Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. 04-211488. Paul A. Vortmann, Judge.
Sherman Rogers, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Peel, Garcia & Stamper and James W. Peel for Defendant and Respondent Southern California Gas Company.
OPINION
HILL, J.
Plaintiff appeals from a judgment of nonsuit entered in favor of defendant, Southern California Gas Company (Gas Company). Plaintiff, a seven-month-old infant, was scalded by hot water while being bathed in a bathtub at the apartment where she lived. The Gas Company had set the thermostat on the water heater, and plaintiff, through her guardian ad litem, contends it negligently set the thermostat at too high a temperature. Nonsuit was granted in favor of the Gas Company on the ground it owed no duty of care to plaintiff.
FACTUAL AND PROCEDURAL BACKGROUND
On December 10, 2003, the Gas Company disconnected the gas service to the apartment of plaintiff’s family for nonpayment; it did so by shutting the gas off at the gas meter. On December 12, 2003, a Gas Company employee restored gas service to the apartment; he relit the pilot on the water heater, turned the thermostat dial off, then turned the dial back on and set it a quarter inch below the setting marked “normal.”
On December 29, 2003, plaintiff’s mother and sister, Vanessa, were rinsing plaintiff in the bathtub in lukewarm water when another sister, Christina, came into the bathroom, used the toilet, then flushed it. When her mother went to get the towel off the bedroom doorknob, plaintiff got burned. Vanessa told her mother plaintiff was crying; Vanessa picked plaintiff up out of the bathtub and handed her to her mother. Plaintiff’s legs were red and some skin came off her leg.
Plaintiff contended the Gas Company was negligent in setting the water heater thermostat to “normal,” which equaled 140 degrees, when its own warning labels on water heaters indicated the temperature should not be set above 120 degrees. In its motion for nonsuit, the Gas Company argued plaintiff had not established a duty on the part of the Gas Company to ensure the safety of an appliance on the customer’s premises. The Gas Company also argued causation had not been shown, because the Gas Company employee merely set the water heater thermostat to the same setting at which it had been before. The court granted the motion for nonsuit, concluding that while the Gas Company had a duty not to supply natural gas to an appliance that would pose a risk of explosion or fire; it had no duty to warn the customer that the hot water flowing from a water heater set at normal would exceed 120 degrees.
Plaintiff appeals, asserting that, because the Gas Company undertook to affirmatively act, it owed a duty to plaintiff to act with reasonable care, and it breached that duty by setting the thermostat too high. Plaintiff further contends that, because no one changed the setting between the time the Gas Company set the thermostat and the time plaintiff was injured, causation is shown.
DISCUSSION
I. Standard of Review
“[A] trial court may not grant a defendant's motion for nonsuit if plaintiff's evidence would support a jury verdict in plaintiff's favor. [Citations.]” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 117-118.) It must deny the motion if there is any substantial evidence which tends to establish the averments of the complaint. (Harte v. United Benefit Life Ins. Co. (1967) 66 Cal.2d 148, 152.) “In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded.” (Campbell v. General Motors Corp., supra, 32 Cal.3d 112, 118.) On appeal from a judgment of nonsuit, the appellate court inquires whether there is substantial evidence in the record which, if believed by the finder of fact, would justify a judgment in favor of the plaintiff; if there is, the judgment of nonsuit must be reversed. (McCall v. Otis Elevator Co. (1963) 219 Cal.App.2d 22, 25.)
II. Duty
The trial court granted the motion for nonsuit on the ground that the Gas Company owed no duty of care to plaintiff. In granting the motion for nonsuit, the court relied on the decision in Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370. That case, however, is not analogous to the present case.
In Salazar, plaintiff Salazar was working in his garage, spraying metal parts with a spray can of carburetor cleaner, with an open five-gallon can of gasoline next to him. He was standing four feet from a water heater. Salazar was injured by a flash fire, which occurred when vapors from the carburetor cleaner or gasoline were ignited by the pilot light on the water heater. Two labels on the water heater warned that flammable liquids should not be stored or used near the water heater. Because flammable vapors tend to be heavier than air and stay close to the ground, a city ordinance required that water heaters be elevated 18 inches above the floor. The water heater in issue was only two or three inches above the garage floor. On two occasions before the fire, representatives of defendant had inspected the water heater, but had not notified plaintiffs that it was not properly elevated.
