Toste v. CalPortland ConstructionAnnotate this Case
Plaintiff filed a wrongful death action against CalPortland after his father (Dan Toste) died after Paul Michaelson, an employer of V&J, backed up a construction truck and hit Toste during a road paving project. V&J was providing truck hauling services for CalPortland. The jury found that Michaelson was negligent but that his negligence was not a substantial factor in causing the harm suffered. The court concluded that plaintiff makes no showing that the verdict is unsupported by the evidence or that the trial court abused its discretion in denying the motion for new trial. The court rejected plaintiff's claims of negligence per se - plaintiff's principle theory of liability. The court concluded that the trial court did not err in instructing the jury when it instructed that state law prohibits a person from driving a vehicle under the influence of any drug, Veh. Code, 23152. Plaintiff makes no showing that, but for the Vehicle Code section 23152 instruction, he would have obtained a more favorable verdict. The court rejected plaintiff's claim that the vicarious liability of CalPortland was not decided by the jury. The court was satisfied that plaintiff received a fair trial and there was no juror misconduct. The court rejected the argument that CalPortland's $15,000 offer to compromise and Michaelson's and V&J's second offer to compromise for $750,001 failed to comply with Code Civ. Proc., 998. The court held that the section 998 amendment, as amended, applies to cases pending on appeal. The judgment awarding CalPortland $25,341.44 costs, which includes $17,034.20 expert witness fees, is affirmed. The court reversed the cost award with respect to Michaelson and V&J. Plaintiff's remaining claims are without merit.