Opinion
F078402 F078557
03-16-2021
Araceli Castellano ZUNIGA, Plaintiff and Respondent, v. CHERRY AVENUE AUCTION, INC., et al., Defendants and Appellants.
Horvitz & Levy, David M. Axelrad, Stephen E. Norris, Burbank, Yen-Shyang Tseng ; Hollingshead & Associates, John W. Beebe ; Law Office of Patrick J. Campbell and Patrick J. Campbell, Twentynine Palms, for Defendants and Appellants. The Homampour Law Firm, Arash Homampour, Sherman Oaks; The Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts III. and IV. of the Discussion.
Horvitz & Levy, David M. Axelrad, Stephen E. Norris, Burbank, Yen-Shyang Tseng ; Hollingshead & Associates, John W. Beebe ; Law Office of Patrick J. Campbell and Patrick J. Campbell, Twentynine Palms, for Defendants and Appellants.
The Homampour Law Firm, Arash Homampour, Sherman Oaks; The Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiff and Respondent.
FRANSON, Acting P.J. Defendants own and operate an outdoor swap meet in Fresno. In August 2013, plaintiff and her husband rented two vendor spaces at the meet. When they were setting up their booth in those spaces, a 28-foot metal pole holding their advertising banner touched an overhead power line. Plaintiff and her husband were electrocuted, and he died. A jury found defendants were 77.5 percent at fault and plaintiff's damages totaled $12.25 million. As a result, a judgment for approximately $9.5 million was entered against defendants.
On appeal, defendants contend they owed no duty of care to plaintiff because the danger presented by the overhead power line was open and obvious. We, like the trial court, conclude the evidence presented in this case did not establish as a matter of law that the danger was open and obvious. In particular, it was not obvious that the line was uninsulated, that it was energized, or that the amount of electricity being transmitted was lethal. Thus, a warning would not have been superfluous; it would have provided information that was not obvious.
Defendants also contend the Privette doctrine should be extended to and protect them from liability. (See Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 ( Privette ).) Privette established the general rule that the hirer of an independent contractor is not liable to the independent contractor's employees who sustain work-related injuries. The principal rationale for the Privette doctrine is that the hirer's liability should not be greater than the liability of a negligent independent contractor who is protected by workers' compensation insurance. Because no workers' compensation insurance covered the injuries to plaintiff and her husband, we conclude the Privette doctrine should not be extended to the landlord-tenant relationship that existed in this case.
The unpublished portions of this opinion address damages and costs. Based on our review of the special verdict form, the jury instructions, the jurors' question about damages, and closing arguments, we conclude the jury's award to plaintiff of past and future "Bystander Emotional Distress Damages" for being present and witnessing the death of her husband did not duplicate the award of emotional distress damages resulting from the electrocution of plaintiff herself. Accordingly, the damages awarded for those categories will be upheld. Also, plaintiff was the prevailing party and properly awarded her costs.
We therefore affirm the judgment.
FACTS
Defendant Cherry Avenue Auction, Inc., a California corporation, has operated an outdoor swap meet on the same site in Fresno for over 40 years. Defendant W.D. & M.S. Mitchell Family Limited Partnership, an entity organized under Texas law, owns the land on which the swap meet operates. Defendant Kinsman Enterprises, LLC manages that property. In this opinion, we refer to these entities collectively as "Cherry Avenue." Two brothers, Neil and James Burson, own Cherry Avenue.
Cherry Avenue's swap meets are held on Tuesdays and Saturdays from 6:30 a.m. to 3:30 p.m. in an open-air market containing approximately 850 vendor spaces. Cherry Avenue rents the spaces to vendors, who can reserve them by the month or, based on availability, rent them by the day. The number of vendors on a particular day may reach 500 because some vendors occupy more than one space. The rent charged varies by location and ranges from $25 to $100 per space. Most vendors set up a frame holding a fabric canopy in the space they rent. Neil Burson estimated that about 30 percent of vendor booths have poles with upright advertising banners or flags attached.
Plaintiff Araceli Zuniga and her husband Jose Flores were married in Los Angeles in January 2009. That year, they began selling merchandise at swap meets in the Los Angeles area. They owned a booth with a frame made of metal tubing and a fabric canopy. The frame could be disassembled for transport and reassembled at the swap meet. They attached two 28-foot metal poles holding advertising banners to the booth's frame. The purpose of the banners was to attract customers.
