TAU FAH MARK et al., Plaintiffs and Appellants, v. PACIFIC GAS AND ELECTRIC COMPANY et al., Defendants and Respondents.
S.F. No. 22846
In Bank
May 17, 1972.
7 Cal. 3d 170 | 496 P.2d 1276 | 101 Cal. Rptr. 908
Charles O. Morgan, Jr., and Morgan & Moscone for Plaintiffs and Appellants.
Thomas M. O‘Connor, City Attorney, Edward J. Nevin and Michael C. Killelea, Deputy City Attorneys, Richard H. Peterson, Noel Kelly, Bacon, Stone, O‘Brien & Hammond, W. C. Bacon and W. F. Stone for Defendants and Respondents.
OPINION
BURKE, J.—Plaintiffs appeal from a judgment of nonsuit entered by the San Francisco Superior Court at the close of plaintiffs’ case in a wrongful death action. Plaintiffs’ decedent, Calvin Mark, was electrocuted while attempting to remove or unscrew a light bulb from a street lamp located
As we have repeatedly held, a nonsuit in a jury case “‘may be granted only when disregarding conflicting evidence, giving to the plaintiffs’ evidence all the value to which it is legally entitled, and indulging every legitimate inference which may be drawn from the evidence in plaintiffs’ favor, it can be said that there is no evidence to support a jury verdict in their favor.‘” (Grudt v. City of Los Angeles, 2 Cal.3d 575, 586-587 [86 Cal.Rptr. 465, 468 P.2d 825]; Pike v. Frank G. Hough Co., 2 Cal.3d 465, 469 [85 Cal.Rptr. 629, 467 P.2d 229]; Elmore v. American Motors Corp., 70 Cal.2d 578, 583 [75 Cal.Rptr. 652, 451 P.2d 84].)
Viewed in the light most favorable to plaintiffs, the evidence disclosed the following facts: Calvin and his three roommates moved into the Chases’ apartment building in June 1964. At once the boys discovered that the light from a street lamp pole standing adjacent to their bedroom window was so bright that it disturbed their sleep; even with the drapes drawn and room lights extinguished the boys were able to read by the light cast by the street lamp. Calvin and his roommates complained to the Chases regarding the light, and Mr. Chase contacted PG&E which advised him to call City‘s street and lighting department. Chase did so and the City directed PG&E to examine the lamp. Thereupon a PG&E inspector attempted to reduce the light‘s glare by partly blackening a portion of the plastic globe or canopy surrounding the bulb; subsequently Chase also blackened part of the globe with aluminum paint. These efforts, however, had no measurable effect in reducing the intensity of the light. The boys themselves called City and PG&E to complain of the matter, but the light remained undiminished in its intensity.
In September 1964 an automobile crashed into the lamp pole, breaking the bulb, knocking the canopy off the top, and bending the pole toward the Chases’ apartment building. Although PG&E replaced bulb and canopy, the pole remained unstraightened. In its bent condition, the pole was only 10 inches away from the edge of a fire escape located just outside the bedroom window, and 55 inches from the window itself, thereby making the lamp easily accessible to the occupants of the room. Having received no effective assistance from Chase, City or PG&E, the boys
Each time the bulb was unscrewed and the light extinguished, employees of PG&E were called to the scene to correct the deficiency. The evidence showed that Luth, a PG&E employee, had screwed the bulb back in place on January 26, 1965, and again on February 6, 1965. On March 3, 1965, another employee, Rosner, was dispatched to correct an outage and was informed by Luth that someone had been tampering with the light fixture; PG&E records confirm that Rosner had been directed to “check for tampering.” Rosner found the bulb unscrewed, was aware that someone had tampered with it, appreciated the danger involved, and attempted, without success, to locate someone in the apartment to warn. Rosner confirmed that there was nothing on the light to indicate that it contained high voltage; he testified that the bulb is “just a little bit larger” than an ordinary light bulb and can be unscrewed in the same manner as an ordinary bulb.
