Bowman v. Wyatt (186 Cal. App. 4th 286, 2010)

Opinion

SUZUKAWA, J.

INTRODUCTION

Plaintiff Barry A. Bowman (plaintiff or Bowman) brought the present action after suffering devastating injuries when his motorcycle collided with a dump truck owned and operated by defendant Tommie Wyatt, Jr. (Wyatt). The collision occurred shortly after Wyatt delivered a load of asphalt to a worksite of defendant City of Los Angeles (City), with whom Wyatt was under contract.

The jury found that Wyatt caused the accident by negligently making a left turn in front of Bowman’s motorcycle. The jury further found that Wyatt was a City employee, that the City breached a duty to inspect and maintain the dump truck’s brakes, that the truck was controlled by the City and was in a dangerous condition, and that the work in which Wyatt was engaged at the time of the accident involved a special risk of harm. It returned a verdict for Bowman of over $15 million.

The City has appealed, contending that (1) the jury was misinstructed on several critical issues, including the factors it was to consider in determining if Wyatt was an employee or independent contractor; (2) there was no substantial evidence to support a finding that defects in the dump truck’s brakes were a proximate cause of the accident; (3) as a matter of law, the work in which Wyatt was engaged did not involve a peculiar risk of harm; and (4) the trial court erred in deciding as a matter of law that the City was the dump truck’s “motor carrier” within the meaning of Vehicle Code sections 408 and 34501.12. Wyatt has also appealed, contending that the court abused its discretion by allowing evidence that Wyatt’s motor carrier permit had been suspended, allowing lay opinion testimony, and limiting the testimony of defendants’ expert.

We agree with the City that the trial court erred by misinstructing the jury about the factors relevant to determining whether Wyatt was an employee or an independent contractor, allowing the jury to find that the work in which Wyatt was engaged involved a peculiar risk of harm, and instructing the jury that the City was the motor carrier as a matter of law. We further agree with the City that substantial evidence did not support the jury’s finding that defects in the dump truck’s brakes were a proximate cause of the accident. Because these errors infected all four bases of liability Bowman asserted against the City, we reverse the judgment for Bowman and against the City, and remand for a limited retrial on vicarious liability.

With respect to Wyatt’s appeal, we conclude that his contentions are without merit and affirm the jury finding as to his liability.

FACTUAL AND PROCEDURAL BACKGROUND

Bowman was seriously injured on October 13, 2004, when the motorcycle he was riding collided with a dump truck driven by Wyatt. Bowman had been traveling southbound on Wilbur Avenue in Northridge; Wyatt was traveling eastbound on Vanalden Avenue, rolled through a stop sign, and collided with Bowman at the intersection of Wilbur and Vanalden as he began making a left turn. As a result of the accident, Bowman suffered traumatic brain injury, a stroke, hearing and vision loss, a jaw laceration, a frozen shoulder, compound leg fractures, and a hip fracture. At the time of trial, he remained blind in one eye, walked with a cane, and suffered severe mental impairment that interfered with his memory and reasoning.

When the accident occurred, Wyatt was under contract with the City of Los Angeles, Bureau of Street Services, to deliver asphalt to City worksites on an as-needed basis. Wyatt had just delivered a load of asphalt for the City and was returning to a City yard to determine if there was another load for him to haul.

Bowman sued Wyatt and the City for personal injuries. The operative third amended complaint alleged that Wyatt failed to stop at the stop sign and/or to yield the right-of-way to Bowman; defendants negligently failed to maintain the dump truck’s brakes; Wyatt was engaged in an activity that lawfully could be carried out only pursuant to a permit from the State of California; the City was vicariously liable for the harm to Bowman because Wyatt’s duties involved possible danger to the public and were nondelegable; the operation of the dump truck was, as a matter of law, an activity involving an unreasonable risk of harm to others; Wyatt’s operation of the dump truck was pursuant to the Motor Carriers of Property Permit Act (Veh. Code, § 34600 et seq.); and the City had a nondelegable duty to exercise due care toward Bowman as a member of the driving public.

The case went to trial before a jury in November 2007. Bowman presented evidence that the dump truck’s brakes failed, Wyatt’s motor carrier permit had been suspended, and required safety inspections had not been performed as required by law. Defendants presented evidence that the brakes did not fail, Wyatt’s motor carrier permit had not been suspended, required inspections were performed, and the City was not responsiblé for maintaining the dump truck.

After hearing several weeks of testimony, the jury returned a verdict for Bowman, finding as follows:

“1. On the claim of Barry Bowman for negligence against Tommie Wyatt[,] we find in favor of Barry Bowman and against Tommie Wyatt[.]

“2. On the claim of Barry Bowman against the City of Los Angeles for failure to inspect or maintain the brakes of the truck it leased from Tommie Wyatt[,] we find in favor of Barry Bowman and against the City of Los Angeles [.]

“3. On the claim of Barry Bowman against the City of Los Angeles that the truck was controlled by the City and was in a dangerous condition^] we find in favor of Barry Bowman and against the City of Los Angeles[.]

“4. On the claim of Barry Bowman against the City of Los Angeles that the work of Tommie Wyatt and the dump truck involved a special risk of harm[,] we find in favor of Barry Bowman and against the City of Los Angeles[.] . . .

“5. On the claim of Barry Bowman against the City of Los Angeles that Tommie Wyatt was an ‘employee’ of the City and not an independent contractor[,] we find in favor of Barry Bowman and against the City of Los Angeles . . . .”

The jury found that Wyatt was 25 percent responsible for the accident and the City was 75 percent responsible. It awarded damages as follows:

Past economic loss: $776,399

Future economic loss: $3,959,005

Past noneconomic loss: $1,500,000

Future noneconomic loss: $9,500,000

TOTAL: $15,735,404

Judgment was entered on January 28, 2008, and notice of entry of judgment was served on January 30, 2008. The trial court denied defendants’ motions for new trial and for judgment notwithstanding the verdict. This timely appeal followed.

