Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court for the County of Los Angeles No. PC 029724. Melvin D. Sandvig, Judge.
Jack R. Ormes for Plaintiff and Appellant.
Law Offices of Don H. Zell, Don H. Zell and Robert E. Suttle for Defendant and Respondent.
FLIER, J.
SUMMARY
Charles Paulson was severely burned when the boom of a crane touched a high voltage power line owned and operated by Southern California Edison Company. Paulson sued Edison, alleging it knew or should have known of the work in progress near its power lines and negligently failed to take any steps to make the area safe and avoid harm to Paulson. We affirm the trial court’s grant of summary judgment in favor of Edison, concluding as a matter of law that the undisputed facts establish Edison did not violate its duty of due care to Paulson.
FACTUAL AND PROCEDURAL BACKGROUND
Paulson asserts that Edison is liable for negligence in connection with the extensive burns Paulson suffered when the boom of a crane, operated by a third party, touched one of Edison’s high voltage power lines. This is the second time this case has come to the Court of Appeal. In the previous appeal, we reversed a judgment of dismissal entered after the trial court granted several of Edison’s motions in limine, and then dismissed the case on the ground that Edison owed no duty of care to Paulson. We concluded that an uncontradicted line of cases established that Edison owed a duty of care to Paulson; that breach of duty is usually a question of fact; and that it would violate Paulson’s due process rights and several statutory provisions to permit the trial court “to transform a motion in limine purportedly addressing duty into a summary judgment/adjudication motion regarding breach.” (Paulson v. Southern California Edison (Feb. 14, 2006, B181755) [nonpub. opn.].) We observed, however, that the trial court “might summarily adjudicate the issue in the context of a properly noticed motion for summary judgment supported by convincing evidence . . . .” (Ibid.)
After the cause was remanded to the trial court for further proceedings, Edison filed a motion for summary judgment. Its evidence showed the following facts. The accident occurred in connection with the construction of a flood control channel, near a construction site that was part of the Stevenson Ranch real estate development. The developer had contracted with SME Construction, Inc. to construct the channel. SME had contracted with CHP Steel (of which Paulson was a principal and an employee) to install steel rebar mats that were used to reinforce the concrete walls of the flood control channel. The accident occurred on September 8, 2001, when a crane furnished by SME came into contract with one of Edison’s high voltage (16,000 volts) power lines, which were supported by two cross-arms on two utility poles. The utility poles had been relocated to the site of the accident in November 1999, at the request of the developer, in order to widen Pico Canyon Road.
Edison’s overhead facilities, including the utility poles, cross-arms, insulators and conductors, were constructed and maintained in compliance with reasonable engineering utility practices followed throughout the United States, and were in compliance with General Order 95 (the California Public Utilities Commission’s rules and regulations governing the maintenance and construction of overhead facilities). Specifically, each of the conductors was in excess of 45 feet above the ground at the approximate point of contact; at no point were any of the conductors less than 35 feet above the ground (well in excess of the 25 feet required by General Order 95); and each of the cross-arms was marked with “high voltage” warning signs of the proper size.
After the relocation of the utility poles in 1999, Edison was never contacted by anyone from CHP Steel, SME or the developer requesting that Edison do anything to the lines pertaining to the use of a crane or any other construction activity in the area, and was not aware that any crane or other construction equipment was being operated in proximity to its high-voltage lines at any time before the accident. Under the California Code of Regulations (Cal. Code Regs., tit. 8, § 2946), the operation of a crane in proximity to conductors from 600 to 50,000 volts is not prohibited, so long as a clearance of 10 feet is maintained between the lines and any portion of the crane or load. The rebar mat that was being placed when the accident occurred could have been safely positioned using the crane without any part of the load or crane coming within ten feet of the high voltage conductor. Both Paulson and the crane operator were aware the power lines were energized and a ten-foot clearance had to be maintained, and Paulson’s opinion was “that he [the crane operator] ran the boom out too far and swung it all the way around into the line.”