On March 9, 1965, Calvin‘s roommate, Twining, stepped onto the fire escape, removed the protective canopy surrounding the bulb by releasing a wire catch, and attempted to remove the bulb with a towel, but was unable to do so because of inadequate friction. Consequently, Calvin put on his ski gloves to insulate his hands from the heat and was electrocuted while attempting to remove the bulb. Apparently, his hand contacted an uninsulated wire lead which provided electricity for the light. Although photographic evidence indicates that there were two thick copper leads terminating below the porcelain bulb socket, Twining testified that he had never observed wires of any kind in or around the light bulb or at its base.
At trial, plaintiff‘s expert, Oliphant (a consulting electrical engineer registered in California since 1947 and engaged in projects promoting public safety in electrical installations), testified that there was nothing about the light pole to indicate that it contained high voltage, and he suggested that only an expert could make that determination simply by looking at the pole. He further testified that in his opinion the light pole and lamp were not safe, that community standards required that a pole which carries high voltage be placed at least six feet from a building or balcony to prevent possible contact by the public (including trespassing tamperers),
1. Defendants’ Negligence Toward Decedent
In nonsuiting plaintiffs, the trial court held as a matter of law that neither PG&E, the Chases nor the City could be found negligent toward Calvin Mark. Although we agree that nonsuit was properly entered in favor of the Chases and City, we find sufficient evidence to support a jury verdict against PG&E and conclude that nonsuit should not have been granted in its favor.
a. Negligence of PG&E—PG&E asserts that since Calvin was a trespasser with respect to the light pole and bulb, PG&E‘s duty toward him was limited to a duty not to commit affirmative acts of negligence. (See Radoff v. Hunter, 158 Cal.App.2d 770, 774 [323 P.2d 202]; cf. Oettinger v. Stewart, 24 Cal.2d 133, 138 [148 P.2d 19, 156 A.L.R. 1221].) As stated in Radoff, quoting from another case, “‘Many courts, in imposing this duty of reasonable care towards trespassers and licensees, have drawn a distinction between active and passive negligence, and have limited the reasonable care test to overt acts of negligence. [Citation.] California has quite clearly adopted this distinction and imposed a duty to exercise reasonable care toward known licensees or trespassers so far as active operations are concerned.‘” (P. 774.) If Radoff represented the prevailing California rule, we would have difficulty specifying any active negligence on PG&E‘s part in the instant case, for although Calvin could have been found to be a known trespasser, his death resulted from a passive condition upon or within PG&E‘s property.
The active/passive negligence concept, however, no longer represents an inflexible limitation upon the imposition of liability to trespassers or licensees. In Rowland v. Christian, 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496], we traced the evolution of certain special rules for measuring tort liability to trespassers, licensees and invitees. We noted that originally the California rule was that trespassers or licensees were “obliged to take the premises as they find them insofar as any alleged defective condition thereon may exist, and that the possessor of the land owes them only the duty of refraining from wanton or willful injury. [Citations.]” (P. 114.) We next pointed out that an “increasing regard for human safety . . . led to a retreat from this position, and an exception to the general rule limiting liability has been made as to active operations
We then explained that the classifications of trespasser, licensee and invitee, the immunities from liability predicated upon those classifications, and the exceptions to those immunities (such as the active negligence rule) had led to complexity and confusion and often “do not reflect the major factors1 which should determine whether immunity should be conferred upon the possessor of land.” (Pp. 116-117.) Accordingly, in Rowland we declined to follow and perpetuate the foregoing rigid classifications, immunities and exceptions, adopting in their place the basic test “whether in the management of his property he [the possessor of land] has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff‘s status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative. . . . Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it . . . the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.” (P. 119.)2
