeze-like machine with 

forks for picking up bales and moving them more safely. 

E. Trial Testimony of Frank Ricardo

Frank Ricardo was the manager of the fields surrounding Carl Brasil’s dairy, 

where he had worked for approximately six years. Ricardo was working at the dairy on 

the morning of April 29, 2017, when the instant accident had occurred. Ricardo 

explained: “I was driving in when I seen Carl talking on the phone, and I had to stop by 

to talk to him and seen [Gonzalez] [lying] there.” Ricardo added: “I seen him there. 

And I seen hay around him. And I knew something had happened. You know, and the 

more I stood there and looked at him, I got kind of wheezy. And so, of course, I could 

hear paramedics coming in, so I wanted to get out of the way. So I left.” Ricardo 

basically remained on the scene for “[f]ive minutes.” 
17.

Ricardo noted that some of the bales on the ground appeared to have been “cut,”

while others “seemed like they weren’t cut” and remained tied up (those closest to 

Gonzalez were tied up). Gonzalez was lying 15 to 18 feet from the haystack; the bucket 

loader (with its bucket lowered) was a little closer to the stack, “[a]bout 10, 15 feet” from 

it. The loader had a “[v]ery sturdy” cover over the driver’s seat (the import of this 

testimony was that the fact the driver’s seat was protected indicated that bales from the 

stack did not topple onto Gonzalez while he was sitting in the loader). 

Ricardo said he remembered how the hay was stacked that morning: “It was 

stacked upright.” More specifically, the bales were stacked resting on their three-footsides and were stacked “[f]our high.” Ricardo had worked in the dairy farming business 

for 45 years; he had stacked hay himself and had previously worked unloading hay trucks 

for a farmer (a long time ago). He had seen hay stacked in the same “[u]pright” 

configuration only once before. In this case, Ricardo observed, “apparently, looked like 

[Gonzalez] knocked bales down and then the other ones came down afterwards.” 

Ricardo, who had personally stacked hay at times, said he considered the configuration of 

the haystack to be “[n]ot safe.”3 Ricardo did not take a photo of the haystack at the time. 

F. Trial Testimony of Lorenzo Ocampo

Lorenzo Ocampo was at the dairy when the Hettinga hay was delivered in April 

2017, and he signed off on the delivery. When Ocampo signed for the delivery, he could 

not even see the stacked hay. Ocampo did not work with hay and had no other role in 

connection with the delivery. When Ocampo subsequently saw the stack, he noted the 

bales were stacked four high; the bales were stacked on their three-foot edges. The stack 

was not leaning; rather it looked “[n]ormal like always.” 

3 After Ricardo gave this testimony, the trial court sustained an objection to it on 

grounds of “[i]mproper opinion from a lay witness, relevance, and beyond the scope”; 

however, the testimony itself was not struck from the record. 
18.

The next day, Ocampo came by the scene of the accident involving Gonzalez, 

shortly after it happened. He saw two bales on the ground, the twine was cut on one bale 

but not the other one. He believed the bales fell from a stack of hay that was right next to 

Gonzalez. 

At present, the dairy uses a different contraption on the loader in place of the 

bucket, to knock down haybales off the haystack. 

G. Trial Testimony of Ricardo Gonzalez

Ricardo Gonzalez, plaintiff, testified on his own behalf. Gonzalez had worked for 

five to six years at AC Enterprises when the accident occurred. He started as a milker 

and had recently joined the feed team when the accident occurred. In order to feed the 

cows, Gonzalez first had to knock down a haybale from the top of the haystack with a 

bucket loader. Brasil had told him to push only one bale at a time and he was aware that 

bales could fall from a haystack. After pushing down a bale, Gonzalez would then move 

the bale a safe distance away from the stack (i.e., 30-40 feet), cut the “threads or wires” 

that were used to bind the hay into a bale, tear the bale apart with the loader, and put the 

hay into a grinder. He would use four to five bales to feed the cows. Gonzalez had 

worked with both small bales and big bales. 

Gonzalez had no memory of the April 2017 accident. The accident led to injuries 

to Gonzalez’s head, face, pelvis, and legs, among other parts of his body. He was in the 

hospital for weeks, followed by successive stints in a rehabilitation hospital, the Centre

for Neuro Skills, and the Pacific Spine Center. He had seen numerous doctors as well as 

a psychologist. During that time, he was in terrible pain, had double vision, was fed 

through a tube to his stomach, and had a lot of issues. He had to have all kinds of 

implants in his face. He had to be taught to walk again. He had vision problems in his 

left eye to this day and had lost his sense of smell as well as sexual function; he also had 

ongoing lower back pain. 
19.

After the accident, he developed a lot of anxiety and suffered from depression; 

even now, he could not handle noise and his anxiety was triggered in large groups of 

people. He has to isolate himself to cope. Gonzalez is on Celexa and Gabapentin. He 

has been under treatment for four years; he is able to drive, do household work, and 

volunteer at a senior center. Gonzalez testified: “I have thoughts of suicide. Sometimes 

I feel like doing nothing. I can’t take interest in what I’m doing.” 

H. Testimony of Hortencia Gonzalez

Hortencia Gonzalez (Hortencia) is Gonzalez’s wife; they were married in 1988 

and had four children together. Hortencia works at a hotel. Hortencia testified that, prior 

to the accident, Gonzalez was a hardworking person, who was never sick and never 

missed work. He was a very good husband and father. 

After the accident, Gonzalez was taken to Kaweah Delta Hospital; a few hours 

later he was taken by helicopter to a hospital in Fresno, where he stayed for two to three 

weeks. Hortencia stayed by his side. His pelvis was broken, his legs were broken, his 

mouth was surgically closed (he was fed by tube); he had daily surgeries to his head, 

forehead, nose, throat, and teeth. He was later transferred to San Joaquin Hospital, and 

from there to the Centre for Neuro Skills in Bakersfield for six months. Hortencia stayed 

with him throughout. He had to learn to walk again, like a child. Eventually, he came 

home. 

Gonzalez continues to have a lot of pain and has lost his sense of smell. He has 

also developed anxiety, depression, and forgetfulness; he gets frustrated and is reclusive 

now. He has tried to commit suicide and it is not appropriate to leave him alone at home. 

He sees a therapist for emotional problems. Hortencia and Gonzalez are no longer 

intimate. Hortencia, though, loves him “even more” than before. 

I. Other Relevant Witness Testimony

Two of Gonzalez’s children testified on his behalf. 
20.

Jennifer Wakefield, a claims specialist for Zenith Insurance Company, testified on 

behalf of intervenor, Zenith, which (as noted above) was Carl Brasil’s workers 

compensation insurer. Wakefield testified that Zenith had paid $881,649.56 in medical 

benefits on Gonzalez’s workers compensation claim. 

Dr. Christopher Stephenson, M.D., who is board certified in physical medicine and 

rehabilitation and subspecialty certified in brain injury medicine, testified on behalf of 

Gonzalez. Dr. Stephenson reviewed Gonzalez’s extensive medical records, interviewed 

Gonzalez, and performed a physical examination; he diagnosed Gonzalez with a range of 

physical and other issues. He opined that Gonzalez is not employable and requires 

routine monitoring by a caregiver. Dr. Stephenson generated a “restorative life care 

plan” for Gonzalez; the life care plan included 24-hour assistance for Gonzalez for the 

rest of his life. 

Kelly Nasser, R.N., testified that she researched and assigned reasonable cost 

figures to the life care plan generated by Dr. Stephenson. 

Diomaris Safi, Psy.D., a neuropsychologist, testified on behalf of Gonzales. She 

diagnosed Gonzalez with major depressive disorder associated with traumatic brain 

injury and mild neurocognitive disorder. 

Kurt Weiss, a forensic engineer and traffic collision reconstructionist, testified as a 

retained expert for Gonzalez. Weiss testified he was tasked with stacking hay in different 

configurations and determining the force needed to tip each type of stack; Weiss 

acknowledged that the ground surface where he conducted his project was sloping. 

Weiss stacked hay bales on their three-foot sides and on their four-foot sides during his 

experimentation. Weiss did not attempt to reconstruct the actual accident at issue in this 

case and was not retained to offer an opinion as to what happened on the day of the 

accident. 

The trial court struck the entirety of Weiss’s testimony (the trial court’s ruling 

striking Weiss’s testimony is not at issue in this appeal). Prior to making its ruling the 
21.

court indicated its concerns: “Let me just state on the front side, um, this experiment –

these experiments aren’t even close to what the testimony has been in the case .... And I 

just have concerns 352 concerns. Um, incomplete experiments, um, experiments that 

don’t reflect the, um, testimony in the case.” Subsequently, in making its ruling, the trial 

court stated: “I’m going to strike [Weiss’s] testimony. Um, I just can’t compare it to the 

actual facts of this case. Um, 350, 352, incomplete and inaccurate experiment[s] are the 

formal bases for striking this testimony. Um, I think it’s misleading.” 

II. Hettinga’s Motion for Nonsuit

When Gonzalez and intervenor rested after presenting their cases in chief, 

Hettinga moved for nonsuit. Hettinga’s counsel stated: “So at this time I would like to 

move for nonsuit, first on the completed and accepted doctrine, which was outlined in the 

brief that we had filed. But now that we have all of the evidence, I think it is undisputed 

that the hay was delivered and accepted by Carl Brasil, at which point it became his 

property and at which point he becomes responsible for it.” Counsel added: “Whatever 

condition it’s in is open and obvious to anyone. I don’t think there is any other way that 

[the] hay is 3-by-4-by-8 feet in size. So whichever way it’s configured, and there’s a 

dispute, obviously, over that, it doesn’t matter. They all could see it with their eyes, and 

if there was a problem with it, they knew it from the moment that they had it delivered.” 

Hettinga orally expanded its motion for nonsuit to other grounds beyond the 

completed and accepted doctrine. Hettinga’s counsel continued: “But in addition to that, 

I don’t think either of the plaintiffs have put on a case of negligence on the part of 

Hettinga. All they’ve said is some hay was delivered. There is absolutely no evidence 

that they did anything that was negligent. They have no standard of care person coming 

in to testify. Um, they have no one to say that what they did was wrong. In fact, 

everybody says the hay was stacked just fine. It wasn’t falling over.” Counsel next 

argued that Gonzalez and intervenor had also failed to prove causation, that is, that 

Hettinga caused the accident involving Gonzalez. Counsel contended: “That hay would 
22.

not fall on its own but for Mr. Gonzalez creating a lean in the haystack and it falling after 

he disrupted it.” 