The only evidence Edison was aware of any construction activity came from Bart May, who was the offsite construction manager for the developer. May testified that, at a meeting prior to the construction, early in 2001, he met with someone from Edison and others, and discussed “[j]ust that we are going to have ongoing work-grading equipment and other construction activities in the vicinities of both phone and power,” in the area of the channel. Someone at the meeting asked Edison whether the lines could be deenergized, and the Edison representative said they could not, because the lines served Chevron Oil Company and other customers. May also testified he spoke to Jeffery Mouser of Edison about a “protection blanket,” about a month or so prior to the accident, and that there were also meetings with Edison to discuss putting the power lines underground. However, the power lines could not be put underground before the construction of the channel because of the need to relocate a gas line (for which Edison had no responsibility). May further testified that relocation of the lines prior to construction was logistically impossible for the developer, because the area available for any relocation of the power poles would have put them directly in line with improvements the developer had to make. He had “numerous conversations” with Jeff Mouser of Edison regarding working around power lines; these were about “just maintaining clearances,” and “general safety, working in the proximity of the live wires.”
Paulson’s opposition to Edison’s summary judgment motion consisted of a four-page memorandum of points and authorities, to which was attached a copy of this court’s opinion in the previous appeal and three pages from the deposition of Paulson’s expert, Ed Clark. Paulson submitted no declarations and no separate statement responding to the material facts Edison claimed were undisputed. He merely argued that Edison breached its duty to Paulson because it did not provide him with blankets that would have insulated the power lines; did not put the lines on a higher pole out of reach of the crane; did not temporarily move the lines; and did not furnish spotters or checkers to assist the crane operator. Paulson admitted he had no evidence that Edison was notified “that work around [its] lines was going to take place on that particular date at that particular time.” However, he contended May’s testimony was sufficient to permit a jury to infer that Edison knew or should have known “that the work was going on when it actually did.” He also argued that Clark testified Edison failed to follow standards set forth in the National Electrical Safety Code (NESC) – which includes a provision that “all reasonable steps shall be taken” to safeguard the public from injury – and this was enough to allow a jury to conclude Edison was liable for the accident.
In reply, Edison pointed out that Paulson’s opposition papers failed to comply with the requirements of Code of Civil Procedure section 437c and failed to dispute any of the material facts asserted by Edison. Edison submitted a declaration with excerpts from Clark’s deposition, in which Clark admitted Edison’s facilities were consistent with utility industry standards, and that he had no information that Edison was told that a crane was going to be used in proximity to its lines. Edison pointed out that the NESC contains nothing pertaining to actions a utility should take in respect to third persons working in proximity to its power lines, and filed objections to Paulson’s opposition on grounds of failure to comply with Code of Civil Procedure section 437c, lack of foundation and hearsay.
A few days after Edison filed its reply papers, Edison received by facsimile from Paulson a copy of a “statement of contested facts” and a partial copy of a response to Edison’s separate statement, to which Edison objected.
The trial court granted Edison’s motion for summary judgment. The court sustained Edison’s objection to the exhibits attached to Paulson’s opposition as not being properly authenticated, and also sustained its objection to Paulson’s late-filed opposition papers. The court found no triable issue of fact and no evidence to dispute that Edison’s power lines complied with General Order 95 and that Edison had no knowledge of the activities taking place on the day of the accident, including the operation of a crane within ten feet of Edison’s conductors, and that Edison therefore had not breached its duty to Paulson.
Judgment was entered on June 30, 2006, and Paulson filed this appeal.
DISCUSSION
The substance of Paulson’s argument is that summary judgment should not have been granted because there was evidence:
· from May that Edison knew construction work would be or was going on near its lines; and
· from Clark that Edison had a duty to insure that it knew what work was to be performed in close proximity to its facilities, and Edison breached its duty when it “failed to know all the details of the work being performed by Paulson” and failed “to provide him with a checker and otherwise make the area a safe place to work.”
The short answer to Paulson’s argument is that summary judgment was proper because Paulson did not submit the evidence on which he now relies, in contravention of the law governing summary judgment proceedings. “The opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(2).) No such admissible evidence was presented. Nor did Paulson submit the required separate statement identifying points in dispute and referring to evidence supporting the disputed point. (Id., subd. (b)(3).)
“Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civ. Proc., § 437c, subd. (b)(3).) At the hearing, the court stated: “Well, the court’s ruling was to grant the motion, you know, based on the moving papers. Also, the separate statement of undisputed facts were actually without objection because they were late and not done according to the rules.” Nonetheless, the trial court “looked at everything and didn’t find that there was any evidence that [Edison] actually knew that the operation was going on on the date it was going on. Although, apparently, there was some conversation a month or two before that. As to the actual date, they didn’t.”
The longer answer is that, even if we, like the trial court, consider the unauthenticated exhibits attached to Paulson’s opposition, and the late-filed statement of contested facts, we must conclude that, as a matter of law, the undisputed facts establish that Edison did not violate its duty of due care to Paulson.
The precedents involving claims against utilities for injuries from high-voltage wires make it clear that the facts in this case do not support the claim that Edison breached its duty of care to Paulson. Thus:
· In Hayden v. Paramount Productions, Inc. (1939) 33 Cal.App.2d 287 (Hayden), the plaintiff received an electric shock and burns when the boom of a crane or “whirly” contacted the city’s high voltage wires. (Id. at p. 291.) A grant of nonsuit at the close of plaintiff’s case was affirmed. There was no evidence the wires were in dangerous proximity to the premises, because they had a safe clearance of more than forty-five feet above the ground; the city had no control over the plaintiff or the “whirly” operator; and there was no evidence “that the city even had knowledge of the work appellant was doing at the time of the accident.” (Id. at pp. 291-292.) (The city did have notice of the construction work, and moved two utility poles prior to the accident. (Id. at p. 289.)) The court observed:
“Manifestly, the city could not reasonably be expected to anticipate that any one would project a boom or ‘whirly’, working near its right of way, to an elevation of more than forty-five feet and contact an electric wire . . . when, as here, the operator of the ‘whirly’ knew of the presence of the wires and was apprised of their dangerous voltage through appropriate signs attached to the cross-bars on the poles. The proximate cause of this accident rests upon the [company], whose employee misjudged distance . . . notwithstanding knowledge of the location of the wires and notice of their dangerous voltage.” (Hayden, supra, 33 Cal.App.2dat pp. 292-293.)
· In Pascoe v. Southern Cal. Edison Co. (1951) 102 Cal.App.2d 254 (Pascoe), the defendant utility was notified that a state contractor would immediately start to widen a highway, and in the course of its operations would blast portions of the highway underneath defendant’s high tension wires. The contractor did not specify the date on which blasting would begin under the high tension wires, and did not request any affirmative action by the defendant, such as shutting off the electricity or insulating the wires. Plaintiff’s decedent was electrocuted when the blasting caused a fuse wire to be thrown upwards toward the high tension wires. (Id. at p. 256.) The court of appeal affirmed the sustaining of the utility’s demurrer, rejecting claims the defendant was negligent in failing to remove or insulate the wires and in continuing to transmit electricity despite notice of the blasting operations. (Id. at pp. 256-257.) The court observed:
“The defendant here was under a duty to maintain its highly charged high tension wires as they crossed the state highway at a height that would not endanger the normal use of the highway for travel or other proper purposes. The defendant was bound to anticipate such normal use and thus place its wires at a height that would be regarded as reasonably safe. Under the circumstances here narrated it was not obligated to insulate its wires if they were placed at a distance above the highway where the current in the wires would not interfere at all with the normal and proper uses of the highway of a character that reasonably could be anticipated. . . . Maintaining a highly charged wire uninsulated at a point where it could be touched by a hand reaching out to it from an upstairs window is negligence; not so what the defendant did here.” (Pascoe, supra, 102 Cal.App.2dat p. 257.)
The court specifically rejected the contention that, because the contractor notified the defendant utility that it intended to immediately proceed with blasting under the high tension wires, defendant was negligent in failing to cut out the current “on a date and hour some six weeks later when the plaintiff’s decedent for the first time unknown to the [defendant] actually began his blasting operations.” (Id. at pp. 257-258, original italics.)
