Opinion
D073111
05-23-2018
MAURA CABRERA DIAZ et al., Plaintiffs and Respondents, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Appellant.
Leon Bass, Brian Cardozo, Javier C. Rivera; Casolari & Zell, Don H. Zell, Carissa Casolari; Greines, Martin, Stein & Richland, Robin Meadow, Cynthia E. Tobisman and Jonathan H. Eisenman for Defendant and Appellant. Greene, Broillet & Wheeler, Browne Greene, Robert D. Jarchi; Law Offices of Sandra Ruvalcaba Romero, Sandra R. Romero; Esner, Chang & Boyer, Stuart B. Esner and Andrew N. Chang for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIC1209850) APPEAL from a judgment of the Superior Court of Riverside County, Sharon J. Waters, Judge. Affirmed. Leon Bass, Brian Cardozo, Javier C. Rivera; Casolari & Zell, Don H. Zell, Carissa Casolari; Greines, Martin, Stein & Richland, Robin Meadow, Cynthia E. Tobisman and Jonathan H. Eisenman for Defendant and Appellant. Greene, Broillet & Wheeler, Browne Greene, Robert D. Jarchi; Law Offices of Sandra Ruvalcaba Romero, Sandra R. Romero; Esner, Chang & Boyer, Stuart B. Esner and Andrew N. Chang for Plaintiffs and Respondents.
INTRODUCTION
Decedent was electrocuted and died in July 2010 after a metal ladder he was using to harvest grapefruit contacted a 12,000-volt electrical wire owned by Southern California Edison Company (SCE) above a grove at Circle K-5 Citrus Ranch (Circle K-5) in Hemet, California. A jury attributed 80 percent fault for decedent's death to SCE. The court entered judgment against SCE in favor of decedent's wife and minor children for more than $3.5 million and in favor of decedent's brother, who witnessed the injury, for $200,000.
For privacy considerations, we refer to the decedent, the plaintiffs, and witnesses by generic terms. (See Cal. Rules of Court, rule 8.90(b)(10).)
SCE contends on appeal (1) the court erroneously submitted a negligence per se claim to the jury based on the regulatory requirements for the height of its power lines, (2) the court should not have allowed plaintiffs to pursue a general negligence claim based on the height of the power lines because regulation of line height falls within the exclusive jurisdiction of the Public Utilities Commission (PUC), and (3) there was not substantial evidence to support an 80 percent allocation of fault against SCE. We conclude the court properly instructed the jury regarding negligence per se and had jurisdiction to consider the general negligence claim. We also conclude there was substantial evidence to support the jury's allocation of fault. We, therefore, affirm the judgment.
BACKGROUND
A
Decedent was a fruit picker who worked with multiple farm labor contracting companies, which hire employees to pick fruit in fields. S & R Farm Contractor (S & R) and Gold Growers were farm labor contractors. Decedent worked for Gold Growers in the months before his death.
S & R also employed E.C. (Supervisor) to supervise harvest workers. Supervisor typically picked up workers from their homes, took them to the grove they were to harvest, and waited for the company they were picking for to give the okay to start harvesting. He assigned rows to the workers and supervised them while they picked. He made sure there was no poking or pulling of fruit, the boxes were filled appropriately, and no fruit was left on the trees.
In early 2010, however, Gold Growers asked S & R to borrow Supervisor because packing houses in the area liked Supervisor to supervise the harvest workers. S & R allowed Gold Growers to use Supervisor as a courtesy. Gold Growers also rented equipment from S & R, such as a portable restroom, bags, clippers, gloves, tape, sleeves, a forklift, and a bus.
Sun World International (Sun World) packs and markets fresh fruits and vegetables, including citrus from third party growers such as Circle K-5. Sun World determined when the fruit was ready to be harvested and arranged for the harvest.
Power lines ran over the Circle K-5 where the decedent died for as many years as Sun World arranged to harvest the orchard. Sun World knew people used ladders to harvest the fruit. Sun World did not warn workers about the power lines or take precautions regarding the power lines. A Sun World representative thought the power lines were "pretty high" and did not think the lines were a safety issue.
B
A representative of Sun World called Supervisor and asked him to harvest the grove at Circle K-5. Supervisor had supervised harvesting crews at Circle K-5 for five years prior to the incident. Sun World did not give Supervisor instructions or provide equipment for the harvesting crew. The Supervisor brought a trailer of 20-foot ladders provided by Gold Growers to the grove.
S & R did not use 20-foot ladders. When S & R harvested the Circle K-5 previously, they used 10-foot folding ladders.
On the day of the incident, Supervisor picked up the decedent and his brothers and they arrived at the Circle K-5 orchard at 5:00 a.m., before the sun was above the horizon. A representative of Sun World was at the grove when Supervisor and the workers arrived. The bins, provided by Sun World, were already set out for the workers. The harvesting crew started picking within 10 minutes of arriving.
