Mark v. Pacific Gas & Electric Co.

• Court: California Supreme Court
• Writing for the Court: BURKE; WRIGHT
• Citation: Mark v. Pacific Gas & Electric Co., 101 Cal.Rptr. 908, 7 Cal.3d 170, 496 P.2d 1276 (Cal. 1972)
• Decision Date: 17 May 1972
• Docket Number: S.F. 22846
• Parties: , 496 P.2d 1276 Tau Fah MARK et al., Plaintiffs and Appellants, v. PACIFIC GAS AND ELECTRIC COMPANY et al., Defendants and Respondents

Page 908

101 Cal.Rptr. 908

7 Cal.3d 170, 496 P.2d 1276

Tau Fah MARK et al., Plaintiffs and Appellants, v. PACIFIC GAS AND ELECTRIC COMPANY et al., Defendants and Respondents.

S.F. 22846.

Supreme Court of California

May 17, 1972.

Charles O. Morgan, Jr., and Morgan & Moscone, San Francisco, for plaintiffs and appellants.

Thomas M. O'Connor, City Atty., Edward J. Nevin and Michael C. Killelea, Deputy City Attys., Richard H. Peterson, Noel Kelly, Bacon, Stone, O'Brien & Hammond, W. C. Bacon and W. F. Stone, San Francisco, for defendants and respondents.

BURKE, Justice.

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 outside his apartment bedroom window. Plaintiffs sued, under various theories of liability, Calvin's landlord (Mr. and Mrs. Chase), the City and County of San Francisco ('City'), and Pacific Gas and Electric Company ('PG&E'). We have concluded that although a nonsuit was properly entered in favor of the landlord and City, there was ample evidence to support a jury verdict against PG&E, and that the judgment of nonsuit in favor of PG&E should be reversed.

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, 470, 468 P.2d 825, 830; 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 decided to employ self-help, and from time to time thereafter they extinguished the light simply by removing the plastic canopy and unscrewing the bulb. The boys were able to unscrew the bulb without incident upon several occasions prior to Calvin's death. Twining (Calvin's roommate) testified that there was nothing about the light to indicate that the current flowing through the lamp was high voltage, and that there was no reason to believe that it was any different 'than the one you would have in your room.'

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), and that a pole any closer to a building should bear a sign warning of high voltage or be equipped with a lockable canopy or other protective device. Since none of these safety features were provided in the instant case, Oliphant considered the lamp unsafe, constituting a dangerous condition.

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.) 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." (158 Cal.App.2d p. 774, 323 P.2d p. 205.) 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, we traced the evolution of certain special rules for meas uring 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, 70 Cal.Rptr. p. 101, 443 P.2d p. 565.) 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 where an obligation to exercise reasonable care for the protection of the licensee has been imposed on the occupier of land. (Citations.) In an apparent attempt to avoid the general rule limiting liability, courts have broadly defined active operations, sometimes giving the term a strained construction in cases involving dangers known to the occupier.' (Italics added, p. 114, 70 Cal.Rptr. p. 101, 443 P.2d p. 565.)

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 factors ¹ which should determine...