THE CITY’S APPEAL

The City contends (1) the jury was misinstructed on critical issues, including the factors it should consider in determining if Wyatt was an employee or independent contractor of the City; (2) the trial court erred in allowing the jury to find that Wyatt’s use of the dump truck involved a special risk of harm; (3) substantial evidence did not support a finding that the condition of the brakes was a proximate cause of the accident and Bowman’s injuries; and (4) the trial court erred in finding that the City was the “motor carrier” as a matter of law. We consider each issue below.

I. The Trial Court Misinstructed the Jury on the Factors Relevant to Determining Whether Wyatt Was an Employee or Independent Contractor

A. The CACI No. 3704 Instruction

At Bowman’s request, the jury was instructed pursuant to Judicial Council of California Civil Jury Instructions (CACI) No. 3704 that it must determine whether Wyatt was an employee or an independent contractor of the City, as follows:

“In deciding whether Tommie Wyatt, Junior was the City of Los Angeles’s employee, you must first decide whether the City of Los Angeles had the right to control how Tommie Wyatt, Junior performed the work, rather than just the right to specify the result.

“It does not matter whether City of Los Angeles exercised the right to control. If you decide that the right to control existed, then Tommie Wyatt, Junior was the City of Los Angeles’s employee.

“If you decide that the City of Los Angeles did not have the right of control, then you must consider all the circumstances in deciding whether Wyatt was the City of Los Angeles’s employee.

“The following factors, if true, may show that Wyatt was the employee of the City of Los Angeles:

“A, The City of Los Angeles supplied the equipment, tools and place of work;

“B, Tommie Wyatt, Junior was paid by the hour rather than by the job;

“C, The work being done by Tommie Wyatt, Junior was part of the regular business of the City of Los Angeles;

“D, The City of Los Angeles had an unlimited right to end the relationship with Tommie Wyatt, Junior;

“E, The work being done by Tommie Wyatt, Junior was the only occupation or business of Tommie Wyatt, Junior;

“F, The kind of work performed by Tommie Wyatt, Junior is usually done under the direction of a supervisor rather than by a specialist working without supervision;

“G, The kind of work performed by Tommie Wyatt, Junior does not require specialized or professional skill;

“H, The services performed by Tommie Wyatt were to be performed over a long period of time;

“and I, The City of Los Angeles and Tommie Wyatt, Junior acted as if they had an employer-employee relationship.”

The City contends that this instruction is erroneous because it told the jury that the right of control, by itself, compelled a finding that Wyatt was a City employee. In other words, the City says, the instruction told the jury that if it found that the City had the right to control how Wyatt performed his work, then it must find that he was a City employee. The instruction misstates the law, the City argues, because while the existence of control is an important factor in determining whether someone is an employee or an independent contractor, it is not the only factor. Instead, where the right to control is not absolute, “the fact finder must be allowed to weigh the extent of the control that could be exercised against additional factors to determine if the worker is more like an employee or more like an independent contractor.”

We review de novo whether a challenged instruction correctly states the law. (Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 24 [65 Cal.Rptr.3d 695]; Sander/Moses Productions, Inc. v. NBC Studios, Inc. (2006) 142 Cal.App.4th 1086, 1094-1095 [48 Cal.Rptr.3d 525]; National Medical Transportation Network v. Deloitte & Touche (1998) 62 Cal.App.4th 412, 439 [72 Cal.Rptr.2d 720].) For the reasons that follow, we conclude that CACI No. 3704 does not accurately state the law.

B. The Law Governing the Employee/independent Contractor Distinction

The distinction between an employee and an independent contractor is a significant one: With some exceptions, an employer is vicariously liable for the negligent acts of its employees, but not of its independent contractors. (E.g., S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350 [256 Cal.Rptr. 543, 769 P.2d 399] (Borello) [“The distinction between independent contractors and employees arose at common law to limit one’s vicarious liability for the misconduct of a person rendering service to him.”]; Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1100 [251 Cal.Rptr. 727] [noting “general rule refusing to impose vicarious liability for the negligence of an independent contractor”].) Accordingly, there is a rich body of case law discussing when a worker is an “employee” or an “independent contractor.”

1. Supreme Court Authority

The “seminal case” (Truesdale v. Workers’ Comp. Appeals Bd. (1987) 190 Cal.App.3d 608, 615 [235 Cal.Rptr. 754]) addressing the employee/independent contractor distinction is Empire Star Mines Co. v. Cal. Emp. Com. (1946) 28 Cal.2d 33 [168 P.2d 686] (Empire Star), disapproved on other grounds in People v. Sims (1982) 32 Cal.3d 468, 479-480, footnote 8 [186 Cal.Rptr. 77, 651 P.2d 321]. That case arose under the Unemployment Insurance Act, pursuant to which employers were required to pay unemployment insurance taxes for employees, but not for independent contractors. (Empire Star, at p. 36.) In affirming the trial court’s determination that the defendant mining company’s lessees were independent contractors, the Supreme Court identified a number of factors relevant to distinguishing independent contractors from employees. The most important factor was “the right to control the manner and means of accomplishing the result desired. If the employer has the authority to exercise complete control, whether or not that right is exercised with respect to all details, an employer-employee relationship exists.” (Id. at p. 43.) The court also identified a series of “[o]ther factors” to be taken into consideration: “(a) whether or not the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee. (Rest., Agency, § 220; Cal.Ann. § 220.)” (Id. at pp. 43-44.)

The Supreme Court again addressed the employee/independent contractor distinction in Malloy v. Fong (1951) 37 Cal.2d 356 [232 P.2d 241]. There, the plaintiff was injured in a car accident while attending a vacation Bible school run by his church. The issue before the court was whether the church was vicariously liable for the alleged negligence of the church’s pastor and his assistant. (Id. at pp. 360-363, 370.) The court identified the right of control as the primary factor in determining whether a person performing work for another is an agent or an independent contractor, but noted that the additional factors outlined in Empire Star were also relevant. (Id. at pp. 370-371.) The court addressed each of the factors before concluding that the pastor was an employee, not an independent contractor. (Id. at pp. 371-372.)