In August 2013, Zuniga and her husband rented spaces 38 and 39 from Cherry Avenue. The previous times Zuniga and her husband had been at the swap meet, they have been located in a different area. Spaces 38 and 39 are among approximately 20 vendor spaces located under a power line that was 26 feet and six inches above the ground. That power line was owned and maintained by Pacific Gas and Electric Company and had been installed in the 1930's.
When Zuniga and her husband arrived the morning of August 24, 2013, they assembled their booth on its side and attached the poles with the banners. When they tilted the booth upright, one of the 28-foot poles came in contact with the power line. Zuniga testified their practice was to lift the frame on a count of three and "when we counted to three, I felt like my whole body went cold." She stated: "When I woke up, I felt that my body was all cold, and I felt pain in my body. I could—I could smell a smell of something burnt. And the taste of metal that I could taste in my mouth." Zuniga saw her husband lying on the ground, ran to him and said: "Calm down. Everything is going to be all right. You need to be strong in order to get out of this. You can't—you can't leave me. I need you here with me. You are the only person that I have here." He moved his lips and died. The parties stipulated his cause of death was electrocution. He was 36 years old. After the incident, Pacific Gas and Electric Company sent a compliance supervisor to inspect the power lines. His inspection did not identify anything that needed attention.
Zuniga and her husband had used their booth and 28-foot advertising banners at Cherry Avenue's swap meet approximately eight times before the incident. Zuniga produced a Cherry Avenue "Sellers Permit" for swap meets held on June 25th, July 16th and July 23rd of 2013. The preprinted seller permits set forth certain seller responsibilities, nine rules and regulations, and a notice about the consequences of selling counterfeit or illegal goods. The preprinted permits contain blank lines for the row and space being rented and a line for the initials of the person issuing the permit. Permits must be kept by sellers at the space rented at all times and sellers without a permit at the time of space verification are required to obtain one by paying the regular fee. The permits do not contain a warning about the power lines and place no restrictions on advertising banners.
James Burson, an owner of Cherry Avenue, testified that, before the incident, he knew the power lines were dangerous, uninsulated and deadly. When asked if it occurred to him before the incident that people had flags underneath the power lines and might be electrocuted, he answered: "It didn't occur to me, because nothing was ever near those lines, no. So, it didn't occur to me." Neil Burson, the other owner, testified he did not know what voltage the power lines carried and he "wouldn't know the difference in insulated or uninsulated high voltage. They all look the same to me." When asked if he knew that someone putting a 28-foot pole by the power lines could be electrocuted and die, Neil Burson answered: "I've always known that they're not to be gotten near. So, I never considered somebody might throw a kite up there, because I know you stay away from them." During cross-examination, Zuniga's attorney mentioned the idea that the power line was obviously dangerous and said, "it wasn't obviously dangerous to you, and you're the one that owns this business, correct?" Neil Burson answered, "Correct."
Zuniga testified that, on the day of the incident, she did not notice the lines overhead. She also testified she knew overhead electrical lines could be dangerous if you touched them. Zuniga's safety expert, Brad Avrit, testified that if someone goes to spaces 38 and 39 and looks up, they will see the power lines and there was nothing directly overhead to obscure the view of the lines. When asked if it is common knowledge that electrical power lines are dangerous, he answered: "As a broad generality, yes." Avrit also was asked: "Does the average person need to know that an overhead power line is energized in order to deduce whether or not it's dangerous?" He responded: "The average person needs to be reminded of that, particularly if they're working at ground level and you have power lines that are up above." Avrit also testified he did not find any fault with Zuniga and her husband under the reasonably prudent person standard, stating:
"I think they acted as you would expect somebody that's erected this booth many times before, never had an issue with it, and—and in this case, they are concentrated on assembling it, they're down at ground level, and going to tilt it up. I don't find what they did unreasonable under the circumstances. They were -- they were being human. They had noticed other people have big flags, they put up a big flag. That's—that's reasonable and normal behavior."
Avrit also described the "HIGH VOLTAGE" sign that he observed near the top of the pole supporting the power lines, stating the letters were approximately three inches tall. A photograph of the sign was introduced into evidence.