Supervisor assigned a row of trees for the decedent to pick. Supervisor was aware there were electrical power lines running over the Circle K-5 orchard and it would be dangerous if any of the workers came into contact with the power lines. He did not warn the workers about the high voltage power lines on the day of the incident. However, he testified he warned the workers before they started picking about the telephone cable because the ladder could hit the cable and bounce backwards.
Decedent's brother denied anyone gave warnings.
Decedent's brother, who was picking fruit in a tree next to the tree where decedent was picking fruit, heard decedent scream. Decedent's brother saw decedent holding onto a ladder with his right hand and his foot on the ground. He saw flames at decedent's feet. Decedent fell to the ground and foam came out of his mouth. Decedent died from electrocution. Decedent's brother developed posttraumatic stress disorder after witnessing decedent's injury.
C
An SCE claims representative investigated the incident on the day of decedent's death under the direction of legal counsel to collect information. The investigator understood the decedent died when the ladder he was holding touched a high voltage power line. The investigator did not locate the ladder involved in the incident. The ladders at the site were all 20 feet.
The SCE claims representative stated the power lines where decedent died were the lowest he had seen in an agricultural area during his career at SCE. Another SCE employee also testified he had never seen a wire lower than the one above where the decedent's death occurred.
The accident occurred near the opening for the roadway to come in and out of the Circle K-5 orchard. The SCE claims representative thought the tops of the trees were about 14 feet 11 inches and the power lines were 18 feet 10 inches. Supervisor estimated the height of the trees on the day of the incident were 16 to 17 feet.
The horizontal distance between the two poles on either end of the grove of trees was about 375 feet. The height of the pole on the east of the span was 45 feet and the height of the pole on the west of the span was 40 feet.
The parties stipulated the following line heights were measured by SCE at the point of contact: "The vertical height of the north phase of the approximate point of contacts as identified by [decedent's brother] was 19 feet, 1 inch. The vertical height of the center phase at the approximate point of contact as identified [by decedent's brother] [was] 21 feet, 4 inches. And the vertical height of the south phase of the approximate point of contact as identified by [decedent's brother] [was] 22 feet, 3 inches."
At midspan, the north power line, closest to the dirt road, was 18 feet 10 inches. The center power line was 21 feet 5 inches and the south power line was 22 feet 4 inches. A telecommunications line was 14 feet 11 inches and was near the trees. A SCE claims investigator stated it was unusual to have a two- to three-foot difference in height between the three conductor lines.
D
1
The poles at Circle K-5 were originally installed in 1946. Prior to 1963, SCE's practice was to have minimum clearance for conductor lines of 17 feet above the ground if there was walkable scrub dirt underneath and 25 feet if a road was under the lines. When 12,000-volt lines passed over an area capable of being traversed by agricultural equipment, the minimum vertical clearance was 25 feet.
When SCE recognizes hazards, it remedies them even if they comply with the minimum standard. If there is a question about which standard applies, SCE's policy was to apply the more strict and safer standard.
2
SCE annually inspected the grid area near where decedent died from 2001 through 2010. The annual patrol is a visual inspection to identify obvious safety hazards or conditions. The grid patrol checklist looked for inadequate ground clearances. The area near where the incident occurred was inspected several times in the year before decedent's death. The last inspection was in May 2010, about a month and a half before the incident. The trees in the Circle K-5 orchard were not on SCE's database of trees and had never been trimmed by SCE or its tree maintenance contractor.
3
SCE contracted its tree maintenance work to Asplundh Tree Expert Company (Asplundh). Asplundh also inspected the area where decedent died from 2001 to 2010. Asplundh was aware there were grapefruit trees under the power lines in the area, which grew a little taller every year. Asplundh knew people would harvest fruit from the trees. Asplundh's patrolman stated he would have reported if the trees were 10 feet or less from the power lines because it would be out of compliance and someone could get seriously hurt or killed.
The SCE's line clearing manual tells customers planting trees to "REMEMBER the '10-FOOT' rule—keep all trees, equipment and people at least 10 feet away from electric power lines!" SCE's vegetation management supervisor testified SCE recommends new developments, plant appropriate species that will not grow within 10 feet of the power lines. He stated the industry recognizes the 10-foot rule to keep trees, persons and equipment away from power lines because the power lines are energized at a high voltage. He stated this is a "rule of thumb," but they follow the PUC's General Order 95 (GO95) to maintain 18 inches of clearance between trees and power lines. SCE removes certain trees where it is difficult to maintain growth.
SCE's vegetation management supervisor denied there was a program to maintain 10 feet of clearance for 12,000-volt lines. He stated SCE recommends its customers maintain 10 feet of clearance for themselves and any tools or equipment for safety, but the recommendation is not part of the line clearing program.