The Supreme Court revisited the factors relevant to distinguishing employees from independent contractors in Tieberg v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943 [88 Cal.Rptr. 175, 471 P.2d 975], There, the director of employment (director) levied assessments against a television production company for unemployment insurance contributions assertedly due based on salaries paid to writers who were employed to write television stories and plays. Such contributions were require^ only if the writers were employees rather than independent contractors. (Id. at p. 946.) The trial court agreed with the director and found that the writers were employees; the production company appealed. (Ibid.) The Supreme Court held that in determining that the production company was an employer, the trial court “improperly restricted its consideration to whether [the production company] had the right to and did exercise control over the writers’ work.” (Ibid.) It explained that while the right of control is the “principal test” of an employment relationship, the court should also have considered the additional factors identified in Empire Star. (Id. at pp. 946-947.) Indeed, it said, while the right to control and direct the individual who performs services as to the details and means by which the result is accomplished is the most important consideration, it is “not the only element in determining whether an employment relationship has been created.” (Id. at p. 950, italics added.) The court thus considered all of the Empire Star factors before agreeing with the trial court that an employment relationship existed between the production company and its writers. (Id. at p. 955.)

The Supreme Court most recently discussed the employee/ independent contractor distinction in Borello, supra, 48 Cal.3d 341. There, it considered whether agricultural workers were employees or independent contractors within the meaning of the Workers’ Compensation Act. It discussed the relevant legal principles as follows: “Following common law tradition, California decisions . . . uniformly declare that ‘[t]he principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. . . .’ [Citations.] [f] However, the courts have long recognized that the ‘control’ test, applied rigidly and in isolation, is often of little use in evaluating the infinite variety of service arrangements. While conceding that the right to control work details is the ‘most important’ or ‘most significant’ consideration, the authorities also endorse several ‘secondary’ indicia of the nature of a service relationship.” (48 Cal.3d at p. 350.) Those “secondary indicia” “have been derived principally from the Restatement Second of Agency.” (Id. at p. 351.) They generally “ ‘cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.’ ” (Ibid.)

After reviewing the factors traditionally considered to determine whether workers are employees or independent contractors, the court declined to adopt new standards for examination of the issue. Instead, it determined that “the Restatement guidelines heretofore approved in our state remain a useful reference.” (Borello, supra, 48 Cal.3d at p. 354.) It also noted with approval “the six-factor test developed by other jurisdictions .... Besides the ‘right to control the work,’ the factors include (1) the alleged employee’s opportunity for profit or loss depending on his managerial skill; (2) the alleged employee’s investment in equipment or materials required for his task, or his employment of helpers; (3) whether the service rendered requires a special skill; (4) the degree of permanence of the working relationship; and (5) whether the service rendered is an integral part of the alleged employer’s business. [Citation.]” (Id. at pp. 354-355.) It concluded: “As can be seen, there are many points of individual similarity between these guidelines and our own traditional Restatement tests. [Citation.] We find that all are logically pertinent to the inherently difficult determination whether a provider of service is an employee or an excluded independent contractor . . . .” (Id. at p. 355.)

2. Appellate Court Authority

Taken together, the body of Supreme Court authority discussed above stands for the proposition that while the right of control is the “primary” factor to be considered in determining whether a worker is an employee or an independent contractor, a group of “secondary” factors also must be considered. Accordingly, appellate cases consistently apply a multifactor test in evaluating employee/independent contractor determinations. The recent case of Messenger Courier Assn. of Americas v. California Unemployment Ins. Appeals Bd. (2009) 175 Cal.App.4th 1074 [96 Cal.Rptr.3d 797] is illustrative. There, an employer association brought an action for declaratory judgment, seeking to invalidate a precedential decision by the California Unemployment Insurance Appeals Board (board) that designated certain truckdrivers as employees, not independent contractors. The action was brought under section 621, subdivision (b), of the Unemployment Insurance Code, which defines an “employee” as “ ‘[a]ny individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee.’ ” (Messenger Courier, at p. 1085, original italics.) The employer association contended that under the italicized language of the statute, the board lacked jurisdiction to consider the “secondary criteria” established by case law, but instead must consider only the common law “ ‘control of details’ ” test to determine employee status. (Id. at pp. 1088-1089.) The court disagreed. It explained: “[W]e glean that our Supreme Court’s and other courts’ applications of both primary and secondary criteria of employment determinations are in the process of becoming part of the common law of this state, as expressed in judicial decisions such as Empire Star, supra, 28 Cal.2d 33, and Borello, supra, 48 Cal.3d 341. ...[][] We accordingly reject plaintiff’s basic premise that the primary or common law test for employment status, regarding the right to control, must operate completely exclusively from the secondary factors that have been identified in other factual contexts as useful for determining employment status. There is nothing in the historical development of the common law to justify confining the statutory terminology in section 621, subdivision (b), to a narrow common law test for employment, simply because this is an unemployment insurance assessment case. The terms of section 621, subdivision (b) must be interpreted in light of comparable, complementary and overlapping criteria developed in case law . . . .” (Id. at pp. 1091-1092.) It concluded: “[Pjlaintiff has provided no persuasive reason to fault the Board’s reasoning in clarifying that both the primary and secondary Borello tests have application to unemployment insurance determinations under section 621, subdivision (b), because the secondary criteria have been incorporated into the ‘usual common law rules’ mentioned in that subdivision.” (Id. at p. 1095, italics added; see also Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 85 [89 Cal.Rptr.3d 34] [approving instruction that told the jury that in determining whether plaintiff truckdrivers were employees or independent contractors, it must “ ‘consider a number of factors’ ” and “ ‘weigh all of these factors based on the evidence that you have heard’ ”]; Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1 [64 Cal.Rptr.3d 327] [trial court correctly applied multifactor Borello test in determining that drivers were employees, not independent contractors, for limited purpose of their entitlement to reimbursement for work-related expenses]; Air Couriers Internat. v. Employment Development Dept. (2007) 150 Cal.App.4th 923 [59 Cal.Rptr.3d 37] [multifactor Borello test applied in employment tax context]; Ali v. L.A. Focus Publication (2003) 112 Cal.App.4th 1477 [5 Cal.Rptr.3d 791] [multifactor test applied to determine whether plaintiff was an employee and, hence, permitted to assert wrongful termination claim]; State Compensation Ins. Fund v. Brown (1995) 32 Cal.App.4th 188, 202 [38 Cal.Rptr.2d 98] [multifactor test applied to conclude that, for unemployment insurance purposes, contract truckdrivers were independent contractors as a matter of law; under Borello, “[r]ight of control retains significance, but is no longer determinative”].)

