Hacker v. City of Glendale

• Decision Date: 22 March 1991
• Docket Number: No. B047989,B047989
• Citation: 279 Cal.Rptr. 371,7 Cal.App.4th 120
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 228 Cal.App.3d 1013, 235 Cal.App.3d 157, 7 Cal.App.4th 120 228 Cal.App.3d 1013, 235 Cal.App.3d 157, 7 Cal.App.4th 120 Eleanor HACKER, et al., Plaintiffs and Appellants, v. CITY OF GLENDALE, et al., Defendants and Respondents.

Page 371

279 Cal.Rptr. 371

Previously published at 228 Cal.App.3d 1013, 235 Cal.App.3d 157, 7 Cal.App.4th 120

228 Cal.App.3d 1013, 235 Cal.App.3d 157, 7 Cal.App.4th 120

Eleanor HACKER, et al., Plaintiffs and Appellants, v. CITY OF GLENDALE, et al., Defendants and Respondents.

No. B047989.

Court of Appeal, Second District, Division 7, California.

March 22, 1991.

Review Granted June 20, 1991.

Fogel, Feldman, Ostrov, Ringler & Klevens and Larry R. Feldman, Los Angeles, for plaintiffs and appellants.

Scott H. Howard, City Atty., Carole I. Glovsky, Asst. City Atty., Veatch, Carlson, Grogan & Nelson and Mark A. Weinstein, Los Angeles, for defendants and respondents.

LILLIE, Presiding Justice.

Plaintiffs, the surviving wife and daughter of decedent David Hacker, commenced a wrongful death action against the City of Glendale, George and Joann Nishimoto, and R.D. Werner Company, Inc. Plaintiffs appeal from summary judgment entered in favor of defendants. ¹

FACTS

The third amended complaint alleged that on February 7, 1987, at the request of the Nishimotos decedent was trimming a tree at their residence in Glendale when he was electrocuted by high voltage power lines that passed through the branches of the tree; the power lines were the responsibility of the City of Glendale (city); the city and its employees negligently failed to inspect the power lines and the power line easement in a reasonable manner and at reasonable time intervals, thereby allowing tree branches to intrude into the power lines and the easement. Plaintiffs sued the Nishimotos on the theory of negligent maintenance of premises, and the city on the theory of a dangerous condition of public property (Gov.Code, § 835).

Defendants moved for summary judgment on the ground the doctrine of reasonable implied assumption of the risk bars plaintiffs' recovery. In support of the motion defendants presented excerpts from depositions which showed: Decedent had been in the business of gardening and tree trimming since October 1975. He was trained in tree trimming by a friend who had 13 years of experience in that line of work with Southern California Edison Company. In the year immediately preceding his death, tree trimming constituted 40 or 50 percent of decedent's business. Decedent was electrocuted on property owned by defendants Nishimoto while he was standing on a ladder and trimming a tree in the vicinity of high voltage electrical power lines. Two days before he was electrocuted decedent came to the home of the Nishimotos to give them an estimate of the cost of trimming the tree. At that time Mr. Nishimoto told decedent there were wires running through the tree; decedent replied, "Don't worry about it. I have done it before." While decedent was changing the position of the ladder beneath the tree he looked up at the power lines, which were visible from the ground, and said to his helper, Felipe Ortega, "Watch out, Felipe." Before the fatal accident decedent and his wife (plaintiff Eleanor Hacker) had discussions about the danger of trimming trees near electrical wires; decedent was aware of such danger and on occasion he turned down jobs because electrical wires might interfere with the tree trimming. While decedent was trimming the Nishimotos' tree he was careful to avoid touching the power lines with his body and was careful that the branches he cut did not drop onto the lines.

Plaintiffs opposed the motion presenting evidence which indicated that decedent was not electrocuted by coming into direct contact with a power line, but instead met his death when he came into contact with a branch which was touching a power line.

In reply to plaintiffs' opposition defendants offered the declaration of one Eli Camacho, a retired employee of the Los Angeles Department of Water and Power with 29 years' experience as a tree trimmer, tree trimming supervisor, and tree coordinator. Mr. Camacho stated it is well known in the profession that a live tree branch can conduct electricity; that is why trees often are struck by lightning.