· In Perrine v. Pacific Gas & Elec. Co. (1960) 186 Cal.App.2d 442 (Perrine), plaintiff was badly burned when he came into contact with high-voltage wires while standing on a steel beam and handling a 30-foot rod. The court affirmed the judgment entered after grant of a defense motion for a directed verdict. The power lines complied with General Order 95 and conformed to the best accepted standards of the electrical industry. (Id. at p. 445.) The court acknowledged that an electric company using highly charged wires “owed a duty to anyone who, in the exercise of a lawful occupation in a place where he had a legal right to be, was likely to come into contact with deadly wires.” (Id. at p. 448.) However, the care to be exercised is “commensurate with and proportionate to reasonably foreseeable consequences, not insurance against every possible accident . . . .” (Id. at p. 449.) The wires were plainly visible, and a statutory provision and safety order prohibited moving materials within 6 feet of an overhead high-voltage wire. Under these circumstances:
“[Defendant] may well be said to have safely assumed that appellant and his employers would have obeyed such standards and that appellant would not have brought the rod within such a dangerous distance of the wires. [Citation.] The mere fact that the power line is not insulated [citations], or that the defendant knows that improvements are being made near his power line [citation], does not of itself give rise to liability where . . . there is no reason to know that equipment used will be in dangerous proximity to the wires.” (Perrine, supra, 186 Cal.App.2dat p. 449.)
· Finally, in Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387 (Krongos), the plaintiff was electrocuted when a cable he was holding touched an overhead high voltage line, and alleged PG&E was negligent in constructing the wires an insufficient height from the ground and without insulation. (Id. at pp. 390-391.) The court affirmed summary judgment for the utility, holding that on the undisputed facts, the utility did not breach its duty of due care as a matter of law. The court observed the case was controlled by Perrine, Pascoe and Hayden:
“Here, PG&E had constructed and maintained its power line in a manner that rendered it safe under all ordinary circumstances. The line was constructed in accordance with . . . General Order 95, which required a minimum ground clearance of at least 25 feet. In fact, the line was nearly 29 feet above the ground at the point where it was contacted. Moreover, the line was also properly equipped with high voltage warning signs. Finally, unlike the utilities in Perrine, Pascoe and Hayden, PG&E did not have express notice that construction-related activity would take place at the jobsite. If the utilities in those cases were found not to be negligent even though they knew of the construction activity, how then can PG&E be held liable when it was never informed that construction-related activity would occur near its line?” (Krongos, supra, 7 Cal.App.4th at p. 397.)
There are no facts in Paulson’s case, disputed or otherwise, to differentiate it from Hayden, Pascoe, Perrine, or Krongos. At most, Edison knew that construction activity would occur sometime in the area of its high-voltage wires. Under Hayden, Pascoe, and Perrine, this knowledge alone does not permit the conclusion Edison breached its duty of due care to Paulson. Neither Paulson’s employer nor others involved in the construction advised Edison of the intended use of the crane on the date of the accident or requested Edison to undertake any special measures. The operation of a crane is permitted in proximity to high-voltage conductors, so long as a clearance of ten feet is maintained, and Paulson and the crane operator were cognizant of those rules. Edison maintained its high-voltage lines in compliance with General Order 95 and reasonable utility engineering practices. In short, no evidence exists of any breach of duty.
Paulson insists the trial court overlooked his expert’s testimony that Edison had a duty “to go to the site, ‘take charge’, and ‘ask questions’ to insure that they knew what work [was] to be performed around or in close proximity to their facilities,” and breached its duty “when they failed to know all the details of the work being performed by Paulson . . . .” But Hayden, Pascoe, Perrine, and Krongos are clear that the duty Clark posits does not exist, and “fail[ure] to know” does not breach a utility’s duty of due care, which is “commensurate with and proportionate to reasonably foreseeable consequences, not insurance against every possible accident . . . .” (Perrine, supra, 186 Cal.App.2d at p. 449.) As Perrine stated, “The mere fact that . . . the defendant knows that improvements are being made near his power line . . . does not of itself give rise to liability where . . . there is no reason to know that equipment used will be in dangerous proximity to the wires.” (Ibid.) This case is no different from Perrine, Pascoe and Hayden, compelling the conclusion that the undisputed facts establish Edison did not violate its duty of due care to Paulson.
DISPOSITION
The judgment is affirmed. Southern California Edison Company is to recover its costs on appeal.
We concur: COOPER, P. J., RUBIN, J.