HENSON v. SOUTHERN CALIFORNIA EDISON COMPANY

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Court of Appeal, Fourth District, Division 2, California.

Jeffrey Paul HENSON, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Respondent.

No. E007883.

Decided: November 06, 1992

Thomas G. Hahn & Associates, Thomas G. Hahn, Newport Beach, McDowell & Colantoni, Ltd. and Allen W. McDowell, Chicago, Ill., for plaintiff and appellant. Chase, Rotchford, Drukker & Bogust, William C. Falkenhainer and Toni Rae Bruno, Los Angeles, for defendant and respondent.

OPINION

FACTS

On April 7, 1984, Jeffrey Paul Henson, plaintiff and appellant (plaintiff), then 14 1/212 years old, was flying his kite when it became entangled in overhead power lines owned and operated by defendant and respondent Southern California Edison Company (Edison).   Plaintiff, in an attempt to retrieve the kite, used a combination of a trash can and laundry pail to reach a set of climbing rungs on Edison's power pole.   The height of the lowest pole rung was disputed, plaintiff contending that it was less than seven-and-one-half feet from the ground, while Edison claims it was nine feet eight inches above the ground.   Before he attempted to climb the pole, plaintiff observed that the rungs led to a set of wires on wooden crossarms, approximately 32 feet above the ground.   More wires were strung on an upper set of crossarms, about 40 to 45 feet higher than the first set of wires.   There were no climbing rungs leading to the upper set of wires.   In any event, plaintiff climbed the pole to the lower crossarms at a height of approximately 32 feet.   The crossarms were posted with signs stating “High Voltage.”   Plaintiff came in contact with either the kite string or the high voltage wires, causing serious injury.

PROCEDURAL BACKGROUND

Plaintiff's complaint alleged causes of action against Edison for negligence, strict liability or premises liability, and negligent infliction of emotional distress.1  Plaintiff's primary theory was that Edison breached its duty of due care by failing to warn plaintiff of the danger of the high voltage wires.

Edison filed a number of pretrial motions, denominated motions “in limine.”   The key motion was entitled “Motion In Limine of Defendant Southern California Edison Company (Standard of Care).”   The precise nature of this motion and its legal effect present analytical difficulties which have resulted in considerable confusion both in the trial court and on appeal.   Accordingly, a detailed examination of the motion and the proceedings with respect to it is necessary to a proper understanding of the case.

1. The Motion Papers

The “standard of care” motion “in limine” sought to exclude any pleadings, evidence or argument, without first obtaining permission of the trial court, “suggesting that the standard of care by which the actions of [Edison] is to be gauged is greater than ‘reasonable care,’ or that [Edison] had a duty to warn the plaintiffs of the inherent danger of high power lines.”   In particular, Edison sought to exclude any evidence or testimony to the effect that (1) Edison distributed kite booklets to public schools as part of an educational program, (2) such public education programs were inadequate warnings of the dangers of flying kites near utility poles, (3) Edison's public safety marketing program was inadequate, (4) “mixed media” should have been employed to warn the public of dangers associated with flying kites near utility poles, and (5) Edison had knowledge of prior accidents relating to retrieval of kites from power lines.

Edison argued that such evidence was impermissible and inadmissible because the evidence would mislead the jury as to the proper standard of care and because evidence of prior accidents would be based on accident reports required by the Public Utilities Commission (PUC), but that the reports did not differentiate between various types of injury-causing contacts with overhead power lines.

More specifically, Edison argued that a “duty to warn” existed only in certain limited circumstances not applicable to this case, and that the finding of a duty to warn would contravene the basic principles of negligence law.   Edison urged that the “existence of a duty of care is a question of law to be determined by the court,” that the sole applicable standard of care was defined by BAJI No. 3.42 (whether caution commensurate with the existing danger was used in installing, maintaining and supervising the electrical facilities), and that said duty of care has never required a warning.   Edison further argued that the danger from overhead electrical wires was a matter of common knowledge, open, patent and obvious, and that no warning is required for obvious dangers.

Even assuming some cases might require a duty to warn, Edison claimed no such duty arose here because it had no knowledge of any preexisting dangerous condition and/or the dangerous condition of its property was not concealed but was obvious.   Edison also sought to counter the claim that any warning was required by pointing to evidence that plaintiff was 14 years of age, of normal intelligence and understanding, that he was experienced in flying of kites, and that plaintiff therefore knew and understood the obvious dangers of overhead power lines.2

Finally, Edison sought to exclude any evidence of a duty to warn associated with its kite booklets or educational programs or by other means dealing with the dangers of climbing on utility poles.   Edison argued that numerous witnesses would be required to testify about the adequacy of the kite booklets, the distribution of the booklets, the reasons underlying Edison's educational programs, and so on, and that the probative value of this kind of evidence was outweighed by undue consumption of time under Evidence Code section 352.