In addition, Hettinga’s counsel argued that the court was required to grant nonsuit 

because Gonzalez and intervenor had not presented evidence to specifically establish that 

the actual medical care provided to Gonzalez “was reasonable, necessary and required 

because of the accident,” and Gonzalez had not specifically established that it was more 

likely than not that any future medical care was reasonable, necessary, and required 

because of the accident.4 

After Hettinga’s counsel had presented her oral nonsuit motion, the court asked 

her: “Is it your opinion, Counsel, that the issue of standard of care causation [sic] in this 

case requires expert testimony by the other side?” Hettinga’s counsel replied: “Not 

causation.” The court then asked, “Standard of care?” Hettinga’s counsel responded: 

“In this case, it’s a good question, because it’s so unusual what they’re alleging. Um, I 

think they would have to in order to establish what – what the practice is in this case.” 

Intervenor’s counsel and Gonzalez’s counsel vigorously opposed Hettinga’s 

motion on all grounds. Among other arguments, intervenor’s counsel argued: “So as we 

indicated in our brief, the accepted work doctrine is not in their answer, was never pled as 

an affirmative defense. What they say in their briefing is, well, we hit it in some other 

affirmative defenses, and maybe you should have known it was in there. It was never 

pled. Okay? So we’re addressing something that was never pled.” Intervenor’s counsel 

4

In the trial court, Hettinga’s counsel also argued that Gonzalez had not 

introduced evidence relevant to his claim for damages based on wage loss and future loss 

of earnings. Specifically, Hettinga’s counsel argued: “Lastly, the wage loss claim that is 

still pending. There’s not been a single bit of testimony about how much money Mr. 

Gonzalez made. Ever. How much money he lost, how many days he was off work, who 

told him he should not work. There’s been no evidence of future loss of economic 

damages. There’s been no economist to present any numbers whatsoever. [¶ ] So a 

nonsuit on wage loss and future loss of earnings must be granted because it would invite 

the jury to speculate because we have no evidence at all of anything related to the wage 

loss.” However, Hettinga has not raised or addressed this issue on appeal.
23.

also pointed out: “All of the cases that apply to the accepted work doctrine deal with 

construction projects and not chattels or goods like we’re dealing with here.” 

Turning to the negligence claim against Hettinga, intervenor’s counsel argued: 

“So if we start with the duty issue, the first step in this case is the contractual relationship 

between Mr. Brasil and his dairy and Hettinga Transportation. And that, of course, is the 

source of the duty. [¶ ] What we have here is a classic case of a negligent undertaking

by Hettinga. They were paid money to deliver and stack hay in a reasonable [manner], 

and we don’t think they did it. It’s a common negligent undertaking. You see it all the 

time in contracts, and that’s why you don’t need an expert witness here to testify about 

what the standard of care is. There is a jury instruction on negligent undertaking.” 

Intervenor’s counsel added: “Okay. So there’s a contract made. The hay is delivered. 

Um, counsel indicates there’s a dispute as to how the hay was stacked. I would say 

absolutely there is no dispute at this point given the standard the Court must view the 

evidence in, in a nonsuit fashion.” Intervenor’s counsel continued: “Applying that prism 

to how we look at the evidence, the evidence is totally one-sided that the hay was stacked 

on the narrow 3-foot side, four bales tall.” 

Referring to Exhibit 451, which was a rough diagram of the scene of the accident 

sketched by Carl Brasil for OSHA, intervenor’s counsel stated: “Um, and this is a really 

important exhibit in my mind, Your Honor, because while we don’t have photographs –

we established that yesterday – um, this is the best we got, in my view. And what it 

shows is there’s two columns here, each column 8 feet wide, stacked on the 3-foot edge. 

Okay? [¶ ] According to Mr. Brasil – and the testimony has to be read favorably to us, 

of course, at this stage of the case ... [Gonzalez] went over to the right side column on 

Exhibit 451 and took down three bales from that column ... [¶ ] At this stage of the case, 

there is no evidence, especially under the nonsuit standard, that when Mr. Gonzalez took 

down the three bales from the right side that he did anything to disturb the left side. No 

one has testified to that. Carl Brasil said he thought he might have. Carl Brasil doesn’t 
24.

know. And so the inferences have to be drawn in our favor that Mr. Gonzalez did 

nothing to disturb the left-hand stack when he took the three down.” 

Intervenor’s counsel added: “So when he took the three down, he drove the 

[loader] over, knocked them over, drove the loader back over, walked back over. All the 

while this stack [on the left] is still remaining stable. It’s not moving. He’s over here, 

takes out his knife, scissors, whatever. He starts cutting the twine off of the bales. As 

he’s walking back, the other stack on the left on Exhibit 451 topples over and lands on 

top of him.” Intervenor’s counsel continued: “We know from the testimony – it’s 

undisputed – that he was some distance away from the stack but not enough to avoid the 

16-foot stack. If this was a [shorter stack, e.g. a standard nine-foot stack], we wouldn’t 

be here today. It would have landed short of him even if it could topple, which I don’t 

think it could.” Counsel concluded: “The ordinary peril the cow feeders would face 

every day is an ordinary stack, according to Hettinga, ordinarily would do this with a 9-

foot stack. That’s an ordinary risk that the dairy workers face every day when they go 

over to the hay.” 

The court then asked intervenor’s counsel: “What testimony was provided that 

stacking hay in [the manner Hettinga did] falls below the standard of care in the industry 

or below the industry standard as far as stacking hay?” Intervenor’s counsel responded: 

“So, again, I don’t think it’s an industry standard. It’s a simple negligence, carelessness 

thing.” Intervenor’s counsel explained: “The jury without expert testimony can conclude 

that it was unreasonable to put it on the 3-foot side, which makes things wobblier, and 

then make it 16 feet tall and then stacked in a way that if you foreseeably – which this 

was – foreseeably knock down an adjacent stack that the other adjacent stack would 

remain standing for some period of time, giving him a false sense of security, until you 

happen to walk by it 10 to 15 feet away and then it silently falls on you. You don’t need 

an expert to see that. And I don’t think you need an expert to know that there is no way 
25.

this could happen if it was 9 feet tall. This only happened because it had a wobbly 

bottom and too much height. You don’t need an expert for that.” 

Intervenor’s counsel further explained: “So there’s no evidence in the record that 

there is any standard that applies to stacking hay. It was a wild guess from [Hettinga’s] 

counsel when you asked the question as to whether there should be expert testimony. I 

suspect she said yes because we don’t have any, and we don’t need any. And there’s no 

evidence to we would need any.” Intervenor’s counsel added: “This is common sense 

how you stack hay in a safe way so it doesn’t topple over. The one way to make sure that 

taking down some of the hay to feed the cows doesn’t cause a problem later on is to stack 

it 9 feet high, which they have plenty of room to do, according to Carl Brasil. And if they 

had stacked it 9 feet high, we wouldn’t be here. And that’s the case.” Intervenor’s

counsel concluded: “And the problem with stacking it 16 feet high, when ... 

Mr. Gonzalez took down the three bales that he did and then untied them and that column 

remained steady strongly suggests, and I believe the jury can find, that the insidious part 

of the way that they stacked this was ... it’s almost like a house of cards, Your Honor. 

This one depended for its stability on this one. And on one knew that until those bales 

were taken down. [¶ ] That’s the problem with this thing, and that’s why it’s a question 

of fact as to whether it was patent or latent. The peril was hidden in the way that [Greg 

Brinkley] stacked the hay too tall and too narrow.” 

Thereafter, the court observed that it had sua sponte brought up the issue of 

whether an expert witness on the applicable standard of care was required in this case. 

The court explained: “[B]ecause it’s obvious that no expert has been designated or 

brought forward to testify as to standard of care.” The court pointed out that Hettinga’s 

counsel had noted, in response to the court’s question on the issue, “ ‘that’s a good 

question.’ ” The court added: “[N]egligence and the elements that are set forth in 

negligence include standard of care.” The court turned to intervenor’s counsel, stating: 

“I’m still a bit stuck on – first of all, I believe your position is that this is a [latent] defect, 
26.

um, that Brasil would not know about. So the question I have is if this is a stack of hay, 

and this is what’s being argued by [Hettinga] that’s sitting there, is claimed by plaintiff 

16 feet high, all stacked as alleged by plaintiff the wrong way, how is that latent?” 

The question of a latent or patent defect came up because the parties indicated it 

was relevant to the work-completed-and-accepted doctrine, which was invoked by 

Hettinga as one of the grounds for its motion for nonsuit. Intervenor’s counsel 

responded, in the context of that doctrine, that it was not a question of a latent defect but 

of a latent danger, assessed objectively. Counsel went on: “Objectively, I don’t think it’s 

reasonable to think that if the stacks were there for 14 hours with no problems, you take 

down one stack, still no problems for a matter of minutes, nothing’s wrong. It’s still 

standing there. That’s why it was important for me to point out the sequence of events. 

That makes it possible for the jury to conclude on an objective basis. That’s why it’s a 

question of fact [whether] it was [a] latent and not patent [danger] [for purposes of the 

work-completed-and-accepted doctrine].”5 

The court then asked intervenor’s counsel: “Which leads me to the follow-up 

question: If it’s latent in the [manner] that you describe and the average person wouldn’t 

know that it’s a defect, how could the average person without any kind of special skill or 

knowledge be able to evaluate standard of care or negligence in the case?” Intervenor’s 

counsel pointed to Steve Hettinga’s testimony to the effect that Hettinga had trained Greg 

Brinkley with regard to safe and unsafe practices in stacking hay. Intervenor’s counsel 

highlighted Steve Hettinga’s testimony that Hettinga had trained Brinkley not to stack 

hay bales on their three-foot edges because doing so would be dangerous as bales placed 

on their three-foot edges “ ‘could fall.’ ” Intervenor’s counsel stated: “So we now have 

Hettinga testimony saying that they trained Brinkley, the squeeze operator, to not stack it 

5 The question of a latent or patent defect/danger was not relevant to the 

discussion on negligence, but rather came up in the context of the work-completed-andaccepted doctrine (see below).
27.

on the 3-foot side because it was dangerous and they would fall.” Intervenor’s counsel 

added: “That’s enough, in my view, to deal with the standard because now it’s a simple 

negligence case of Brinkley didn’t follow his training, and he’s an employee of Hettinga. 

And the reason that they gave him that training, because if you put it on the 3-foot side it 

could fall. That’s the testimony.” 