C. CACI No. 3704 Does Not Correctly State the Law Because It Instructs a Jury That the Right of Control, by Itself, Is Dispositive

As the cases discussed above make clear, the right of control is an important factor in determining whether a worker is an employee or an independent contractor, but it is not the only factor. Indeed, the Supreme Court has said, “the ‘control’ test, applied rigidly and in isolation, is often of little use in evaluating the infinite variety of service arrangements.” (Borello, supra, 48 Cal.3d at p. 350.) Thus, as we have demonstrated, the cases consistently endorse a multifactor test that considers not only the right of control, but also secondary factors such as whether the worker is engaged in a distinct occupation or business, the skill required in the particular occupation, whether the employer or the worker supplies the tools and the place of work, the length of time for which the services are to be performed, whether the worker is paid by time or by the j'ob, whether the work is a part of the regular business of the employer, and the kind of relationship the parties believe they are creating.

CACI No. 3704, given in the present case, did not correctly instruct the jury that it must weigh all of these factors to determine whether Wyatt was an employee or an independent contractor. Instead, it told the jury that if it decided that the City had the right to control how Wyatt performed his work, then it must conclude that Wyatt was a City employee. In other words, it told the jury that the right of control, by itself, gave rise to an employer-employee relationship. Further, it told the jury that it should consider the secondary factors only “[i]f you decide that the City of Los Angeles did not have the right of control.” (Ibid.) For all the reasons discussed above, this instruction thus is not a correct statement of the law.

D. The Erroneous Instruction Likely Prejudiced the Jury’s Determination That Wyatt Was the City’s Employee

In determining whether instructional error was prejudicial, a reviewing court evaluates “ ‘(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled’ ” to determine whether it is “reasonably probable” that erroneous instructions misled the jury. (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 348, 359 [48 Cal.Rptr.3d 875]; see Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 581, fn. 11 [34 Cal.Rptr.2d 607, 882 P.2d 298].) “A ‘reasonable probability’ in this context ‘does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.’ (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715 [34 Cal.Rptr.2d 898, 882 P.2d 894].)” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682 [36 Cal.Rptr.3d 495, 123 P.3d 931].) Accordingly, “our standard of review in this regard is the opposite of the traditional substantial evidence test. ‘ “[I]n assessing an instruction’s prejudicial impact, we cannot use the view of the evidence and inferences most favorable to the [prevailing party], [Citations.] Instead, we must assume the jury might have believed [appellant’s] evidence and, if properly instructed, might have decided in [appellant’s] favor. [Citations.]” [Citation.] Accordingly, we state the facts most favorably to the party appealing the instructional error alleged[.] [Citation.]’ (Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, 298 [45 Cal.Rptr.2d 10].)” (GAB Business Services, Inc. v. Lindsey & Newsom Claim Services, Inc. (2000) 83 Cal.App.4th 409, 423 [99 Cal.Rptr.2d 665], disapproved on other grounds in Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1153-1154 [17 Cal.Rptr.3d 289, 95 P.3d 513].)

In the present case, it is reasonably probable that the erroneous employment instruction prejudicially affected the jury’s conclusion that Wyatt was a City employee, not an independent contractor. There was substantial evidence from which the jury could have concluded that Wyatt was an independent contractor, including the following: City employees testified that Wyatt controlled the dump truck and how it was operated; Wyatt supplied all of his own tools and equipment, including the dump truck, insurance, and a cell phone; Wyatt supplied and paid for his truck’s gasoline and oil; Wyatt was responsible for all maintenance and repairs to his dump truck; Wyatt worked on a day-to-day, as-needed basis; the City paid Wyatt by the load, not by the hour; Wyatt did not have a City supervisor; Wyatt’s work required him to be skilled in the operation of a dump truck; the agreement between Wyatt and the City says that he is an independent contractor; Wyatt testified that he worked for his own company, Tommie Wyatt Trucking; City officials considered Wyatt an independent contractor and issued him a form 1099 at the end of each tax year; Wyatt did not receive any employee benefits from the City, such as pension, paid vacation time, paid sick leave; Wyatt was permitted to employ substitute drivers to perform work for the City.

Based on all of this evidence, we conclude that a jury properly instructed to consider all of the factors identified in the case law reasonably could have concluded that Wyatt was an independent contractor, not an employee. Therefore, it is reasonably probable that the erroneous employment instruction prejudicially affected the jury’s conclusion concerning Wyatt’s employment.

II. Wyatt’s Use of the Dump Truck Did Not Involve a Peculiar Risk As a Matter of Law

Bowman alleged at trial that Wyatt’s work for the City involved a “special” or “peculiar” risk of harm, and therefore the City was vicariously liable for Bowman’s injuries, even if Wyatt was an independent contractor, not an employee. The jury was given a verdict form requesting a special finding on this issue, and it found that “the work of Tomm[ie] Wyatt and the dump truck involved a special risk of harm.”

The City contends that the trial court erred in allowing the jury to make this special finding because, as a matter of law, the dump truck did not involve a peculiar risk of harm. For the reasons that follow, we agree.

A. Overview of the Peculiar Risk Doctrine

At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work for which he or she was hired. Over time, the courts created exceptions to this general rule of nonliability. One such exception pertains to contracted work that poses an inherent risk of injury to others, which is commonly referred to as the doctrine of “peculiar” or “special” risk. (Privette v. Superior Court (1993) 5 Cal.4th 689, 693 [21 Cal.Rptr.2d 72, 854 P.2d 721].)

