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Contractors Owed Duty of Care to Children Who Were Killed by Dump-Truck Driver—C.A.
Majority Reverses Summary Judgment Order, Saying Defendants May Be Liable Where Vehicle Was Heading to Unpermitted Staging Area, Drawing Dissent
By Kimber Cooley, associate editor
Div. One of this district’s Court of Appeal held Friday, in a 2-1 decision, that property developers and their contractors that failed to obtain a city permit for a truck staging area owe a duty of care to pedestrians and other third parties to protect them from the risk that truck drivers heading to and from the unsanctioned location will negligently injure them.
The question arose after Amy and Marlenne Lorenzo were killed while they were walking to school when they were struck by a dump truck heading to an unpermitted staging area set up for a nearby construction project in downtown Los Angeles. The truck was driven by Stanley Randle, who had been hired by a subcontractor to help haul away dirt and debris from the building site.
After the April 2019 death of their daughters, who were 12 and 14 years old, Francisco Lorenzo and Angelina Nicolas filed a complaint against the developer, Core/Related Grand Avenue Owner LLC, the general contractor for the project, Tishman Construction Corporation of California, and the excavation company, Calex Engineering Inc., among others, asserting wrongful death claims.
Evidence was presented that Core/Related had told the City of Los Angeles that all dump trucks would be staged on-site at the construction project, which was located near the intersection of Grand Avenue and First Street. They contend that the municipality issued an excavation permit on the condition that the trucks would be parked on location.
Despite this requirement, a trucking subcontractor set up a staging area miles from the project, at the intersection of 23rd Street and Broadway. On the day of the accident, Calex ordered 90 dump trucks to that unpermitted location.
The plaintiffs’ theory of liability is that the defendants’ decision to establish the unregulated staging area and to direct 90 dump trucks to the location was negligent and led to their daughters’ death.
Los Angeles Superior Court Judge Malcolm H. Mackey (now deceased) granted summary judgment to Core/Related, Tishman, and Calex, concluding that they did not owe a duty of care to the decedents.
Justice Helen I. Bendix, joined by Justice Gregory Weingart, wrote the opinion reversing the judgment as to those defendants, saying that Civil Code §1714 establishes the default rule that each person has a duty to “exercise, in his or her activities, reasonable care for the safety of others,” a standard only absolved when public policy concerns so dictate.
Finding that the public policy factors, outlined in the 1968 California Supreme Court decision of Rowland v. Christian, do not justify absolving the developer and contractors in the case, Bendix wrote:
“[D]efendants’ decision to establish an unpermitted dump truck staging area, without the City assessing the site and the streets approaching it for safety or implementing additional safety measures, foreseeably created a risk a truck driving to the unpermitted area would strike a pedestrian. Although the direct cause of the accident was the truck driver, case law makes clear a defendant nonetheless owes a duty to the extent the defendant’s negligence increases the risk of the third party’s conduct, in this case, unsafe driving through streets that have not been assessed for safety given the location and usage of the unpermitted staging site.”
Rowland Factors
Bendix pointed out that case law has established that the “most important” of the Rowland factors include the foreseeability of harm, the closeness of the connection between the defendants’ conduct and the harm suffered, and the moral blame and need to prevent future incidents, as weighed against the burden of imposing a duty.
As to foreseeability, the defendants argue that they “could not have reasonably foreseen that a contractor’s use of a staging area” could have caused the fatal accident, noting that “[t]he accident had nothing to do with the staging area—it happened because the truck driver…drove unsafely while taking an indirect route from his home.”
Unpersuaded, the jurist reasoned:
“This argument disregards that, because defendants had assured the City they would not be staging dump trucks off-site, the City had no opportunity to assess whether 23rd and Broadway was a safe place to stage trucks, including whether the neighborhood and streets surrounding that location safely could accommodate up to 90 dump trucks moving through them on a daily basis.”
Turning to the closeness of the connection between the defendants’ conduct and the injury suffered, she said it is related to the question of foreseeability and weighs in favor of imposing the duty for similar reasons, writing:
“[D]efendants controlled two critical circumstances, namely the location of the staging area, and whether that staging area was permitted with all concomitant safety considerations….That is sufficient control to establish a close connection between defendants’ conduct and plaintiffs’ injury.”
Moral Blame
Addressing the “moral blame” attached to the defendants’ conduct, she opined:
“Here, defendants were morally blameworthy in that they misrepresented to the City the scope of their staging plan, including the location of the staging area and the number of dump trucks involved, thus depriving the City of the opportunity to assess the safety of the staging plan and implement additional safety measures.”
Rejecting the defendants’ attempt to pin the blame on the subcontractor who selected the staging area, she said “[i]t is beyond dispute…that defendants did not comply with the terms of the permit.”
The developer and contractors argued that imposing a duty on them would not avoid future harm because “[t]rucks need to reach construction sites somehow, and there is no way to keep dump trucks off city streets short of mandating that trucks remain on project sites at all times, which would make construction projects impossible.”
She responded:
“Imposing liability under these circumstances would, at minimum, avoid future harm by encouraging developers and contractors to comply with their permits or seek permission for a change in use, which is not an unreasonable burden to impose. These factors weigh against an exception to the duty of care.”
Rothschild’s View
In a dissent, Presiding Justice Frances Rothschild wrote:
“The key to the majority’s holding is the lack of a city permit for the off-site staging area….According to the majority, if the developer or contractors had applied for and obtained a city permit to establish the staging area, the city might have conducted a safety assessment of the streets surrounding the staging area and might have implemented or required ‘safety measures’ that might have protected pedestrians from negligent truck drivers. Because these speculative possibilities do not, under the Rowland factors or Supreme Court precedent, justify the expansive duty the majority declares, I respectfully dissent.”
Disagreeing that the connection between the defendant’s conduct and the injury suffered weighed in favor of imposing a duty, she said:
“[T]he actions of Randle and the children are entirely independent of the location of the staging area. If there exists any connection at all between the defendants’ conduct and the victims’ injuries, it is extremely remote. Therefore, this factor weighs heavily in support of finding no duty.”
Moral Blame
As to the moral factor, she noted that the project location was “close to the Stanley Mosk Courthouse, a performing arts school, the financial district, and tourist destinations such as the Walt Disney Concert Hall and Grand Central Market” and that a representative of the subcontractor in charge of selecting the location for the staging area was concerned about staging trucks in such a busy location. Under these circumstances, she argued:
“[T]he operation of the off-site staging area is no more blameworthy—indeed, because it was selected ‘for safety purposes’ is probably less blameworthy—than the operation of an on-site staging area.”
She was similarly unconvinced that imposing a duty here would prevent future harm and wrote:
“The penultimate Rowland factor is the extent of the burden on the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for the breach….The defendants…persuasively assert][] that imposing a duty to protect pedestrians from the risk of harm caused by negligent independent truck drivers over whom they have no control would not only increase the…cost of housing, but result in liability out of proportion to their culpability….That disproportionality between that broad potential liability and any culpability exposes the fallacy of the majority’s broad holding.”
The case is Lorenzo v. Calex Engineering Inc., 2025 S.O.S. 866.
Garo Mardirossian, Armen Akaragian, and Adam Feit of the Los Angeles firm of Mardirossian Akaragian represented the plaintiffs on appeal. Acting for Core/Related, Tishman, and Calex were Eric S. Boorstin and Scott P. Dixler of the downtown Los Angeles office of Horvitz & Levy, and Brian Joseph McCormack, of the Santa Ana-based Callahan & Blaine.
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