United Pacific Co. v. Southern Cal. Edison Co.

• Decision Date: 15 January 1985
• Citation: 209 Cal.Rptr. 819,163 Cal.App.3d 700
• Court: California Court of Appeals Court of Appeals
• Parties: UNITED PACIFIC INSURANCE COMPANY, et al., Plaintiffs and Appellants, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Cross-complainant and Appellant; Respondents. General Telephone Company of California, Defendant, Cross-defendant and Respondent. FIREMAN'S FUND INSURANCE COMPANY et al., Plaintiffs and Appellants, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Respondent. Civ. 69551, Civ. B001532.

Page 819

209 Cal.Rptr. 819

163 Cal.App.3d 700

UNITED PACIFIC INSURANCE COMPANY, et al., Plaintiffs and Appellants, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Cross-complainant and Appellant; Respondents.

General Telephone Company of California, Defendant, Cross-defendant and Respondent.

FIREMAN'S FUND INSURANCE COMPANY et al., Plaintiffs and Appellants, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Respondent.

Civ. 69551, Civ. B001532.

Court of Appeal, Second District, Division 6, California.

Jan. 15, 1985.

Certified for Partial Publication ^*

Hearing Denied April 25, 1985. ^**

[163 Cal.App.3d 704] James O. White and Paul C. Nyquist of Cummins & White, Los Angeles, for appellants Fireman's Fund Ins. Co. and Aetna Cas. and Sur. Co.

R. Dayton Call of Haws, Record & Williford, Santa Barbara, for appellants Civil Service Employees Ins. Co., et al.

Christopher J. Zajic of Zajic & Edwards, Santa Barbara, for All State Ins. Co., et al.

F. Leonard Sisk, Rosemead, and William G. Tucker of Tucker & Johnston, Los Angeles, for Southern California Edison Co.

John P. McNicholas of Morgan, Wenzel & McNicholas, Los Angeles, for General Telephone Co. of California.

Hast & Sabatasse, Van Nuys, for appellant, United Services Aut. Ass'n.

WILLARD, Associate Justice. ^***

This litigation results from a disastrous fire in the Sycamore Canyon area of Santa Barbara on July 26, 1977. Approximately two hundred homes were destroyed and a number of people were injured. Appellants are homeowners and insurance companies subrogated to the rights of the homeowners. Respondent is the Southern California Edison Company (hereinafter called Edison). Numerous actions were consolidated for trial and the issue of liability tried first over a period of twenty-five trial days. Over objection by appellants, causes of action alleging liability for defective products were not submitted to the jury. ¹ On the issue of liability for negligence the jury returned a general verdict in favor of respondent. Appellants' motion for a new

trial was denied. The appeal is from the judgment entered in favor of respondent. Edison also appeals from a pretrial summary judgment in favor of General Telephone Company of California on Edison's contingent cross-complaint for indemnity

ISSUES

The two appeals question six rulings of the trial court:

1. That a claim based on liability for a defective product was not viable. ²

[163 Cal.App.3d 705] 2. Giving an instruction in the form of BAJI No. 3.79 on intervening cause.

3. Permitting evidence of the content of P.U.C. General Order 95 and Edison's non-violation thereof, together with instructing the jury to give consideration thereto.

4. Sustaining objection to the receipt of many items in an Edison report on circuit interruptions in the line in question from various causes not shown to be similar to the cause of the accident in this case.

5. Sustaining objection to the receipt in evidence of a magazine article published in 1941 on the hazard of flying kites in proximity to electric transmission lines.

6. Granting a summary judgment in favor of cross-defendant on Edison's claim for contingent indemnity.

We hold that the products liability doctrine established in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 is inapplicable to facilities owned and used by a public utility for the transmission of electric energy, and that the trial court made no prejudicial error in its rulings and instructions. We affirm the judgment on the complaints. This renders moot the appeal by Edison on the summary judgment in favor of General Telephone on the cross-complaint.

FACTUAL BACKGROUND

On July 26, 1977 Scott Sheldon was flying a large kite tethered with a 150 pound test nylon line wrapped around a hand-held spool. The kite, string, and spool got away from him in a gusting wind and approached utility lines strung from poles. Near the top of the poles horizontal cross arms supported three conductors owned by Edison and comprising an alternating current electric circuit energized at 16,000 volts. The circuit transmitted current to transformers and other equipment that reduced voltage to a consumer-usable range. Below these electric conductors was a telephone cable owned by General Telephone. The kite string contacted one of the electric conductors and became entangled with the cable. The wind pulled the kite; the kite pulled the string; the string pulled an outer conductor toward the middle conductor, so close that an arc of electric current occurred; the arc caused emission of molten aluminum from the conductor or [163 Cal.App.3d 706] conductors; and the molten aluminum ignited brush and grass, resulting in the disastrous fire.

