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Damele v. Mack Trucks Inc.3/5/1990
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION THREE
No. A043354
1990.CA.41046 ; 219 Cal. App. 3d 29; 267 Cal. Rptr. 197
March 5, 1990
BERNIE DAMELE, PLAINTIFF AND RESPONDENT,
v.
MACK TRUCKS, INC., DEFENDANT AND APPELLANT
Superior Court of Alameda County, No. 581614-1, Dawn B. Girard, Judge.
Capps, Staples, Ward, Hastings & Dodson and J. Lucien Dodson III for Defendant and Appellant.
Walkup, Shelby, Bastian, Melodia, Kelly, Echeverria & Link, Kevin Domecus, De Goff & Sherman and Victoria J. De Goff for Plaintiff and Respondent.
Opinion by White, P. J., with Merrill and Strankman, JJ., concurring.
White
Plaintiff and respondent Bernie Damele was severely injured when he was caught between a truck and its trailer while working at the Altamont Landfill. The accident was caused in part by faulty brakes which had been recently serviced by appellant Mack Trucks, Inc. (hereafter Mack). The jury assessed respondent's damages at $650,000. It found that appellant Mack was 49 percent at fault, respondent's employer (Oakland Scavenger Company) was 49 percent at fault, and that respondent himself was 2 percent at fault. Judgment was entered in accordance with this verdict.
On appeal, Mack contends the trial court erred by instructing the jury on the duty of one in imminent peril (BAJI No. 4.40). In addition, Mack contends that the damages are excessive as a matter of law, and that the damages could not exceed the amount respondent specified in his statement of damages (Code Civ. Proc., ยง 425.11). We reject these arguments and affirm the judgment.
Statement of Facts
The Accident
At the time of the accident, Mr. Damele was employed by Oakland Scavenger as a supervisor at the Altamont Landfill in Alameda County. Garbage collected by Oakland Scavenger route trucks is delivered to a central facility in San Leandro. There it is loaded into large truck and trailer combinations and driven to the Altamont Landfill where it is dumped.
The garbage is dumped from the delivery trucks and their trailers by heavy equipment known as "tippers." Each tipper has a stationary ramp which leads up to a movable platform. The driver of the truck and trailer combination first backs up to a mark painted on the platform and remains in the truck. The tipper operator then uncouples the trailer from the truck. When the trailer is disconnected, its brakes automatically engage and lock the trailer into position on the tipper. The driver then drives forward to another tipper where the truck itself is dumped. After the trailer is disconnected, the tipper operator opens the trailer's back door, walks to a control panel adjacent to the deck, and from that position raises the deck so that the trailer is lifted vertically, causing the garbage to be dumped.
On the day of the accident (Mar. 23, 1983), Mr. Damele was relieving one of the regular tipper operators who was on a break. During this time, an Oakland Scavenger driver backed a truck and trailer unit onto the tipper operated by Mr. Damele. Mr. Damele unhooked the parts which connected the trailer to the truck without any problem. He then waved to the driver to drive the truck forward off the ramp. When Mr. Damele turned to open the trailer's rear door he heard a noise and saw that the trailer's wheel
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