Cabral v. LA COUNTY METRO. TRANSP. AUTH.

78 Cal.Rptr.2d 385 (1998) 66 Cal.App.4th 907 Jesus CABRAL, Plaintiff and Appellant,

v.

LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, Defendant and Respondent.

No. B113154. Court of Appeal, Second District, Division Five.

September 16, 1998. [386] Joel R. Bander, Los Angeles, and Robert Asa Crook, for Plaintiff and Appellant.

Melanie E. Lomax, Karen G. Sarames, Oakland, Greines, Martin, Stein & Richland, Martin Stein and Carolyn Oill, Beverly Hills, for Defendant and Respondent.

Certified for Partial Publication.[*]

GRIGNON, Acting Presiding Justice.

Plaintiff, an uninsured motorist, brought his car to a stop at the side of a busy city street and parked at the curb, as he was permitted to do. As plaintiff was exiting his car, defendant's bus collided with plaintiffs car, causing property damage and personal injury. Pursuant to Civil Code section 3333.4,[1] the trial court determined plaintiff could not recover non-economic damages, because plaintiff was an uninsured motorist and his damages arose out of the operation or use of a motor vehicle. In the published portion of this opinion, we conclude plaintiffs recovery is limited to his economic damages. In the unpublished portion of this opinion, we reverse the judgment of nonsuit, concluding plaintiff presented sufficient evidence of defendant's negligence.

FACTS[2] AND PROCEDURAL BACKGROUND

On Olympic Boulevard near the site of the accident are three lanes of eastbound traffic. During rush hour, all three lanes are driving lanes and no parking is permitted at the curb. At the time of day when the accident occurred, cars may legally park in the third lane, the lane closest to the curb. On April 20, 1996, plaintiff and appellant Jesus Cabral parked his car on Olympic Boulevard approximately three inches from the curb. He observed in his rearview mirror defendant and respondent Los Angeles County Metropolitan Tranportation Authority's bus in the second lane approximately one block behind him. While still wearing his seat belt and without checking on the position of the bus, plaintiff opened his door approximately five inches. He did not open his door into the middle lane of traffic. The bus collided with the car door near the door handle, pulling plaintiffs arm and body forward. The impact pushed the car forward one foot. Plaintiff immediately felt pain in his hand, arm, back, neck, and shoulder. Plaintiff had not seen the bus between the time it was a block away and the time it hit his door. Moreover, he never saw the bus changing lanes.