The peculiar risk doctrine is discussed in sections 413 and 416 of the Restatement Second of Torts. As relevant to the present case, section 416 provides: “One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.”

“A critical inquiry in determining the applicability of the doctrine of peculiar risk is whether the work for which the contractor was hired involves a risk that is ‘peculiar to the work to be done,’ arising either from the nature or the location of the work and ‘ “against which a reasonable person would recognize the necessity of taking special precautions.” ’ [Citations.] The term ‘peculiar risk’ means neither a risk that is abnormal to the type of work done, nor a risk that is abnormally great; it simply means ‘ “a special, recognizable danger arising out of the work itself.” ’ [Citation.]” (Privette v. Superior Court, supra, 5 Cal.4th at p. 695.)

B. The Peculiar Risk Doctrine As Applied to Injuries Caused by Large Construction Vehicles

In several published cases, the appellate courts have discussed the contours of the peculiar risk doctrine as applied to liability for injuries caused by large construction vehicles. The earliest of these cases is Anderson v. L. C. Smith Constr. Co. (1969) 276 Cal.App.2d 436 [81 Cal.Rptr. 73] (Anderson), where an engineer working on a freeway construction project was killed at the jobsite when a dump truck loaded with asphalt backed up over him. The decedent had been marking a chalk Une for a paving machine to follow when he was struck; the paving operation required the paving machine to move forward along the chalk line, while dump trucks backed up to the paver to load asphalt into its hopper. (Id. at pp. 438-439.) The decedent’s survivors sued the dump truck driver, the general contractor, and the trucking company to whom the hauling of asphalt had been subcontracted. The jury found for the defendants. (Ibid.)

The plaintiffs appealed, contending that the trial court erred in refusing to instruct the jury on peculiar risk. (Anderson, supra, 276 Cal.App.2d at p. 439.) The appellate court agreed that a pecuHar risk instruction should have been given, concluding without analysis as follows: “The evidence contained in the record herein is certainly sufficient to support findings that (1) the type of work done by [the paving subcontractor] involved ‘a peculiar risk of physical harm to others unless special precautions are taken’ and (2) [the paving subcontractor] failed ‘to exercise reasonable care to take such precautions.’ ” (Id. at p. 446.)

The court reached a similar result in Castro v. State of California (1981) 114 Cal.App.3d 503 [170 Cal.Rptr. 734] (Castro). There, the plaintiff was a dump truck driver who worked for a construction company hired by the state to install a pipeline. The plaintiff had gotten out of his truck while waiting to pull forward to load and was injured when a fellow driver backed into him. He sued, asserting that the state was vicariously liable for the other driver’s negligence. The jury found for the plaintiff, but the trial court granted a motion for judgment notwithstanding the verdict, concluding that the evidence was insufficient as a matter of law to support the finding of peculiar risk. (Id. at pp. 507-509.) The Court of Appeal reversed. It noted that construction procedures on the project required dump trucks to drive to a point beyond the construction site, turn around, and then back down the street for more than a half block. Further, there was evidence that the side mirrors on the dump trucks did not allow drivers to see what was directly behind them at distances of less than 85 feet. (Castro, supra, 114 Cal.App.3d at p. 512.) Accordingly, the court concluded that there was sufficient evidence to support the jury’s finding of liability under the peculiar risk doctrine: “There was substantial evidence that the state should have recognized that the risk of someone being struck by dump trucks backing up for more than half a block was inherent in the approved plan of operation unless special precautions were taken. While the evidence was conflicting in many respects, the very existence of the conflict rendered it inappropriate for the court to grant the motion for judgment notwithstanding the verdict.” (Id. at p. 513.)

The court concluded differently in A. Teichert & Son, Inc. v. Superior Court (1986) 179 Cal.App.3d 657 [225 Cal.Rptr. 10] (Teichert). Like Anderson and Castro, Teichert involved a serious injury caused by a construction truck; unlike trucks in the earlier cases, the truck in Teichert was unladen and was not engaged in construction work at the time of the accident. There, a child was killed when his bicycle collided with a dump truck turning from a public street into a gravel plant owned by Teichert. The child’s father sued Teichert and the dump truck’s driver; Teichert moved for summary judgment, asserting that because the driver was an independent contractor, it was not liable for his negligence. (Id. at p. 660.) The appellate court held that Teichert was entitled to summary judgment because the peculiar risk doctrine did not apply as a matter of law. (Id. at p. 661.) It explained: “Plaintiff has failed to identify any peculiar risk inherent in the work [the driver] was engaged in, apart from the ordinary risk that he would not use due care in the driving of his dump tmck. There was no direct relationship between the particular work performed by [driver], i.e., hauling a truck load of asphalt, and the accident. The incident could have occurred just as easily if [driver] were driving a standard passenger vehicle or an ‘eighteen-wheeler. ’ [f] Nor did the frequency of truck traffic into Teichert’s plant create a special risk. The collision between decedent and [driver’s] truck would have happened in the same way regardless of whether that truck was the first or the hundredth to enter the facility on that day.” (Id. at p. 662.)

The court went on to discuss a relevant comment to section 416 of the Restatement Second of Torts. “In disposing of this portion of plaintiff’s case we find particularly apropos the illustration set forth in comment d to section 416 of the Restatement Second of Torts. That comment reads: ‘A “peculiar risk” is a risk differing from the common risks to which persons in general are commonly subjected by the ordinary forms of negligence which are usual in the community. It must involve some special hazard resulting from the nature of the work done, which calls for special precautions. (See § 413, com. b.) Thus if a contractor is employed to transport the employer’s goods by truck over the public highway, the employer is not liable for the contractor’s failure to inspect the brakes on his truck, or for his driving in excess of the speed limit, because the risk is in no way a peculiar one, and only an ordinary precaution is called for. But if the contractor is employed to transport giant logs weighing several tons over the highway, the employer will be subject to liability for the contractor’s failure to take special precautions or anchor them on his trucks.’ ” (Teichert, supra, 179 Cal.App.3d at p. 662, fn. omitted.) Thus, the court concluded, “[Driver’s] negligence, if any, entailed nothing more than ordinary failure to exercise due care in the operation of a motor vehicle. This is not sufficient to invoke the ‘special risk’ exception to the rule of nonliability for the negligence of an independent contractor.” (Id. at p. 661.)