Asplundh's patrolman stated his job is to patrol high voltage lines for compliance with PUC's GO95, rule 35. He looks to see if trees are closer than 18 inches to the lines in green areas or within four feet in high fire areas. If it appears a tree will grow out of compliance, he adds it to Asplundh's inventory to trim. If a potential hazard is identified, the patrolman makes a note on the grid checklist for the tree to be trimmed or removed. Alternatively, the power lines can be moved.
GO95 establishes minimum standards for vertical clearances for overhead wires.
The patrolman estimated the height of the trees in the Circle K-5 orchard were 15 feet when he inspected the area in February 2010 and the distance between the line and the top of the tree was about seven feet. The grove of trees under the power lines involved in decedent's accident were not on the grid list for Asplundh to inspect or maintain.
SCE's vegetation management supervisor found Asplundh complied with their contract and found no deficiencies in Asplundh's inspection or maintenance program at Circle K-5.
4
In 2009, SCE replaced a 40-foot pole with a 45-foot pole at Circle K-5 orchard. The SCE planner who planned the pole replacement inspected the orchard and saw the high voltage distribution lines along the 384-foot span ran over a row of grapefruit trees. The planner knew workers would use ladders as tall as the trees to harvest fruit and if a worker or his ladder contacted a power line, the person could be killed or seriously injured. The planner identified the row of fruit trees beneath a distribution line as a potential hazard.
The planner stated the minimum height requirement in an agricultural area that can be traversed by agricultural equipment was 25 feet of vertical clearance from the ground to the power lines. The planner designed the pole to provide clearance of more than 25 feet at the lowest point of sag, approximately 29 feet. The planner stated the replacement of the facilities would raise the vertical clearance of the powers lines.
Hot Line construction received a work order in September 2009 to replace the pole for SCE. Hot Line's crew replaced the 40-foot pole with a 45-foot pole and rehung the electrical conductors. The work order did not call for work on any adjacent structures. The documents given to Hot Line did not specify vertical clearance or the height of the power lines over the orchard.
Hot Line's crew foreman received training from former SCE employees about maintaining vertical clearance of 18 feet between the ground and power lines, no matter where the line was located. When they replaced the pole, Hot Line's crew did not measure the line heights for vertical clearance other than by visual or "eyeball" assessment. It is, however, difficult to tell how high power lines are from the ground without measuring them.
Neither Hot Line employee had knowledge of the PUC requirements for minimal vertical clearances between the ground and the power lines. SCE did not supervise or inspect the work done by Hot Line.
5
SCE repaired a broken cross-arm on the replaced pole in May 2010. The foreman who worked on the repair, stated the height required when the power lines were installed was 18 feet. SCE's foreman stated he had not used a sag chart, a dynamometer, or other tools to measure the vertical height when the pole was repaired. He stated sag charts are strictly for new construction. When repairing poles, they eyeball the vertical clearance.
SCE's crew started the repair at 8:00 p.m. or 9:00 p.m. When they completed the repair at 4:30 a.m. or 5:00 a.m., the foreman had been working about 22 hours.
E
1
Plaintiffs' engineering expert (engineering expert) testified SCE had a responsibility to inspect the orchard yearly. The expert stated utilities should perform a hazard risk analysis to determine if there is a hazard and whether the utility could design it out, protect against it, or warn about it, with the most effective being to eliminate the hazard by design.
Engineering expert opined SCE could have contacted the landowner when the grapefruit trees were planted in the early 2000's to discuss the fact that the mature height of the trees would be 30 feet and determine if the trees should be removed or the power line height should be raised to 40 feet. SCE did not do so. The expert opined this was below the accepted utility practice in California because the height of the power lines would be a known problem for individuals using ladders and other equipment extending in the air. In the expert's view, it was an egregious violation of the standard of practice to take no action. Power companies remove trees under power lines. If the trees were not present, there would be no hazard.
When a pole was replaced in 2009, the designer stated there should have been 25 feet of vertical clearance at the lowest point of sag. Restringing the power lines should not have been based on an eyeball calculation. According to SCE's construction standards, the line should have had 25 feet of clearance. The engineering expert agreed with SCE employees who stated the GO95 standards were minimum standards, not construction standards. In the expert's opinion, the incident would not have happened if the power lines had vertical clearance from the ground of 25 feet.
Minimum power line height is measured from the lowest point of sag on the line.
When the poles were installed in the 1940's, GO95 specified power lines were to be 25 feet over a roadway and agricultural property. Engineering expert agreed the conductors may have been more than 25 feet at the point where they crossed the access roadway given the 38-foot attachment point to the 45-foot pole.