Although the instant case was tried prior to our decision in Rowland, it is settled that “On appeal, however, we must apply the law as it stands today. . . . ‘It is the general rule that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation and that the effect is not that the former decision was bad law but that
As we have seen, plaintiffs’ evidence was sufficient to indicate that PG&E knew, or at least should have known, that Calvin or his roommates had been unscrewing the bulb of the lamp post;3 that the presence of high voltage current constituted a high risk of harm to anyone tampering with the bulb; that reasonable safety precautions (such as straightening the bent post, locking the canopy in place, or warning of high voltage) could have been taken; and that PG&E‘s failure to take such precautions rendered the lamp post and bulb unsafe.4 As such a trier of fact could reasonably conclude that PG&E‘s failure to warn or to repair this dangerous condition constituted negligence.5 A jury could, of course, conclude otherwise. Yet it seems apparent that plaintiffs were entitled to have the jury consider the question, and consequently the nonsuit in PG&E‘s favor should not have been granted on the theory that, as a matter of law, PG&E was not negligent.6
c. Negligence of City—Plaintiffs’ theory of recovery against defendant City was that City had some measure of control over the street lamp, and had notice that Calvin and his roommates had complained regarding the intensity of the light. At trial, however, plaintiffs failed to establish the nature of the control possessed or exercised by City, or the extent of its knowledge regarding the dangerous condition of the pole or decedent‘s tampering therewith. Moreover, neither the lamp post nor the apartment itself were public property of the City. Following presentation of their case, and during arguments with respect to the motions for nonsuit, plaintiffs seemingly invited a nonsuit in favor of City by offering no argument or response to City‘s motion.
Plaintiffs now suggest that City may have had some affirmative obligation to inspect street lamps for potential hazards.
2. Decedent‘s Contributory Negligence
The trial court also held, in nonsuiting plaintiffs, that decedent was contributorily negligent8 as a matter of law. Ordinarily, the issue of con-
Contributory negligence generally falls within one of two categories: (1) voluntary exposure to the danger arising from defendant‘s negligence, or (2) other conduct falling below the standard of due care, i.e., for an adult, the conduct of a reasonable man under like circumstances. (See 2 Witkin, Summary of Cal. Law, supra, Torts, § 325, pp. 1521-1522; Rest.2d Torts, § 466.) In order for voluntary exposure to danger to constitute contributory negligence, plaintiff “must have knowledge of such facts that, as a reasonable man, he should realize the danger involved,” and “his intentional exposure of himself to the known danger must be unreasonable. In order that it may be unreasonable it is necessary that a reasonable man in his position would not expose himself to it.” (Rest.2d Torts, supra, § 466, com. at p. 512.)
Thus, our 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 [138 P. 699] [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 [92 P. 62] [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 notwith-
The evidence in the instant case failed to establish that Calvin himself knew or suspected that the lamp carried high voltage current, or that he appreciated the risk he took in attempting to unscrew the bulb. He had seen his roommates remove the bulb successfully upon several occasions, and there was nothing about the lamp pole or bulb to indicate any possible danger. Although the jury might have concluded that a 24-year-old college student9 such as Calvin must have known the risk involved, the trial court removed that issue from its consideration.
Therefore, we are left with the question whether, under an objective standard, Calvin, as a reasonable man, should have appreciated the risk of substantial injury or death. Although the authorities indicate that all reasonable men may be deemed to know the risks inherent in touching overhead power lines, we cannot say on the present record that it is a matter of common knowledge either that ordinary street lamps contain high voltage current, or that one risks substantial injury by attempting to unscrew a street lamp bulb of the nature involved herein. As noted above, plaintiffs’ expert, Oliphant, testified that there was nothing about the lamp pole which would indicate that it contained high voltage, and that only an expert could make that determination. Moreover, the fact that the bulb was removed on several occasions without causing an electrical shock is, at least, some indication that Calvin‘s death resulted from an unusual combination of factors with which no lay person may be said to have common knowledge.
