Koopen v. Aberle CA1/1

Filed 2/28/14 Koopen v. Aberle CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

JEFF KOOPEN, an Incompetent Person,
etc.,
Plaintiff and Appellant, A135978

v. (Alameda County
RICK ABERLE, Super. Ct. No. HG06266136)
Defendant and Respondent.

Plaintiff Jeff Koopen was seriously injured when a motorboat in which he was
riding, piloted by defendant Rick Aberle, hit a low-lying island. Following a trial, the
jury found Aberle negligent, but it assigned him only 35 percent responsibility for the
accident. Koopen was assigned 10 percent responsibility, while another participant was
assigned 55 percent responsibility. Koopen contends the trial court erred in striking
evidence of Aberle’s marijuana use and argues the jury erred in finding him partially
responsible. We affirm.
I. BACKGROUND
Koopen, by his guardian ad litem, filed suit against Aberle and Collin Troia in
April 2006, asserting a single claim for negligence in connection with a boating accident.
Before the action could proceed to trial, in July 2009, Aberle filed for bankruptcy,
subjecting the action to an automatic stay. Troia filed for bankruptcy the following year.
 At some point, the bankruptcy court “remanded several issues back to the superior
court for determination via civil trial,” and the trial court set a December 2011 trial date.1
Koopen’s attorney told the trial court that the bankruptcy court anticipated “the jury in
the state court action would be asked to determine if [Aberle] had operated the boat while
intoxicated.” The issue of intoxication is apparently relevant to whether the judgment in
this matter is dischargeable in bankruptcy, and a finding on the issue might preclude the
need for a trial on the issue in that court. Although the trial court viewed such a finding
as extraordinary, it granted Koopen’s request for a special verdict form addressing the
issue.
The case proceeded to trial only against Aberle.2 The evidence showed that
Koopen, Aberle, Troia, and several other friends rented a houseboat for use on New
Melones Lake, a reservoir in Calaveras County, over a weekend in September 2005. The
three parties arrived in the late afternoon on a Friday. They piloted the houseboat from
the marina to a cove mooring some distance away, trailed by motorboats owned by
Aberle and Troia. Thereafter, these two and one other motorboat were used to ferry other
guests, who arrived throughout the evening, from the marina to the houseboat. As many
as 20 to 25 people ultimately arrived. During their boating on the reservoir that day, both
Troia and Aberle had noticed the water level was “pretty low.”
Sometime after 9:30 p.m., the houseboat received word that the last group of
guests had arrived at the marina. Troia’s motorboat was selected to retrieve these guests.
It was unclear who chose the boat, but it was not Aberle, who joined the group as the boat
was pulling away. Troia recalled his boat was chosen from among three available
motorboats because it was the last one in the tie-up line, and thus the easiest of access,
but another witness recalled that a different boat was initially selected but would not start.

1
The characterization of the bankruptcy court’s action is from an attorney’s
declaration. We have not found a copy of the relevant bankruptcy court order in the
appellate record.
2
We have not found an explanation for Troia’s failure to participate as a party at
trial.

2
Troia’s motorboat was an “average” 17- or 18-foot, inboard/outboard boat, equipped with
standard safety equipment, including bow and stern low-wattage navigational lights, but
it did not have a spotlight for nighttime boating. The other two boats did have spotlights,
although one of them was not working. Troia said it was not unusual to drive at night
without a spotlight, and he did not think one was necessary that night. Because a
spotlight can cause glare, it was not necessarily helpful.
Koopen was the first pilot. He steered Troia’s motorboat toward the boat ramp,
accompanied by Troia, Aberle, and four others. It was well after dark, and memories
varied about the degree of moonlight. The shoreline and the mountains surrounding the
lake were visible, and the boat was well away from shore. Soon after departure, Aberle
replaced Koopen at the helm. One witness recalled Koopen was replaced because he
gunned the throttle while several passengers were urinating over the side, dumping one
passenger into the water. Others had no memory of the reason for Koopen’s replacement.
In any event, Koopen joined Troia in the front of the boat.
Aberle was an experienced, lifelong boat pilot. Without incident, he had made the
same trip to the marina in the dark perhaps an hour earlier to pick up his daughter and her
friends. Aberle drove slowly from the cove, sitting on top of the driver’s seat to allow a
better view. When the lights of the marina appeared across the lake, he accelerated
toward them. The boat reached between 20 and 30 miles per hour, which caused it to
“plane,” or level out on the water, allowing better visibility.
Aberle drove on a straight course for less than five minutes, perhaps as few as two.
Without warning, the boat hit a low, unlighted island, ejecting Koopen and Troia.
Koopen was gravely injured.
An investigating law enforcement officer testified that the “island” struck by the
boat was part of a mountain ridge that had been flooded when the reservoir was created.
Depending on the level of the water in the reservoir, the island could be entirely
submerged or, at the other extreme, part of the shoreline. At the time of the collision, the
end of summer, the reservoir was seasonally low, exposing a “small” island that
projected, at its peak, 10 feet above the water. The officer testified a county ordinance

