Krongos v. Pacific Gas & Electric Co.

• Decision Date: 27 May 1992
• Citation: 7 Cal.App.4th 387,9 Cal.Rptr.2d 124
• Court: California Court of Appeals Court of Appeals
• Parties: Sam KRONGOS, a Minor, etc., et al., Plaintiffs and Appellants, v. PACIFIC GAS & ELECTRIC COMPANY, et al., Defendants and Respondents. A054282.

Page 124

9 Cal.Rptr.2d 124

7 Cal.App.4th 387

Sam KRONGOS, a Minor, etc., et al., Plaintiffs and Appellants, v. PACIFIC GAS & ELECTRIC COMPANY, et al., Defendants and Respondents.

A054282.

Court of Appeal, First District, Division 3, California.

May 27, 1992.

[7 Cal.App.4th 390] Philip M. Arnot, Eureka, for plaintiffs and appellants.

David R. Fuller, Peters, Fuller, Rush, Schooling & Farnsworth, Chico, for defendant and respondent Pacific Gas & Elec. Co.

Laurence A. Kluck, Mathews & Kluck, Eureka, for defendant and respondent Dana Whitaker.

WHITE, Presiding Justice.

On December 7, 1988, Pete Sam Krongos was electrocuted while working in a construction yard when a cable he was holding touched an overhead high voltage line. His widow and children filed suit against Dana L. Whitaker (the lessor of the construction yard) and against Pacific Gas & Electric Company (P.G. & E.). The complaint alleged that the defendants had negligently strung the high voltage wires. The trial court granted defendants' separate motions for summary judgment on the ground that neither defendant owed a duty of due care to the decedent. Plaintiffs have appealed from the summary judgments. We reverse the summary judgment in favor of Whitaker and affirm the summary judgment in favor of P.G. & E.

I FACTS

Viewing the evidence in the light most favorable to plaintiffs, the record discloses the following facts: ¹

At the time of the accident, Pete Sam Krongos was working for J.D. Griggs Construction. Griggs Construction had a contract with the State of California to build a highway bridge north of the town of Orick in Humboldt County. In connection with that project, Griggs leased a "job yard" in Orick from defendant Whitaker to store materials and equipment.

On December 7, 1988, Krongos and another Griggs Construction employee, Clinton Morrow, were working in the job yard stacking timber. Morrow was operating a boom truck, and Krongos was assisting him by attaching the boom cable to bundles of timber. As Morrow was maneuvering the boom, the sun got in his eyes, which caused him to swing the boom into an overhead 12,000-volt power line. Unfortunately, Krongos was holding the boom cable at that very moment. The cable conducted the electricity into Krongos' body, causing his death by electrocution.

P.G. & E. has continuously maintained the power line on the leased property since the early 1950's. The power line was clearly visible, was suspended 28 feet 11 inches above the point where Krongos and Morrow were working, and was constructed and maintained in accordance with California Public Utility Commission standards. P.G. & E. owned the power line and was solely responsible for its maintenance. P.G. & E. had erected the power lines approximately 34 years before Whitaker purchased the subject property.

Because the workers' compensation law barred suit against Griggs Construction, plaintiffs brought suit against Whitaker and P.G. & E. for wrongful death. The complaint alleged that "PACIFIC GAS & ELECTRIC COMPANY and WHITAKER, negligently strung [the] high voltage wires in such a manner so that they were constructed in an insufficient height from the ground ... and Defendants negligently failed to insulate said wires so as to prevent the escape of the current therefrom, ..."

Both defendants brought motions for summary judgment, which the court granted.

With respect to P.G. & E., the court found no triable issue of fact "to establish reasonable foreseeability and there is no duty of care owed by Pacific Gas and Electric to decedent Krongos...." The court made identical findings with respect to Whitaker.

Plaintiffs have appealed from the summary judgments in favor of P.G. & E. and Whitaker.