Hettinga’s counsel countered: “[I]t does require expert opinion to establish the 

negligence of a party of a professional like a truck driver or delivery company in order to 

keep going with this case. [¶ ] And I’ll cite a case to you. An Allied Properties versus 

Bloom. It dealt with a temporary ... dock in the water. And there, just like in this case, 

you need expert opinion to establish the standard of care. That is required for how to 

deliver it and how to stack it.” With respect to the work-completed-and-accepted 

doctrine and the issue of whether the danger or defect at issue was latent or patent, 

Hettinga’s counsel argued: “On the latent defect issue, it is not a latent defect. Their 

whole theory is that it was stacked this big. It was 16 [feet] – it was wrong. It was 

stacked; that they could see it with their open eyes.” 

The court then made its ruling, verbally. The court stated:

“I am going to grant the motion for nonsuit based on plaintiff’s 

failure to, um, provide expert testimony on standard of care in this case. 

Um, based on the discussion, it is the plaintiff’s argument that this is a, um, 

latent defect in the case and not simply, um, stacking the hay bales in a 

manner which is 3-foot down; that there is more. Once you have a stack of 

hay with no visible defects, it comes down to, um, define the standard of 

care as far as stacking of hay.

“As far as, um, this particular case – and I will reference the Allied 

case just, um, cited by [Hettinga’s] counsel – there is a series of cases that 

reflect the same information. Once we come down to calculations of a 

haystack that appears in all respects to be normal, um, it becomes a series 

of complex calculations as to whether or not the manner in which the 

haystack is stacked falls below the standard of care in this particular case.

“I don’t believe the jury will be able to make that. Those types of 

calculations would be exclusively within the knowledge of an expert. 
28.

Weight, lean, condition of the hay, stacking, friction, force, angles, 

temperature, et cetera, all of those items, um, are outside the knowledge of 

the laymen.

“In, um, reaching this conclusion, as you can tell, we spent quite a 

bit of time discussing these items. Um, I want to readdress the testimony of 

Kurt Weiss, who, I believe, was plaintiff’s attempt to provide those 

calculations, um, to the jury. I want to reiterate, um, that the tests 

performed by Mr. Weiss, and the reasons why I excluded that testimony, 

um, the tests performed were simply not relevant to this case before the 

Court and before this jury. It used, um, testing techniques. It used 

apparatus. It used hay. It used, um, slope. It used every variable, none of 

which were represented by the facts of this case. [¶ ] And, um – and I took 

striking Mr. Weiss’s testimony more serious than you can imagine. Um, 

great thought.

“So I want to explain to you, again, I understand that may have been 

plaintiff’s attempt to provide some evidence as to, um, how stacks would 

topple, but it was absolutely, in my opinion, 350, 352, um, included 

significant amount of facts not in evidence, lack of foundation, et cetera.

“So absent that testimony, plaintiff’s case fails. Um, because of 

rendering this decision, it renders a decision based on defendant’s motion 

regarding, um, medical expenses, um, moot as well as the nonsuit for – as 

filed for acceptance of the hay. [¶ ] So based on that decision – [¶ ] –

judgment will be entered in favor of defendant in this case.” 

Plaintiffs Gonzalez and Hortencia Gonzalez, as well as intervenor, Zenith 

Insurance Company, have appealed the trial court’s ruling that granted Hettinga’s motion 

for nonsuit as to plaintiffs’ and intervenor’s negligence claims, on grounds that expert 

witness testimony on the standard of care for stacking hay was required but not presented 

in plaintiffs’ and intervenor’s cases in chief. 
29.

DISCUSSION

I. Trial Court Erroneously Granted Hettinga’s Motion for Nonsuit as to the 

Negligence Claim Against Hettinga, on Grounds that Expert Testimony Was 

Required, But Not Presented, on the Applicable Standard of Care

A. Standard of Review

A motion for judgment of nonsuit is a motion made after the plaintiff’s opening 

statement, or after the plaintiff has presented his or her evidence. (Code Civ. Proc., 

§ 581c, subd. (a).) The motion concedes the truth of the facts asserted (if made after the 

opening statement) or shown (if made after the presentation of the plaintiff’s evidence), 

but claims they fail as a matter of law to support the plaintiff’s cause of action. (Gray v. 

Kircher (1987) 193 Cal.App.3d 1069, 1071.) “A defendant is entitled to a nonsuit if the 

trial court determines that, as a matter of law, the evidence presented by [the] plaintiff is 

insufficient to permit a jury to find in his favor.” (Nally v. Grace Community Church

(1988) 47 Cal.3d 278, 291.)

When the motion is made after the plaintiff has presented his or her evidence, the 

standards for granting it are the same as the standards applicable to a motion for a 

directed verdict or for reversing a judgment on appeal based on a lack of substantial 

evidence:

“It has become the established law of this state that the power of the court 

to direct a verdict is absolutely the same as the power of the court to grant a 

nonsuit. A nonsuit or a directed verdict may be granted ‘only when, 

disregarding conflicting evidence and giving to plaintiff's evidence all the 

value to which it is legally entitled, herein indulging in every legitimate 

inference which may be drawn from that evidence, the result is a 

determination that there is no evidence of sufficient substantiality to 

support a verdict in favor of the plaintiff if such a verdict were given.’ 

[Citations.] Unless it can be said as a matter of law, that, when so 

considered, no other reasonable conclusion is legally deducible from the 

evidence, and that any other holding would be so lacking in evidentiary 

support that a reviewing court would be impelled to reverse it upon appeal, 

or the trial court to set it aside as a matter of law, the trial court is not 

justified in taking the case from the jury. [Citation.] ... In other words, the 
30.

function of the trial court on a motion for a directed verdict [or nonsuit] is 

analogous to and practically the same as that of a reviewing court in 

determining, on appeal, whether there is evidence in the record of sufficient 

substance to support a verdict. Although the trial court may weigh the 

evidence and judge ... the credibility of the witnesses on a motion for a new 

trial, it may not do so on a motion for a directed verdict [or nonsuit].” 

(Estate of Lances (1932) 216 Cal.397, 400-401; see Carson v. Facilities 

Development Co. (1984) 36 Cal.3d 830, 838-839.)

The substantial evidence needed to defeat the motion is “evidence that is 

reasonable, credible, and of solid value--from which a reasonable trier of fact could have 

made the requisite finding under the governing standard of proof.” (In re Jerry M. (1997) 

59 Cal.App.4th 289, 298.) A mere scintilla of evidence or evidence that is bare 

speculation or conjecture is not enough; rather, there must be some substance to the 

evidence upon which a reasonable person could rely. (Nally v. Grace Community 

Church, supra, 47 Cal.3d at p. 291.) “While substantial evidence may consist of 

inferences, such inferences must be ‘a product of logic and reason’ and ‘must rest on the 

evidence’ [citation]; inferences that are the result of mere speculation or conjecture 

cannot support a finding.” (Kuhn v. Department of General Services (1994) 22 

Cal.App.4th 1627, 1633.)

We review a judgment of nonsuit de novo, applying the same standards as the trial 

court. (Nally v. Grace Community Church, supra, 47 Cal.3d at p. 291; Thrifty Payless, 

Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1060.)

B. The Standard of Ordinary Care Applies Here

The elements of a negligence claim are “ ‘a legal duty of care, breach of that duty, 

and proximate cause resulting in injury.’ ” (Staats v. Vintner’s Golf Club, LLC (2018) 25 

Cal.App.5th 826, 831 (Staats); Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142 

(Kesner) [“A plaintiff in any negligence suit must demonstrate ‘ “a legal duty to use due 

care, a breach of such legal duty, and [that] the breach [is] the proximate or legal cause of 

the resulting injury.” ’ ”]; Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 

627, 643, 645 [“[b]reach is the failure to meet the standard of care”; “[t]he element of 
31.

causation requires there to be a connection between the defendant’s breach and the 

plaintiff’s injury”]; CACI Nos. 400, 401.)

“ ‘California law establishes the general duty of each person to exercise, in his or 

her activities, reasonable care for the safety of others.’ ” (Kesner, supra, 1 Cal.5th at p. 

1142.) Under Civil Code section 1714, “ ‘[e]veryone is responsible, not only for the 

result of his or her willful acts, but also for an injury occasioned to another by his or her 

want of ordinary care or skill in the management of his or her property or person, except 

so far as the latter has, willfully or by want of ordinary care, brought the injury upon 

himself or herself.’ ” (Staats, supra, 25 Cal.App.5th at pp. 832-833, quoting Civ. Code,

§ 1714, subd. (a).) In short, “ ‘each person has a duty to use ordinary care and “is liable 

for injuries caused by his failure to exercise reasonable care in the circumstances.” ’ ”

6

(Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771 (Cabral).) 

“ ‘ “ ‘[D]uty’ is a question of whether the defendant is under any obligation for the 

benefit of the particular plaintiff; and in negligence cases, the duty is always the same, to 

conform to the legal standard of reasonable conduct in ... light of the apparent risk.’ ” ’ ” 

(Staats, supra, 25 Cal.App.5th at p. 833, italics added.) Further, “[b]ecause application 

of [due care] is inherently situational, the amount of care deemed reasonable in any 

particular case will vary, while at the same time the standard of conduct itself remains 

constant, i.e., due care commensurate with the risk posed by the conduct taking into 

consideration all relevant circumstances.” (Flowers v. Torrance Memorial Hospital 

Medical Center (1994) 8 Cal.4th 992, 997 (Flowers); see Tucker v. Lombardo (1956) 47 

Cal.2d 457, 464 [the amount of care to be exercised by a reasonably prudent person will 

6 “ ‘ “Courts ... invoke[] the concept of duty to limit generally ‘the otherwise 

potentially infinite liability which would follow from every negligent act.’ ” ’ ” (Kesner, 

supra, 1 Cal.5th at p. 1143.) “The conclusion that a defendant did not have a duty 

constitutes a determination by the court that public policy concerns outweigh, for a 

particular category of cases, the broad principle enacted by the Legislature that one’s 

failure to exercise ordinary care incurs liability for all the harms that result.” (Ibid.)
32.

vary with the circumstances in that a reasonably prudent person would exercise a degree 

of care commensurate with, and in proportion to, the danger involved]; Beck v. Sirota

(1941) 42 Cal.App.2d 551, 557 [“The amount of care must be in proportion to the danger 

to be avoided and the consequences reasonably to be anticipated.”]; Coyle v. Historic 

Mission Inn Corp. (2018) 24 Cal.App.5th 627, 639 [“ ‘In most cases, courts have fixed no 

standard of care for tort liability more precise than that of a reasonably prudent person 

under like circumstances.’ [Citations.] This is because ‘[e]ach case presents different 

conditions and situations. What would be ordinary care in one case might be negligence 

in another.’ ”].) In short, the duty is of ordinary care under all the circumstances, and the 

standard is that of the “ordinary prudent or reasonable person.” (6 Witkin Summary of 

Cal. Law (11th ed. 2023) Torts, §§ 998, 1000; Tucker v. Lombardo, supra, at pp. 463, 

464.) 