2. Pretrial Proceedings on Motion

On February 16, 1990, the court heard arguments as to the standard of care (i.e., whether the standard proposed by plaintiff was something greater than reasonable care) and as to factors the parties alleged affected foreseeability and the existence of a duty of care.   After taking the matter under submission, the court on February 20, 1990, announced it would hold a foundational hearing on the factors related to the existence of a duty, particularly on the issue of foreseeability.

A. “Foundational Hearing”—Edison's Proof

In support of its position, Edison offered to prove that plaintiff used a trash can and a pail on top of the trash can to reach the lowest pole rung, that there were no reports of anyone climbing the pole in question since it was placed there in 1963, that no one had ever climbed a pole in the vicinity where the injury occurred, and that in the five years preceding the injury Edison had only experienced one overhead contact incident by an adult (for the purpose of committing suicide), and two by minors, one of whom climbed a pole for the sole purpose of stealing an insulator.   Edison argued that the lack of prevalence of overhead contacts with its power lines suggested the injury here was not foreseeable.

The parties agreed that the overhead high voltage lines met regulatory guidelines (Public Utility Commission General Order 95) as to the height at which they were placed.   The crossarms were posted with “High Voltage” signs as required by General Order 95, and Edison maintained that the height of the lowest pole rung was nine feet eight inches, well within compliance with General Order 95.   Edison presented the testimony of two witnesses to establish that the power pole did comply with General Order 95 with respect to the height of the wires, the height of the lowest pole rung, and the “High Voltage” signing at the crossarms, and that no similar accidents had taken place in the area.   One witness testified the lowest pole rung was nine feet eight inches from the ground.   He also testified that, in approximately February 1986, a TV cable had been installed on several of Edison's poles, and new pole rungs were added to those poles.   The lowest rung in February 1986 was approximately seven feet six inches from the ground, the minimum standard set forth in General Order 95.   Another witness testified that Edison had no practice of placing warning signs on poles at any location other than the crossarms.   He also testified that in the fiscal year ending June 1984, PUC records indicated only five injuries and one fatality statewide from overhead wire contacts with public utility facilities.3  In closing, Edison offered the results of a survey of 28 sixth grade schoolchildren undertaken by a “human factors” expert, to the effect that after being shown photographs of the pole in question, none of the children would have climbed the pole because they “recognized the danger.”   The children surveyed knew the wires in the photograph were associated with electricity and “it can ‘hurt you badly.’ ”

B. “Foundational Hearing”—Plaintiff's Proof

Plaintiff's counsel made an offer of proof of plaintiff's testimony in opposition.   Plaintiff would testify that he saw pole rungs leading to the lower set of wires, at about 35 feet up the pole.   He observed there were no pole rungs leading to the upper set of wires at 75 feet.   Plaintiff believed the upper wires were dangerous, but, because of the climbing rungs, that it would be safe to climb to the level of the lower set of wires.   He believed the lower wires were telephone wires, and he did not know they were not insulated.   Counsel offered to prove plaintiff was five feet four inches tall on the date of the accident, and that plaintiff would testify he could barely touch the lowest pole rung with his fingertips while standing on the ground.   Accordingly, plaintiff obtained a trash can from his house and used that to reach the pole rungs.4

Plaintiff also pointed out that Edison's photographs did not show the east side of the pole, and offered another photograph to suggest that the first rung was on the east side of the utility pole.   Plaintiff offered to prove by expert testimony that the first rung was below seven feet six inches, the standard set in General Order 95.

As additional evidence, plaintiff offered a photograph of a utility pole owned by San Diego Gas and Electric showing a warning sign placed at 10 or 12 feet, stating “High Voltage, keep off.”   There was some dispute at the hearing whether the San Diego Gas and Electric signs were in use by that entity before the date of plaintiff's accident and whether the signs were placed there solely as a temporary measure, although testimony at the hearing suggested that San Diego Gas and Electric instituted placement of the signs by January 1984.5  Other documents offered by plaintiff included a 1978 Edison newsletter highlighting Edison's safety outreach programs, including use of a film, “Think Hot,” designed for junior and senior high school students.   The film “illustrat [es] the types of electrical exposures in which young people tend to get involved such as carpole accidents, shooting insulators and kite flying.”   The newsletter also emphasized Edison's “ten-foot rule”—to stay at least ten feet away from high voltage wires—and the need to reach out to members of the public “who use or come near electricity underestimating the need for caution.”   Plaintiff also offered:  an Edison bill-stuffer to the general public addressing the dangers of contact with its wires;  Edison's spring advertisement about kite flying;  a Consumer Products Safety Commission report dealing with electrical contacts by CB antennas;  an American National Standards Institute report of 1941, which recommends placing warning signs at eye level;  as well as a comic book about kite flying called “8 is Enough.”