3
limited nighttime driving to 15 miles per hour, but the officer estimated the safe speed
under the conditions that night to be 8 to 10.
The officer used a spotlight on the night of the accident to locate the island. Two
buoys marked its location. At the time of the accident, they were laying on the island, but
they had reflective markings that might have been visible if illuminated. The officer
believed the island should have been visible on the night of the accident from a distance
of 75 feet even in the dark, but none of the boat’s occupants saw it prior to the collision.
The bar on the houseboat had been “well-stocked.” During his time at the lake,
Troia estimated he had drunk between two and three beers. Koopen had also been
drinking. Aberle said he had three to four drinks of vodka mixed with an energy drink
between 6:00 p.m. and the time of the trip. He drank the most recent around 9:00 p.m.
The exact composition of these drinks was subject to conflicting testimony. Aberle
denied any other drinking, but other witnesses had different, conflicting recollections.3
The court permitted questioning about Aberle’s marijuana use that night, subject
to a motion to strike. Aberle acknowledged a blood test performed on him after the
accident found evidence of marijuana, but he did not recall consuming it. One witness
testified to seeing Aberle take one puff from a marijuana cigarette around 8:00 p.m. and
one puff from a marijuana-filled pipe sometime later. A second witness said Aberle had
smoked marijuana on the drive to the lake, and she saw him smoking marijuana at the
lake “[m]aybe” two hours before the accident. She was not asked for, and did not
provide, an estimate of the amount of marijuana he consumed on either occasion. The
trial court ultimately granted the motion to strike this testimony under Evidence Code
section 352 because no evidence had been presented “that indicates what the effect of
marijuana is on the human body, . . . let alone on the central nervous system, . . . ability to
perceive and react, ability to deal with eye[-]hand coordination, et cetera.” In addition, as
the court noted, there was only vague evidence about the amount of marijuana Aberle

3
Aberle’s blood-alcohol level was measured at 0.03 percent nearly four hours
after the accident. Evidence of the blood-alcohol test was stricken by the trial court
because no expert testimony had been provided as to its reliability and significance.

4
consumed and the time of its consumption. The court rejected the argument that the
jurors could gauge the effect from their common experience, based on this limited
evidence.
The jury concluded Aberle was not intoxicated at the time of the accident, but it
found him liable for negligence. Both Koopen and Troia were also found negligent, and
the jury assigned comparative liability at 35 percent for Aberle, 10 percent for Koopen,
and 55 percent for Troia.
II. DISCUSSION
Koopen contends the trial court abused its discretion in striking the testimony of
Aberle’s marijuana consumption and the jury erred in finding Troia and Koopen
comparatively negligent.
A. Marijuana Evidence
“The trial court enjoys ‘broad authority’ over the admission and exclusion of
evidence. [Citation.] We review a trial court’s ruling on a motion in limine to exclude
evidence for an abuse of discretion. [Citations.] . . . Furthermore, ‘[i]t is for the trial
court, in its discretion, to determine whether the probative value of relevant evidence is
outweighed by a substantial danger of undue prejudice. The appellate court may not
interfere with the trial court’s determination . . . unless the trial court’s determination was
beyond the bounds of reason and resulted in a manifest miscarriage of justice.’ ” (McCoy
v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 295–296.)
Under the general rules governing the admission of expert testimony, topics which
are within the common knowledge of jurors and on which people of ordinary education
could reach a conclusion as well as the expert, may not be a subject of expert testimony.
Conversely, when an expert’s view might be helpful, expert testimony may be admitted,
and when a matter cannot be understood without an expert’s help, such testimony must
be introduced and admitted. (Carson v. Facilities Development Co. (1984) 36 Cal.3d
830, 844; Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755, 761–762.) While the
issue here is somewhat different, these principles provide a useful guide in considering