2
Plaintiffs' photogrammetrist analyzed photographs from 1949 and compared them to photographs of the area where the incident occurred in 2010. He opined two dirt roads existed under the power lines in 1949. He observed striation, suggesting traffic in the area, and other roadway features.
Photogrammetry is the science of obtaining measurements or reference points from photographs.
3
Plaintiffs' arborist expert testified he worked with line clearing crews in Los Angeles and in cities in other states. He stated those municipalities trimmed trees 10 feet away from power lines. SCE's line clearing manual defined electrical hazard as "when a worker, tool, tree or any other conductive object is closer than 10 feet from an energized overhead electrical conductor."
Plaintiffs' arborist testified grapefruit trees, which can grow to heights of 30 feet, are inconsistent with SCE's recommendation not to plant trees that grow higher than 25 feet under power lines. SCE's line clearing manual states trees and shrubs planted under or near power lines should not reach within 10 feet of power lines. In this case, the trees were closer than 10 feet.
Plaintiffs' arborist stated there were many missed opportunities to do something about the height of the trees as they approached the power lines. These missed opportunities included when the trees were inspected annually, when the pole was replaced, and when the broken cross-arm was repaired. Nevertheless, SCE did not do anything about the hazard in this case.
4
Plaintiffs' human factors expert testified the location was unreasonably dangerous and the behaviors of the harvest workers were reasonable and foreseeable. The human factors expert opined the height of the power lines above the Circle K-5 orchard were a functionally hidden hazard given the time of day of the accident and the number of other things requiring the attention of the workers. As such, he opined decedent acted in a foreseeable manner and did not commit errors of omission or commission.
F
The president of Circle K-5 grew up on the ranch, which had been in her family since the 1920's. Since she could remember, a dirt road was present in the area near the utility lines, which was used by agricultural equipment. She also stated there was chaparral, cactus, and brush in the area before the grapefruit trees were planted.
The president believed the trees were 10 to 12 feet tall at the time of the incident. On the day of the incident, after the death of the decedent, the president walked through the property and looked at the power lines. She estimated the power lines were 18 to 20 feet from the ground. She felt the power lines were too low for someone working with a ladder.
G
After the close of evidence, the court granted nonsuit for Asplundh and Sun World. The court granted nonsuit for Hot Line based on the completed and accepted doctrine. The court instructed the jury it could find SCE responsible for any harm caused by the fault or negligence of Hot Line.
H
SCE called an arborist and utility specialist to testify regarding vegetation management. The arborist stated the vegetation management programs in California generally require 18 inches of clearance from typical distribution lines of 12,000 volts to comply with GO95, rule 35, or four feet of radial clearance in certain areas to prevent fires. He stated the photographs of the area showed more than 18 inches of clearance between the trees and the high voltage lines. He agreed public safety is a high priority for utility and vegetation management programs.
The arborist estimated the trees had six inches to a foot of growth above the telephone line. If the telecommunication line was 14 feet 11 inches, the height of the trees would be about 15 to 16 feet.
SCE's utility expert testified if the property was undeveloped in 1960, it would be considered a pedestrian area and the power line clearance would be 17 feet above the ground.
SCE's utility expert agreed it would be difficult to see the sag difference in the power lines when the cross-arm was repaired at night in May 2010. He stated it would not be a bad thing to go back the next day in the daylight to see if the lowest point of sag is maintained.
A third party expert testified it was inappropriate to use a 20-foot ladder to harvest trees between 10 and 12 feet tall.
DISCUSSION
I
Negligence Per Se
SCE contends the court erred in its jury instruction regarding the minimum vertical clearance required under GO95 for the negligence per se claim. Specifically, SCE contends the court misinterpreted the regulation by stating minimum clearance requirements are for the entire span (between two poles) rather than at certain points within a span depending upon what is under the line at any spot. We disagree.
A
SCE asked the court to apply the 1941 version of GO95, which was the applicable regulation when the power lines were installed in 1946. GO95, rule 12.1D did not require SCE to change the clearances of the spans adjacent to the pole replaced in 2009. SCE argued the 1941 regulations contained a provision allowing 17 feet of clearance for areas accessible to pedestrian's only. The court instructed the jury with the following language:
"Power lines constructed in 1946 under [PUC] [GO]95, Rule 37 required that the minimum above ground clearance for power lines was as follows:
"1) 25 feet above ground along thoroughfares in rural districts or across other areas capable of being traversed by vehicles or agricultural equipment where any part of the line overhangs any traversable portion of a public or private roadway;
"2) However, this 25 feet minimum clearance may be reduced to 18 feet above ground along thoroughfares in rural districts or across other areas capable of being traversed by vehicles or agricultural equipment where no part of the line overhangs any traversable portion of a public or private roadway. However, care should be exercised in using this minimum clearance along roads, above or along ditches where mechanical devices are used for maintenance, near trees in orchards, near trees or structures which can be climbed and in other similar situation; [¶] or
"3) 17 feet above ground in areas accessible to pedestrians only.