C. Ruling on “Motion In Limine”

On this record, the court took the issue of foreseeability under submission.   The following day, February 21, 1990, the court ruled:  (1) Edison exercised due care as a matter of law, subject to (2) a conflict in the evidence whether the height of the pole rungs was or was not in compliance with General Order 95.   The court determined that was a question of fact to be submitted to the jury.  (3) The court further found as a matter of law that Edison was under no duty to warn because the danger from the high voltage wires was apparent to plaintiff, a 14–year–old boy, because the warning posted on the crossarms was adequate, because there were no reports of similar accidents, and there was no evidence Edison violated any custom or regulation with respect to warnings.

3. Jury Waiver, Court Trial and Judgment

Because the “duty to warn” theory was removed from the action by the court's order, plaintiff waived jury trial on all remaining theories and issues, and submitted the cause for trial to the court.   Plaintiff rested on the state of the evidence adduced at the foundational hearing.   Defense counsel joined in the jury waiver and moved for judgment at the close of the plaintiff's case pursuant to Code of Civil Procedure section 631.8.   The court granted Edison's motion for judgment.   Plaintiff now appeals.

DISCUSSION

Determining the nature of the appeal before this court has also been no easy matter.

1. Appeal After Judgment in Court Trial

 Defendant Edison asserts that, because the appeal follows a judgment at the close of the plaintiff's case in a court trial (see Code Civ.Proc., § 631.8), the sole issue on appeal is the sufficiency of the evidence to support the judgment.6  In view of the fact that plaintiff does not, as such, contest the sufficiency of the evidence to support the judgment, Edison contends the appeal must fail.   Edison further argues, “It is manifest that a ruling on a motion in limine is evidentiary in nature and can only be reviewed in accord with the standards of appellate review applicable to rulings on admissibility of evidence.”   Under this view, Edison contends the pretrial “in limine” motion was simply that:  a motion excluding certain documentary evidence and expert testimony.   Edison reasons from this that, because the trial court did not expressly rule that plaintiff's proffered evidence would be excluded at trial;  because plaintiff could have, but did not, present further evidence to support the admissibility of the proffered evidence (nor any other testimony);  and because plaintiff does not here challenge the court's “evidentiary rulings” at the in limine hearing, plaintiff has failed to demonstrate any error in the evidentiary rulings preceding the judgment.

Edison's claim is somewhat disingenuous.   The court did far more than make in limine rulings as to the evidentiary admissibility of certain documents or testimony.   It effectively excluded any and all evidence as a matter of law on plaintiff's primary theory of the case.   The only theory on which the court would have permitted any evidence to go to the jury was the height of the pole rungs.   Plaintiff cannot be faulted for failing to offer further foundational support for or to attempt to introduce evidence the court had absolutely excluded by its pretrial “in limine” ruling.   The crux of the matter, therefore, from plaintiff's point of view is that “substantial evidence” supports the judgment only because the trial court improperly excluded plaintiff's evidence.   On appeal after judgment, plaintiff seeks review of this assertedly erroneous pretrial ruling.

2. Nature of the Pretrial “In Limine” Motion

It is by no means “manifest” that the pretrial “in limine” motion consisted of evidentiary rulings.   As Edison properly recognizes, “[t]he only way to discern the actual character of the trial court's proceedings is to ascertain the issues before it at the time the motion in limine was heard and argued.”

 The language the court used at the time of its “in limine” ruling indicates that it did far more than rule on the admissibility of individual items of evidence.   The minute order recites the court's finding “as a matter of law” that Edison did not breach its duty of due care in the construction and maintenance of its electrical facilities (with the possible exception of the height of the pole rungs).   Whether a defendant has breached a duty of care to the plaintiff (i.e., negligence) is ordinarily a question of fact for the jury.  (Cf. Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)   The court's ruling removed this issue from the jury's consideration altogether, eliminating as a matter of law every theory of the plaintiff's case except one—negligence in failing to place the pole rungs in conformance with General Order 95.   The “actual character” of the court's ruling “as a matter of law” on this factual jury question could possibly be interpreted as any one of a number of things.   One, the court may have essentially struck all other allegations from the complaint (virtually a partial demurrer), except those dealing with negligence on the specific theory of the height of the pole rungs.   Two, the court may have summarily adjudicated the issue of breach (negligence).   Three, the court may simply have usurped the trial function and given a virtual “directed verdict” on the issue of breach/negligence.