5
the question before the trial court: whether the evidence of Aberle’s intoxication was
more prejudicial than probative in the absence of expert testimony to explain it.
With respect to the effects on behavior of intoxicating substances other than
alcohol, the Supreme Court has often required expert testimony, either on the effects of
the substance or on the degree to which those effects are common knowledge. (See, e.g.,
People v. Harris (1981) 28 Cal.3d 935, 958 [marijuana]; People v. Frierson (1979)
25 Cal.3d 142, 156 [Quaalude and angel dust].) To demonstrate impairment by
marijuana under the Vehicle Code, for example, more than evidence of consumption
must be presented. Instead, the prosecution must provide expert testimony or other
evidence showing “actual impairment rather than how much time has passed since a
person has smoked marijuana.” (In re Drake M. (2012) 211 Cal.App.4th 754, 768.)
California courts have not, however, adopted any hard-and-fast rule, applicable in all
circumstances, regarding the need for expert testimony of the effects of marijuana
consumption.
In evaluating the trial court’s decision under Evidence Code section 352, we start
with the assumption that the effects of marijuana, as with those of alcohol, vary with the
amount consumed, the potency of the particular marijuana, and the time since
consumption. Here, there was no evidence presented regarding the nature of the
marijuana consumed by Aberle and very limited evidence about the amount and timing.
One witness said Aberle consumed what would appear to be a relatively minimal amount,
two separate puffs over a period of two or three hours, with the last puff of uncertain
timing relative to the accident. The second witness said Aberle had smoked an
unspecified amount of marijuana on the drive up, presumably a minimum of six hours
before the accident, and a further unspecified amount of marijuana perhaps two hours
before the accident. Whether this second event of consumption was identical to the
consumption described by the first witness, or represented additional consumption, is
unknown. In other words, the evidence on the critical aspects of potency, amount, and
timing was very uncertain. Even an expert would have had to speculate in determining

6
whether and to what degree the marijuana affected Aberle. The vagueness of the
testimony alone might have justified its exclusion.
Further, it is important to remember, as the trial court noted in its ruling, that
evidence of Aberle’s marijuana consumption was relevant only to the extent the
consumption affected his judgment, reactions, and motor control at the time of the
accident. The jury was not asked to consider the mood-altering effects of marijuana,
which might be common knowledge, but the more specific question of the likely impact
of its consumption on Aberle’s piloting ability. It is by no means plain that this aspect of
marijuana consumption is within the common knowledge of jurors. Until fairly recently,
consumption of the drug has been illegal in California, and it remains illegal for those
who lack a medical prescription. Some jurors likely have had no personal experience
with the drug’s consumption, let alone its effects on reactions and motor skills. For many
jurors who have consumed the drug at one time in their lives, their exposure occurred in
their youth. Their experience and memories likely focused on the drug’s mood-altering
effects, rather than its impact on their driving skills. There is no reason to assume, in the
absence of some evidence, that typical jurors have common knowledge of the manner in
which various levels of marijuana consumption affect motor skills. Particularly given the
vagueness of the testimony about Aberle’s precise consumption, we have no hesitation in
finding the trial court’s decision to preclude the jury from speculating on the likely
impact of his marijuana consumption in the absence of expert guidance to be well within
its discretion.
The decision on which Koopen places heaviest reliance, State v. Clark (2002)
260 Conn. 813 [801 A.2d 718] (Clark), highlights the fact-specific nature of any decision
regarding the admission of evidence of marijuana consumption. In Clark, the issue was
whether the jury could consider the likely impact of a witness’s consumption of
marijuana on his ability to perceive events in the absence of any direct testimony, expert
or lay, of the drug’s effects on him. The witness said he had smoked five marijuana
cigarettes within the space of perhaps 90 minutes prior to observing a gunfight in which
he was not directly involved. (801 A.2d at pp. 720–723.) In concluding the jury was

