Zuniga v. Cherry Ave. Auction, Inc.

• Decision Date: 16 March 2021
• Docket Number: F078402,F078557
• Citation: 61 Cal.App.5th 980,276 Cal.Rptr.3d 269
• Court: California Court of Appeals Court of Appeals
• Parties: Araceli Castellano ZUNIGA, Plaintiff and Respondent, v. CHERRY AVENUE AUCTION, INC., et al., Defendants and Appellants.

61 Cal.App.5th 980

276 Cal.Rptr.3d 269

Araceli Castellano ZUNIGA, Plaintiff and Respondent,

v.CHERRY AVENUE AUCTION, INC., et al., Defendants and Appellants.

F078402

F078557

Court of Appeal, Fifth District, California.

Filed March 16, 2021

Certified for Partial Publication.^*

Horvitz & Levy, David M. Axelrad, Stephen E. Norris, Burbank, Yen-Shyang Tseng ; Hollingshead & Associates, John W. Beebe ; Law Office of Patrick J. Campbell and Patrick J. Campbell, Twentynine Palms, for Defendants and Appellants.

The Homampour Law Firm, Arash Homampour, Sherman Oaks; The Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiff and Respondent.

FRANSON, Acting P.J. Defendants own and operate an outdoor swap meet in Fresno. In August 2013, plaintiff and her husband rented two vendor spaces at the meet. When they were setting up their booth in those spaces, a 28-foot metal pole holding their advertising banner touched an overhead power line. Plaintiff and her husband were electrocuted, and he died. A jury found defendants were 77.5 percent at fault and plaintiff's damages totaled $12.25 million. As a result, a judgment for approximately $9.5 million was entered against defendants.

On appeal, defendants contend they owed no duty of care to plaintiff because the danger presented by the overhead power line was open and obvious. We, like the trial court, conclude the evidence presented in this case did not establish as a matter of law that the danger was open and obvious. In particular, it was not obvious that the line was uninsulated, that it was energized, or that the amount of electricity being transmitted was lethal. Thus, a warning would not have been superfluous; it would have provided information that was not obvious.

Defendants also contend the Privette doctrine should be extended to and protect them from liability. (See Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 ( Privette ).) Privette established the general rule that the hirer of an independent contractor is not liable to the independent contractor's employees who sustain work-related injuries. The principal rationale for the Privette doctrine is that the hirer's liability should not be greater than the liability of a negligent independent contractor who is protected by workers' compensation insurance. Because no workers' compensation insurance covered the injuries to plaintiff and her husband, we conclude the Privette doctrine should not be extended to the landlord-tenant relationship that existed in this case.

The unpublished portions of this opinion address damages and costs. Based on our review of the special verdict form, the jury instructions, the jurors' question about damages, and closing arguments, we conclude the jury's award to plaintiff of past and future "Bystander Emotional Distress Damages" for being present and witnessing the death of her husband did not duplicate the award of emotional distress damages resulting from the electrocution of plaintiff herself. Accordingly, the damages awarded for those categories will be upheld. Also, plaintiff was the prevailing party and properly awarded her costs.

We therefore affirm the judgment.

FACTS

Defendant Cherry Avenue Auction, Inc., a California corporation, has operated an outdoor swap meet on the same site in Fresno for over 40 years.

Defendant W.D. & M.S. Mitchell Family Limited Partnership, an entity organized under Texas law, owns the land on which the swap meet operates. Defendant Kinsman Enterprises, LLC manages that property. In this opinion, we refer to these entities collectively as "Cherry Avenue." Two brothers, Neil and James Burson, own Cherry Avenue.

Cherry Avenue's swap meets are held on Tuesdays and Saturdays from 6:30 a.m. to 3:30 p.m. in an open-air market containing approximately 850 vendor spaces. Cherry Avenue rents the spaces to vendors, who can reserve them by the month or, based on availability, rent them by the day. The number of vendors on a particular day may reach 500 because some vendors occupy more than one space. The rent charged varies by location and ranges from $25 to $100 per space. Most vendors set up a frame holding a fabric canopy in the space they rent. Neil Burson estimated that about 30 percent of vendor booths have poles with upright advertising banners or flags attached.

