By Eric Ganci
June 6, 2023 gave us this filed case Bebe v. Wonderful Pistachios & Almonds LLC, cited as of 6/14/23 as 2023 WL 3837260.
The main discussion of the case is whether the Court improperly granted a motion for summary judgment in favor of Defendants (which the Court of Appeal held granting this MSJ in favor of Defense was wrong). But this case also discusses important information and law about what it means to prove the negligence of a person or company was the “substantial factor” of causing your harm.
Proving this element of “substantial factor” is required for a negligence case in California, per our CACI 430, our California jury instruction regarding “substantial factor”.
I’ll quickly roll through the facts of Bebe, then get into more thoughts regarding the part of “substantial factor”.
So, what happened in Bebe?
Plaintiff here is a subcontractor, working on a job site. This job site had issues with birds and bird feces, where Plaintiff contracted histoplasmosis. Plaintiff claims the job site and feces caused this histoplasmosis.
During litigation, there were depositions and declarations filed. And ultimately Defense filed a motion for summary judgment against Plaintiff where Defense is saying “Plaintiff, you have no triable issue of fact on the issue of causation” and this case should not even get to the doorsteps of the Jurors.
The Trial Court grants the MSJ in favor of Defense and Plaintiff appeals. This Court of Appeals holds in favor of Plaintiff, saying the Trial Court erred in granting Defendant’s MSJ.
The Court here reasons two main cases, Miranda and Sarti.
First, in Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, Plaintiff claimed a “[f]ever fungal infection…attributable to a construction dirt mound on property adjacent to the plaintiff’s workplace.” The Court held in favor of granting Defendant’s MSJ saying Defense proved in their MSJ papers “it was only a possibility, not a reasonable medical probability” Plaintiff contracted the illness from the airborne particles from the dirt mound.
However, in the second case, Sarti v. Salt Creek (2008) 167 Cal.App.4th 1187, Plaintiff claimed a “bacterial infection attributable to a restaurant meal [tuna]….” And the Court here held in favor of Plaintiffs highlighting “the connection between [Plaintiff’s] bacterial illness and unsanitary conditions at the defendant restaurant. The Court reasoned the bacteria “is not found in raw tuna, unless that tuna has been cross-contaminated by raw chicken, where the bacteria is common.”
With the facts in Sarti: “An investigation by the county health department identified four practices that could have led to cross-contamination of the raw tuna with raw chicken: wipe-down rags were not regularly sanitized; there was insufficient sanitizer in the dishwasher; chicken tongs were sometimes used to handle other food; and raw vegetables were not stored separately from raw meat.”
And the Court held “[r]easonable inferences drawn from substantial evidence are indeed available to show causation.”
Ok, so the holding here in Bebe is in favor of Plaintiff. The Court found Bebe to be more like the tuna contamination in Sarti and less like the mere possibilities of airborne toxins in Miranda.
Now we have all the info about MSJs, dirt, and tuna out of the way…on to the other stuff about substantial factors and CACI 430!
Let’s discuss what must be proven to prove “substantial factor”:
As part of your negligence case, you (the Plaintiff) must prove
- Defendant was negligent;
- You, the Plaintiff was harmed; and
- Defendant’s negligence was a substantial factor in causing your harm.
This is from our California jury instruction CACI 400.
CACI 430 defines what is a “substantial factor”, saying:
A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.
This many times is what is argued in trials, where Defense says “yes, we were negligence, but our negligence did not cause the injury Plaintiff claims” It’s like the “sorry, not sorry” defense.
This Bebe case quotes another case to give more delicious input as to what proves “substantial factor”, in saying this:
“The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.”
“Thus, a force which plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about the injury is not a substantial factor, but a ‘very minor force that does cause harm is a substantial factor.’”
To me, this shows how low the legal bar can be for proving “substantial factor” in a case, and California law gives powerful language to argue this exact point.