PROCEEDINGS
In August 2014, Zuniga filed a complaint for negligence against Cherry Avenue. On August 22, 2018, prior to voir dire of prospective jurors, the panel heard counsel for each side provide a brief overview of the lawsuit. They also heard the trial court read the parties' stipulation of facts and a first set of jury instructions.
Those jury instructions followed the Judicial Council of California Civil Jury Instructions (CACI) addressing premises liability. After using CACI No. 1000 to define the essential elements of a premises liability claim, the court addressed Cherry Avenue's basic duty of care as the landowner by stating:
"A person who owns, leases, or controls property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. A person who owns, leases, or controls property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could reasonably expect it to harm others.
"In deciding whether Cherry Avenue Auction used reasonable care, you may consider, among other factors, the following: The location of the property; the likelihood that someone would come on the property in the same manner as Araceli Zuniga did; the likelihood of harm; the probable seriousness of such harm; whether Cherry Avenue Auction knew or should have known of the condition that created the risk of harm; the difficulty of protecting against the risk of such harm; and the extent of Cherry Avenue Auction's control over the condition that created the risk of harm." (See CACI No. 1001, Basic Duty of Care.)
Next, based on CACI Nos. 1003 and 1004, the court instructed the panel on unsafe conditions and obviously unsafe conditions by stating:
"Cherry Avenue Auction was negligent in the use or maintenance of the property if, one, a condition on the property created an unreasonable risk of harm; two, Cherry Avenue Auction knew or through the exercise of reasonable care should have known about it; and, three, Cherry Avenue Auction failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition.
"If an unsafe condition of the property is so obvious that a person could reasonably [be] expected to observe it, then the owner does not have to warn others about the dangerous condition; however, the owner still must use reasonable care to protect against the risk of harm if it is foreseeable that the condition may cause injury to someone who, because of necessity, encounters the condition."
On August 23, 2018, a jury was empaneled, counsel made opening statements, and the presentation of witnesses began. On August 29, 2018, the last witness testified, and counsel presented their closing arguments. The arguments addressing damages are discussed in part III.B.3. of this opinion. The next day, the trial court gave the jury its final instructions. On the duty of care, a central issue in this appeal, the jury was instructed:
"A person who owns, leases, or controls property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. A person who owns, leases, or controls property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could reasonably be expected to harm others."
After informing the jury of the factors to consider in determining whether Cherry Avenue used reasonable care, the trial court stated:
"The Defendants were negligent in the use or maintenance of the property if, one, a condition on the property created an unreasonable risk of harm; two, the Defendants knew or through the exercise of reasonable care should have known about it; and three, the Defendants failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition.
"If an unsafe condition of the property is so obvious that a person could reasonably be expected to observe it, then the owner, lessor, or person who controls the property does not have to warn others about the dangerous condition."
This sentence is the first sentence of CACI No. 1004. The second sentence of CACI No. 1004, which was added by a May 2018 revision and read to the prospective jurors at the start of the case, was not included.
In addition, the trial court told the jury: "Landowners are required to maintain land in their possession and control in a reasonably safe condition, and this duty is non-delegable." The court informed the jury of Cherry Avenue's claim that the negligence of Zuniga and her husband contributed to the harm and that, if the jury found one or both negligent, the jury would have to determine the percentage of their responsibility.
On September 4, 2018, the jury reached its verdict. The jury found Cherry Avenue, Zuniga, and her husband were negligent and held Cherry Avenue 77.5 percent responsible, Zuniga 11.25 percent responsible and her husband 11.25 percent responsible. The jury found the damages totaled $12.25 million. The special verdict form is described in more detail in the unpublished portion part III.B.1. of this opinion.
Based on the jury's findings that Cherry Avenue was 77.5 percent responsible and damages totaled $12.25 million, the trial court entered judgment for plaintiff in the amount of $9,493,750 on September 6, 2018. The court also awarded prejudgment interest of $470,785.96 pursuant to Code of Civil Procedure section 998 and Civil Code section 3291.
Cherry Avenue filed a notice of intent to move for new trial and a notice of motion for judgment notwithstanding the verdict. In November 2018, the court denied both motions. Later in November, Cherry Avenue filed a notice of appeal challenging the judgment and the order denying its motion for judgment notwithstanding the verdict. The appeal was assigned case No. F078402.