Plaintiffs produced evidence that with the sag that existed in the conductors between poles, a lateral pressure of 21 pounds would have pulled the two conductors together. Their expert also testified that an alternative design configuration for the conductors, by which the middle conductor was attached to the top of the poles instead of being offset to one side, would have required a lateral pressure of 110 pounds to bring the conductors together, assuming the same sag. This alternative configuration was shown in an Edison manual, and the cost of its construction would not have substantially exceeded the cost of the actual construction. Had the alternate configuration been used, the arcing would not have occurred. The gist of the claimed defect in the Edison facilities is that the combination of closeness of conductors and sag between poles permitted arcing that reasonably could have been avoided. Other facts material to the appeal will be stated in connection with discussion of the issues.

I

The issue as to whether the products liability doctrine is applicable to facilities used by a public utility for the transmission of electricity energy appears to be one of first impression in California. ³ Greenman v. Yuba Power Products, Inc. stated the rule as follows: "A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being." (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897.) The rule has been extended to protect innocent bystanders. (Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 75 Cal.Rptr. 652, 451 P.2d 84.) It applies not only to manufacturers and sellers, but also to lessors who place defective products on the market. (Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722.) The doctrine's purpose "is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves." (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 377 P.2d 897.)

The issue as to whether this doctrine should apply to defective electric transmission lines has been considered by appellate courts in a number[163 Cal.App.3d 707] of other states. Uniformly they have held the doctrine to be inapplicable. (Petroski v. Northern Indiana Public Service Co. (1976) 171 Ind.App. 14, 354 N.E.2d 736; Wood v. Public Service Co. of New Hampshire (1974) 114 N.H. 182, 317 A.2d 576; Farina v. Niagara Mohawk Power Corp. (1981) 81 A.D.2d 700, 438 N.Y.S.2d 645; Wirth v. Mayrath Industries, Inc. (N.Dak.1979) 278 N.W.2d 789; Erwin v. Guadalupe Valley Electric Co-Op. (Tex.Civ.App.1974) 505 S.W.2d 353; Kemp v. Wisc. Elec. Power Co. (1969) 44 Wis.2d 571, 172 N.W.2d 161.)

The reasons given for these decisions are summarized as follows: "[E]lectricity is not in a marketable state and the doctrine was not intended to apply in such cases (Genaust v. Illinois Power Co. 62 Ill.2d 456, 343 N.E.2d 465); claimed defects in the cable carrying the electrical current are insufficient to establish liability because the cable is not 'packaging' for the current, is not sold to the consumer, and remains owned by and under the control of the utility (Cratsley v. Commonwealth Edison Co., 38 Ill.App.3d 55, 347 N.E.2d 496); until actually delivered, the electricity has not been placed in the 'stream of commerce' (Petroski v. Northern Indiana Public Service Co. [171 Ind.App. 14] 354 N.E.2d 736); a defect in the manufacture of the electricity or in the manufacture or design of the wire itself, not merely its location, must be shown (Erwin v. Guadalupe Valley Electric Co-op., 505 S.W.2d 353 [Tex.] ). Furthermore, throughout the discussions in the commentaries and cases dealing with the claims of those who have been injured through contact with electrical lines, there is the implicit suggestion that electricity, 'a subtle agency that pervades all space and evades successful definition * * * ' (Ballantine's Law Dictionary), is not a product within the contemplation of the doctrine's author." (Farina v. Niagara Mohawk Power Corp., supra, 438 N.Y.S.2d 645, 646, 647.)

As noted above, the California Supreme Court in Greenman stated that the product liability occurred when an article is placed on the market. (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897.) In Price v. Shell Oil Co. the Court compares this to the similar concept of putting a product "in the stream of commerce," as that phrase is used in Cintrone v. Hertz Truck Leasing & Rental Service (1965) 45 N.J. 434, 212 A.2d 769. (Price v. Shell Oil

Co., supra, 2 Cal.3d 245, 254, 85 Cal.Rptr. 178, 466 P.2d 722.) Several of the cases from sister states, cited above, point out that high voltage electric transmission facilities are not placed in the stream of commerce, but, on the contrary, are retained in the ownership and control of the electricity supplier and used solely by it to transmit electricity to other facilities for...