Hernandez v. Jensen

61 Cal.App.5th 1056

276 Cal.Rptr.3d 281

Annet HERNANDEZ, Plaintiff and Respondent,

v.Maria JENSEN, Defendant and Appellant.

B294449 (consolidated with B296958)

Court of Appeal, Second District, Division 7, California.

Filed March 17, 2021

Michael Maguire & Associates, Paul Kevin Wood, Costa Mesa, and Kathryn Saldana, Long Beach, for Defendant and Appellant.

Law Offices of Frank J. Valdez and Frank J. Valdez, Santa Ana; The Ehrlich Law Firm and Jeffrey I. Ehrlich, for Plaintiff and Respondent.

MCCORMICK, J.^*

INTRODUCTION

Maria Jensen and her family hired two healthcare aides to work in their elderly parents’ home. While one of the aides bathed Jensen's mother in a hospital bed in her bedroom, the second aide reached into the bedroom closet to retrieve an oxygen tank for Jensen's father. The removal of the tank caused a loaded rifle in the closet to fall and discharge, striking the other aide and injuring her.

A jury found Jensen liable for negligence. Jensen appeals, arguing she did not owe the injured aide a duty of care and she did not cause the aide's harm. Jensen also argues the trial court incorrectly instructed the jury on general negligence and the verdict form reflected that error.

California law establishes the general duty of each person to exercise reasonable care for the safety of others. We decline to recognize an exception to this fundamental principle for employers and supervisors of healthcare aides working in homes where firearms are present. It is foreseeable that an accidental shooting might occur in a home containing unsecured, loaded firearms, and policy considerations favor a duty to use reasonable care when one knows firearms are present. We accordingly hold that Jensen owed the aide a duty of care. We further hold that substantial evidence supports the jury's finding that Jensen's negligence was a substantial factor in causing the aide's harm, and we find no error in the jury instructions. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Jensen and Her Family Hire Home Healthcare Aides To Care for Their Parents

Maria Jensen is the adult daughter of Josefina and Fernando Corona.¹ At the time of the events in this case, Josefina and Fernando were 87 years old. Josefina was bedridden, and Fernando had limited mobility and impaired hearing. Josefina and Fernando owned a home in the City of Commerce where the shooting occurred. Jensen lived in Santa Maria, California and visited her parents at least monthly, staying for a weekend or sometimes a week at a time.

In 2012, Jensen and her family learned that Josefina had dementia. Beginning in December 2013, Gerinet, Inc. provided hospice care for Josefina. Annet Hernandez worked for Gerinet as a home healthcare aide.

Jensen completed and signed the paperwork hiring Gerinet to provide home healthcare services for Josefina. Jensen identified herself as a primary caregiver for her mother. At the time Jensen hired Gerinet, Fernando could not care for Josefina or their home.

When Jensen hired Gerinet, she did not discuss safety with the Gerinet representative. The intake forms Jensen signed stated that the hiring party would "provide a safe home environment in which care can be given." During an intake meeting with a Gerinet representative, Jensen showed the representative the rooms to which the Gerinet staff would have access, i.e., the kitchen, her parents’ bedroom, the den, and the shower room.

In March 2014 the family hired a second home healthcare worker, Tanya Duran, to provide care for Josefina, perform light housekeeping, and cook for Josefina and Fernando. Jensen told Duran her duties and that Jensen was "in charge of her parents and everything that was in the house." Jensen set Duran's hours and supervised Duran and her work.

Because there had been break-ins at the house, Jensen's husband installed surveillance cameras. Jensen used the cameras to monitor her parents when she was not there. Jensen also used the cameras to supervise Duran's work.

B. A Rifle in a Bedroom Closet Discharges, and Hernandez Is Shot

On February 16, 2015 Duran and Hernandez were at work at Josefina and Fernando's home. Jensen was not in Commerce that day. Fernando told Duran he was short of breath, and Duran went to Josefina and Fernando's bedroom to retrieve an oxygen tank for him. When Duran entered the bedroom, Hernandez was bathing Josefina in the bedroom. Duran opened a sliding closet door and reached into the closet to retrieve an oxygen tank. The removal of the tank caused a loaded rifle in the closet to fall and discharge.