Plaintiffs contended defendant owed them a duty of care on two grounds: (1) because it supplied an inherently dangerous substance (natural gas), and (2) because it created a hidden danger by supplying gas to a hazardous appliance, so that defendant had a duty to warn of the danger or disconnect service. (Salazar v. Southern Cal. Gas Co., supra, 54 Cal.App.4th at p. 1375.) Regarding the first alleged duty, the court stated:
“As a general rule, a gas company which does not install or maintain gas lines in its customer’s premises and is not responsible for their maintenance is not liable for injuries caused by leaks in the lines of which it has no knowledge. [Citation.] Under certain circumstances, however, the gas company may have a duty to inspect the gas lines and/or refuse to supply gas through unsafe lines. [Citation.]” (Salazar v. Southern Cal. Gas Co., supra, 54 Cal.App.4th at p. 1377.)
A duty to inspect would arise if the gas company, at the time it turned on the gas or later, knew that there were defects in the customer’s pipes or knew facts suggesting that the pipes leaked or were otherwise unsafe for the transportation of gas. (Salazar v. Southern Cal. Gas Co., supra, 54 Cal.App.4th at p. 1377.) In Salazar, however, it was not the gas supplied by defendant that caused the explosion; there were no defective gas lines that caused the gas to leak. Consequently, defendant did not breach any duty of care with respect to the product it supplied to plaintiffs. (Id. at p. 1378.)
With respect to the second alleged duty, the water heater itself was not dangerous or defective.
“The water heater had been installed in a manner which might be hazardous if someone were using or storing flammable liquids nearby. But this fact alone was insufficient to impose upon defendant the duty to warn plaintiffs of the potential hazard; no existing case law imposed such a duty on defendant.” (Salazar v. Southern Cal. Gas Co., supra, 54 Cal.App.4th at p. 1378.)
The court concluded defendant owed no duty to plaintiffs to warn them of the potential dangers of an unelevated water heater. While it was foreseeable that storing or using flammable substances near a gas water heater would cause harm, it was not foreseeable that harm was more likely to occur if the water heater was not elevated. (Salazar v. Southern Cal. Gas Co., supra, 54 Cal.App.4th at p. 1381.) Information from the Consumer Products Safety Commission indicated less than 1 percent of fires occurring annually involve water heaters and flammable liquids. There was little evidence elevation of water heaters reduced the number of fires occurring, and there was evidence elevation might result in a fire of greater intensity, with a potential for greater destruction of property and more serious injury. (Id. at pp. 1382-1383.) Considering these facts, and the other factors involved in determining whether a duty should be imposed, the court concluded:
“An analysis of the appropriate factors suggests a duty should not be imposed on defendant to warn its customers of the potential dangers of an unelevated gas-fired water heater in a garage when it learns that its customer has such a water heater and to disconnect the customer’s gas service if the customer fails to heed the warning and elevate the water heater. This conclusion is especially true in light of the uncertainty as to whether elevating gas-fired water heaters in garages will actually decrease the risk of fire caused by exposure to flammable vapors.” (Salazar v. Southern Cal. Gas Co., supra, 54 Cal.App.4th at p. 1385.)
The court affirmed summary judgment in defendant’s favor.
Here, plaintiff’s contention is not that the gas supplied by Gas Company was defective or was supplied to a defective appliance; it also is not that Gas Company observed a dangerous condition of the water heater (such as lack of elevation) and failed to warn plaintiff of the dangers it created. Instead, plaintiff contends Gas Company, through its employee, affirmatively and negligently set the thermostat on the water heater at a dangerously high level. Thus, the duty analysis set out in Salazar does not address the issue now before the court.