The question whether a defendant satisfied or breached the duty of due care under 

the circumstances is ordinarily a question of fact for the jury in each case. (Staats, supra, 

25 Cal.App.5th at p. 832 [while the existence of a duty of care is a question of law for the 

court, the elements of due care/breach, causation, and injury are fact-specific issues for 

the trier of fact]; see 6 Witkin Summary of Cal. Law (11th ed. 2023) Torts, §§ 996.) 

“Negligence may be established by circumstantial evidence, which is nothing more than 

one or more inferences which may be said to arise reasonably from a series of proven 

facts. [¶ ] A plaintiff relying on circumstantial evidence does not have to exclude the 

possibility of every other reasonable inference possibly deriving from the evidence. 

(Sparks v. Allen Northridge Market (1959) 176 Cal.App.2d 694, 699 (Sparks).) Here, an 

appeal from a judgment of nonsuit, “[w]e must assume the truth of plaintiff’s evidence 

and every inference of fact which reasonably may be drawn therefrom.” (Ibid.)

It is undisputed that Hettinga owed a duty of care to AC Enterprises, to safely 

stack the hay bales it delivered to the dairy. In stacking the hay bales upon delivery, 

Hettinga was required to conform its conduct to the standard of reasonable prudence 
33.

under the circumstances. For purposes of establishing a negligence claim against 

Hettinga, plaintiffs and intervenor had the burden to show that Hettinga did not exercise 

due care or act with reasonable prudence in stacking the bales. 

Here, the record contains evidence from which a jury could properly find that 

Hettinga did not exercise due care in stacking the hay upon delivery to AC Enterprises. 

Plaintiffs and intervenor presented evidence, in the form of the respective testimony of 

Carl Brasil, Frank Ricardo, and Lorenzo Ocampo, as to the manner in which Hettinga 

stacked the bales delivered to AC Enterprises on April 28, 2017. The bales were stacked 

in two adjacent rows of haybale stacks or columns, with each column or stack being four 

bales high (rather than the three-bale-high configuration Hettinga typically used). 

Moreover, the bales were stacked on their narrow ends, that is, the three foot by eight

foot ends, rather than on their wider bases, that is, the four foot by eight foot bases

(typically bales were stacked on their four foot by eight foot bases). Thus, not only was 

each column four bales high, but each bale therein was stacked in an “upright,” rather 

than “flat,” position (stacked upright, each bale was four feet high, whereas if stacked 

flat, each bale would have been three feet high). The total height of each column of bales 

was therefore 16 feet (typically, Hettinga stacked hay in columns that were nine feet 

high). The jury was shown models of the haybales in question, as well as photographs. 

Robert Maestaz had worked as a truck driver for Hettinga for nine years and drove 

the delivery truck/trailer carrying the haybales delivered to AC Enterprises in April 2017. 

Maestaz testified that, typically, hay bales were stacked on his truck in nine-foot-high 

columns (that is, the bales were stacked three bales high, with each bale resting on its 

four foot by eight foot base). Thereafter, typically, the hay would be taken off the truck 

and stacked on the ground or in a barn in the same configuration as it was stacked on the 

truck. Thus, when Maestaz brought hay to a delivery site, Greg Brinkley would 

“regularly” stack the bales in columns that were three bales high (nine-feet high overall), 

with the bales resting on their four foot by eight foot sides. 
34.

Greg Brinkley, who unloaded haybales off Hettinga’s trucks at delivery sites, 

testified that when hay was stacked outdoors for immediate feeding, it would be stacked 

“three high.” Brinkley, who knew Carl Brasil, further testified that, typically, Carl Brasil 

wanted his hay stacked “[t]hree high.” Brinkley was also aware how Carl Brasil’s dairy 

workers would dislodge bales from the stack to use for feeding the cows. Brinkley 

testified, they “[p]ushed it down [with] the loader.” The loader’s maximum reach or 

height was 12 feet. 

Frank Ricardo, who managed the fields around Carl Brasil’s dairy, testified he 

remembered how the hay was stacked on the morning of the April 2017 accident: “It was 

stacked upright.” More specifically, the bales were stacked resting on their three-foot

side and were stacked “[f]our high.” Ricardo had worked in the dairy farming business 

for 45 years; he had stacked hay himself and had previously worked unloading hay trucks 

for a farmer. Ricardo had seen hay stacked in this type of “[u]pright” configuration only 

once before. 

Carl Brasil saw the haystack on the morning of the accident, when he came upon 

the scene of the accident. He saw some bales on the ground as well as the rest of the

haystack. He testified: “Those were the rest of the load. Um, and they were in two 

columns, and they were stacked on the 3-foot end and four high, so that would be 16 feet 

in the air.” In a report Brasil thereafter submitted to OSHA, he wrote: “The ‘root cause 

of this incident was poor hay stacking by the trucking company. The bales should have 

never been stacked in the position in the extreme height.” (Italics added.) 

Brasil was asked at trial, in light of all the hours he spent working with the hay 

immediately following the accident, whether he had any doubt in his mind that it was 

stacked on its three-foot side and not its four-foot side? Brasil responded: “There’s no 

doubt it was stacked on its 3-foot side.” Brasil was further asked: “Based on what you 

observed when you found Mr. Gonzalez lying on the ground, was there any limitation 
35.

that you saw in the area where the hay was stacked that would have prevented the hay 

from being stacked as low as two high instead of four?” Brasil answered: “No.” 

Steve Hettinga, vice president of Hettinga, testified that Hettinga had trained Greg 

Brinkley as to safe and unsafe stacking practices. Hettinga trained Brinkley not to stack 

haybales on their three-foot edges because doing so would be dangerous, in that the bales 

“could fall.” Steve Hettinga testified that “at least a couple of times a week” he would 

check on Brinkley’s work to make sure that, among other things, bales were not stacked 

on their narrow, three-foot edges. 

Steve Hettinga noted his trucks could legally hold bales to a maximum height of 

“10 feet.” When asked what height of stacked bales was considered safe by Hettinga 

Transportation, Steve Hettinga replied, “whatever was on the truck.” He clarified that the 

typical configuration of bales on a truck—i.e., bales stacked three high, on their wide, 

four-foot edges, to a height of nine feet—when recreated on the ground, was considered a 

safe configuration/height by Hettinga Transportation. 

The record contains ample evidence regarding the manner in which the big bales 

of hay at issue here were typically stacked for transportation as well as the customary and 

preferred way—for purposes of safety—to stack such haybales upon delivery. Frank 

Ricardo, Carl Brasil, and Steve Hettinga, all of whom were knowledgeable about 

stacking hay, indicated that big bales should never be stacked on their narrow, three-foot 

edges, for reasons of safety and stability, especially when higher stacks were at issue. 

It is well settled that violation of an employer’s policies and company rules—this 

issue was implicated in Steve Hettinga’s testimony—is competent evidence of 

negligence. (See Davis v. Johnson (1954) 128 Cal.App.2d 466, 472-473 [“It is well 

settled that [company] rules are admissible in evidence and their violation is a 

circumstance to be considered in determining negligence.”]; Dillenbeck v. Los Angeles

(1968) 69 Cal.2d 472 [police car responding to an emergency, caused fatal accident; 

police department safety protocols for driving in response to an emergency were 
36.

admissible on issue of negligence of officer driving the police car]; Simon v. San 

Francisco (1947) 79 Cal.App.2d 590, 597 [company rules relating to safe operation of 

streetcar were relevant to question whether motorman’s conduct constituted negligence; 

whether such rules were violated by the conduct of motorman was, under the 

circumstances, a question of fact].) 

Furthermore, the above witnesses were well familiar with safe stacking practices 

at dairies in the area and were competent to testify to prevailing practices and customs in 

this regard. Frank Ricardo testified that in his 45 years in the dairy industry, he had only 

once before seen big bales stacked “upright,” that is, on their narrow, three-foot edges. 

Carl Brasil testified that, with the exception of the delivery at issue in this case, the bales 

delivered to his dairy were “always” stacked on the four-foot side. Greg Brinkley 

testified that, upon delivery to AC Enterprises, hay was typically stacked “[t]hree high” 

for immediate use, as that was how Brasil wanted it stacked. Brasil noted in his report to 

OSHA that the 16-foot height of the haystack Hettinga left on his property was 

“ ‘extreme.’ ” And Steve Hettinga testified he had never seen Greg Brinkley stack big 

bales on their narrow, three-foot edges, and that doing so was unsafe. This evidence shed 

light on hay stacking customs and practices in the local area, which practices “have a 

direct bearing on the question of negligence even though they do not of themselves 

establish the standard of prudent conduct.” (Tucker v. Lombardo, supra, 47 Cal.2d at p. 

464; Owen v. Rheem Mfg. Co. (1947) 83 Cal.App.2d 42, 45 [“Custom may assist in the 

determination of what constitutes due care. What others do is some evidence of what 

should be done, but custom is never a substitute for due care.”]; CACI No. 413.) 

Big bales are massive and super heavy, weighing approximately 1,100 pounds or 

half a ton per bale. When stacked four-high, the bales comprise 4,000 pounds or two tons 

of hay. It is therefore clear that working with such bales can be extremely dangerous 

(including for dairy workers) and that great care is reasonably required in stacking such 

bales (which are a dangerous item). (See CACI No. 414 [“People must be extremely 
37.

careful when they deal with dangerous items or participate in dangerous activities. 

[Insert type of dangerous item or activity] is dangerous in and of itself. The risk of harm 

is so great that the failure to use extreme caution is negligence.”]; Borenkraut v. Whitten

(1961) 56 Cal.2d 538, 544-546 [a person of ordinary prudence is required to exercise 

extreme caution with regard to a dangerous item/activity].) Thus, the question is whether 

in stacking such bales, a reasonably prudent person would have stacked the bales on their 

narrower three-foot edges when they could have alternatively stacked them on their flat 

or wide, four-foot edges, especially as stacking the bales on their four-foot edges would 

result in a lower, overall stack height of 12 feet while stacking the bales on their threefoot edges would result in an “extreme” overall stack height of 16 feet. The bales also 

could have been stacked in the typical configuration and Brasil’s preferred configuration, 

that is, three-bale-high/flat, which would have resulted in a very manageable (by all 

accounts) overall height of nine feet.