"If you decide [¶] 1. That [SCE] violated this law; and [¶] 2. That the violation was a substantial factor in bringing about the harm, then you must find that [SCE] was negligent.
"If you find that [SCE] did not violate this law or that the violation was not a substantial factor in bringing about the harm, then you must still decide whether [SCE] was negligent in light of the other instructions."
Alternative one in the instruction was drawn from the 1941 version of GO95, rule 37, table 1, case 4, which provided for clearance of 25 feet for supply conductors and cables of 12,000 volts "above ground along thoroughfares in rural districts or across other areas capable of being traversed by vehicles or agricultural equipment."
Alternative two was drawn from the 1941 version of GO95, rule 54.4-A(2)(b), which stated, "In rural districts the minimum clearance of 25 feet specified in Table 1, Case 4, Column E may be reduced to 18 feet above ground for lines across areas capable of being traversed by agricultural equipment and along roads where no part of the line overhangs any traversable portion of a public or private roadway. ... Care should be exercised in using this minimum clearance along roads, above or along ditches where mechanical devices are used for maintenance, near trees in orchards, near trees or structures which can be climbed and in other similar situations."
The PUC deleted GO95, rule 54.4-A in 1992 stating, "Due to increased height changes in agricultural equipment and increased electrical contacts with supply lines, minimum conductor to ground clearance requirements should be increased in rural agricultural areas for public safety."
Alternative three was drawn from the 1941 version of GO95, rule 37, table 1, case 5, which provided for clearance of 17 feet "[a]bove ground in areas accessible to pedestrians only."
B
The court interpreted the applicable 1941 regulations to require minimum clearances for a span from one pole to the other. This is consistent with a plain reading of GO95, rule 54.4-A(2)(b), which allowed reduction of clearance to 18 feet "where no part of the line overhangs any traversable portion of a public or private roadway." (Italics added.)
In arguing the line height requirements may vary under a span, SCE cites Nevis v. Pacific Gas & Electric Co. (1954) 43 Cal.2d 626 (Nevis) where a plaintiff was electrocuted when a boom on a hay derrick he was driving made contact with high voltage lines. The Nevis plaintiff "saw some wires running from the road to the house—which was about a block distant on the private roadway—but did not know whether they were power or telephone wires. Plaintiff continued some 600 feet on past the house until he came to the haystack; he testified that he did not see the voltage lines under which, regrettably, the hay had been stacked, or the power poles or high voltage signs on the poles." (Nevis, supra, at p. 628.) The ranch owner testified a private roadway surrounded the area where the haystack was located and where the injury occurred and that the wires overhung the roadway on both sides of the area. (Id. at p. 629.)
Considering GO95, rule 54.4-A(2)(a) and (b), the Supreme Court commented "the clearance of the wires was required to be at least 22 feet at the points where they cross the roadway but could be reduced to only 18 feet in the area where plaintiff was injured." (Nevis, supra, 43 Cal.2d at p. 629.) This comment was dicta because the court determined any instructional error regarding line height was invited by the defendant who did not request an instruction regarding a reduced clearance requirement under subdivision (b) for the area where the accident occurred. (Id. at p. 630.)
The Supreme Court's comment is otherwise not instructive for this case because the factual recitation in Nevis suggests multiple spans were present, given the description of multiple poles and a distance of at least 600 feet beyond the house. (Nevis, supra, 43 Cal.2d at p. 628.) It is reasonable to infer from the Supreme Court's comment a span that crossed a road would require clearance of 22 feet, whereas a span over the area where the hay was stacked could be reduced to 18 feet. This reading is consistent with the plain meaning of GO95, rule 54.4-A(2)(b).
Similarly, SCE's reliance on Dunn v. Pacific Gas & Electric Co. (1954) 43 Cal.2d 265 is misplaced. The Dunn court commented the evidence did not show the electrocution accident occurred "on the road area or how near to it." (Id. at p. 272.) The Supreme Court concluded "[s]ubparagraph (a) of [GO95, rule 54.4-A(2)] ... clearly applies only to lines crossing or overhanging traversable portions of public or private roads and does not mean that if the lines cross a roadway in a rural district the 22-foot clearance must be maintained for the entire district." (Ibid., italics added.) Again, this comment suggests the requirement of GO95, rule 54.4-A(2)(a), applied to a span overhanging a roadway, not to spans within the district that did not overhang a roadway.
Here, in contrast, there was one span between two poles. Plaintiffs' photogrammetry expert opined one, if not two, roads crossed under the span when the electrical poles were installed in the 1940's. The incident occurred under that span near those purported roadways. Therefore, if the jury determined a roadway existed under the span, the 18-foot clearance provided under GO95, rule 54.4-A(2)(b), did not apply.