The trial court granted the motion for summary judgment as to all defendants. Plaintiffs moved for "reconsideration and/or new trial" on the ground, inter alia, that the defense of reasonable implied assumption of the risk is not available to defendant city because its negligence is predicated upon violation of a general order, promulgated by the Public Utilities Commission of the State of California, which seeks to ensure the safety of the public in the construction, maintenance, operation and use of overhead electrical lines.

Plaintiffs' motion for reconsideration or new trial was denied. Summary judgment was entered in favor of defendants and against plaintiffs. Plaintiffs appeal from the judgment. ²

DISCUSSION

I

Plaintiffs contend the defense of reasonable implied assumption of the risk should be abolished as a complete bar to recovery and instead should be included as an element of comparative negligence. The weight of authority in California is to the contrary and we therefore reject the contention

In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, the Supreme Court abolished the "all-or-nothing" rule of contributory negligence and replaced it with a system of comparative negligence. In determining the effect of this change on the doctrine of assumption of the risk, the court stated: "[W]e have recognized in this state that this defense [assumption of the risk] overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses. 'To simplify greatly, it has been observed ... that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence, plaintiff's conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence.... Other kinds of situations within the doctrine of assumption of the risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him. Such a situation would not involve contributory negligence, but rather a reduction of defendant's duty of care.' [Citations.] We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of the risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence." (Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 824-825, 119 Cal.Rptr. 858, 532 P.2d 1226; original emphasis.)

In addition to unreasonable implied assumption of the risk discussed in Li, commentators have recognized another form of that defense, viz., reasonable implied assumption of the risk (Gonzalez v. Garcia (1977) 75 Cal.App.3d 874, 878, 142 Cal.Rptr. 503) which occurs where the plaintiff's reasonable conduct in encountering a known danger raises the inference that he has agreed to relieve the defendant of his duty of care. (Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1477, 255 Cal.Rptr. 755.) While Li abolished the defense of unreasonable implied assumption of the risk, it did not determine whether the defense of reasonable implied assumption of the risk survives the adoption of comparative fault. ³ The appellate courts of this state have considered the question, with varying results.

In Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578, it was held that the defense of reasonable implied assumption of the risk was abolished as a separate defense by adoption of the comparative negligence system. While the court noted Li's statement that there may be situations in which plaintiff is "held to agree" to relieve defendant of an obligation of reasonable conduct toward him, the court concluded it is only where plaintiff expressly agrees to assume the risk that defendant is relieved of a duty of care toward plaintiff, thus barring recovery. (Segoviano v. Housing Authority, supra, 143 Cal.App.3d at pp. 168-170, 191 Cal.Rptr. 578.) The court added: "The Supreme Court recognized that implied assumption of the risk if unreasonable could be fairly handled under the comparative negligence concept, i.e., the plaintiff's recovery would be reduced to the extent his own lack of reasonable care contributed to his injury. If the plaintiff's conduct was entirely reasonable under all of the circumstances, we find no basis in reason or equity for barring his recovery. Elimination of RIAR [reasonable implied assumption of risk] as a separate defense avoids punishing reasonable conduct." (Id., at p. 170, 191 Cal.Rptr. 578.)

Segoviano is the only California case which so holds. Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536 concluded that the doctrine of reasonable implied assumption of the risk survives comparative fault as a viable defense. The court there criticized Segoviano, noting that its explanation of rewarding or punishing plaintiff has nothing to do with the propriety of preserving the defense of reasonable implied assumption of the risk. Rather, the explanation "is found in the expectation of the defendant. He or she is permitted to ignore reasonably assumed risks and is not required to take extraordinary precautions with respect to them. The defendant must, however, anticipate that some risks will be unreasonably undertaken, and a failure to guard against those may result in liability." (Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 104-105, 243 Cal.Rptr. 536.) The Ordway court concluded: "The correct analysis is this: The doctrine of reasonable implied assumption of risk is only another way of stating that the defendant's duty of care has been reduced in proportion to the hazards attendant to the event. Where no duty of care is owed with respect to a particular...