Here, the relevant safety considerations are fairly obvious and largely a matter of 

common sense. Stacking bales on their wider surfaces to a lower height would not only 

maximize stability but stacking the bales flat and to a lower height would enable workers 

more easily to reach and remove the top bale from a relatively stable base. The record 

contains ample evidence for a jury to find that stacking the bales, four high, on their 

narrow, three-foot edges, to an overall stack height of 16 feet, was a breach of the duty to 

use due care under all the circumstances. (See Crane v. Smith (1943) 23 Cal.2d 288, 299 

[“If the actor reasonably can accomplish the same result by other conduct which involves 

less opportunity for harm to others, the risk incurred by the manner of doing business 

which resulted in injury is clearly unreasonable.”]; 6 Witkin Summary of Cal. Law (11th 

ed. 2023) Torts, §§ 998 [“The basic question is whether the risk of danger to others 

outweighs the utility of the act or the manner in which it is done; if so , the risk is 

unreasonable and the act is negligent.”]; Dillon v. Legg (1968) 68 Cal.2d 728, 739 
38.

[conduct is negligent where some unreasonable risk of danger to others would have been 

foreseen by a reasonable person].)

Sparks, supra, 176 Cal.App.2d 694, is instructive. In Sparks, the plaintiff, who 

was shopping in a small grocery store, bumped her grocery cart into a display, placed in a 

grocery aisle, of a five-high stack of open root beer cartons (each carton was 10 inches 

high and contained eight glass bottles of root beer under heavy pressure). The collision

resulted in a bottle of root beer falling, shattering, and injuring the plaintiff’s foot (a piece 

of glass went through the plaintiff’s foot). The trial court applied the standard of ordinary 

care and found the jury could properly have determined the store owner was negligent in 

stacking the root beer cartons in the manner that led to injury.7 (Id. at p. 700.) Similarly, 

in Dahms v. General Elevator Co. (1932) 214 Cal. 733, 742, a case alleging negligent 

elevator repair, the court noted: “we think that defendant was under a duty to plaintiff 

[who was injured when the elevator fell] to use ordinary and reasonable care in the repair 

and inspection of the elevator, and where as here the jury finds that defendant negligently 

performed its duties, and such negligence proximately contributed to the injury, the 

liability of defendant to plaintiff is clear.” Finally, in Owen v. Rheem Mfg. Co., supra, 83 

Cal.App.2d at p. 48, barrels that were stacked in a boxcar fell and injured plaintiff when 

he opened the boxcar door to unload barrels. The court resolved the question of 

7 While the facts of Sparks, supra, 176 Cal.App.2d 694 are relatively 

straightforward and uncomplicated, they are broadly analogous to facts of the instant 

case. Sparks thus helps to clarify the application of the principles of negligence to the 

instant case. Sparks determined that a jury could properly find that the grocery store 

owners there were negligent because a five-high stack of unsecured, open cartons with 

glass bottles, placed in a narrow aisle navigated by customers wheeling unwieldy carts, 

posed an unreasonable risk of harm to customers, in that a reasonably prudent person 

would not stack the root beer cartons in that manner under like circumstances. Similarly, 

here a jury could properly find that Hettinga was negligent because stacking haybales on 

their narrow edges (rather than on their flat bases) to the atypical and relatively extreme

height of 16 feet posed an unreasonable risk of harm to dairy workers who routinely 

dislodged bales from the stack with a bucket loader to feed the cows, in that a reasonably 

prudent person would not stack the haybales in that manner under like circumstances.
39.

negligence in the loading of the barrels under the standard of ordinary negligence. These 

cases are basically analogous to the instant case and clarify that the standard of ordinary 

care is adequate for resolving the question of negligence at issue here. 

We conclude the trial court erred in granting nonsuit as to plaintiffs’ and 

intervenor’s negligence claims against Hettinga on grounds that expert testimony on the 

standard of care was required to prove the element of breach of the duty of care.8

C. Hettinga’s Arguments are Unavailing 

Hettinga’s principal argument is that this case is one of professional negligence, 

rather than ordinary negligence. More specifically, Hettinga argues this matter implicates 

a professional standard of care and that expert testimony was required to establish the 

applicable professional standard of care. We disagree.

The standard of care that applies in professional negligence cases is the standard 

of care followed by others in the same profession as opposed to that of a “reasonable 

person.” As a general matter, “[t]hose undertaking to render expert services in the 

practice of a profession or trade are required to have and apply the skill, knowledge and 

competence ordinarily possessed by their fellow practitioners under similar 

circumstances, and failure to do so subjects them to liability for negligence.” (Estate of 

Beach (1975) 15 Cal.3d 623, 635; Evans v. Hood Corp. (2016) 5 Cal.App.5th 1022, 

1050.) The Restatement Second of Torts, section 299A, states, “Unless he represents that 

he has greater or less skill or knowledge, one who undertakes to render services in the 

practice of a profession or trade is required to exercise the skill and knowledge normally 

possessed by members of that profession or trade in good standing in similar 

communities.” This provision applies “to any person who undertakes to render services 

8 We note that the discussion between the trial court and the parties regarding 

whether the haystack had a latent or patent defect for purposes of the work-completedand-accepted doctrine is irrelevant to the question of whether Hettinga stacked the 

haybales consistent with due care. 
40.

to others in the practice of a skilled trade, such as that of airplane pilot, precision 

machinist, electrician, carpenter, blacksmith, or plumber.” (Rest.2d Torts, § 299, com. b, 

p. 73.) The Restatement Third of Torts states, “If an actor has skills or knowledge that 

exceed those possessed by most others, these skills or knowledge are circumstances to be 

taken into account in determining whether the actor has behaved as a reasonably careful 

person.” (Rest.3d Torts, § 12.) 

Evans v. Hood Corp. explains: “For example, nonspecialist medical practitioners 

must use the level of skill, knowledge, and care in diagnosis and treatment that other 

reasonably careful medical practitioners of the same type would use in similar 

circumstances (see, e.g., CACI No. 501), while medical specialists must use the level of 

skill, knowledge, and care in diagnosis and treatment that other reasonably careful 

medical specialists of the same type would use in similar circumstances (see, e.g., CACI 

No. 502). Similarly, an attorney must use ‘ “such skill, prudence, and diligence as 

members of his or her profession commonly possess and exercise.” ’ [Citation.] ‘If [the 

attorney] further specializes within the profession, he must meet the standards of 

knowledge and skill of such specialists.’ ” (Evans v. Hood Corp., supra, 5 Cal.App.5th at 

p. 1051.) 

Evans v. Hood Corp. further explains: “ ‘[A] psychotherapist or other mental 

health care provider has a duty to use a reasonable degree of skill, knowledge and care in 

treating a patient, commensurate with that possessed and exercised by others practicing 

within that specialty in the professional community.’ [Citation.] ... A blood bank must 

‘exercise with respect to blood testing and donor screening “that reasonable degree of 

skill, knowledge, and care ordinarily possessed and exercised” by other blood banks 

“under similar circumstances.” [Citation.]’ ... One who holds himself out as an expert 

soil tester must ‘exercise the ordinary skill and competence of those in the business of 

soil testing,’ because experts who possess special skills ‘have a duty to exercise the 

ordinary skill and competence of members of their profession, and a failure to discharge 
41.

that duty will subject them to liability for negligence.’ ” (Evans v. Hood Corp., supra, 5 

Cal.App.5th at p. 1051.)

“With respect to professionals, their specialized education and training do not 

serve to impose an increased duty of care but rather are considered additional 

‘circumstances’ relevant to an overall assessment of what constitutes ‘ordinary prudence’ 

in a particular situation.” (Flowers, supra, 8 Cal.4th at pp. 997-998.) “Since the standard 

of care remains constant in terms of ‘ordinary prudence,’ it is clear that denominating a 

cause of action as one for ‘professional negligence’ does not transmute its underlying 

character. For substantive purposes, it merely serves to establish the basis by which 

‘ordinary prudence’ will be calculated and the defendant’s conduct evaluated.” (Flowers, 

supra, 8 Cal.4th at p. 998.) 

In Evans v. Hood Corp., the plaintiff—a pipeline repairman long employed by a 

gas company—asserted negligence claims against independent contractors hired by the 

gas company, alleging his asbestosis resulted from their activities. (Evans v. Hood Corp., 

supra, 5 Cal.App.5th at pp. 1025-1026.) The evidence at trial showed that the gas 

company hired the contractors to engage in large-scale pipeline installation and repair 

projects. (Id. at p. 1027.) The plaintiff worked alongside the contractors, inspecting their 

work for compliance with the gas company’s requirements. (Id. at p. 1028.) The gas 

delivery pipes that were the focus of the projects had an asbestos coating at the time. (Id. 

at pp. 1026, 1027.) Both sides called witnesses with expertise in gas pipelines, including 

experts regarding “ ‘the standard of care and ... the state of the art.’ ” (Id. at p. 1052.) 

Later, the trial court instructed the jury that the applicable standard of care was that of a 

“ ‘reasonably careful construction contractor,’ ” as established by the testimony of the 

expert witnesses. (Id. at p. 1037.) On appeal, the plaintiff contended the instruction 

improperly imposed a professional standard of care. (Id. at pp. 1049-1050.) The Evans 

v. Hood Corp. court concluded the trial court did not err in giving the instruction in view 
42.

of “the extensive evidence... about the very specialized profession of building and

repairing gas pipelines.” (Id. at p. 1052, italics added.) 

Allied Properties v. John A. Blume & Associates (1972) 25 Cal.App.3d 848 

(Allied), on which Hettinga relies, is generally analogous to Evans v. Hood Corp. (See 

Allied, at p. 858 [expert testimony necessary to establish whether engineering firm 

adequately designed pier].) In both cases, the issue of negligence hinged on whether an 

independent contractor exercised due care in resolving technical questions regarding a 

construction project. Allied noted that “the standard of care applicable to a given 

profession must be determined from the testimony of experts unless the conduct involved 

is within the common knowledge of laymen.” (Ibid.) Since Allied involved a marine 

engineering project, i.e., the construction of a commercial pier and floats, the issue of 

negligence with regard to malfunctions in the pier and floats implicated complex 

calculations pertaining to wave action, variable wave heights, and changing water levels. 

(Id. at pp. 851-854, 858.) The Allied court therefore determined the trial court there 

correctly instructed the jury that it could determine the marine engineering firm’s 

standard of professional care, with respect to the construction project, only from the 

opinion of competent experts who testified as to such standards. (Id. at pp. 857-858 

[noting that “[t]he voluminous record indicates that the standard of care and the complex 

calculations required were exclusively within the knowledge of experts, and that marine 

engineering is not an exact science].) However, Allied, Evans v. Hood Corp., and similar 

construction cases involving technical issues are distinguishable from the instant case. 