SCE did not request an instruction that the line clearance could be 22 feet pursuant to GO95, rule 54.4-A(2)(a), for lines crossing or overhanging traversable portions of roads or driveways. In any event, the lines, which were 19 feet at the point of contact and 18 feet at midspan, did not comply with either a 22-foot or 25-foot requirement.
This is also consistent with SCE's counsel's statements at trial that "[t]he height of the span is determined by ... the most stringent requirement ..." and the concession that "if the jury believes that that's a road, then the required height of the lines at the time of the installation is 25 feet."
SCE contends for the first time on appeal we should consider the PUC's 2005 revisions to GO95, rule 37, which added the following language: "When measuring the minimum allowable vertical conductor clearances in a span, the minimum clearance applies to the specific location under the span being measured and not for the entire span." (Order Instituting Rulemaking to Revise Com. Gen. Order Nos. 95 & 128 (2005) Cal. P.U.C. Dec. No. 05-01-030, Proposed Rule Change No. 33, appen. A, p. A-92.) SCE contends this was merely a clarification of an existing standard. We do not agree and the 2005 amendment does not support this contention.
In discussing the rationale for the rule change, the PUC stated, "The current rule does not clearly state the principle that the required minimum clearance of a given span is specific to the location where the clearance is measured. This proposal will clarify Rule 37 so as to ensure that the minimum clearance for a span which passes over a variety of ground, water, or building configurations will be determined based upon the configuration at the location where the clearance is measured, and not another location where the minimum clearance is greater or lesser." (Cal. P.U.C. Dec. No. 05-01-030, supra, appen. A, p. A-90, italics added.)
A statute or regulation does not apply retroactively when it "substantially changes the legal consequences of past actions, or upsets expectations based in prior law." (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922.) Application of the amendment in this case would substantially change the legal consequences in this matter because it conflicts with the 1941 version of GO95, rule 54.4-A(2)(b), which stated the clearance exception applied only "where no part of the line overhangs any traversable portion of a public or private roadway." (Italics added.)
Further, the PUC's decision expressly stated the revisions to GO95 would become "effective one year after the date of today's decision," which was January 13, 2005. (Cal. P.U.C. Dec. No. 05-01-030, supra, pp. 36-37.) We conclude the PUC intended the revised rule to be applied prospectively only, and not to existing clearance requirements. (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243 ["statutes do not operate retrospectively unless the Legislature plainly intended them to do so"].)
Even if the PUC's 2005 rule could be applied retroactively, SCE did not request an instruction with this language and is now estopped from relying on this language. (Nevis, supra, 43 Cal.2d at p. 630; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403; Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653.) The court properly instructed the jury regarding negligence per se.
II
General Negligence
SCE next contends the court lacked jurisdiction to adjudicate plaintiffs' general negligence claim based on a theory it failed to raise its power lines because the PUC has exclusive jurisdiction to regulate line height issues. We disagree.
The PUC regulates public utilities. (Cal. Const., art XII § 3; Pub. Util. Code, §§ 216, subd. (a), 701.) "Section 1759 of the Public Utilities Code declares that no court except [the] Supreme Court has jurisdiction to review any order or decision of the [PUC] or to interfere with the commission in the performance of its duties. [Public Utilities Code section] 2106, however, authorizes an action in superior court for damages caused by any unlawful act of a public utility." (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 902 (Covalt).)
" 'In Covalt, the Supreme Court " 'established a three-part test to determine whether an action is barred by section 1759: (1) whether the commission had the authority to adopt a regulatory policy; (2) whether the commission had exercised that authority; and (3) whether the superior court action would hinder or interfere with the commission's exercise of regulatory authority.' " ' [Citations.] [¶] Superior court jurisdiction is precluded only if all three prongs of the Covalt test are answered affirmatively." (PegaStaff v. Pacific Gas & Electric Co. (2015) 239 Cal.App.4th 1303, 1315 (PegaStaff).) "[S]uperior courts are not precluded from acting in aid of, rather than in derogation of, the PUC's jurisdiction." (Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256, 275 (Hartwell).)
In Hartwell, the Supreme Court concluded an action challenging the adequacy of drinking water standards was barred because it " 'would plainly undermine the commission's policy by holding the utility liable for not doing what the commission has repeatedly determined that it ... [was] not required to do." (Hartwell, supra, 27 Cal.4th at p. 276.) On the other hand, damages claims based on allegations of past violations of federal and state drinking water standards "would not interfere with the PUC in implementing its supervisory and regulatory policies to prevent future harm." (Id. at p. 277.)
There is no dispute the first two prongs of the Covalt test apply. However, we conclude the third prong does not apply because the general negligence action in this case did not hinder or interfere with the PUC's exercise of its regulatory authority.