 The court also stated that “as a matter of law” Edison had no “duty to warn” plaintiff of the danger.   This second aspect of the pretrial ruling might mean either of two things.   The court might have been ruling on a factual issue that Edison did not breach a duty of care by failing to warn of danger, and, consistent with its view that the height of the pole rungs was the only factual matter about which a conflict existed, simply removed that specific theory of negligent breach from the jury's consideration.   On the other hand, the court may have been deciding an even more fundamental question:  whether Edison owed a duty of care (in the form of a “duty to warn”) in the first instance.7  The court apparently viewed the question of “duty to warn” as a separate aspect of Edison's fundamental duty of care.8  Under any view, the trial court's order was erroneous.

 Taking the “fundamental duty” point first, we note that, because the general question of fundamental duty of care is one of law for the court, it is subject to de novo or independent review by an appellate court.   (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888, 264 Cal.Rptr. 139, 782 P.2d 278;  Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083–1084, 258 Cal.Rptr. 721.)   With this standard in mind, we adduce the principles relevant to a determination whether there is a duty of care.   The Supreme Court in Ballard v. Uribe, supra, 41 Cal.3d at p. 572, footnote 6, 224 Cal.Rptr. 664, 715 P.2d 624, explained, “In California, the general rule is that all persons have a duty ‘ “to use ordinary care to prevent others being injured as the result of their conduct․” ’  (Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561 [citations omitted].)”   What the Rowland court then did was to set forth a number of now-familiar factors that may be considered in deciding whether a departure from the general rule is appropriate.9  The court's initial misstep here was to assume that it was up to plaintiff to prove, under the Rowland factors, especially foreseeability, that any duty existed in the first place.  (See Robbins v. The Southland Corporation (Nov. 3, 1992, E008587) ––– Cal.App.4th ––––, –––– – ––––, ––– P.2d ––––, –––– – ––––.  Typed opinion pp. 14–16.)

In the second place, although “The foreseeability of a particular kind of harm plays a very significant role in this calculus (see Dillon v. Legg [1968] 68 Cal.2d 728, 739, 69 Cal.Rptr. 72, 441 P.2d 912), ․ 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, supra, 41 Cal.3d at p. 573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)

 The trial court wholly failed to apprehend this distinction, but based its conclusion of lack of duty (unforeseeability) precisely upon the peculiar and specific facts of this occurrence;  e.g., the age of the plaintiff, personal characteristics of the plaintiff such as his general health and ability to read, the adequacy of the warning signs posted on the crossarms, whether any particular similar incidents had happened in the area, whether there were general regulations or practices requiring other signing on power poles, and so on.   While a finding of liability may be intensely dependent on the specific facts and circumstances of the incident, the existence of a general duty of care is not ordinarily so idiosyncratic.   (See Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 9 Cal.Rptr.2d 124 [although several cases have found a utility not liable for injury, they do not hold the utility owes no duty of care, but rather that the utility did not breach its duty].)   Of course, the ultimate determination of liability also makes use of the concept of foreseeability, but does so in the more fact-specific ways identified in Ballard, supra, to wit, to aid the jury in deciding the issues of breach and causation.  (Ballard v. Uribe, supra, 41 Cal.3d at p. 573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.) 10

 In any event, we have no difficulty discerning that Edison did indeed owe a duty of care to persons such as plaintiff.   High tension power lines are dangerous instrumentalities with a high likelihood of producing death or severe injury if contacted.  “When human life is at stake the rule of due care and diligence requires that without regard to difficulties or expense every precaution be taken reasonably to assure the safety and security of any person lawfully coming into the immediate proximity of the dangerous agency or device which is a peril to others.”  (Been v. The Lummus Co. (1946) 76 Cal.App.2d 288, 293, 173 P.2d 34;  see also Fairbairn v. American River Electric Co., supra, 170 Cal. at pp. 117–118, 148 P. 788 [owing to destructive power of electricity and the fact it is not visible or perceptible, company maintaining power transmission line must exercise a high degree of care in placing the wires so as to avoid contact with and injury to passing traffic;  “Where death may be caused by an agency lawfully in use, ordinary care requires that every means known, or that with reasonable inquiry would be known, must be used to prevent it.”].)   Electricity is included in the category of dangerous activities or devices.  (6 Witkin, Summary of Cal. Law, supra, Torts, § 763, pp. 103–104.)   Whether or not numerous instances of pole-climbing resulting in electric shock injury have occurred in recent years does not detract from the common experience that children habitually climb trees and poles,11 and that contact, even accidentally, with high power wires can be deadly.12  Defense counsel even admitted, at the close of the “foundational hearing” that “We're not denying this type of thing can occur․”  The admission was no more than common knowledge, and utterly fatal to any contention that the occurrence was so completely unforeseeable that the general duty of care should be limited.   If any evidence was required or even relevant on the issue, Edison also in fact specifically anticipated (i.e., actually foresaw) that children may be tempted to climb power poles to retrieve kites, as indicated in their safety literature (kite booklets, advertisements and bill inserts specifically directed to kite safety, and a film depicting kite safety, among other things, distributed for educational purposes to schools).   Thus, to the extent the trial court purported to decide that Edison owed plaintiff no “duty to warn” in terms of a fundamental duty of care, its ruling was clearly wrong.