Plaintiff Araceli Zuniga and her husband Jose Flores were married in Los Angeles in January 2009. That year, they began selling merchandise at swap meets in the Los Angeles area. They owned a booth with a frame made of metal tubing and a fabric canopy. The frame could be disassembled for transport and reassembled at the swap meet. They attached two 28-foot metal poles holding advertising banners to the booth's frame. The purpose of the banners was to attract customers.

In August 2013, Zuniga and her husband rented spaces 38 and 39 from Cherry Avenue. The previous times Zuniga and her husband had been at the swap meet, they have been located in a different area. Spaces 38 and 39 are among approximately 20 vendor spaces located under a power line that was 26 feet and six inches above the ground. That power line was owned and maintained by Pacific Gas and Electric Company and had been installed in the 1930's.

When Zuniga and her husband arrived the morning of August 24, 2013, they assembled their booth on its side and attached the poles with the banners. When they tilted the booth upright, one of the 28-foot poles came in contact with the power line. Zuniga testified their practice was to lift the frame on a count of three and "when we counted to three, I felt like my whole body went cold." She stated: "When I woke up, I felt that my body was all cold, and I felt pain in my body. I could—I could smell a smell of something burnt. And the taste of metal that I could taste in my mouth." Zuniga saw her husband lying on the ground, ran to him and said: "Calm down. Everything is going to be all right. You need to be strong in order to get out of this. You can't—you can't leave me. I need you here with me. You are the only person that I have here." He moved his lips and died. The parties stipulated his cause of death was electrocution. He was 36 years old.

After the incident, Pacific Gas and Electric Company sent a compliance supervisor to inspect the power lines. His inspection did not identify anything that needed attention.

Zuniga and her husband had used their booth and 28-foot advertising banners at Cherry Avenue's swap meet approximately eight times before the incident. Zuniga produced a Cherry Avenue "Sellers Permit" for swap meets held on June 25th, July 16th and July 23rd of 2013. The preprinted seller permits set forth certain seller responsibilities, nine rules and regulations, and a notice about the consequences of selling counterfeit or illegal goods. The preprinted permits contain blank lines for the row and space being rented and a line for the initials of the person issuing the permit. Permits must be kept by sellers at the space rented at all times and sellers without a permit at the time of space verification are required to obtain one by paying the regular fee. The permits do not contain a warning about the power lines and place no restrictions on advertising banners.

James Burson, an owner of Cherry Avenue, testified that, before the incident, he knew the power lines were dangerous, uninsulated and deadly. When asked if it occurred to him before the incident that people had flags underneath the power lines and might be electrocuted, he answered: "It didn't occur to me, because nothing was ever near those lines, no. So, it didn't occur to me." Neil Burson, the other owner, testified he did not know what voltage the power lines carried and he "wouldn't know the difference in insulated or uninsulated high voltage. They all look the same to me." When asked if he knew that someone putting a 28-foot pole by the power lines could be electrocuted and die, Neil Burson answered: "I've always known that they're not to be gotten near. So, I never considered somebody might throw a kite up there, because I know you stay away from them." During cross-examination, Zuniga's attorney mentioned the idea that the power line was obviously dangerous and said, "it wasn't obviously dangerous to you, and you're the one that owns this business, correct?" Neil Burson answered, "Correct."

Zuniga testified that, on the day of the incident, she did not notice the lines overhead. She also testified she knew overhead electrical lines could be dangerous if you touched them. Zuniga's safety expert, Brad Avrit, testified that if someone goes to spaces 38 and 39 and looks up, they will see the power lines and there was nothing directly overhead to obscure the view of the lines. When asked if it is common knowledge that electrical power lines are dangerous, he answered: "As a broad generality, yes." Avrit also was asked: "Does the average person need to know that an overhead power line is energized in order to deduce whether or not it's dangerous?" He responded: "The average person needs to be reminded of that, particularly if they're working at ground level and you have power lines that are up above." Avrit also testified he did not find any fault with Zuniga and her husband under the reasonably prudent person standard, stating:

"I think they acted as you would expect somebody that's erected this booth many times before, never had an issue with it, and—and in this case, they are concentrated on assembling it, they're down at ground level, and going to tilt it up. I don't find what they did unreasonable under the circumstances. They were -- they were being human. They had noticed other people have big flags, they put up a big flag. That's—that's reasonable and normal behavior."

Avrit also described the "HIGH VOLTAGE" sign that he observed near the top of the pole supporting the power lines, stating the letters were approximately three inches tall. A photograph of the sign was introduced into evidence.

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