"Even if a utility meets a minimum requirement set by the PUC, the interference prong of the Covalt test is not met by a suit claiming the utility should have done more, at least in the absence of a PUC safe harbor (as was the case in Hartwell) that blesses the minimum requirement as fully meeting the utility's obligation. Without more than speculation that the PUC might establish additional or different requirements in the future, [Public Utilities Code] section 1759 will not deprive the superior court of jurisdiction if the utility could comply with current PUC requirements and still avoid injuring the plaintiff." (PegaStaff, supra, 239 Cal.App.4th at p. 1320.)
The Supreme Court stated in Nevis "[c]ompliance with the general orders of the [PUC] does not establish as a matter of law due care by the power company, but merely relieves it 'of the charge of negligence per se. It does not affect the question of negligence due to the acts or omissions of the company as related to the particular circumstances of the case.' " (Nevis, supra, 43 Cal.2d at p. 630.)
"[T]he PUC rules and prior orders repeatedly make clear that while a utility normally must maintain specified minimum clearances ..., the commission leaves to the determination of the utility whether greater clearances are necessary at particular locations to accomplish the purposes of [the regulations], including to 'secure safety ... to the public in general.' Nowhere in its rules or orders does the commission suggest that in making such determinations, the utility is relieved of its obligation to exercise reasonable care to avoid causing harm to others, or relieved of its responsibility for failing to do so. PG&E does have 'a duty to make the wires safe under all the exigencies created by the surrounding circumstances.' [Citation.] Failure to satisfy that duty subjects the utility to liability in judicial proceedings for damages to those harmed by its negligence." (Mata v. Pacific Gas & Electric Co. (2014) 224 Cal.App.4th 309, 318 (Mata).)
The PUC's power line height regulations applicable in this case established minimum requirements. They did not provide for a safe harbor if those minimum requirements were met. GO95, rule 31.1 stated, "For all particulars not specified in these rules, design, construction, and maintenance should be done in accordance with accepted good practice for the given local conditions known at the time." GO95, rule 37, described minimum clearances of wires under various circumstances. Appendix E to GO95 rule 35 described "minimum [radial] clearances" for trimming, but stated "[r]easonable vegetation management practices may make it advantageous to obtain greater clearances than those listed." Additionally, GO95, rule 54.4-A(2)(b) stated, "Care should be exercised in using this minimum clearance along roads, above or along ditches where mechanical devices are used for maintenance, near trees in orchards, near trees or structures which can be climbed and in other similar situations."
Plaintiffs presented evidence there were orchards in the area when the power lines were installed in the 1940's. SCE knew of the presence of the grapefruit trees under its lines at the Circle K-5 orchard after they were planted and had numerous opportunities to evaluate and mitigate the potential hazard in the years prior to the accident. Plaintiffs' engineering expert opined SCE was negligent because it did not talk to the landowner about removing the trees or raising the lines and did not warn about the lines over the trees. Plaintiffs presented evidence the accident would not have occurred if the trees were removed or if the lines had 25 feet of vertical clearance.
The case of Sarale v. Pacific Gas & Electric Co. (2010) 189 Cal.App.4th 225, relied upon by SCE, is inapposite. In that case, landowners contended their property was damaged because a public utility trimmed trees beyond the minimum standards established by the PUC. (Id. at pp. 230, 242.) In other words, the Sarale plaintiffs wanted to penalize the utility for exercising its discretion to trim more than the minimum. The majority of the court (with dis. opn. of Robie, J.) concluded the superior court did not have jurisdiction to consider the claim because Public Utilities Code section 1759 "saves the commission and utility companies from defending against myriad lawsuits every time adjustments are made to protocols for vegetation management around power lines." (Id. at p. 242.)
In contrast here, the plaintiffs' action did not challenge the ability of the public utility to go beyond the minimum standards under the circumstances and is more like Mata, supra, 224 Cal.App.4th 309. Plaintiffs' theory that SCE could have exercised its discretion under the applicable regulations to raise the power lines for safety considerations based on what it knew about the condition of the property under the lines did not interfere with the PUC's jurisdiction. "Permitting plaintiffs to prosecute in superior court their claim for having failed to use due care in making such a determination does not hinder or interfere with the exercise of the PUC's authority. To the contrary, awarding damages to those injured by the utility's failure to make such a reasonable determination as anticipated by the PUC complements and reinforces [the regulations]. A superior court action for such damages is 'in aid of, rather than in derogation of, the PUC's jurisdiction.' " (Mata, at pp. 319-320.)
III
Allocation of Fault
SCE finally contends the jury's 80 percent allocation of fault to SCE is not supported by substantial evidence. We again disagree.