 If, on the other hand, the court was deciding the factual issue of breach (i.e., that defendant did not breach the duty of care by failing to warn, or by any other conduct except a possible failure to comply with regulations regarding the height of the pole rungs) as a matter of law, it was entitled to do so in only two circumstances:  if plaintiff failed to properly plead negligence and breach, or if there were no conflict in the evidence on the matter.   Neither circumstance is present here.

As we have observed, Edison's motion to “exclude evidence” may be interpreted in a number of ways.   If the true thrust of Edison's motion was that plaintiff could not state a proper cause of action against it because there exists no fundamental “duty to warn,” the de facto effect of the court's ruling was to sustain a partial demurrer (on the failure to warn theory) to the cause of action for negligence, or to strike such allegations from the complaint.   The trial court's ruling cannot be upheld on this basis.

 First, it is improper to sustain a “partial” demurrer.   If any part of a cause of action is properly pleaded, the demurrer must be overruled.  (See Campbell v. Genshlea (1919) 180 Cal. 213, 217, 180 P. 336;  DeMonbrun v. Sheet Metal Workers (1956) 140 Cal.App.2d 546, 566, 295 P.2d 881.)   The trial court here effectively held the negligence cause of action was properly stated, at least on a theory of failure to place the pole rungs at a proper height.   The “demurrer,” if that is what it was, should therefore have been overruled.   Second, the motion to strike format was also inapposite.   While a motion to strike may lie to strike “irrelevant” matter from a complaint, the “irrelevance” cannot be the insufficiency of the allegations to justify relief—this is a ground for general demurrer.   (See Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 41, 96 Cal.Rptr. 317;  5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 959, p. 395.)   Third, both a demurrer and a motion to strike test the sufficiency of the pleading itself.   The court therefore had no business looking beyond the face of the pleadings or conducting its “foundational hearing” in deciding the matter.   The complaint on its face plainly states a proper cause of action:  it alleges Edison owned and operated the electrical facilities in question;  that Edison knew its facilities were dangerous to persons coming into contact with them;  that Edison breached its duty of due care in the installation, maintenance, and operation of its electrical facilities by failing to insulate them, improper design or construction, and failure to give appropriate warnings;  and that plaintiff suffered severe injury.   Fourth, the premise of such a motion (i.e., that there is or can be no fundamental “duty to warn”) is flawed.   There is, as we have seen, a fundamental duty of care owed to persons such as plaintiff, who might foreseeably come into contact with Edison's deadly electrical facilities.   Whether Edison breached its duty of care by, e.g., failing to warn, is another matter, but remains a factual question for the jury.13

If, rather than deciding that no duty of care consisting of a “duty to warn” could properly be pled against Edison, the court was deciding the factual question of breach “as a matter of law,” the ruling may instead have been in essence a summary adjudication of that issue.   In order to sustain the ruling on that ground, it must be demonstrated that there is no triable issue of fact on the question of breach by failure to warn.   If the evidence and offers of proof entered at the “foundational hearing” are accepted in lieu of affidavits in support of or opposing a motion for summary adjudication of issues, it becomes clear that there were indeed triable issues of fact.14

Edison offered evidence to show it was not negligent, despite the fact that it did not place additional warning signs on the utility pole:  Plaintiff was not a small, immature child;  he was 14 1/212 years old, in junior high school.   He could read, and he had been flying kites for several years.   The lower set of crossarms on the pole were clearly marked with “High Voltage” signs.   Other children of like age and experience generally recognize the danger of climbing a utility to a height of 32 feet, among overhead wires which may be carrying electrical current.   Plaintiff's younger brother warned him not to climb the pole, urging that their mother would buy a new kite.   While such evidence might support an ultimate verdict in Edison's favor, that is not the proper test of summary adjudication.

Plaintiff's offers of proof and documentary evidence clearly placed the fact-based issues of breach, causation and comparative negligence in dispute.   Plaintiff would have testified that, although he recognized the danger of electric shock from contacting high-tension power lines, he believed only the upper wires were power lines.   While access to the upper wires, which plaintiff knew were dangerous, was impeded by the absence of pole rungs, the pole rungs, forming a ladder, led up to the lower set of wires.   Plaintiff thought the lower set of wires were telephone wires.15  Plaintiff did not know the wires were not insulated.   In addition, the “High Voltage” signs employed by Edison are posted on the crossarms carrying the wires—a person climbing the pole might well be within the zone of danger by the time the warning is given.   Plaintiff also offered evidence that another California utility, San Diego Gas and Electric Company, placed warning signs 10 to 12 feet above the ground on its utility poles to warn of danger of high voltage above, in addition to the crossarm warning.   The San Diego Gas and Electric Company signs were consistent with the report of a national safety group that warning signs, to be effective, should be placed at eye level.