Most recently, in American States Ins. Co. v. Progressive Casualty Ins. Co. (2009) 180 Cal.App.4th 18 [102 Cal.Rptr.3d 591], a self-employed trucker was driving a tractor-trailer into the only entrance to a construction site when the rear portion of his trailer ran over the plaintiff, severely injuring both of his legs. The plaintiff sued the trucker, the owner of the trailer, the grading contractor on the construction project, the general contractor, and the developer. The defendants tendered the suit to various insurance companies; one such insurer sought summary judgment, asserting that it owed the defendants no duty to defend because, among other things, the defendants were not potentially vicariously liable for the trucker’s negligence under the doctrine of peculiar risk. (Id. at pp. 23-24.) The trial court granted the motion, concluding that as a matter of law the peculiar risk doctrine did not apply, and the Court of Appeal reversed. (Id. at p. 25.) It explained that unlike the accident in Teichert, where a bicyclist riding along the shoulder of a road “simply collided with a dump truck turning left,” in the present case there was evidence “that Meza/Westem’s trailer (bottom-dump dirt hauler) collided with [the plaintiff] while accessing the Vinci parties’ Project entrance, a lone entrance which required Meza/Westem ‘to execute a [U]-tum (driving westbound in eastbound lanes), encroach on at least two pedestrian cross walks [sic\, jump a curb, and drive across a sidewalk . . . , all without assistance of . . . flagmen.’ ” (Id. at p. 31.) Thus, the court concluded, “Teichert is not the exemplar in this regard. Castro is.” (Ibid.)

C. As a Matter of Law, the Peculiar Risk Doctrine Does Not Apply to the Present Case

Taken together, the four cases discussed above suggest that the dispositive issue for purposes of applying the peculiar risk doctrine to the present case is whether there was a direct relationship between the accident and the “particular work performed” by Wyatt. (Teichert, supra, 179 Cal.App.3d at p. 662.) In other words, if the “character” of the work contributed to the accident, the peculiar risk doctrine applies. If the accident resulted from “ordinary” use of the vehicle, the peculiar risk doctrine does not apply, notwithstanding the vehicle’s size and weight.

We conclude that the present case is of the latter kind. As the City correctly points out, there was no direct relationship between any risk inherent in hauling asphalt and the accident. At the time of the accident, Wyatt’s truck was unladen and Wyatt had left the jobsite. He was not engaged in hauling or dumping asphalt nor, as in Castro, was he following a plan of work dictated by his hauling duties. Instead, Wyatt was simply traveling from a jobsite on ordinary city streets. Although it indisputably had catastrophic consequences, Wyatt’s negligence—running a stop sign—thus “entailed nothing more than [the] ordinary failure to exercise due care in the operation of a motor vehicle.” (Teichert, supra, 179 Cal.App.3d at p. 661.)

Bowman contends that, notwithstanding the foregoing, Anderson, supra, 276 Cal.App.2d 436, discussed above, supports the application of the peculiar risk doctrine here because “[t]he Anderson court found a peculiar risk of harm on the basis of a state administrative regulation—the Division of Industrial Safety’s Construction Safety Order 1576(e)—which required a truck with a body capacity of two and a half cubic yards or more used to haul construction materials to have a back-up warning device.” Thus, he urges, “the evidence that trucks with the size and weight of Wyatt’s create a peculiar risk of harm requiring special precautions lies in the relevant California statutes and regulations, and in the [Bulletins for Contract Trucks] issued by the Los Angeles Bureau of Street Services.”

We do not agree. While the Anderson court discussed the state administrative regulation to which Bowman refers, it did so in the context of an allegedly erroneous negligence per se instruction. (Anderson, supra, 276 Cal.App.2d at pp. 439-440.) The court did not address the regulation in discussing peculiar risk. (Id. at pp. 445-446.) We thus conclude that the alleged regulatory violations to which Bowman refers are irrelevant to the issue of peculiar risk.

Based on our analysis, we conclude as a matter of law that the work in which Wyatt and the dump truck were engaged at the time of the accident did not constitute a peculiar risk. Thus, the trial court erred in submitting the issue of peculiar risk to the jury.

III. The Dangerous Condition of Public Property Claim Was Not Supported by Subsantial Evidence

Bowman asserted at trial that the City was liable for his injuries pursuant to Government Code section 835 (the dangerous condition claim). Section 835 provides that a public entity is liable for injury caused by a dangerous condition of its property (here, the dump truck) if the plaintiff establishes that “the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [][] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [f] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” A “ ‘[d] angerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a).) “ ‘Property of a public entity’ and ‘public property’ mean real or personal property owned or controlled by the public entity . . . .” (§ 830, subd. (c).)

The City contends that the jury’s verdict for Bowman on the dangerous condition claim is not supported by substantial evidence. Specifically, it contends that substantial evidence did not support the jury’s finding that defects in the dump truck’s braking system were a proximate cause of the accident and Bowman’s injuries. For the reasons that follow, we agree.

A. The Brakes Evidence

Through several witnesses, Bowman introduced evidence of deficiencies in the dump truck’s brakes. Dale Washburn, a police officer, testified that immediately after the accident the truck’s air brakes did not hold any air pressure, one brake was out of compliance, and there were audible air leaks throughout the truck. When Washburn examined the truck the next morning, the air pressure gauges registered “zero,” there was a rapid loss of air pressure in the braking system, the air reservoir tanks contained excessive water, and there was possible dirt contamination of one of the truck’s axles. Plaintiff’s investigator, Alan Coulter, testified that the truck’s front brakes had been disconnected and that disabling the truck’s front brakes would have diminished braking ability.