II DISCUSSION

A. The Cause of Action Against Whitaker.

Plaintiffs first contend that the trial court erred when it granted summary judgment in favor of Whitaker. Plaintiffs argue that Whitaker, as a landlord, owed a general duty of due care to persons coming on his land to protect them from the hazard presented by the high voltage lines. Although we think it unlikely a jury will find that Whitaker breached this duty of due care, we nevertheless conclude that such a duty does exist. Consequently, we reverse the summary judgment in favor of Whitaker.

Under the common law, a landowner's duty of due care to a person coming onto his land turned on whether the person was classified as a trespasser, licensee or invitee. In Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 our Supreme Court repudiated this classification system and substituted the basic approach of foreseeability of injury to others. (Id., at pp. 113-114, 119, 70 Cal.Rptr. 97, 443 P.2d 561; 6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 895, p. 265.) The court held that the "proper test to be applied to the liability of 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, 69 Cal.2d at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561.)

Although the defendant in Rowland v. Christian was an occupier of land, the general duty of care established in that case has been extended to lessors who are not in possession of the leased premises. (Becker v. IRM Corp. (1985) 38 Cal.3d 454, 467, 213 Cal.Rptr. 213, 698 P.2d 116; Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 781, 258 Cal.Rptr. 669; Wylie v. Gresch (1987) 191 Cal.App.3d 412, 418, 236 Cal.Rptr. 552.) "As the owner of property, a lessor out of possession must exercise due care and must act reasonably toward the tenant as well as to[ward] unknown third persons." (Mora, supra, 210 Cal.App.3d at p. 781, 258 Cal.Rptr. 669.) Thus, in a general sense, Whitaker did have a duty to exercise due care to protect third persons--such as Krongos--who came onto the leased premises.

However, that does not answer the specific question before us: namely, did Whitaker have a duty to protect third persons against the obvious danger of operating a boom truck near high voltage lines? Whether a "duty" exists in a particular case is a question of law. "Duty" is merely a conclusory expression used when the sum total of policy considerations lead a court to say that the particular plaintiff is entitled to protection. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334; Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912; Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 307, 191 Cal.Rptr. 704.)

Generally, 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. (6 Witkin, supra, Torts § 930, p. 301.) However, this is not true in all cases. "[I]t is foreseeable that even an obvious danger may cause injury, if 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. The foreseeability of injury, in turn, when considered along with various other policy considerations such as the extent of the burden to the defendant and consequences to the community of imposing a duty to remedy such danger [citation] may lead to the legal conclusion that the defendant" owed a duty of due care to the person injured. (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 121, 273 Cal.Rptr. 457, emphasis added.)

As indicated, plaintiffs' original theory of liability against Whitaker (as stated in the complaint) was that Whitaker negligently strung the high voltage wires and negligently failed to insulate those wires. However, in light of the undisputed fact that P.G. & E. had constructed the lines and had sole responsibility to maintain them, plaintiffs abandoned this theory of liability in their opposition to the motion for summary judgment.

Instead, plaintiffs argued in their opposition that Whitaker should have taken steps to prevent the injury because he knew that the high voltage lines ran across his property and also knew that the boom truck was being stored and operated on the property. ² Consequently, plaintiffs contend that, viewing the evidence in the light most favorable to plaintiffs, Whitaker should have reasonably foreseen that the boom might come into contact with the high voltage lines while the truck was being operated on the premises.

The most important policy consideration in determining whether a duty exists is the foreseeability of the harm. Viewing the evidence in the light most favorable to plaintiffs, as we must, we believe the harm--electrocution caused by the boom coming into contact with overhead power lines--was reasonably foreseeable by Whitaker. In our view, the practical necessity of encountering the danger (i.e., the necessity of using the boom truck to move materials), when weighed against the apparent risk involved (electrocution by contact with electrical wires), is such that under the circumstances, a person might (and in fact did) choose to encounter the danger. (Osborn v. Mission Ready Mix, supra, 224 Cal.App.3d at p. 121, 273 Cal.Rptr. 457.)

We stress, however, that we find the injury "foreseeable" only as it pertains to a general duty of care. "[A] court's task--in determining 'duty'--is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party." (Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624; Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 82, 256 Cal.Rptr. 877.) ³ Thus, the fact finder is still...