7
allowed to consider his marijuana consumption in assessing his reliability, the court
relied on the general rule that a jury is ordinarily permitted to infer, solely based on the
fact that an intoxicating drug was ingested, that the witness’s perceptions might be
affected. (Id. at p. 725.) Regarding the issue of common knowledge, the court noted,
“We recognize that, because it is an illegal substance, it may be that many jurors may
have no firsthand knowledge regarding the effects of marijuana on one’s ability to
perceive and to relate events. At the same time, we cannot blink at the reality that,
despite its illegality, because of its widespread use, many people know of the potential
effects of marijuana, either through personal experience or through the experience of
family members or friends. The ability to draw inferences about the impairing effects of
marijuana, like alcohol, however, is based upon common knowledge, experience and
common sense, not necessarily on personal experience. [Citations.] The unfortunate
prevalence of marijuana use, coupled with the substantial effort to educate all segments
of the public regarding its dangers, underscores the reality that the likely effects of
smoking five marijuana cigarettes in a short period of time before an incident are within
the ken of the average juror.” (Id. at pp. 725–726, fn. omitted.)
The issue in Clark was whether a jury could draw on common knowledge to
evaluate the effect of the consumption of a substantial quantity of marijuana in a
relatively short time on a witness’s ability to perceive events accurately. This is quite
different from the question posed here: whether the jury could draw on common
knowledge to evaluate the effect of a person’s consumption of an uncertain quantity of
marijuana at uncertain times on his subsequent ability to pilot a boat. In addition to the
difference in the specificity of the amount and timing of consumption, the questions
involve two quite different neurological functions. Even assuming common knowledge
could be brought to bear in the circumstances of Clark, a trial court could reasonably
conclude it could not in our circumstances.
Koopen argues evidence of Aberle’s marijuana consumption was relevant to the
factual issue of intoxication. He urges us to remand for a new trial on that issue alone, in
the event the judgment itself is not reversed. We decline to do so. Special verdict forms

8
ordinarily include jury interrogatories only on ultimate facts—those which are essential
to proving the cause of action. (See Myers Building Industries, Ltd. v. Interface
Technology, Inc. (1993) 13 Cal.App.4th 949, 959; Leyte-Vidal v. Semel (2013)
220 Cal.App.4th 1001, 1009–1010 [defining “ultimate fact”].) The conclusion that a
particular factual finding is not supported by the evidence therefore requires reversal of
the judgment on the cause of action. Here, the inclusion of the question about
intoxication was extraordinary because, unlike the jury’s findings of negligence and
causation, the fact of Aberle’s intoxication was not an element of Koopen’s claim. As
the trial court noted in permitting Koopen’s requested jury interrogatory, a finding on the
issue of intoxication was included in the verdict form only as, in effect, a favor to the
bankruptcy court.
Even if we were to review the finding on intoxication, conclude it was erroneous,
and vacate it, we would have no power to order a new trial with respect to the issue
because its reversal would not affect the judgment. It goes without saying that
recognized forms of state court proceedings do not include the trial of an isolated fact,
independent of a cause of action or other right to relief.4 From the perspective of this
court, the issue is therefore moot. (See Simi Corp. v. Garamendi (2003) 109 Cal.App.4th
1496, 1503 [appeal is moot if court can grant no effective relief].) The legal significance
of the finding of no intoxication and the weight to be afforded it in bankruptcy court are
matters to be determined by that court. We therefore decline to review the jury’s finding
regarding intoxication.5
B. Allocation of Fault
Given the subjective nature of the allocation of responsibility for an accident, our
review of a jury’s comparative liability findings is limited. “The comparative fault
4
The primary authority Koopen cites on this issue, Valentine v. Baxter Healthcare
Corp. (1999) 68 Cal.App.4th 1467, addresses the court’s power to grant a partial verdict
on some causes of action while granting a retrial as to other causes of action. (Id. at
pp. 1477, 1479.) We know of no authority permitting retrial of a fact.
5
Koopen also asks us to direct the bankruptcy court to conduct a new trial of the
issue, but we have no authority to tell a federal bankruptcy court how to do its job.

