Laabs v. Southern California Edison Co.

• Citation: 175 Cal.App.4th 1260,97 Cal. Rptr. 3d 241
• Decision Date: 20 July 2009
• Docket Number: No. E044917.,E044917.
• Court: California Court of Appeals
• Parties: AMANDA LAABS, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA EDISON COMPANY et al., Defendants and Respondents.

175 Cal.App.4th 1260

97 Cal. Rptr. 3d 241

AMANDA LAABS, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA EDISON COMPANY et al., Defendants and Respondents.

No. E044917.

Court of Appeals of California, Fourth District, Division Two.

July 20, 2009.

Lascher & Lascher, Wendy Lascher, Aris Karakalos; Richard Harris Law Firm and Richard Harris for Plaintiff and Appellant.

Brian A. Cardoza for Defendants and Respondents.

OPINION

KING J.—

I. INTRODUCTION

Plaintiff Amanda Laabs was a passenger in a car that collided with another car in an intersection and then struck a light pole installed and owned by defendant Southern California Edison Company (SCE). Laabs sued various parties, including SCE and Edison International (Edison), for damages. Relative to SCE and Edison, Laabs alleged that these defendants were negligent and proximately caused her injuries by placing and maintaining the light pole too close to the curb. SCE and Edison moved for summary judgment on the ground that they owed no duty of care to Laabs as a matter of law. The court granted the motion and entered judgment in their favor. Laabs appealed. Because Laabs presented no argument against summary judgment in favor of Edison, we affirm the judgment as to that party. For reasons explained below, we reverse the judgment in favor of SCE.

II. FACTUAL AND PROCEDURAL BACKGROUND

Laabs was a passenger in a car driven by James Dimeo. Dimeo was driving northbound on Ridgecrest Road, which has a posted speed limit of 55 miles per hour. He was driving at an excessive rate of speed. Dimeo's car was struck by another car at an intersection with Pebble Beach Drive. The impact caused Dimeo's car to travel across the two southbound lanes of Ridgecrest Road, jump the curb, slide along the sidewalk for some distance, and hit a concrete light pole erected 18 inches away from the curb. Laabs was injured. The light pole was owned and maintained by SCE. Laabs sued SCE and Edison on the theory that these defendants acted negligently by installing and maintaining the light pole so close to the curb.¹

SCE and Edison moved for summary judgment on the ground that "they owed no duty of care" to Laabs. The facts recited above regarding the collision are essentially undisputed. Defendants also rely upon the following undisputed facts: SCE provides electrical service to the City of Victorville pursuant to a written agreement; SCE, not Edison, owned and maintained the subject light pole; the light poles are installed for the benefit of the city; the subject light pole was installed in 1993 and was made of concrete; the side of the light pole facing the street is 18 inches from the curb; at the light pole's location, the paved sidewalk is six feet two inches wide; Dimeo's car slid on the sidewalk "and came to rest with its front end extended well beyond the paved sidewalk"²; and the light pole was designed to provide light for traffic traveling southbound, not northbound, on Ridgecrest Road.

In support of the motion, SCE and Edison relied primarily upon the declarations of Robert Binns and Y.M. Nahabedian. Binns is a supervisor in SCE's street and outdoor lighting department. He authenticated a "Master Agreement for Service and Street Lighting" entered into between SCE and the City of Victorville in 1977. Under this agreement, light poles are to be installed by SCE at locations shown on a map, which, according to the agreement, is on file with the city clerk. A copy of the map is also purportedly attached as an exhibit to the agreement. However, the copy of the agreement included in our record does not include the map exhibit, and a copy of the map is not otherwise included in our record.³ The agreement further provides that "[a]ll poles, wires, lights, and electrical apparatus installed by [SCE] . . . shall be so placed as to work the least possible public and private inconvenience, and [the City of Victorville] may at any time order the location of any part of the system changed by [SCE] at the expense of [the City of Victorville] to conform to the above requirements."