 While plaintiff's case may not be of the strongest, it certainly cannot be said that no triable issues of fact remained on the question of a possible breach of the duty of care by failing to post an additional warning.16  The evidence on the issue was clearly in conflict and the court was in no way justified in removing the issue from the jury's consideration “as a matter of law.”

It becomes evident, as the “in limine” motion and ruling cannot be easily tortured to meet any known forms of motion, that what the court did was simply usurp unto itself the trial function, and pre-try the case without benefit of the jury (and without much in the way of evidence!).   It was not entitled to do so;  that is what a jury trial is for.   The court's ruling effectively precluded plaintiff from presenting any evidence on its primary theory of the case.   Plaintiff was thereafter understandably desirous of obtaining a final judgment for the purpose of appealing the improper pretrial ruling, and cannot be faulted waiving a jury trial on the one remaining issue or for failing to resubmit the excluded evidence to the court upon the court trial.

DISPOSITION

Although “substantial evidence” supports the court's ruling on the motion for judgment, that is not surprising in view of the court's prior ruling excluding virtually all evidence on plaintiff's primary theory of the case.   Because that pretrial ruling was erroneous under any view, the judgment must be reversed.

FOOTNOTES

1.   The original complaint named several co-plaintiffs as well as other parties defendant.   By the time of the hearing at issue, all the other defendants and the claims of all other plaintiffs had been dismissed from the action.   In addition, plaintiff no longer seriously contended that the electricity was a “product” or “commodity” for which Edison was strictly liable in tort.  (See Pierce v. Pacific Gas & Electric Co. (1985) 166 Cal.App.3d 68, 84, 212 Cal.Rptr. 283.)

2.   Edison also argued there was no “duty to warn” of a defective “product,” because the electricity, before the point of delivery as household current, was not a “product.”   Plaintiff apparently conceded that point below.

3.   Municipally owned utilities are not required to report such incidents to the PUC, and the PUC records therefore do not reflect any such incidents from, e.g., the Los Angeles Department of Water and Power.

4.   A stipulation was ultimately reached between the parties as to some of plaintiff's proffered testimony.   The stipulated portions were that plaintiff used at least the trash can to gain access to the pole rungs, plaintiff did not know the wires he contacted were bare, plaintiff believed the upper set of wires was dangerous, plaintiff saw no pole rungs leading to the upper set of wires, and plaintiff was in the eighth grade, in good physical condition and able to read at the time of the accident.

5.   The testimony before the court tended to establish that San Diego Gas and Electric instituted its program of placing a warning sign at a height of 10 or 12 feet on its utility poles with climbing rungs in response to a survey of its equipment which revealed some 7,000 poles did not bear proper yellow “High Voltage” signs on the crossarms.   The sign-posting measure was intended in part as a “temporary fix” until proper crossarm signs were installed, although the internal documents of San Diego Gas and Electric also stated the placing of the signs “may improve our position in the event of a lawsuit” and defense counsel conceded the lower signs became permanent some time in 1985.   Plaintiff made an offer of proof that a Dr. Robinson would testify San Diego Gas and Electric placed the warning signs on their poles to warn the public not to climb the poles and that these warning signs were in addition to the “High Voltage” crossarm signs.

6.   The motion for judgment differs from a motion for nonsuit in a jury trial (Code Civ.Proc., § 581c), in that the trial court may weigh the evidence in reaching a decision on the motion for judgment.   Therefore, as Edison correctly points out, the standard of review on appeal from a motion for judgment under Code of Civil Procedure section 631.8 is not the nonsuit standard, but is substantial evidence.  (Rodriguez v. North American Rockwell Corp. (1972) 28 Cal.App.3d 441, 446–447, 104 Cal.Rptr. 678;  Charles C. Chapman Building Co. v. California Mart (1969) 2 Cal.App.3d 846, 853, 82 Cal.Rptr. 830.)   Plaintiff's reference to the nonsuit standard of review is thus inapposite.