9
doctrine ‘is designed to permit the trier of fact to consider all relevant criteria in
apportioning liability. The doctrine “is a flexible, commonsense concept, under which a
jury properly may consider and evaluate the relative responsibility of various parties for
an injury . . . , in order to arrive at an ‘equitable apportionment or allocation of loss.’ ”
[Citation.]’ [Citation.] For this reason, comparative negligence ‘does not lend itself to
“the exact measurements of a micrometer-caliper.” ’ [Citation.] . . . [¶] . . . [¶] We review
[the jury’s allocation of fault] for the existence of substantial evidence. [Citation.] On
review for substantial evidence, we ‘consider the evidence in the light most favorable to
the prevailing party, giving that party the benefit of every reasonable inference and
resolving conflicts in support of the judgment. [Citation.]’ [Citation.] Under this
standard, ‘ “the appellate court may not substitute its judgment for that of the jury or set
aside the jury’s finding if there is any evidence which under any reasonable view
supports the jury’s apportionment. [Citation.]” ’ [Citation.] For this reason, courts
rarely disturb the jury’s apportionment of fault.” (Pfeifer v. John Crane, Inc. (2013)
220 Cal.App.4th 1270, 1285–1286.)
The jury’s verdict suggests that it concluded there were two separate acts of
negligence that contributed to the accident. The finding of negligence against Aberle
indicates the jury found his speed to be excessive for the conditions that night, consistent
with the testimony of the investigating officer. The jury could readily have concluded
that, if Aberle had been traveling more slowly, he or someone else aboard the boat might
have noticed the island in time for it to be avoided. Even if that had not occurred, a
slower speed almost certainly would have reduced the severity of Koopen’s devastating
injuries. The jury’s finding against Troia and Koopen indicates it also found the decision
to use a boat that lacked a spotlight to constitute negligence. As all conceded, it was dark
that night, and by traveling without a spotlight the boat was traveling blind. Even if an
obstruction had been spotted, the lack of a spotlight greatly reduced the chance of seeing
it in time to avoid a collision. Further, as the officer testified, potential obstacles like the
island are commonly marked by buoys with reflective markings. Without a spotlight to
provide reflected light, reflective buoys cannot serve their intended purpose. Given

10
Koopen’s initial pilotage of the boat, the jury could have inferred that Koopen was
partially responsible for the use of a boat lacking a spotlight. The trial record therefore
provides substantial evidence to support a finding of negligence by all three parties.
Koopen argues the decision to leave without a spotlight could not have constituted
negligence because a spotlight is not legally required equipment for this type of boat.
Koopen cites no authority for his contention that compliance with the regulations
governing the equipment required for motorboat operation provides a complete defense
against liability for negligence, and the rule appears to be to the contrary. “Courts have
generally not looked with favor upon the use of statutory compliance as a defense to tort
liability. The Restatement Second of Torts summarizes the prevailing view in these
terms: ‘Where a statute, ordinance or regulation is found to define a standard of conduct
for the purposes of negligence actions, . . . the standard defined is normally a minimum
standard, applicable to the ordinary situations contemplated by the legislation. This
legislative or administrative minimum does not prevent a finding that a reasonable
[person] would have taken additional precautions where the situation is such as to call for
them.’ ” (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 547–548.) As the jury found, a
reasonable person would have taken additional precautions before piloting a motorboat
on this dark night. While Troia testified that a spotlight can sometimes be
counterproductive as a result of glare, the investigating officer said that he located the
island that night by using a spotlight. This testimony demonstrated that, whatever the
occasional drawbacks of a spotlight, on that particular night the use of a spotlight might
have illuminated the island and prevented the accident.
Koopen also contends he could not be found negligent because he owed no duty to
Aberle, citing Monreal v. Tobin (1998) 61 Cal.App.4th 1337. The plaintiff in Monreal
was driving at the speed limit in one of the center lanes of a four-lane highway when he
was struck from behind by the defendant’s speeding car. The trial court found the
plaintiff partially liable for the accident because he failed to move over to the adjoining
lane to make room for the defendant’s car. (Id. at pp. 1341, 1342–1343.) The Court of
Appeal reversed, concluding a person who is driving in one of the center lanes of a