California's comparative fault doctrine "is designed to permit the trier of fact to consider all relevant criteria in apportioning liability. The doctrine 'is a flexible, common sense 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." ' " (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1233.) "[T]he jury's power to apportion fault is as broad as its duty to resolve conflicts in the evidence and assess credibility." (Id. at p. 1234.) For that reason, " '[c]ourts in comparative negligence states are usually circumspect about altering determinations made by the jury. The courts will rarely disturb the jury's apportionment of negligence between parties.' " (Id. at pp. 233-1234.)
"We review the jury's allocation of fault for substantial evidence. [Citation.] That means that 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.]' [Citation.] We may not substitute our own judgment for that of the jury or set aside the jury's findings if the record contains any evidence which under any reasonable view supports the jury's apportionment. [Citation.] Additionally, as always, 'we start with the presumption that the record contains evidence sufficient to support the judgment. It is the appellant's affirmative burden to demonstrate otherwise.' " (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 202-203.)
The jury here allocated 80 percent fault to SCE, 15 percent fault to Gold Growers, who supervised the harvest and provided the ladders, and 5 percent fault to S & R after finding it had some control over Supervisor's activities on the day of the incident. The jury allocated no fault to the owner of Circle K-5.
The court subsequently entered judgement notwithstanding the verdict in favor of S & R. Plaintiffs separately appeal that order in Diaz et al. v. S & R Farm Labor Contractor, Inc. (D073115).
There was ample evidence in this case for the jury to attribute 80 percent fault to SCE. SCE owned the power lines. As discussed in section I.B., ante, there was evidence to support a finding of negligence per se based upon evidence of a road or roads beneath the span when it was installed in the 1940's and the fact that an 18- or 19-foot line height did not meet the applicable regulations under GO95, rules 37 and 54.4-A(2)(b) for minimum clearance. Nor did it meet SCE's own practices to maintain clearance of 25 feet for a span over a roadway or where an area is capable of being traversed by agricultural equipment. Additionally, there was evidence SCE had numerous opportunities over the years to observe the power lines and the condition of the trees under the lines at least yearly. SCE was aware of the fruit trees planted under the lines in 2000, but did not do anything about them. SCE did not ask Circle K-5 to either remove the trees or maintain them less than 10 feet from the lines, as their line clearing manual suggested, SCE did not change the line height, and SCE did not provide warnings about the hazard. There was also evidence SCE did not measure the lines when the cross-arm was repaired shortly before the incident. If the trees were not present or there had been 25 feet of vertical clearance from the ground, plaintiffs' arborist expert opined the accident would not have happened.
There was also evidence that even though an SCE employee planned for a 25-foot line height clearance when the pole was replaced, this information was not conveyed to its contractor, Hot Line. Hot Line did not measure the lines when the pole was replaced and merely "eye-balled" the line height. The jury was instructed it could allocate any liability of Hot Line to SCE.
Plaintiffs' counsel in closing statements proposed allocating 85 percent fault to SCE based upon the fact SCE owned the power lines and, more than other defendants, had the knowledge and means to control or warn about the hazard. Counsel pointed out many SCE employees admitted it is difficult to accurately estimate the height of power lines without measuring them. Plaintiffs' counsel argued for 5 percent fault to Hot Line, which would be attributed to SCE under the jury instructions. Therefore, the jury's allocation of 80 percent fault was less than what plaintiffs sought from SCE.
The jury allocated 20 percent fault to the entities it found employed the Supervisor and provided the ladders, which is not an insubstantial amount of liability. There was evidence Gold Growers did not inspect the field prior to the harvest and Supervisor did not warn about the presence of the power lines even though he was aware of the power lines and had supervised harvests in this and surrounding orchards. Plaintiffs' human factors expert testified it is difficult, nevertheless, to accurately estimate line height based on visual observation alone, which was consistent with testimony from SCE employees.
There was also evidence to support the jury's finding of no liability against the landowner. Circle K-5 planted fruit trees under the power lines, as was done in the surrounding areas, and it maintained the trees. However, there was no evidence it was negligent to plant citrus trees under power lines. Indeed, SCE employees testified many such groves are planted under power lines because they are slow-growing. Neither plaintiffs nor SCE presented evidence Circle K-5 was negligent in maintaining the orchard. It did not supervise the harvest or provide ladders or equipment. Circle K-5 contracted with third parties to harvest the trees. Counsel for Circle K-5 submitted to the jury it should not be liable under a failure to warn theory because the power lines were an open and obvious condition for anyone who came to the property, which is consistent with the evidence, and the harvesting company had a duty to protect the workers. There was evidence for the jury to accept Circle K-5's argument.
Thus, we conclude there was evidence to support the jury's allocation of 80 percent fault to SCE.
DISPOSITION
The judgment is affirmed. Plaintiffs shall recover their costs on appeal.
MCCONNELL, P. J. WE CONCUR: HALLER, J. GUERRERO, J.