The cited evidence unquestionably is substantial evidence of brake defects after the accident. The question relevant to our inquiry, however, is not whether there was substantial evidence of brake defects, but instead whether there was substantial evidence that alleged brake defects were a proximate cause of the accident. (Gov. Code, § 835.) As relevant to that issue, the testimony was as follows.

Meredith Kussin: Kussin was an eyewitness to the accident. She first saw the dump truck one or two seconds before the accident. She did not see it cross the limit line, and she does not know whether it stopped prior to entering the intersection.

Randy Aleman: Aleman was an eyewitness to the accident. He was traveling directly behind Bowman immediately before the accident. Aleman saw Wyatt “lookQ to the right, meaning south side, right away, but then he looks toward me. The bike was already coming, and I saw that he looked at me. He’d missed the policeman [Bowman] that was coming and he was still rolling.” Wyatt “was going very slowly, just moving slowly. I know he saw me. He didn’t see the cop [Bowman].” Bowman tried to swerve to avoid the accident, but “when he tried to swerve, the truck shook up” as Wyatt accelerated into a left turn.

Brett Llewellyn: Llewellyn was an eyewitness to the accident. He saw Wyatt’s truck slowly roll through the intersection without stopping.

Alan Coulter: Coulter was an investigator hired by Bowman. He testified to multiple defects in the truck’s braking system, but said that he could not determine “whether the brake system stopped the vehicle and/or how the brake system affected the ability of this vehicle to stop.” He also did not know how the removal of the front brakes might have affected the truck’s ability to stop. He did not have an opinion as to whether or not the brakes stopped the truck, and he could not opine that the truck’s brakes failed.

Tommie Wyatt: Wyatt testified that he stopped at the limit line and then inched into the intersection, but that he never saw Bowman’s motorcycle approaching him. He said that he “felt a bump, and . . . thought, wow, what is that?” It was not until he got out of the track and saw Bowman and the motorcycle that he realized what had happened. He said that he never had had any trouble stopping his track, including on the day of the accident.

B. The Jury’s Finding That Defective Brakes Were a Proximate Cause of the Accident Is Not Supported by Substantial Evidence

The City contends that the evidence cited above is not of sufficient substantiality to support the jury’s finding that defective brakes caused the accident. To establish causation, a plaintiff must prove that the defendant’s conduct was a “substantial factor” in bringing about his or her harm. (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752 [73 Cal.Rptr.3d 114] (Padilla); see Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132 [39 Cal.Rptr.2d 658].) Stated differently, evidence of causation “must rise to the level of a reasonable probability based upon competent testimony. [Citations.] ‘A possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.’ [Citation.] The defendant’s conduct is not the cause in fact of harm ‘ “where the evidence indicates that there is less than a probability, i.e., a 50-50 possibility or a mere chance,” ’ that the harm would have ensued.” (Williams v. Wraxall, supra, at p. 133, italics added.)

In reviewing evidence of causation, “we consider both direct and circumstantial evidence, and all reasonable inferences to be drawn from both kinds of evidence, giving full consideration to the negative and affirmative inferences to be drawn from all of the evidence, including that which has been produced by the defendant.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483 [50 Cal.Rptr.2d 785] (Leslie G.).) We cannot, however, draw inferences “from thin air.” (Ibid.) As one court has explained, “Where . . . the plaintiff seeks to prove an essential element of [his] case by circumstantial evidence, [he] cannot recover merely by showing that the inferences [he] draws from those circumstances are consistent with [his] theory. Instead, [he] must show that the inferences favorable to [him] are more reasonable or probable than those against [him].” (Ibid., italics omitted.)

In the present case, Bowman did not introduce any direct evidence that faulty brakes caused the collision. Instead, he asked the jury to infer from the brake defects discovered after the accident that defects existed before the accident and were the accident’s cause. To affirm the jury’s finding, we therefore must conclude that the evidence established more than a possibility that the brakes failed and caused the collision; rather, we must conclude that it is probable that they did so.

Having reviewed the entire record, we cannot conclude that the jury’s finding that brake defects caused the accident is supported by substantial evidence. No witness testified that he or she saw Wyatt trying to brake to avoid the collision, and the single eyewitness who testified to the cause of the accident said that Wyatt did not see Bowman approaching the intersection because “[Bowman] was too close.” This statement was consistent with Wyatt’s testimony that he did not see Bowman prior to the impact, and that it was not until he got out of his truck and saw Bowman and the motorcycle that he realized that he and Bowman had collided. There was no evidence of physical indicia that Wyatt was trying to stop, such as skid marks or witness testimony of squealing brakes immediately before the collision. Finally, Bowman’s expert witness did not testify that defective brakes caused the accident; to the contrary, while he testified to a host of defects, he was unwilling to say that brake failure caused the accident or even that a brake defect affected Wyatt’s ability to stop.

The present case thus is analogous to Padilla, supra, 160 Cal.App.4th 742. There, a two-year-old child drowned in the defendant’s backyard pool when his mother left him unattended for about five minutes. The mother brought an action for negligence against the homeowners, asserting, among other things, premises liability based on an allegedly defective gate. The trial court granted the homeowners’ summary judgment motion, in part on the ground that the mother could not establish that the absence of a self-locking gate at one entrance to the pool area was a cause of the accident because it was speculative as to whether the child entered the pool area through the gate or through one of the other points of access to the pool. (Id. at p. 745.) The Court of Appeal affirmed, finding that even if it assumed that the gate was defective for lack of a self-latching mechanism, the mother could not establish causation. It explained: “With the evidence viewed most favorably to [mother], she is unable to show that it was more probable than not that a self-latching gate would have prevented Eddie’s drowning. The probabilities are evenly balanced as to whether Eddie gained entrance to the pool through the side yard gate, the ‘door’ on the other side of the house, or the sliding glass doors of the house. Accordingly, [mother] cannot establish that Defendants’ failure to provide a self-latching gate was a substantial factor in causing Eddie’s drowning.” (Id. at pp. 752-753.)