It should be kept in mind that upon retrial of this case, defendant PG&E will have the opportunity of establishing, to the jury‘s satisfaction, that decedent knew or should have known the danger involved in attempting to unscrew the bulb in question. For example, defendant may be able to show, by expert testimony or otherwise, that it is a matter of common knowledge in the community that such a danger exists. Nothing in the present record, however, establishes that proposition, and we are unable to say that the matter is so beyond reasonable dispute as to be subject to judicial notice. (
We return to the rule, set forth above, that contributory negligence is not established as a matter of law unless reasonable men could have drawn that conclusion and no other. (Hogue v. Southern Pacific Co., supra, 1 Cal.
Defendant PG&E points out, however, that Calvin‘s conduct violated a public ordinance and urges that such violation constituted contributory negligence per se. Section 585 of the San Francisco Police Code makes it unlawful for “any person . . . without authority, to extinguish any public light,” and plaintiffs concede that Calvin violated this ordinance. The California cases have held that under certain circumstances, the violation of a statute or other regulation may constitute negligence per se, or at least raise a rebuttable presumption of negligence. (See Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, 587-590 [177 P.2d 279]; 2 Witkin, Summary of Cal. Law, supra, Torts, §§ 230-235, pp. 1423-1432, and cases cited.) Similarly such a violation by the plaintiff may constitute contributory negligence per se. (Farole v. Eichman, 39 Cal.2d 822, 824 [249 P.2d 261]; 2 Witkin, supra, §§ 334-337, pp. 1534-1539, and cases cited.) The rule of the foregoing cases is now codified in
“(1) He violated a statute, ordinance, or regulation of a public entity;
“(2) The violation proximately caused death or injury to person or property;
“(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and
“(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.
“(b) This presumption may be rebutted by proof that:
“(1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law . . .”
Defendant PG&E asserts that even if the question of contributory negligence was a matter for the jury to decide, nevertheless nonsuit was proper because Calvin “willfully” violated the above-quoted police ordinance. Defendant has cited no cases which would support this theory, and our research has disclosed none. Were we to accept the premise that one who “willfully” engages in unlawful conduct thereby forfeits any claim to recover in tort for another‘s negligence, we would totally undermine the rationale underlying Rowland v. Christian, supra, 69 Cal.2d 108, 119, that plaintiff‘s status as trespasser should be only one of several factors to be weighed by the trier of fact in determining liability.
Peters, J., Mosk, J., and Schauer, J.,* concurred.
WRIGHT, C. J., Concurring and Dissenting.—I concur with the majority that nonsuits were properly entered against plaintiffs in favor of the defendant landlords and the defendant City and County of San Francisco. I would further hold that the nonsuit was also properly entered in favor of Pacific Gas and Electric Company (P. G. & E.) and, accordingly, I dissent from the majority holding that the judgment in favor of that defendant is to be reversed.
The record fairly establishes, as the majority conclude, that there is sufficient evidence to support a finding of negligent conduct on the part of P. G. & E., its employees or agents, at least for purposes of avoiding a nonsuit on that limited ground. (See Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 586-587 [86 Cal.Rptr. 465, 468 P.2d 825].) Plaintiffs must additionally establish, however, the impropriety of the trial court‘s finding that the decedent was, as a matter of law, contributorily negligent.
Contributory negligence exists as a matter of law where reasonable men could have drawn no other sensible conclusion than that the conduct of the injured party fell below the standard to which he should conform for his own protection. (Hogue v. Southern Pacific Co. (1969) 1 Cal.3d 253, 259 [81 Cal.Rptr. 765, 460 P.2d 965].) An intentional and unreasonable exposure to danger created by defendant‘s negligence, of which danger the decedent had knowledge or had reason to know, constitutes contributory negligence. (Rest.2d Torts, § 466(a).) The majority concede on sound authority that the danger of electrical shock is presumed within the knowledge of all reasonable men.1 The decedent, who was 24 years of age, undisputedly was thus required to conduct himself as would a reasonable man with knowledge of the dangerous propensities of electrical current.
Contrary to inferences which may be drawn from the majority opinion, the mechanics of extinguishing the light in the instant case were fraught
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
The judgment of nonsuit is thus compelled and I would affirm the judgment in its entirety.
McComb, J., and Sullivan, J., concurred.