11
highway at the speed limit has no legal duty to move over for an oncoming car traveling
in excess of the speed limit. (Id. at pp. 1350–1355.) The two situations are simply not
comparable. Under ordinary tort principles, Koopen, as the initial pilot of the boat, had a
duty to the passengers and any subsequent pilot to ensure the boat was properly outfitted
before taking it on the water.
Koopen also argues Aberle’s speeding was a superseding cause that relieved him
of liability. “ ‘[T]he term “superseding cause” means “an independent event [that]
intervenes in the chain of causation, producing harm of a kind and degree so far beyond
the risk the original [wrongdoer] should have foreseen that the law deems it unfair to hold
him responsible.” ’ ” (In re Ethan C. (2012) 54 Cal.4th 610, 641 (Ethan).) “ ‘The
problem which is involved in determining whether a particular intervening force is or is
not a superseding cause of the harm is in reality a problem of determining whether the
intervention of the force was within the scope of the reasons imposing the duty upon the
actor to refrain from negligent conduct. If the duty is designed, in part at least, to protect
the other from the hazard of being harmed by the intervening force, or by the effect of the
intervening force operating on the condition created by the negligent conduct, then that
hazard is within the duty, and the intervening force is not a superseding cause.’ ” (Lugtu
v. California Highway Patrol (2001) 26 Cal.4th 703, 725 (Lugtu).)
The purpose for a spotlight was to detect obstacles not otherwise visible in the
dark. Aberle’s speed did not change the likelihood of encountering unseen obstacles; it
merely intensified the risk associated with it. By giving advance warning of an
obstruction, a spotlight would have given Aberle an opportunity to alter course before
hitting the island. Use of a spotlight therefore would have, at least in part, “ ‘protect[ed]
. . . from the hazard of being harmed by the intervening force.’ ” (Lugtu, supra,
26 Cal.4th at p. 725.) Accordingly, there is no basis for concluding that it is “ ‘ “unfair to
hold [Koopen] responsible” ’ ” for the accident. (Ethan, supra, 54 Cal.4th at p. 641.)6

6
Koopen contends the speed of the boat was such that, even with a spotlight, there
would have been no time to swerve, but there is no evidence in the record to support this
contention.

12
 Citing Schrimscher v. Bryson (1976) 58 Cal.App.3d 660, Koopen argues Aberle’s
speeding was a superseding cause because it was not foreseeable. The plaintiff in
Schrimscher was a police officer who had stopped to investigate a traffic accident caused
by the negligence of the defendant. Both the defendant’s and the officer’s vehicles were
parked off the highway. In the course of the investigation, a drunk driver swerved off the
highway and hit the defendant’s vehicle, which was propelled into the plaintiff officer.
(Id. at pp. 662–663.) Applying the standard for superseding cause prevalent at the time,
the court found the defendant not liable because the second driver’s negligence in
swerving off the road was “ ‘highly unusual or extraordinary,’ ” and therefore not
foreseeable. (Id. at p. 664.) As the above discussion suggests, the legal standard for
superseding cause has evolved somewhat in the nearly 40 years since Schrimscher. Yet
even accepting the terms of Schrimscher, we could not say as a matter of law that
Aberle’s conduct was not foreseeable. Speeding is a common, and therefore foreseeable,
form of negligence in the use of motorized modes of transportation.
Koopen also argues Aberle’s speeding was a superseding cause because, had the
boat been traveling at a safe rate of speed, no harm would have occurred. While the
severity of injuries almost certainly would have been less from a collision at 10 miles per
hour, there was no evidence to support Koopen’s contention no injuries would have
resulted. More important, the issue in evaluating a superseding cause is not whether no
harm would have occurred in the absence of the alleged superseding cause. Rather, the
issue is whether the superseding cause was so unrelated to the original negligence that the
original negligence had little practical relation to the accident. As suggested above,
Koopen’s negligence compounded the risk from Aberle’s speeding.
Finally, Koopen contends the jury’s assignment of only 35 percent fault to Aberle
was not supported by the evidence. As discussed above, our review of the jury’s decision
on this issue is limited to a determination of reasonableness. While Aberle’s speeding
certainly increased the severity of the accident, it was the lack of a spotlight that virtually
guaranteed the pilot of the boat would have little or no advance warning of an obstacle.
With a spotlight, the accident might have been avoided altogether. For this reason, the

13
jury’s assignment of 65 percent responsibility to the persons responsible for the lack of a
spotlight was not unreasonable.
III. DISPOSITION
The judgment of the trial court is affirmed.

_________________________
Margulies, Acting P.J.

We concur:

_________________________
Dondero, J.

_________________________
Becton, J.*

*
Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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