Here, the record taken as a whole, does not indicate that stacking haybales was a 

highly specialized profession—requiring extensive education and training and involving 

tasks of great complexity—such that the issue of negligence pertaining to hay stacking 

would entail a professional standard of care and require expert testimony thereon. On the 

contrary, the record indicates that stacking hay was a relatively commonplace task in the 

relevant community. Frank Ricardo, who managed the fields surrounding Carl Brasil’s 
43.

dairy, testified he had worked in unloading and stacking hay bales at one time. Similarly, 

Carl Brasil, who cannot be said to be in the profession of stacking hay, testified he would 

stack his own hay when necessary. Furthermore, Carl Brasil maintained a hay squeeze or 

similar machine for the use of his dairy workers. And Greg Brinkley testified it would 

take him no more than 15 minutes to unload and stack 45 bales of hay. There was no 

evidence to the effect that hay stacking was a highly specialized undertaking that was 

limited to a cadre of highly trained and/or licensed professionals with sophisticated 

technical skills. In sum, the present record does not support a conclusion that stacking 

hay is a specialized profession such that the issue of negligence in stacking hay 

appropriately entails a professional standard of care.

Moreover, even assuming that haybale stacking qualifies as a distinctive and 

highly specialized profession, the negligence claim at issue here did not turn on complex 

variables that would require expert testimony on the standard of care. As noted above, 

the question at issue here is whether Hettinga acted reasonably in stacking the bales on 

their narrower three-foot edges when they could, alternatively, have been stacked on their 

flat or wide, four-foot edges, especially as stacking the bales on their four-foot edges 

would have resulted in a more-manageable overall stack height of 12 feet, while stacking 

the bales on their three-foot edges resulted in an “extreme” overall stack height of 16 feet. 

The haybales could also have been stacked in the standard three-bale high/flat 

configuration, which was how hay was typically stacked at AC Enterprises and was how 

Brasil wanted hay intended for immediate use to be stacked. Evaluating whether 

Hettinga’s actions were reasonably prudent turns on assessing whether Hettinga could 

have taken but did not take, fairly obvious and commonsense precautions, such as 

stacking the bales on their wide, flat four-foot edges, thereby ensuring a broader base as 

well as a lower overall stack height (given that an overall stack height of nine feet was 

typical for area, was considered safe by Hettinga, and was preferred by Brasil). (See 

Crane v. Smith (1943) 23 Cal.2d 288, 299 [“If the actor reasonably can accomplish the 
44.

same result by other conduct which involves less opportunity for harm to others, the risk 

incurred in the manner of doing business which resulted in injury is clearly 

unreasonable.”].) 

In light of the nature of the issues implicated in this case, even if this case were to 

be viewed as a case of professional negligence, expert testimony on the standard of care 

was not required. (See Allied, supra, 25 Cal.App.3d at p. 858 [in professional negligence 

cases, where the conduct involved is within the common knowledge of laymen, expert 

testimony is not required]; Bardessono v. Michels (1970) 3 Cal.3d 780, 789 & fn. 6 [a 

“wide variety” of cases have applied the common knowledge exception to the expert 

testimony rule]; Sanchez v. Brooke (2012) 204 Cal.App.4th 126, 138-139 [no expert 

testimony was needed to show a health worker was negligent in permitting an elderly 

woman under her care to smoke in bed, in view of the fire hazard that conduct presented]; 

Leonard v. Watsonville Community Hospital (1956) 47 Cal.2d 509, 519-520 [no expert 

testimony necessary to establish that hospital and its medical staff did not exercise 

reasonable care by failing to count clamps removed after surgery, as that safety measure 

was within ken of average layperson]; see also Capelouto v. Kaiser Foundation Hospitals

(1972) 7 Cal.3d 889, 895-896 [explaining that expert opinions may be admitted as helpful 

even if not necessary for plaintiff to meet burden of proof].) 

We conclude the trial court erred in granting nonsuit on plaintiffs’ and intervenor’s 

negligence claims against Hettinga on grounds that plaintiffs and intervenor failed to 

present expert testimony on the applicable standard of care. 

II. Nonsuit is Not Warranted on the Other Grounds Asserted by Hettinga

The trial court granted nonsuit only on grounds that expert testimony was required 

to establish a special standard of care, which ruling was erroneous. The other theories 
45.

asserted by Hettinga in the trial court and reasserted on appeal also do not support a 

judgment for Hettinga as a matter of law.9 

A. Causation

Hettinga argues that nonsuit should be granted because there is a question 

“whether the haystack collapsed because of some unreasonably dangerous condition 

allegedly created by Hettinga or because of another reason, such as the manner in which 

Mr. Gonzalez interacted with the haystack.” (Fn. omitted.) Hettinga adds: “[T]he fact 

that the haystack remained standing until disturbed by Mr. Gonzalez suggests that the 

haystack never would have fallen on its own but, rather, only fell because Mr. Gonzalez 

... disrupted the stack.” Hettinga further contends: “This is not a matter of ‘common 

sense” ... but, instead, a complex analysis requiring expert testimony.” Hettinga sums

up: “Not only was expert testimony required on the standard of care, it was also required 

to prove causation.” We are not persuaded.

“ ‘ “Causation” is an essential element of a tort action. Defendants are not liable 

unless their conduct ... was a “legal cause” of plaintiff’s injury.’ ” (Whiteley v. Philip 

Morris, Inc. (2004) 117 Cal.App.4th 635, 696 (Whiteley).) 

The “substantial factor” test for causation is appropriate in all tort actions. (See 

Haning, et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2022) ¶ 2:2398 

9 As noted in Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 

1320, 1328, fn. 8, there is a split of authority over whether review of a grant of nonsuit is 

limited to grounds raised by the defendant and ruled on by trial court or whether review 

may extend to grounds raised by the defendant below even if not reached by the trial 

court. The split arises from Lawless v. Calaway (1944) 24 Cal.2d 81 (Lawless), which 

noted that “grounds not specified in a motion for nonsuit will be considered by an 

appellate court only if it is clear that the defect is one which could not have been 

remedied had it been called to the attention of plaintiff by the motion.” (Id. at p. 94.) 

Lawless’s rationale “does not bar the consideration on appeal of alternative grounds 

which were stated by the moving party but which were not among those relied upon by 

the trial court in granting the motion.” (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 

1542, fn. 2.) Accordingly, we will consider the alternative grounds encompassed by 

Hettinga’s nonsuit motion in the trial court. 
46.

(Cal. Practice Guide: Personal Injury); see Whiteley, supra, 117 Cal.App.4th at p. 696 

[“A tort is a legal cause of injury only when it is a substantial factor in producing the 

injury.”].) “ ‘ “The substantial factor standard is a relatively broad one, requiring only 

that the contribution of the individual cause be more than negligible or theoretical.” ’ ” 

(Whiteley, supra, at p. 699.) Thus, a force which plays only an “ ‘ “ ‘infinitesimal’ ” ’ ” 

or “ ‘ “ ‘theoretical’ ” ’ ” part in bringing about the injury is not a substantial factor, but a 

“ ‘ “very minor force that does cause harm is a substantial factor. ” ’ ” (Ibid.)

Further, “[c]ausation is a question of reasonable probability; ‘legal cause’ need 

not be proved with certainty, but mere possibility is insufficient to establish a prima facie 

case. Thus, the issue is whether it is more likely than not that plaintiff’s injury was a 

result of defendant’s act or omission.” (Cal. Practice Guide: Personal Injury, supra, 

¶ 2:2405.) “Expert testimony is ... required on the issue of causation if the matter is so 

beyond lay experience that it can be explained only through experts.” (Cal. Practice 

Guide: Personal Injury, supra, ¶ 2.370; see Webster v. Claremont Yoga (2018) 26 

Cal.App.5th 284, 290 [“As a general matter, juries may decide issues of causation 

without hearing expert testimony. [Citation.] But ‘[w]here the complexity of the 

causation issue is beyond common experience, expert testimony is required to establish 

causation.’ ”].)

Here, plaintiffs and intervenor presented evidence that Hettinga stacked the hay on 

the narrow three-foot side, to an overall height of 16 feet. Steve Hettinga testified that 

Hettinga trained Brinkley not to stack haybales on their three-foot edges because doing so 

would be dangerous, in that the bales “could fall.” Steve Hettinga noted his trucks could 

legally hold bales to a maximum height of “10 feet.” When asked what height of stacked 

bales was considered safe by Hettinga Transportation, Steve Hettinga replied, “whatever 

was on the truck.” He clarified that the typical configuration of bales on a truck—i.e., 

bales stacked three high, on their wide, four-foot edges, to a height of nine feet—when 

recreated on the ground, was considered a safe configuration/height by Hettinga 
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Transportation. The jury also heard testimony from Carl Brasil to the following effect: 

“ ‘The root cause of this incident was poor hay stacking by the trucking company. The 

bales should have never been stacked in the position in the extreme height.’ ” 

Plaintiffs and intervenor thus presented strong evidence from which the jury could 

reasonably infer that the manner in which Hettinga stacked the hay was relatively 

unstable and undesirable, from a safety standpoint, for the purpose for which the hay was 

intended (the hay was meant to be taken down with a loader so it could be fed to the 

dairy’s cows). To the extent the jury found Hettinga was negligent in stacking the 

haybales on their three-foot edges to an overall height of 16 feet, the jury could 

reasonably infer there was a causal link between the negligent stacking of the hay and the 

collapse of the stack that injured Gonzalez. (Owen v. Rheem Mfg. Co., supra, 83 

Cal.App.2d at p. 47 [“ ‘If a reasonably prudent person might, and ordinarily would, 

foresee that the omission to do a certain act or the commission of an act in a certain way 

would likely result in injury to another, and injury to another does follow as a result 

thereof, such act of omission or commission is negligence, and the proximate cause of the 

injury’ ” (italics added)]; see Sparks, supra, 176 Cal.App.2d at p. 700 [“Before it can be 

held as a matter of law that want of proximate cause exists, the evidence must point 

unerringly to that conclusion” (italics added)].) 

Sparks, supra, 176 Cal.App.2d 694, is instructive in the context of causation as 

well. As noted above, in Sparks, the plaintiff bumped her grocery cart into a five-high 

stack of root beer cartons while shopping at a grocery store, resulting in a bottle of root 

beer falling, shattering, and injuring the plaintiff’s foot. The Sparks plaintiff brought a 

negligence suit against the grocery store alleging the store negligently stacked the root 

beer cartons. Sparks rejected the grocery store’s claim that the plaintiff could not 

establish causation. The court noted that, on the contrary, “[i]t seems too clear for 

discussion that the jury could have reasonably concluded that defendants’ negligence was 

the proximate cause of plaintiff’s injuries.” (Id. at p. 700.)
48.