7.   Although nothing in the record below may be said to be “clear,” it is evident on close examination that the parties and the court confused the “duty to warn” with the fundamental legal question of the existence or nonexistence of a “duty” of care in the first instance.   The record contains numerous indications that the court and parties believed the issue before the court was the fundamental question of foreseeability giving rise to a duty of care.At several points in the hearing proceedings the court and the parties discussed the issue of foreseeability as it related to the fundamental question whether Edison owed a duty of care to a person such as plaintiff.   The court minutes recited that “Both Sides Rest on the issue of forseeability [sic ]” and that the court made its findings “re Motion in Limine Issue of Forseeability [sic ].”   Tellingly, the formal judgment prepared by Edison also states that the in limine hearing was conducted for “taking evidence for the purposes ․ only as to facts creating a foreseeable risk of harm.”  (Emphasis added.)   The court and the parties also agreed that the question at issue—whether a duty exists and whether the standard of care was the “ordinary” one of reasonable care—was one of law to be decided by the court.This is the classic question of foreseeability in the context of determining a fundamental duty of care.As the California Supreme Court made clear in Ballard v. Uribe (1986) 41 Cal.3d 564, 224 Cal.Rptr. 664, 715 P.2d 624, “the ‘foreseeability’ concept plays a variety of roles in tort doctrine generally;  in some contexts it is a question of fact for the jury, whereas in other contexts it is part of the calculus to which a court looks in defining the boundaries of ‘duty.’   [¶]  The question of ‘duty’ is decided by the court, not the jury.  (See 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 493, p. 2756 and cases cited;  Prosser & Keeton on Torts (5th ed. 1984) p. 236.)”  (Id., at pp. 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)

8.   In so doing, the court erred.   The “duty to warn” is actually an issue of breach (through failure to warn), normally a question of fact for the jury.  (See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, Outline, pp. 31–32 [“Failure To Give Warning,” [§§ 814–816] is a “Type [ ] of Negligent Conduct,” together with “Lack of Necessary Skill or Care” [§ 812], “Lack of Preparation or Inspection” [§ 813], or “Failure To Take Precautions” [§ 817];  see also Scally v. Pacific Gas & Electric Co. (1972) 23 Cal.App.3d 806 at pp. 815–816, 100 Cal.Rptr. 501 [discussing alternative methods of compliance with duty to make wires safe;  e.g., by either insulating the wires or placing them at a greater height].)   A “duty to insulate” in this context is a shorthand for possible breach of the duty of care by failing to insulate, not the finding of a fundamental duty of care.

9.   I.e., “the major [considerations] are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.”  (Rowland v. Christian (1968) 69 Cal.2d at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561, emphasis added.)

10.   “The jury, by contrast, considers ‘foreseeability’ in two more focused, fact-specific settings.   First, the jury may consider the likelihood or foreseeability of injury in determining whether, in fact, the particular defendant's conduct was negligent in the first place [i.e., whether the defendant breached the duty of care].   Second, foreseeability may be relevant to the jury's determination of whether the defendant's negligence was a proximate or legal cause of the plaintiff's injury.”   (Ballard v. Uribe, supra, 41 Cal.3d at p. 573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)Thus, the existence of a duty of care in itself (foreseeability of a risk of harm) does not render the defendant automatically liable.   The jury may still determine, in the more factually-intensive ways identified, that the particular injury was not foreseeable in light of the particular circumstances of the case.   The fact that a defendant electrical utility company such as Edison may owe a duty to the public to take precautions against contact with its highly dangerous electrical facilities is not to be converted into a duty to insure against all such injuries.   (Fairbairn v. American River Electric Co. (1915) 170 Cal. 115, 118, 148 P. 788 [electric companies are not insurers of the safety of the public against all dangers arising from placement of electrical facilities];  Sweatman v. Los Angeles Gas & Elec. Corp. (1929) 101 Cal.App. 318, 322, 281 P. 677 [“Reasonable care, not insurance against every possible accident, is the measure” of conduct for one maintaining high power electric wires].)   Edison is required to take whatever precautions are reasonably necessary, and no more.

11.   “Courts have [long] specifically recognized the instinct of a child to climb․”  (Runions v. Liberty National Bank (1957) 15 Ill.App.2d 538, 147 N.E.2d 380, 382.)   In an early Maine case in which a boy accidentally contacted a high-tension electrical wire strung through a tree, the court declared that “[N]o one may with impunity totally disregard the natural habits and the childish inclinations of boys at play to climb the dooryard shade trees.”  (Chickering v. Lincoln County Power Co. (1919) 118 Me. 414, 108 A. 460, 462.   See also, for example, Alabama Power Company v. Kirkpatrick (1957) 268 Ala. 338, 105 So.2d 855, 858 [“It is a matter of common knowledge that children have a natural love of climbing․”];  Gillespie v. Sanitary Dist. of Chicago (1942) 315 Ill.App. 405, 43 N.E.2d 141, 145 [“The instinct of a child to climb is fundamental․”];  and Salt River Valley Water Users' Ass'n. v. Compton (1932) 40 Ariz. 282, 11 P.2d 839, 845 [dis. opn. of McAllister, C.J., pointedly noting that “this characteristic of boy nature,” i.e., to climb “ladders, trees, poles, lumber piles, or anything climbable ․” was “so well known that no one, unless he has forgotten that he was once a boy, would deny it.”], overruled on another point in MacNeil v. Perkins (1958) 84 Ariz. 74, 324 P.2d 211, 215.)