The present case also is analogous to Leslie G., supra, 43 Cal.App.4th 472. There, a woman was sexually assaulted in the parking garage of her apartment building. She sued the building’s owners, contending they were negligent because they failed to repair a broken security gate and that their negligence caused her assault. The trial court granted the owners’ motion for summary judgment, and the Court of Appeal affirmed. (Id. at p. 476.) It explained that because there was no direct evidence either that the rapist •entered or departed through the broken gate or that the broken gate was the only way that he could have entered or departed, the plaintiff could not survive summary judgment simply because it was “possible that he might have entered through the broken gate.” (Id. at p. 483.) It said: “In this case, no one (other than the rapist, who has never been caught) knows how the rapist got into or out of the garage. Although the three access doors to the garage were found closed on the day after Leslie’s rape, no one knows whether they were closed or propped open on the night of the rape. No one knows whether the rapist followed another tenant in through the front door and then found his own way down to the garage. No one knows whether the rapist somehow obtained a key to the premises (he could have found a lost key or stolen one from another tenant). These unknowns are significant because, had the gate been operating properly, the rapist still could have entered the garage. Moreover, even if it had been working, he could have entered through the security gate itself by waiting outside for a car to enter, ducking beneath the closing gate, and hiding in the garage as he apparently did on the night of Leslie’s rape. [Citations.] [f] In short, there simply is no evidence from which to infer causation.” (Id. at pp. 483-484, fn. omitted.)

In the present case, as in Padilla and Leslie G., there is simply no evidence from which to infer that defendants’ conduct was a cause of plaintiff’s harm. Although proof of causation may be by circumstantial evidence, it must be by “ ‘substantial’ evidence, and evidence ‘which leaves the determination of these essential facts in the realm of mere speculation and conjecture is insufficient.’ (Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460, 471 [106 P.2d 895]; see also Prosser & Keeton, Torts (5th ed. 1984) § 41, p. 269 [a mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to determine the issue in favor of the defendant as a matter of law].)” (Leslie G., supra, 43 Cal.App.4th at p. 484.) Here, there simply was not evidence from which a reasonable jury could have concluded that defective brakes, rather than Wyatt’s failure to see Bowman approaching the intersection, was the probable cause of the accident. Thus, Bowman’s dangerous condition claim necessarily fails.

IV. Substantial Evidence Did Not Support the Jury’s Finding That the City Failed to Inspect or Maintain the Dump Truck’s Brakes

Bowman asserted at trial, and the jury concluded, that the City “faile[ed] to inspect or maintain the brakes of the truck it leased from Tommie Wyatt.” The City challenges this finding on the same ground on which it challenges the dangerous condition claim—i.e., that substantial evidence did not support the jury’s finding that the condition of the dump truck’s brakes was a substantial factor in causing the accident and plaintiffs harm. For the following reasons, we agree.

The jury was instructed on two separate legal theories relevant to the brakes claim. The first theory, breach of a mandatory duty, was premised on Government Code section 815.6. That section provides: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” The jury was instructed about a number of statutes and regulations pursuant to which the City assertedly had a “mandatory duty” to maintain the dump truck’s brakes. As to each alleged breach of a statutory duty, the jury was told that: “To establish this claim, plaintiff must prove all of the following: Number one, that the City of Los Angeles violated [the identified statute or regulation]; number two, that plaintiff was harmed; and number three, that the failure of the City of Los Angeles to perform its duty was a substantial factor in causing plaintiff’s harm.”

The second theory asserted relevant to the brakes claim was the breach of a nondelegable duty. Nondelegable duties “derive from statutes (Maloney v. Rath [(1968)] 69 Cal.2d [442,] 448 [71 Cal.Rptr. 897, 445 P.2d 513])[,] contracts (Harold A. Newman Co. v. Nero (1973) 31 Cal.App.3d 490, 496-497 [107 Cal.Rptr. 464]; Capitol Chevrolet Co. [v. Lawrence Warehouse Co. (9th Cir. 1955)] 227 F.2d [169,] 173), and common law precedents. (Maloney, supra, 69 Cal.2d at p. 447.)” (Barry v. Raskov (1991) 232 Cal.App.3d 447, 455 [283 Cal.Rptr. 463].) They “do not rest upon any personal negligence of the employer. They are rules of vicarious liability, making the employer liable for the negligence of the independent contractor, irrespective of whether the employer has himself been at fault. They arise in situations in which, for reasons of policy, the employer is not permitted to shift the responsibility for the proper conduct of the work to the contractor. The liability imposed is closely analogous to that of a master for the negligence of his servant, [f] The statement commonly made in such cases is that the employer is under a duty which he is not free to delegate to the contractor. Such a ‘non-delegable duty’ requires the person upon whom it is imposed to answer for it that care is exercised by anyone, even though he be an independent contractor, to whom the performance of the duty is entrusted.” (Rest.2d Torts, § 415, introductory note to ch. 15, topic 2.) The jury was instructed that the City had a nondelegable duty to maintain the dump truck’s brakes under a variety of statutes and regulations.

Both breach of mandatory duty and breach of nondelegable duty claims have a causal element. That is, to find the City liable for breach of a mandatory duty or of a nondelegable duty, the jury had to find that the alleged breach of duty caused Bowman’s injuries. (Guzman v. County of Monterey (2009) 178 Cal.App.4th 983, 991 [100 Cal.Rptr.3d 793] [“[T]here are three elements to a cause of action under Government Code section 815.6. First, the enactment at issue must be obligatory, not merely discretionary or permissive in its directions to the public entity. [Citation.] Typically, an enactment imposing a mandatory duty also includes specific rules and guidelines for implementation. Second, the duty imposed must be designed to protect against the particular kind of injury the plaintiff suffered. . . . The third and final requirement is that the breach of the duty must have been a proximate cause of the plaintiff’s injury.” (italics added)]; Madden v. Summ