As Witkin observes: “The ‘legal duty’ of care may be of two general types: (1) the duty of a person to use ordinary care in activities from which harm might reasonably be anticipated. [Citation.] (2) An affirmative duty where the person occupies a particular relationship to others. [Citation.] In the first situation, the person is not liable unless he or she is actively careless; in the second, the person may be liable for failure to act affirmatively to prevent harm.” (6 Witkin, Summary of Cal. Law (10th ed. 2006) Torts, § 835, p. 53.) Salazar addressed a duty of the latter type, based on an alleged failure to act, i.e., a failure to warn. This case addresses a duty of the former type, where active carelessness is alleged.
This case presents a situation in which there was evidence defendant voluntarily undertook a duty to plaintiff. Everyone is required to use ordinary care to prevent causing injury to others. (Bloomberg v. Interinsurance Exchange (1984) 162 Cal.App.3d 571, 575.) “A defendant who enters upon an affirmative course of conduct affecting the interests of another is regarded as assuming a duty to act, and will be liable for negligent acts or omissions [citations], because one who undertakes to do an act must do it with care. [Citations.]” (Ibid.)
“It is well established that a person may become liable in tort for negligently failing to perform a voluntarily assumed undertaking even in the absence of a contract so to do. A person may not be required to perform a service for another but he may undertake to do so -- called a voluntary undertaking. In such a case the person undertaking to perform the service is under a duty to exercise due care in performing the voluntarily assumed duty, and a failure to exercise due care is negligence.” (Valdez v. Taylor Automobile Co. (1954) 129 Cal.App.2d 810, 817.)
After the Gas Company turned off the gas service to plaintiff’s apartment, it sent its employee, Verne Kuswa, to restore service. Although Kuswa could not remember this service call, he testified it was his custom, when restoring gas service, to relight the pilot on the customer’s water heater, turn the thermostat dial off then back on as a test to verify that the thermostat was going off and on, then set the thermostat at a quarter of an inch below normal. Thus, the evidence indicated the Gas Company, through its employee, voluntarily undertook to relight the pilot on the water heater and to set the thermostat. It was therefore under a duty to do so with reasonable care. If, as plaintiff alleges, the Gas Company failed to use due care in setting the thermostat, so that the setting was higher than was safe, then it would be subject to liability for negligence based upon breach of a duty voluntarily undertaken. The trial court erred in granting nonsuit on the ground the Gas Company owed no duty of care to plaintiff.
III. Causation
The Gas Company also asserts nonsuit was proper because there is no evidence of causation linking the Gas Company’s conduct and plaintiff’s injury. It asserts Kuswa did not alter the thermostat, but merely reset it to the same setting at which the Tulare County Housing Authority (“Housing Authority”), owner of the apartment, had set it. Therefore, the Gas Company concludes, its conduct could not have been a substantial factor in causing the harm, because the same injury would have occurred without its conduct. In support, the Gas Company cites a jury instruction, Judicial Council of California Civil Jury Instructions (2007) No. 430 (CACI). That instruction states:
“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. [¶] [Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]” (CACI No. 430 (rev. ed. Dec. 2005).)
The directions for use following the instruction state that the bracketed language should not be used in cases of concurrent independent causes. That situation is covered by instruction number 431:
“A person's negligence may combine with another factor to cause harm. If you find that [ name of defendant ]'s negligence was a substantial factor in causing [ name of plaintiff ]'s harm, then [ name of defendant ] is responsible for the harm. [ Name of defendant ] cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing [ name of plaintiff ]'s harm.” (CACI No. 431; see also, Rest.2d Torts, §§ 431, 432.)
The negligent conduct of a subsequent actor may also be a superseding or intervening cause of the harm, cutting off the liability of the earlier actor. (CACI No. 432; Rest.2d Torts, § 441, et seq.)
The Gas Company cites testimony of Michael David, area manager for the Housing Authority, in which David testified it was the policy of the Housing Authority to set the water heater thermostats at normal, and when a tenant moved out, he would check the thermostat to make sure it was still set at normal. Plaintiff’s family moved into the apartment less than three months before the incident in which plaintiff was injured. Kuswa testified it was his practice, after relighting the pilot on a water heater and checking the thermostat by turning it off and on, to set the thermostat one quarter inch below normal. After the incident in which plaintiff was injured, David checked the water heater and it was set at normal.