Cherry Avenue also filed a motion to tax costs claimed by Zuniga in her memorandum of costs. In December 2018, the trial court granted the motion in part, taxing $2,055.25 of the costs claimed, while rejecting most of Cherry Avenue's challenges. Cherry Avenue also filed a notice of appeal challenging the order regarding costs. That appeal was assigned case No. F078557. In January 2021, this court ordered the two appeals consolidated. DISCUSSION
Cherry Avenue contends the judgment and award of costs should be reversed and a judgment entered in its favor because it owed no duty to Zuniga and her husband. First, Cherry Avenue argues the Privette doctrine, as extended by Laico v. Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649, 20 Cal.Rptr.3d 307 ( Laico ), means a commercial lessor delegates to its tenants the responsibility of ensuring they safely perform their work on the leased property. Second, Cherry Avenue contends it owed no duty to warn about or remedy the power lines' dangers because those dangers were open and obvious. We reject both arguments.
I. PRIVETTE DOCTRINE
A. Overview
In Privette, supra , 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721, our Supreme Court adopted a principle of nonliability, holding that a person who hires an independent contractor to do dangerous work is not liable when an employee of the independent contractor suffers a work-related injury. ( Id. at p. 692, 21 Cal.Rptr.2d 72, 854 P.2d 721.) In other words, "[g]enerally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work." ( SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594, 129 Cal.Rptr.3d 601, 258 P.3d 737 ( SeaBright ).)
This specific rule of nonliability was adopted for two reasons. First, workers' compensation insurance usually provides the exclusive remedy for employees who are injured on the job. As a result, allowing the employee to recover from the contractor's hirer, who did not cause the injury, would unfairly subject the hirer to greater liability than that faced by the contractor whose negligence caused the injury. ( Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 204, 115 Cal.Rptr.2d 853, 38 P.3d 1081 ( Hooker ).) Second, "[b]y hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor's employees to ensure the safety of the specific workplace that is the subject of the contract." ( SeaBright, supra , 52 Cal.4th at p. 594, 129 Cal.Rptr.3d 601, 258 P.3d 737, italics omitted.) Such delegation includes any "duty the hirer owes to the contractor's employees to comply with applicable statutory or regulatory safety requirements," such as those mandated by Cal-OSHA. ( Ibid. )
In light of Cherry Avenue's arguments about the scope of the Privette doctrine, we briefly describe Supreme Court decisions extending the doctrine. First, hirers are protected "from liability to the independent contractor's employee even when the basis for liability was that the hirer failed to provide in the contract that the contractor must take special precautions to avert the risks of the work. ( Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 256–257 [74 Cal.Rptr.2d 878, 955 P.2d 504]." ( Johnson v The Raytheon Co., Inc. (2019) supra , 33 Cal.App.5th 617, 628, 245 Cal.Rptr.3d 282.) Second, Privette applies when the employee's theory of liability is that the hirer negligently hired the independent contractor. ( Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1238, 108 Cal.Rptr.2d 617, 25 P.3d 1096 ; see Johnson, supra , at p. 628,245 Cal.Rptr.3d 282.) Third, " Privette applies when the injured employee's cause of action against the hirer of the independent contractor is based on the hirer's failure to comply with statutory or regulatory workplace safety requirements." ( Johnson, supra , at p. 628, 245 Cal.Rptr.3d 282, citing SeaBright, supra , 52 Cal.4th at p. 594, 129 Cal.Rptr.3d 601, 258 P.3d 737.)
B. Scope of Privette Doctrine
Based on Privette and subsequent Supreme Court decisions, we conclude the Privette doctrine applies to situations where there is a hirer (often a landowner), an independent contractor hired to perform a task, and an employee of the independent contractor who was injured on the jobsite. Here, Cherry Avenue formed a commercial landlord-tenant relationship with Zuniga and her husband when Cherry Avenue rented them spaces at the swap meet. There was no hiring of an independent contractor and there was no injury to an employee who was covered by workers' compensation insurance. Therefore, based on the plain language of our Supreme Court's decisions, we conclude the Privette doctrine does not apply to the landlord-tenant relationship between Cherry Avenue and Zuniga.
C. Extending the Privette Doctrine
Next, we consider Cherry Avenue's argument that Laico extended the Privette doctrine beyond situations where a landowner hired an independent contractor. We reject this argument because it misreads Laico. Furthermore, regardless of Laico , we conclude it is not appropriate for this court to extend the Privette doctrine to the relationship created by Cherry Avenue and Zuniga and her husband.