12.   Examples of accidental contacts which should reasonably be foreseen include, Polk v. City of Los Angeles (1945) 26 Cal.2d 519, 526, 159 P.2d 931, holding an electric company should anticipate property owners would trim their trees and come near wires passing through the branches.   Monroe v. San Joaquin L. & P. Corp. (1941) 42 Cal.App.2d 641, 649, 109 P.2d 720, held it was not necessary for the appellant to have knowledge of the fact employees would be required to clear weeds in a transformer yard;  it was bound to anticipate as a reasonable prudent person that employees would be required from time to time to clear weeds naturally growing in the yard near uninsulated lines.   The evidence and offers of proof below indicated there had been for a time numerous contacts with overhead power lines by CB radio antennas until the federal government required warnings to be issued with the purchase of such antennas.   Interestingly, in Sulphur Springs Valley Electric Cooperative, Inc. v. Beltran (1970) 13 Ariz.App. 513, 478 P.2d 128 the court upheld a new trial for plaintiffs, whose decedent was electrocuted when an antenna he was attaching to the side of a house fell and touched a 28–foot–high bare electric wire.   The court pointed out that the electric company was bound to know there was some negligence in the world and was required to anticipate that human beings do not always act completely reasonably.

13.   Contrary to Edison's assertion that a power company's fulfillment of its duty of care has never required a warning, a number of cases from other jurisdictions involving contacts of radio or television antennas with overhead power lines have discussed breach by failure to warn.  (See, e.g., Spence v. Commonwealth Edison Company (1975) 34 Ill.App.3d 1059, 340 N.E.2d 550 [failure to warn occupants of house of proximity of power line to radio antenna];  Henderson v. Kansas Power & Light Co. (1959) 184 Kan. 691, 339 P.2d 702 [powerline over private property in urban area carried no warning sign;  negligence of power company a question for the jury];  Coatney v. Southwest Tennessee Electric Mem. Corp. (1956) 40 Tenn.App. 541, 292 S.W.2d 420 [failure to warn homeowner of uninsulated power line servicing the property when all other houses were served by insulated lines].)

14.   If the “foundational hearing” evidence and offers of proof are not deemed an appropriate substitute for the required “affidavits” in support of a motion for summary adjudication of issues, then the “motion” (seeking in effect the equivalent relief) was wholly lacking in proper support.

15.   Evidence that a cable television provider had strung its own wires—presumably not dangerous high voltage wires—on Edison's poles lends support to plaintiff's assertion he had no particular reason to think the lower wires were dangerous.   This seriously undermines Edison's assertion that it could have no duty to warn of an “obvious” condition or danger.   Although it is a matter of common knowledge, even to a 14 year old, that touching a highly charged electrical wire is dangerous, it may not have been entirely “obvious,” as Edison claims, that the wire plaintiff touched was such a wire.   In fact, one of Edison's witnesses testified that Edison's safety literature generally counsels the public not to touch its wires, but does not refer to the wires as “bare” or uninsulated.   Some uninsulated wires do bear a weatherproof coating, which might lead the public to believe they could touch the wire (i.e. it is not “bare”), or lead them into a “false sense of protection.”   The Edison newsletter introduced by plaintiff also acknowledged that members of the public coming near electric wires often “underestimat[e] the need for caution.”   Plaintiff would also have testified that he saw birds land on the wire and not be injured.   Thus, it may have been far from “obvious” to a 14–year–old boy that the wires he approached were dangerous high voltage electric lines.

16.   The fact that Edison's signing did comply with the requirements of General Order 95 by posting “High Voltage” signs on the crossarms is not dispositive of the issue of breach.   While custom or standard practice in the industry is a relevant consideration (Polk v. City of Los Angeles, supra, 26 Cal.2d at pp. 531–532, 159 P.2d 931), it is not necessarily a sufficient condition to meet the duty of due care.  “ ‘Conformity by defendant to general custom of power companies with relation to the manner of maintaining power lines ․ does not excuse defendant unless the practice is consistent with due care.’ ”  (Id., at p. 529, 159 P.2d 931;  Lozano v. Pacific Gas & Elec. Co. (1945) 70 Cal.App.2d 415, 424, 161 P.2d 74.)   Of course, the trier of fact may find under all the evidence that the crossarm warning, or the other warnings Edison promulgated (e.g., the advertisements, bill-stuffers, kite comic books, films, etc.) provided an adequate warning.

DABNEY, Acting Presiding Justice.

HOLLENHORST, J., and McDANIEL, J.,* Assigned, concur.