Binns further declared that light poles installed by SCE in the City of Victorville are for the benefit of the city. Binns explained that SCE "defers to the appropriate governmental agency for all decisions related to street design rand/or traffic engineering," and that the decision regarding the location of the light pole was made by "the City [of Victorville] and/or the developer of the area." The subject concrete light pole was erected in 1993. Although the installation work order for the light pole was not available, Binns stated that he has "seen no evidence to suggest that SCE deviated from its custom and practice with regards to street lighting design and installation with regards to the subject Electrolier." He described such custom and practice as follows: "Typically, the City or developer requesting new street light facilities hires its own engineers, including street lighting engineers, to design the type of system required for the project. Once the plans and permits are secured, SCE's planning department is contacted to co-ordinate the installation of the desired lighting as consistent with the pre-designed plans."

The other declarant in support of the motion, Nahabedian, is a retained civil and traffic engineering expert. According to Nahabedian, the center of the subject light pole was 22 inches from the top of the curb and the curbside edge of the light pole was 18 inches from the top of the curb. The paved sidewalk at the point where the light pole was installed is six feet two inches wide. Nahabedian opined that "the location and the placement of the subject Luminaire was reasonable and was in conformity with the luminaire construction industry's practice in California." Nahabedian relied, in part, upon "`A Policy on Geometric Design of Highways and Streets'" published by the American Association of State Highway and Transportation Officials. This document states: "Where there are curbed sections, utilities should be located in the border areas between the curb and sidewalk, at least 0.5 [meters] [1.5 ft] behind the face of the curb, and where practical, behind the sidewalk." The placement of the subject light pole, he states, conforms to these requirements. Nahabedian also relied upon his experience while employed with California's Department of Transportation (Caltrans). He stated that "the standard practice in California . . . is to place luminaire poles along roadways with pedestrian sidewalks behind concrete curbs from 18 inches to 30 inches, depending upon the width of the paved sidewalk. In general, a set-back of 18-24 inches is common placement in paved sidewalks less than 7 feet in width and set-backs of 24-30 inches on paved sidewalks 8 feet or wider." He concludes that the placement of the subject light pole was consistent with this practice.

In her opposition separate statement, Laabs disputes the following conclusions of defendants' experts: the location of the light pole was within "common industry practice and is consistent with industry standards for road construction of the type at issue"; and, "[f]rom a roadside design standpoint, it is unreasonable to require that the Electrolier on the west side of Ridgecrest Road (in the Direction of Southbound traffic) [be] designed to avoid contact by out of control vehicles traveling northbound in excess of 100 miles per hour, which cross four lanes of travel, enter on coming traffic, jump the curb on th[e] opposite side of the street and slide into it."

Laabs also asserted the following "undisputed facts": the intersection of Ridgecrest Road and Pebble Beach Drive has been the site of numerous accidents; the intersection became more dangerous following the widening of Ridgecrest Road in 1996; the installation of the subject light pole was in direct contravention of highway safety standards; 12 feet of space is available for the installation of light poles along Ridgecrest Road; under CalTrans standards, the light poles should have been set back as far as practical from the roadway to prevent the least possible hazards to out-of-control vehicles; the location of the light pole "constituted a dangerous condition"; and the City of Victorville does not design, specify, suggest or approve any specification of a design, manufacture, or process of the light poles provided by SCE. Defendants objected to some of these additional facts as irrelevant and others as lacking foundation or constituting improper expert opinion evidence. The court overruled these objections.

In support of her opposition, Laabs relied primarily upon declarations by John McGlade and Howard Anderson. John McGlade is the city engineer of the City of Victorville. McGlade declared that the light poles on Ridgecrest Road "are owned, installed, maintained, and controlled by [SCE]." He further stated that the "City of Victorville does not design, specify, suggest or approve any specification of a design, manufacture or process for the [luminaires] or the structures on which the [luminaires] are attached, installed or otherwise provided by [SCE]."

Howard Anderson is an expert in the design and construction of safe highways and roadways. According to Anderson, the average speed of northbound traffic on Ridgecrest Road near the point of the collision was 56 miles per hour, and "the 85th percentile of drivers . . . were traveling at 62 [miles per hour]." Anderson opined that the design of the Ridgecrest Road/Pebble Beach Drive intersection created a dangerous condition. Anderson also made the following statements: "[M]y examination of the subject intersection revealed the installation of lighting and luminaires supports, such as the one struck by the Porsche in the subject accident, in direct contravention of highway safety standards"; "California regulations for traffic highway safety and construction require that any such lights and their luminaires supports must be...