In Laico , the Sixth District's discussion plainly shows it was not applying the Privette doctrine to conclude the landowner owed no duty to Laico. First, the court stated it found "sufficient similarity in the plaintiffs' theory of the case that Privette , Toland , and Hooker provide a useful analogy to the issues presented here." ( Laico, supra , 123 Cal.App.4th at p. 668, 20 Cal.Rptr.3d 307, italics added.) This reference to Privette and other cases providing a useful analogy cannot be reasonably interpreted to mean the Sixth District applied the Privette doctrine to the landowner in that case. Second, the Sixth District identified the legal principles it was applying by referring to (1) Civil Code section 1714 as the source of a property owner's general duty of care towards others and (2) the analysis set forth in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 for creating exceptions to the statutory duty to use ordinary care in the management of one's property. ( Laico, supra , 123 Cal.App.4th at pp. 659–666, 20 Cal.Rptr.3d 307.) In short, the court was applying rules of law governing premises liability and was not applying the Privette doctrine. The rules are readily apparent in the court's summary of its decision, which stated: "[W]e cannot find a basis for finding premises liability on the facts of this case. Plaintiffs have not shown the existence of a dangerous condition of land owned by [Chevron U.S.A.] or under its control; instead, the danger consisted of hazardous conduct by the occupant of that land through its employees. Plaintiffs further failed to establish [Chevron U.S.A.'s] knowledge of the danger, the right to inspect, or the ability to discover and remedy hazards of the workplace. [Chevron U.S.A.'s] duty of care as a landowner did not encompass a duty to oversee the testing performed by the premises occupant, [Laico's employer]." ( Id. at p. 670, 20 Cal.Rptr.3d 307.)
In closing our discussion of the Privette doctrine, we conclude it is not appropriate to extend that doctrine to landlord-tenant relationships. Doing so would overturn established rules of premises liability that govern a land possessor's duty to third parties when a dangerous condition exists on the property. Such a fundamental shift in the law is best done by the Legislature or our Supreme Court. Accordingly, we next consider how the rules of premises liability apply to the facts of this case.
II. PREMISES LIABILITY
A. The Duty of Care and Exceptions
In 1968, the California Supreme Court discarded the common law approach and determined that premises liability should be handled under ordinary negligence principles. ( Rowland, supra , 69 Cal.2d at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561 ; see Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2020) ¶ 6:10, p. 6-9; 12 Witkin, Summary of Cal. Law (11th ed. 2017), Real Property, § 665, p. 752 [liability under foreseeability test].) The court identified the source of the landowner's duty by referring to Civil Code section 1714, the current version of which provides: "(a) Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself." (Italics added.) The court stated that, under Civil Code section 1714, the test for liability applicable to the possessor of land "is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others." ( Rowland, supra , at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561.) Thus, pursuant to the general rule in Civil Code section 1714, a landlord owes a duty to its tenants to exercise ordinary care.
The general duty to exercise ordinary care in one's activities is subject to judicially created exceptions. Courts, however, create exceptions only where clearly supported by public policy. ( Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1143, 210 Cal.Rptr.3d 283, 384 P.3d 283.) The most important public policy "factors are ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ " ( Ibid. , citing Rowland, supra , 69 Cal.2d at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561.)
Here, the parties agree that, in certain circumstances, a landlord has no duty to remedy or warn of a dangerous condition that is open and obvious. The scope of the no-duty rule for open and obvious dangers, however, is disputed. That dispute raises a question of law that does not need to be decided to resolve this appeal. Instead, we assume Cherry Avenue's argument about the exception's scope is correct and address the question of whether the overhead power lines were an open and obvious danger.
Cherry Avenue argues the only exception to the no-duty principle for open and obvious dangers is narrow and arises where the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, a person might choose to encounter the danger. (Kinsman v. Unocal Corp. (2005) supra , 37 Cal.4th 659, 673, 36 Cal.Rptr.3d 495, 123 P.3d 931.) Zuniga argues the exception is broader and cites Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 273 Cal.Rptr. 457, which states that "a possessor of land may, under certain circumstances, be liable for injuries caused by a failure to remedy an obvious or observable danger if ‘harm was foreseeable despite the obvious nature of the danger. ’ " (Id. at p. 121, fn. 12, 273 Cal.Rptr. 457.) Osborn refers to necessity as an example of circumstances where it is foreseeable that an open and obvious danger may cause injury. (Id. at p. 122, 273 Cal.Rptr. 457.)