Duran saw a flash of light and heard a sound "like a firecracker" or a "pop." Hernandez told Duran "something hit me," and they realized Hernandez had been shot. Hernandez fell to her knees, and Duran called 911. Hernandez suffered serious injuries, including a fractured pelvis and a perforated intestine.

The police confiscated the rifle, a BB gun, and a loaded handgun from Josefina and Fernando's bedroom. After paramedics and police arrived, Duran telephoned Jensen to tell her what had occurred. Jensen asked Duran: "What the fuck are you doing in the closet?" Jensen did not ask about Hernandez's condition. Jensen testified she was "pissed" and "mad" about the shooting. The police determined the shooting was accidental.

C. Jensen and Her Siblings Knew Fernando Kept Firearms in the House

Before the shooting, Jensen knew her father had handguns and rifles in the house, including a handgun and a BB gun in his nightstand. Jensen also knew her father had kept handguns and rifles at a prior residence. Jensen testified that Fernando was "a little crazy when it came to guns."

Jensen had not seen the rifle involved in the shooting and did not know it was in the bedroom closet. Jensen's husband knew Fernando had guns in the house because he had unloaded two of them. Jensen's sister Irma knew Fernando had guns in the house, including a handgun in the bedroom nightstand. Irma had not seen the rifle involved in the shooting and did not know how it came to be in the closet. Jensen's brother John had seen a rifle in the bedroom closet but did not tell Duran it was there. John did not tell Jensen or Irma about the rifle either. Fernando did not have a gun safe in the house.

Following the shooting, Gerinet informed the family that all guns must be removed from the house before Gerinet personnel could continue working in the house. Jensen was present by telephone for that conversation. After the conversation with Gerinet, and within two weeks after the shooting, Duran found two more rifles at the other end of the same bedroom closet.

D. The Jury Finds Jensen, John, and Fernando Liable for Negligence

Hernandez sued Jensen, John, and Fernando, as well as Josefina's estate, Josefina as trustee of a family trust, and Jensen's other two siblings. The jury found Jensen, John, and Fernando liable for general negligence and awarded total damages of $3.61 million. The jury apportioned fault 65 percent to Jensen, 20 percent to John, and 15 percent to Fernando. The trial court entered judgment on the jury's verdict on September 12, 2018. The court subsequently reduced the economic damages award from $610,000 to $406,644.77 and left the $3 million non-economic damages award intact. Jensen timely appealed.

DISCUSSION

A. Standards of Review

Hernandez alleged causes of action for general negligence and premises liability. Jensen argues she did not owe Hernandez a duty of care and she did not cause Hernandez's harm.

The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. ( Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158, 210 Cal.Rptr.3d 283, 384 P.3d 283 ( Kesner ).) Duty is a question of law for the court, to be reviewed de novo on appeal. ( Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770, 122 Cal.Rptr.3d 313, 248 P.3d 1170 ( Cabral ).)

The elements of breach of duty and causation are ordinarily questions of fact for the jury's determination. ( Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278, 12 Cal.Rptr.3d 846 ( Vasquez ).) "Where findings of fact are challenged on appeal, we are bound by the ‘elementary, but often overlooked principle of law, that ... the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below." ( Garbell v. Conejo Hardwoods, Inc. (2011) 193 Cal.App.4th 1563, 1569, 122 Cal.Rptr.3d 856 ( Garbell ), quoting Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183 ; Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582, 257 Cal.Rptr.3d 699.) The substantial evidence standard of review applies to the jury's findings on causation. ( Cabral , supra , 51 Cal.4th at p. 770, 122 Cal.Rptr.3d 313, 248 P.3d 1170.)

Jensen also argues the trial court erred by failing to instruct the jury that ownership, maintenance, or control of the premises was a prerequisite to finding Jensen liable for general negligence. The propriety of jury instructions is a question of law that we review de novo. ( Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 475, 161 Cal.Rptr.3d 758.)

B. Jensen Owed Hernandez a Duty of Care

1. The duty of care

Pursuant to Civil Code ² section 1714, subdivision (a), "[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." ( § 1714, subd. (a).) "California law establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others." ( Cabral , supra , 51 Cal.4th at p. 768, 122 Cal.Rptr.3d 313, 248 P.3d 1170.) "In the absence of a statutory...