Stephen Taulbee suffered catastrophic injuries after driving his Jeep into the back of a truck parked in a gore point, a triangular-shaped zone between the freeway and its exit ramp. Taulbee and his wife sued Carlos Aldana, the truck driver, and his employer, respondent EJ Distribution Corporation. The defense claimed that Aldana was not negligent because he parked in the gore after his truck engine failure light came on, indicating he had less than 30 seconds to stop the truck before total shutdown. The trial court instructed the jury that it could find Aldana negligent per se for parking in the gore point, in violation of Vehicle Code, section 21718, and that Taulbee could be found negligent per se for driving into the gore point, in violation of Vehicle Code, section 21651. The court refused Taulbee’s request to further instruct the jury that Aldana also could be found negligent per se under that same statute for driving into the gore point to park his truck. After the jury found Aldana was not negligent for parking in the gore point, the court entered judgment for the defense and Taulbee appealed.
Horvitz & Levy was retained to represent EJ Distribution and Aldana on appeal. Taulbee contended the trial court prejudicially erred in not giving his requested negligence per se instruction. According to Taulbee, even if Aldana had justification under section 21718 to lawfully stop on the freeway, he could and should have stopped on the shoulder rather than in the gore point, which would have avoided violating section 21651. Agreeing with Horvitz and Levy’s arguments, the California Court of Appeal held in a published opinion that the trial court properly declined to give the requested instruction because Aldana’s negligent driving into the gore point, even if it violated section 21651, was not a proximate cause of the traffic accident. Aldana drove into the gore point five to eight minutes before Taulbee drove into the same gore point, and therefore as a matter of law it was Aldana’s act of stopping in the gore point that could have been a proximate cause of the accident, not his driving into the gore point to stop there.
Also agreeing with Horvitz & Levy, the court further held that any instructional error in failing to give the instruction was harmless. The jury found that Aldana was not negligent for parking in the gore point. In light of that finding, the Court of Appeal held it was not reasonably probable the jury would have found Aldana negligent per se because he drove into the gore point to park there, even if he violated section 21651. The jury would have found the presumption of negligence per se was rebutted by whatever circumstances justified Aldana’s parking in the gore point.