B. Open and Obvious Danger
1. Overview
Stated in general terms, the no-duty exception for open and obvious dangerous conditions provides that " ‘if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.’ " ( Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447, 221 Cal.Rptr.3d 701.) Thus, the rationale for the exception to the general duty of ordinary care is that the foreseeability of harm usually is absent because third parties will perceive the obvious and take action to avoid the danger. ( Ibid. )
Immediately prior to its deliberations, the jury was instructed on open and obvious dangerous conditions using the version of CACI No. 1004, Obviously Unsafe Conditions, that was in effect prior to its revision in May 2018. The court told the jury: "If an unsafe condition of the property is so obvious that a person could reasonably be expected to observe it, then the owner, lessor, or person who controls the property does not have to warn others about the dangerous condition."
2. Contentions and Trial Court's Determinations
Cherry Avenue's motion for judgment notwithstanding the verdict argued (1) whether it owed any duty to Zuniga was a question of law for the court and (2) it owed no duty to warn or remedy the open and obvious power lines that Zuniga and her husband did not need to encounter. Cherry Avenue asserted the evidence showed the power lines had been in place for over 80 years, the lines were readily visible and discernible from the ground below, and there were no impediments such as trees or buildings to obscure the view of the lines.
The trial court's order denying the motion for judgment notwithstanding the verdict stated Cherry Avenue's argument that it had no duty to warn or remedy the hazard created by the power lines hinged on Cherry Avenue's claims that the power lines were open and obvious and, thus, foreseeability of injury was absent. The court rejected this argument, stating: "The problem with this position is that the premise is faulty, i.e., there was abundant evidence the danger posed by the power lines is not open and obvious." The court also stated: "[T]here was abundant evidence that [Cherry Avenue] created the dangerous condition by establishing vendor spaces under the power lines all the while knowing that people would set up booths under the power lines and raise banners to draw attention to their booths." In addition, the court found it "foreseeable that persons would not see, or more likely, appreciate the danger posed by [the] high voltage power lines. There was abundant evidence to this effect during the trial."
3. Evidence About the Danger
Avrit, Zuniga's safety expert, testified that Cherry Avenue created a hazard for its vendors by creating vendor spaces directly below the power lines and then renting those spaces to vendors. Avrit testified "that studies show that people do not clearly recognize the difference between insulated and uninsulated lines" and, therefore, "most people aren't going to know ... whether or not the lines that they may be looking at have or do not have insulation on them and can protect them from electrical shock." Avrit also testified most people have little or no understanding of the amount of electricity flowing through the lines and, because lines usually are silent, they cannot tell by looking at them whether the lines are active or inactive. In addition, Avrit testified that most people do not understand that electricity can arc to a metal object even if the object does not come into contact with the line and, furthermore, they would not be able to tell what a safe distance is by looking at the line. The distance depends on the amount of voltage, and the higher the voltage, the greater the distance for a potential arc. Avrit also testified that some people might look at the poles used for the line and think of them as telephone poles, which might make them uncertain whether the lines were power lines or telephone lines.
Avrit stated that, on a clear day, there is no noise or sound caused by the power running through the line and that on a foggy day the lines will "crackle a little bit."
Cherry Avenue's safety expert John Tyson was asked during cross-examination: "And it is very common for the public not to know power lines are energized and uninsulated, correct?" Tyson answered, "Well, I think so, yes. I can't give you any numbers though."
Cherry Avenue's expert Ralph Crawford, a forensic electrical engineer, was asked during cross-examination: "The fact is that you agree energized lines can cause electric shock or electrocution, which is death, and is not obvious to the average person, correct?" Crawford responded, "To the extent that I know anything about the average person, I would agree that could be the case." Similarly, during a videotaped deposition that was presented to the jury, Crawford answered "Yes" when asked: "The fact that these energized lines could cause electrical shock or electrocution is not obvious to your average person? [¶] Do you agree?" As described earlier, Neil Burson testified the power line was not obviously dangerous to him.