Assuming, as plaintiff contends, that it was negligent to set the thermostat at normal because the temperature at that setting was too high and created a potential for scalding, then there was evidence both the Housing Authority and the Gas Company were negligent in setting the thermostat at normal and that the Gas Company’s conduct was later in time than that of the Housing Authority. The evidence would support a finding that the Gas Company’s conduct was a cause of plaintiff’s injury (whether concurrent or superseding), regardless of the negligence of the Housing Authority. Consequently, Gas Company’s argument that its conduct did not cause plaintiff’s injury because it merely set the thermostat back to the same setting at which it had previously been set is without merit. The nonsuit cannot be justified based on a lack of causation.
IV. Harmless Error
A judgment may not be reversed on appeal unless, after examination of the entire cause, it appears the error caused a “‘miscarriage of justice.’” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574 (citing Cal. Const., art. VI, § 13).) Trial error is usually deemed harmless and “does not warrant reversal unless there is a reasonable probability that[,] in the absence of the error, a result more favorable to the appealing party would have been reached.” (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 574.) “Probability” in this context means a reasonable chance, more than an abstract possibility. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) The Gas Company asserts that any error was harmless because, after its nonsuit was granted, the trial continued against the Housing Authority and the jury found that the property was not in a dangerous condition at the time of plaintiff’s injury.
The first cause of action of plaintiff’s complaint alleged a claim based on a dangerous condition of public property against the Housing Authority. The third cause of action was a negligence cause of action against the Gas Company. Plaintiff alleged that the property, which was owned by the Housing Authority, was in a dangerous condition because the hot water heater system allowed the temperature in the upstairs bathtub/shower combination to rise to such heights that it could instantaneously scald an infant, and the Housing Authority negligently owned and controlled the property, so as to fail to warn plaintiff of the dangerous character of the property and to fail to protect her from it. The complaint alleged that the Gas Company knew from prior tenants that the water temperature in plaintiff’s upstairs bathtub/shower combination reached excessive temperatures, especially when the toilet was flushed, and it failed to advise the tenant to install a temperature limiting valve or to reset the temperature control on the water heater to prevent the water temperature from exceeding 120 degrees. Thus, the allegations against both defendants were essentially the same: the water from the water heater was excessively hot and defendants failed to remedy or warn plaintiff’s family of that condition.
At trial, there was evidence that it was the Housing Authority’s policy to set its water heater thermostats at normal, and it reset them to normal when a tenant vacated an apartment. There was evidence a Gas Company employee set the thermostat on the water heater at plaintiff’s apartment at or a quarter inch below normal prior to plaintiff’s injury. There was conflicting testimony regarding whether the “normal” setting (140 degrees) on a residential water heater thermostat was “ridiculously high” or necessary for proper cleaning of dishes and laundry.
At the close of the trial against the Housing Authority, the jury returned a special verdict, finding that the property was not in a dangerous condition at the time of the incident. A dangerous condition of public property is “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such 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).) The jury implicitly found that the temperature at which the water heater was set, alone or in conjunction with a “spiking” phenomenon that allegedly increased the temperature of water from the bathtub spigot when the toilet was flushed, did not constitute a dangerous condition of public property; that is, it found the temperature setting did not create a substantial risk of injury.
Generally, one owes a duty of ordinary care not to cause an unreasonable risk of harm to others. (Civ. Code, § 1714, subd. (a); Rowland v. Christian (1968) 69 Cal.2d 108, 112.) “‘[N]egligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.’ [Citation.]” (Victor v. Hedges (1999) 77 Cal.App.4th 229, 239.) Thus, the tests for negligence and for a dangerous condition of public property are both stated in terms of creating or causing an unreasonable or substantial risk of harm. Because the jury found that the property was not in a dangerous condition at the time of the incident, implicitly finding that the temperature setting on the water heater did not create a substantial risk of harm to the tenants, it does not appear reasonably probable that the jury would have found that the Gas Company was negligent (i.e., exposed plaintiff to an unreasonable risk of harm) when it set the thermostat at normal. Consequently, there is not a reasonable probability that a result more favorable to plaintiff would have been reached if the nonsuit had not been granted.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
WE CONCUR: LEVY, Acting P.J., KANE, J.