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Wong v. 396 Investment Co.5/17/2005
' thesis was not supported by the evidence." Thereafter, the jury, in its special verdict, found that Anaheim bore 100 percent of the total legal responsibility for the slope failure.
In other words, the trier of fact arrived at a decision based on the evidence before it, and found that the leaking reservoir, not other hypothetical sources of water, was the cause of the slope failure. The evidence supports these findings. (See Jordan v. City of Santa Barbara, supra, 46 Cal.App.4th at pp. 1254-1255 [trier of fact, not appellate court weighs the testimony of the witnesses].)
As stated in Slater v. Pacific American Oil Co. (1931) 212 Cal. 648, to which Anaheim cites, "it would appear that the exact contribution as between several tort-feasors, may be difficult of exact admeasurement, and a court may exercise a liberal hand in arriving at a judgment in the matter; yet the court must arrive at the judgment from the evidence before it. The defendant is liable only for such portion of the total damage resulting from the commingled . . . substances, which its contribution to the whole bore to the injury. [Citation.]" (Id. at p. 653.) The court in the matter before us weighed the testimony and determined that the evidence did not support hypothetical sources of water other than the leaking reservoir as the cause of the slope failure. As the above quoted testimony shows, any contribution of such other hypothetical water sources would have been immeasurable at best. The court exercised its "liberal hand" in determining that there was no contribution by other hypothetical and unnamed tortfeasors. We cannot say the court erred.
(4) Jury Instructions
(a) Introduction
Anaheim complains that the court erred in failing to grant its request for certain jury instructions with respect to causation. Anaheim requested the following three instructions, among others: (1) "In order to prevail against the City of Anaheim, the parties asserting the City's liability must exclude the probability that other forces acting alone produced the landslide"; (2) "If the parties asserting liability against the City of Anaheim do not establish the probability that other forces acting alone produced the landslide, they have not established that the reservoir was a substantial factor in causing the landslide"; and (3) "Even if you conclude that the Olive Hills Reservoir was a substantial factor in causing the landslide, the City of Anaheim may not be held liable on any theory unless the parties asserting liability have established the proportion of water level increase attributable to the reservoir as opposed to other responsible sources." The court declined to give each of these instructions.
The instructions it did provide included the following: "The plaintiff group has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that the City of Anaheim is legally responsible for the slope failure based upon the following claims: dangerous condition of public property, failure to discharge a mandatory duty, trespass, nuisance." The instructions also stated: "The law defines `cause' in its own particular way. A cause of injury, damage, loss, or harm is something that is a substantial factor in bringing about an injury, damage, loss, or harm. [ ] A substantial factor is one that is more than infinitesimal, trivial, or negligible. There may be more than one cause of an injury, loss or harm. When negligent or wrongful conduct of two or more persons contributes concurrently as a cause of an injury, loss, or harm, the conduct of each is a cause of the injury, loss, or harm regardless of the extent to which each contributes to the jury, loss, or har
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