Also instructive is Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 

234 (Osborn). Osborn explains: “[C]ausation in fact is ultimately a matter of probability 

and common sense: ‘[A plaintiff] is not required to eliminate entirely all possibility that 

the defendant’s conduct was not a cause. It is enough that he introduces evidence from 

which reasonable men may conclude that it is more probable that the event was caused by 

the defendant that that it was not. The fact of causation is incapable of mathematical 

proof, since no man can say with absolute certainty what would have occurred if the 

defendant had acted otherwise. If, as a matter of ordinary experience, a particular act or 

omission might be expected to produce a particular result, and if that result has in fact 

followed, the conclusion may be justified that the causal relation exists. In drawing that 

conclusion, the triers of fact are permitted to draw upon ordinary human experience as to 

the probabilities of the case.’ ” (Osborn, supra, at p. 253.)

Here, plaintiffs and intervenors were not required, as a matter of law, to exclude 

all other possible causes for the accident that led to Gonzalez’s injuries. Sarti v. Salt 

Creek (2008) 167 Cal.App.4th 1187 (Sarti) clarifies his principle. In Sarti, a woman 

(Sarti) who suffered a foodborne illness (she was tested positive for campylobacter 

bacteria) sued a restaurant (Salt Creek Grille) where she had previously eaten a raw tuna 

appetizer and raw vegetables. Sarti’s bacterial illness escalated into a variant of GuillainBarré syndrome (a disease that damages peripheral nerves). (Id. at p. 1191.) The case 

went to trial and a jury found in Sarti’s favor, but the trial court granted the restaurant’s 

motion for judgment notwithstanding the verdict on grounds there had not been an 

adequate showing as to causation. (Id. at p. 1192.) The Sarti court reversed. 

The Sarti court highlighted the connection between Sarti’s bacterial illness and 

unsanitary conditions at the defendant restaurant. “Campylobacter is not found in raw 

tuna, unless that tuna has been cross-contaminated by raw chicken, where the bacteria is 

common.” (Sarti, supra, 167 Cal.App.4th at p. 1191.) An investigation by the county 

health department identified four practices that could have led to cross-contamination of 
49.

the raw tuna with raw chicken: wipe-down rags were not regularly sanitized; there was 

insufficient sanitizer in the dishwasher; chicken tongs were sometimes used to handle 

other food; and raw vegetables were not stored separately from raw meat. (Ibid.)

Sarti concluded the circumstantial evidence presented by the plaintiff to connect 

her illness to eating raw tuna and raw vegetables at the restaurant, was sufficient to 

permit the jury to reasonably infer the food she ate at the restaurant was contaminated 

with campylobacter and was the cause of her bacterial illness. (Sarti, supra, 167 

Cal.App.4th at p. 1207.) Sarti rejected the restaurant’s assertion “Sarti was required, as a 

matter of law, to exclude all ‘possibilities’ other than the meal she had at the restaurant.” 

(Id. at p. 1210.) 

Rather, Sarti clarified that “California law on causation is ‘substantial factor’ ” 

and “a plaintiff need not ‘ “exclude every other conclusion” ’ than the defendant’s 

negligence.” (Sarti, supra, 167 Cal.App.4th at p. 1210, citing Dougherty v. Lee (1946) 

74 Cal.App.2d 132, 136 [“ ‘It is not necessary in the trial of civil cases that the 

circumstances shall establish the negligence of the defendant as the proximate cause of 

injury with such absolute certainty as to exclude every other conclusion.’ ”].) Further, to 

the extent there was a possibility of alternative causes for Sarti’s illness, Sarti emphasized 

that the word “ ‘possibility’ ” “must necessarily connote something more than bare 

conceivability or plausibility, otherwise it would swallow up the universe.” (Sarti, supra, 

167 Cal.App.4th at p. 1210 [it is “ludicrous” to suggest that attenuated, alternative 

explanations for Sarti’s illness, “must, as a matter of law, defeat [her] food poisoning 

claim”].) The Sarti court concluded Sarti had presented sufficient evidence to support a 

jury finding that she contracted her bacterial illness from her raw meal at the Salt Creek 

Grille.

Here, too, there was ample circumstantial evidence for the jury to find that 

Hettinga’s negligence was a substantial factor in the haybales toppling over and injuring 

Gonzalez. Moreover, as discussed above, the factual issues implicated here are not so 
50.

complex or abstruse as to require expert testimony on the issue of causation.10 Nonsuit is 

not warranted for a lack of evidence of causation. 

B. Work Completed and Accepted Doctrine

Hettinga argues that nonsuit should be granted based on application of the workcompleted-and-accepted doctrine. We disagree.

First, Hettinga cites only one case in support of its arguments that the workcompleted-and-accepted doctrine applies here: Sanchez v. Swinerton & Walberg Co. 

(1996) 47 Cal.App.4th 1461 (Sanchez). Sanchez deals with the issue of “a contractor’s 

negligent-construction liability after the owner has accepted the structure [that was 

contracted for].” (Id. at p. 1470.) CACI No. 4552, which addresses the affirmative 

defense of “work-completed-and-accepted,” states that under this defense, “a party under 

contract for a construction project is not liable in negligence for injury caused by a patent 

construction defect once the project has been completed and the owner has accepted the 

project.” (See CACI No. 4552, “Directions for Use.”) The instant case does not involve 

negligent-construction liability, and Hettinga cites no authority establishing that the 

work-completed-and-accepted doctrine is applicable to the instant case. 

Second, even if the work-completed-and-accepted doctrine were applicable in the 

present context, Hettinga has not shown the manner in which the hay was stacked was 

accepted, within the meaning of the doctrine, by AC Enterprises. Hettinga contends that 

Lorenzo Ocampo’s signature on the delivery receipt, as provided on the evening when the 

hay was delivered, establishes that AC Enterprises had accepted the manner in which the 

10 On the issue of the need for expert testimony to establish causation, Sarti is 

distinguishable from the instant case. In Sarti, an expert testified that campylobacter was 

commonly found in raw chicken (the chicken at the restaurant in question was not tested 

for campylobacter) and addressed how cross-contamination could occur in the applicable 

circumstances. These points, which related to potential campylobacter contamination and 

the transmissibility of campylobacter infection, were clearly beyond common experience. 

(Sarti, supra, 167 Cal.App.4th at p. 1207.) The instant case does not entail issues that are 

comparable in complexity to the causation issues implicated in Sarti.
51.

hay was stacked; however, this contention does not withstand scrutiny. The document 

that was signed by Lorenzo Ocampo expressly indicates that signature thereon merely 

signifies that the hay was “received in good condition.” In addition, Steve Hettinga 

testified that the document amounted to “proof of delivery” and signified that the goods 

were “received in good condition.” Steve Hettinga was specifically asked what 

Ocampo’s signature signified and he responded: “Mr. Ocampo’s signature indicates [the 

hay] was received in good condition.” Ocampo, for his part, testified he had not even 

seen the hay in question when he signed the delivery receipt, and further clarified that he 

did not work with hay. Ocampo’s signature at best indicates the condition or fitness of 

the hay was acceptable; it does not signify that AC Enterprises had “accepted” the 

manner in which the hay was stacked for purposes of the work-completed-and-accepted 

doctrine.

Nor has Hettinga shown that Carl Brasil, the owner of AC Enterprises, had 

accepted, at the time the accident involving Gonzalez took place, the manner in which the 

hay was stacked upon delivery. Hettinga delivered the hay to AC Enterprises on the 

evening of April 28, 2017, after Carl Brasil had gone home for the day. The accident that 

injured Gonzalez occurred at dawn the next day, a Saturday, before Carl Brasil even had 

a chance to set eyes on the haystack. Accordingly, it cannot be said that, at the time of 

the accident, Carl Brasil had “accepted” the hay stacking performed by Hettinga. (See 

Square Deal Mach. Co. v. Garrett Corp. (1954) 128 Cal.App.2d 286, 290 [duty of 

inspection for the purpose of determining whether the property complies with the contract 

must be exercised within a reasonable time, and what is a reasonable time depends upon 

the circumstances of each particular case]; see also Cal. U. Com. Code, § 2513(1), and 

Coms. to U. Com. Code, Com. 2.)

Third, the work-completed-and-accepted doctrine is an affirmative defense. (See 

CACI No. 4552.) “An affirmative defense is new matter that defendants are required to 

plead and prove.” (Marich v. MGM/UA Telecommunications, Inc. (2003) 113 
52.

Cal.App.4th 415, 424, italics added; see Code Civ. Proc., § 431.30, subd. (b)(1) & 

(b)(2).) Hettinga did not plead the affirmative defense of work-completed-and-accepted 

in its answer. Therefore, Hettinga cannot rely on this defense. (See Wang v. Nibbelink

(2016) 4 Cal.App.5th 1, 10, overruled on other grounds by Hoffman v. Young (2022) 13 

Cal.5th 1257, 1270, fn. 13.)

Hettinga argues it was not required to raise the work-completed-and-accepted 

doctrine as an affirmative defense in its answer because the plaintiffs’ complaint alleges 

that the hay was accepted. (See Bevill v. Zoura (1994) 27 Cal.App.4th 694, 698 

[“Generally, a party must raise an issue as an affirmative defense where the matter is not 

responsive to essential allegations of the complaint. [Citations.] Thus, where a defendant 

relies on facts not put in issue by the plaintiff, the defendant must plead such facts as an 

affirmative defense. [Citation.] ‘Where, however, the answer sets forth facts showing 

some essential allegation of the complaint is not true, such facts are not “new matter,” but 

only a traverse.’ ”].) Hettinga’s argument is unavailing, however, because plaintiffs’ 

complaint does not allege that the hay was accepted by AC Enterprises as relevant here 

(it bears mention that Hettinga merely cites to the complaint as whole, rather than to any

specific allegation(s) in the complaint). 

C. Medical Expenses

Finally, Hettinga argues that plaintiffs and intervenor were required to, but did not, 

“establish that the medical services Mr. Gonzalez received were ‘attributable to the 

accident, that they were necessary and that the charges for such services were 

reasonable.’ ” Hettinga’s argument, which is not well developed, appears to encompass 

past medical expenses that were incurred in the immediate aftermath of the accident as 

well as future medical expenses. 