The foregoing testimony adequately supports the trial court's determination that the evidence presented was adequate to show "the danger posed by the power lines is not open and obvious." As a result, we cannot determine as a matter of law that the power line was an open and obvious danger. (See Stark v. Lehigh Foundries, Inc. (1957) 388 Pa. 1, 8, 130 A.2d 123 [" ‘presence of the power lines in and of itself did not indicate obvious danger’ "].) The finding that the danger was not open and obvious can be restated in terms of whether a warning to Zuniga and her husband would have been superfluous. A warning that the overhead lines were uninsulated and energized with enough electricity to cause death would have provided useful information to Zuniga and her husband—information that was not available simply by looking at the power lines. Thus, the warning would not have been superfluous. (Rest.3d Torts, supra , § 51, com. k , p. 252 ["Risks that are known, open, or obvious already provide notice to those who might be exposed to the risk, making a warning superfluous"].)
Cherry Avenue's opening brief contains a footnote stating courts in Pennsylvania along with Alabama, Arizona, Georgia and Kansas hold the dangers of visible power lines are not open and obvious and another footnote citing cases from 19 state courts that Cherry Avenue contends recognize the open and obvious nature of the danger created by power lines.
4. Contributory Negligence
Prior to our Supreme Court's adoption of principles of comparative fault in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, a plaintiff's contributory negligence barred recovery against a defendant whose negligent conduct would otherwise have made the defendant liable to the plaintiff for the harm sustained. ( Id. at pp. 809–810, 119 Cal.Rptr. 858, 532 P.2d 1226.) The application of California's now-abandoned doctrine of contributory negligence to power lines was described in Mark v. Pacific Gas & Electric Co. (1972) 7 Cal.3d 170, 101 Cal.Rptr. 908, 496 P.2d 1276 :
"[O]ur courts have often held that one who knowingly touches a high voltage power line or wire may be held contributorily negligent as a matter of law, since
the danger of electrical shock from such high voltage lines is ‘presumed to be familiar to men of average intelligence.’ ( Andrews v. Valley Ice Co. , 167 Cal. 11, 20 [power lines: decedent was a construction worker who ‘must have known the danger of getting near highly charged wires’]; see Shade v. Bay Counties Power Co. , 152 Cal. 10, 12, [hanging power lines: decedent was warned not to touch lines and "knew the danger of live wires"]; cf. Mosley v. Arden Farms Co. , 26 Cal.2d 213, 217, [157 P.2d 372, 158 A.L.R. 872] [all men are charged with knowledge of ‘the qualities, characteristics, and capacities of things and forces in so far as they are matters of common knowledge at the time and in the community ...’]; Rest.2d Torts, supra , § 290, and illus. 1 [one who grabs high voltage power line is negligent notwithstanding ignorance of danger if danger is matter of common knowledge in community].)" ( Mark v. Pacific Gas & Electric Co., supra , 7 Cal.3d at pp. 180–181, 101 Cal.Rptr. 908, 496 P.2d 1276.)
This application of the doctrine of contributory negligence is similar in effect to a rule of law stating possessors of land have no duty of care to protect third parties from injuries caused by power lines. In this appeal, we will not interpret cases decided before Li v. Yellow Cab in 1975 as supporting a blanket rule of law that power lines are always an open and obvious danger for which landlords never have a duty of care. In other words, we decline to resurrect the doctrine of contributory negligence by recasting it as the absence of a duty of care.
Thirty years ago, the Illinois's Supreme Court commented on "[t]he manifest trend of the courts in this country ... away from the traditional rule absolving, ipso facto, owners and occupiers of land from liability for injuries resulting from known or obvious conditions, and toward the standard expressed in section 343A(1) of the Restatement (Second) of Torts (1965)." ( Ward v. K Mart Corp. (1990) 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223, 231.) Cherry Avenue's argument for a blanket rule of law that the danger created by power line imposes no duty on landlords is contrary to this nation-wide trend as well as the approach California courts have taken to open and obvious dangers. (See Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184, 18 Cal.Rptr.3d 152 ; Rest.3d Torts, supra , § 51 [general duty of land possessors].)
See footnote *, ante .
DISPOSITION
The judgment is affirmed. Respondent shall recover her costs on appeal.
WE CONCUR:
SMITH, J.
SNAUFFER, J.