“[A] person injured by another’s tortious conduct is entitled to recover the 

reasonable value of medical care and services reasonably required and attributable to the 

tort.” (Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 640.) Proof of the cost of 
53.

medical treatment and hospitalization alone is insufficient. “It must be shown additionally 

that the services were attributable to the accident, that they were necessary and that the 

charges for such services were reasonable.” (Gimbel v. Laramie (1960) 181 Cal.App.2d 

77, 81-82.) In other words, it must be shown that the services were for injuries sustained 

in the accident, were “reasonably required as a result of” the injuries occasioned by the 

accident, and that “the amounts charged were reasonable.” (McAllister v. George (1977) 

73 Cal.App.3d 258, 264; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 73 [plaintiff 

must show that “all of the services covered by his bill were made necessary as a result of 

injuries sustained by [him] in the accident” and that “the charges for the services were 

reasonable”].)

(i) Past Medical Expenses

Here, the jury heard directly from Gonzalez that he sustained injuries to his head, 

nose, gums, chin, legs, pelvis, trachea and back “as a result of” the accident at the dairy. 

Thereafter, Hortencia Gonzalez also described the treatment Gonzalez received for 

injuries sustained in the accident. The jury heard that Gonzalez made a claim for 

payment of workers compensation benefits, Zenith was the insurer for AC Enterprises, 

and Zenith paid Gonzalez’s medical bills. The jury was provided with a detailed 

accounting of the expenses that Zenith had paid and heard testimony that the total amount 

paid by Zenith was $881,649.56. Under Labor Code section 4600, subdivision (a), 

Zenith (on behalf of Gonzalez’s employer) is required by law to pay for all medical 

treatment “that is reasonably required to cure or relieve the injured worker from the 

effects of the worker’s injury.” (Lab. Code, § 4600, subd. (a).)

Hettinga states that it “is not contesting the cost of specific treatment modalities, 

or the reasonableness of the amounts paid for those treatments.” Rather, Hettinga 

contends that “establishing the reasonable cost of care does not prove that the cost was 

necessitated by the injuries at issue.” However, here Zenith was required by law to pay 

for all medical treatment “that is reasonably required to cure or relieve the injured worker 
54.

from the effects of the worker’s injury.” (Lab. Code § 4600, subd. (a).) Accordingly, the 

jury could properly infer that Zenith paid $881,649.56 in medical expenses because it 

was obligated to do so, so as to ensure Gonzalez received all the reasonably necessary 

treatment for injuries sustained in the accident at the dairy. The requirements of Gimbel

v. Laramie, supra, 181 Cal.App.2d at pages 81 to 82; McAllister v. George, supra, 73 

Cal.App.3d at page 264; and Calhoun v. Hildebrandt, supra, 230 Cal.App.2d at page 73 

are thus satisfied here. 

Under these circumstances, a showing of negligence and proximate cause would 

suffice to establish a claim for reimbursement of workers compensation payments made 

for Gonzalez’s medical treatment on account of the accident. (See Lab. Code, § 3854; 

see also Breese v. Price (1981) 29 Cal.3d 923, 931 [“employer [or carrier] seeking 

reimbursement for compensation payments bears the burden of establishing that a 

defendant’s negligence is the proximate cause of an employee’s injuries and the amount 

of tort damages reasonably resulting therefrom”].) As discussed above, the record 

contains sufficient evidence to establish negligence and proximate cause. Nonsuit for 

failure to establish damages for past medical expenses is therefore not warranted. 

(ii) Future Medical Expenses

Civil Code section 3283 provides, “Damages may be awarded ... for detriment ... 

certain to result in the future.” “Courts have interpreted this section to mean that a 

plaintiff may recover if the detriment is ‘reasonably certain’ to occur.” (Garcia v. Duro 

Dyne Corp. (2007) 156 Cal.App.4th 92, 97 (Garcia).) Thus, “ ‘[a]n injured plaintiff is 

entitled to recover the reasonable value of medical services that are reasonably certain to 

be necessary in the future.’ ” (J.P. v. Carlsbad Unified School Dist. (2014) 232 

Cal.App.4th 323, 341 (J.P.).) “While there is no clearly established definition of 

‘reasonable certainty,’ evidence of future detriment has been held sufficient based on 

expert medical opinion which considered the plaintiff’s particular circumstances and the 

expert’s experience with similar cases.” (Bihun v. AT & T Information Systems, Inc. 
55.

(1993) 13 Cal.App.4th 976, 995, disapproved on other grounds in Lakin v. Watkins 

Associated Industries (1993) 6 Cal.4th 644, 664; see J.P., supra, 232 Cal.App.4th at p. 

343, citing Garcia, supra, 156 Cal.App.4th at pp. 97-98 [“An award of future medical 

expenses requires reasonable certainty, which can be based on lay testimony, expert 

testimony, or a combination of the two.”].)

“It is for the jury to determine the probabilities as to whether future detriment is 

reasonably certain to occur in any particular case.” (Garcia, supra, 156 Cal.App.4th at p. 

97.) “It is ‘not required’ for a doctor to ‘testify that he [is] reasonably certain that the 

plaintiff would be disabled in the future. All that is required to establish future disability 

is that from all the evidence, including expert testimony, if there be any, it satisfactorily 

appears that such disability will occur with reasonable certainty.’ ” (Id. at pp. 97-98.) 

“The fact that the amount of future damages may be difficult to measure or subject to 

various possible contingencies does not bar recovery.” (Id. at p. 98.)

Awards of future damages have been upheld (1) where plaintiff’s expert testified it 

was “reasonable to assume” plaintiff would have trouble with the injured parts of his 

body in the future, but he did not know how much, and he thought the changes in 

plaintiff’s body would “ ‘build up as age takes place and he is apt to have some trouble’ ” 

(Ostertag v. Bethlehem Shipbuilding Corp. (1944) 65 Cal.App.2d 795, 806; (2) where 

plaintiff was still experiencing pain two years after the accident and a doctor testified, “ 

‘[f]requently in this type of neck injury a patient will continue to have symptoms 

indefinitely’ and ‘[i]t may last forever[,] it may [be] as he gets older [that] it may get 

worse [or] he may improve somewhat” (Guerra v. Balestieri (1954) 127 Cal.App.2d 511, 

518-519); and (3) where plaintiff’s treating physician testified the plaintiff was “very 

likely” to have some permanent damage and “we might get” traumatic epilepsy as a result 

of her skull fracture, “but nobody knows, except for time, and time will only tell what 

will come here” (Riggs v. Gasser Motors (1937) 22 Cal.App.2d 636, 643, italics omitted).
56.

“Where the fact of damages is certain [as defined above], the amount of damages 

need not be calculated with absolute certainty.” (GHK Associates v. Mayer Group, Inc. 

(1990) 224 Cal.App.3d 856, 873.) “ ‘[A] reasonably approximate estimation is deemed 

to be sufficient, and the existence of a satisfactory method of achieving this estimation 

will preclude the defendant, whose wrongful act gave rise to the plaintiff’s injury, from 

complaining that the amount of future damages cannot be determined with mathematical

precision.’ ” (Southern California Disinfecting Co. v. Lomkin (1960) 183 Cal.App.2d 

431, 450.)

Here, Dr. Christopher Stephenson reviewed thousands of pages of Gonzalez’s 

medical records, conducted a detailed interview of Gonzalez, performed a physical 

examination of Gonzalez, and prepared a report in the case. Dr. Stephenson assessed 

physical and mental limitations that he attributed to the accident, including, “robust 

overgrowth of bone” in Gonzalez’s hip joint (heterotropic ossification), multi-factorial 

backpain, post-traumatic amnesia, microscopic and macroscopic changes to brain 

structure that caused PTSD and anxiety, oculovestibular dysfunction (impaired vision and 

balance), and a sleep disorder. Dr. Stephenson testified concerning Gonzalez’s future 

medical care. As for Gonzalez’s brain injury, Dr. Stephenson observed: “This is a brain 

injury that is going to affect him and affect him globally for the rest of his life.” He 

added: “So his brain is now wired and works differently than it did before this injury.” 

Drawing on his work on the case and on his experience in this area, Dr. Stephenson 

generated a life care plan outlining future care based on injuries sustained in the accident 

and the expected consequences of the accident. Dr. Stephenson expected “somebody 

with ... those injuries,” including brain trauma and musculoskeletal injuries, to have 

problems, not least of which was significant cognitive decline, over time. Accordingly, 

Gonzalez would need to see various medical professionals over his lifespan, such as a 

physiatrist, a neurologist, and a pain management specialist (for hip and back pain), as 

well as undergo periodic tests and interventions (such as injections and other procedures). 
57.

Kelly Nasser, “a nurse practitioner in gerontology,” with a “certified nurse life 

care planning certification,” testified about the “reasonable cost” of the services 

encompassed in the life care plan generated by Dr. Stephenson. 

Diomaris Safi, Psy.D., a neuropsychologist, reviewed Gonzalez’s “extensive”

medical records (82 sets of records); interviewed and evaluated him; and prepared a 

report. She testified that Gonzalez presented a complex case: “When you’re talking 

about a head injury, especially kind of a complex or head injury, those variables are a lot 

more complex. So we have not only the anxiety, but there’s also the orthopedic injuries. 

Often there is pain. There is also, um, other psychiatric issues that are also associated 

with the head injury. So it makes it more complex.” 

Safi diagnosed Gonzalez with major depressive disorder associated with his 2017 

traumatic brain injury. Safi testified Gonzalez’s depressive disorder was “single 

episode.” She explained what this meant: “We’re not talking about someone that has 

recurrent depression, which would be someone that had a significant history of 

depression and now is having another episode. This is someone that has, um, depression 

that can be associated with something that happened to them.” She added that the most 

likely trigger for Gonzalez’s depression was the traumatic brain injury he sustained in 

2017. Safi also diagnosed Gonzalez with a mild neurocognitive disorder at present. 

However, Gonzalez was at a “significant[ly]” higher risk of developing further decline, 

that is, getting major cognitive disorder or dementia in the future, as a result of his 

injuries from the accident. Consequently, it was more likely than not that Gonzalez 

would continue to have cognitive decline in the future, along with anxiety and depressive 

disorders. Safi testified that Gonzalez’s condition “warrants monitoring and follow-up 

testing,” as well as ongoing psychotherapy. 

This evidence (that is, the testimony of Dr. Stephenson, Kelly Nasser, and 

Diomaris Safi), along with the testimony of Gonzalez and his family members as to his 

ongoing pain and other problems, was sufficient for a jury to conclude that it is 
58.

reasonably certain that Gonzalez will require future medical services necessitated by the 

injuries sustained in the accident and to assess the reasonable value of those services. 

Nonsuit is not warranted on grounds of failure to establish future medical damages. 

DISPOSITION

The judgment of nonsuit is reversed and the matter is remanded for the trial court 

to conduct a new trial. Plaintiffs and intervenor are awarded their costs on appeal.

SMITH, J.

WE CONCUR:

POOCHIGIAN, Acting P. J.

DE SANTOS, J.