HACKER v. CITY OF GLENDALE

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Court of Appeal, Second District, Division 7, California.

Eleanor HACKER et al., Plaintiffs and Appellants, v. CITY OF GLENDALE et al., Defendants and Respondents.

No. B047989.

Decided: June 29, 1993

Fogel, Feldman, Ostrov, Ringler & Klevens and Larry R. Feldman, Santa Monica, for plaintiffs and appellants. Scott H. Howard, City Atty., Carole I. Glovsky, Asst. City Atty., Glendale, Veatch, Carlson, Grogan & Nelson and Mark A. Weinstein, Los Angeles, for defendants and respondents.

Plaintiffs, the surviving wife and daughter of decedent David Hacker, commenced a wrongful death action against the City of Glendale, George and Joann Nishimoto, and R.D. Werner Company, Inc.   Plaintiffs appeal from summary judgment entered in favor of defendants.1

FACTS

The third amended complaint alleged that on February 7, 1987, at the request of the Nishimotos decedent was trimming a tree at their residence in Glendale when he was electrocuted by high voltage power lines that passed through the branches of the tree;  the power lines were the responsibility of the City of Glendale (city);  the city and its employees negligently failed to inspect the power lines and the power line easement in a reasonable manner and at reasonable time intervals, thereby allowing tree branches to intrude into the power lines and the easement.   Plaintiffs sued the Nishimotos on the theory of negligent maintenance of premises, and the city on the theory of a dangerous condition of public property (Gov.Code, § 835).

Defendants moved for summary judgment on the ground the doctrine of reasonable implied assumption of the risk bars plaintiffs' recovery.   In support of the motion defendants presented excerpts from depositions which showed:  Decedent had been in the business of gardening and tree trimming since October 1975.   He was trained in tree trimming by a friend who had 13 years of experience in that line of work with Southern California Edison Company.   In the year immediately preceding his death, tree trimming constituted 40 or 50 percent of decedent's business.   Decedent was electrocuted on property owned by defendants Nishimoto while he was standing on a ladder and trimming a tree in the vicinity of high voltage electrical power lines.   Two days before he was electrocuted decedent came to the home of the Nishimotos to give them an estimate of the cost of trimming the tree.   At that time Mr. Nishimoto told decedent there were wires running through the tree;  decedent replied, “Don't worry about it.   I have done it before.”   While decedent was changing the position of the ladder beneath the tree he looked up at the power lines, which were visible from the ground, and said to his helper, Felipe Ortega, “Watch out, Felipe.”   Before the fatal accident decedent and his wife (plaintiff Eleanor Hacker) had discussions about the danger of trimming trees near electrical wires;  decedent was aware of such danger and on occasion he turned down jobs because electrical wires might interfere with the tree trimming.   While decedent was trimming the Nishimotos' tree he was careful to avoid touching the power lines with his body and was careful that the branches he cut did not drop onto the lines.

Plaintiffs opposed the motion presenting evidence which indicated that decedent was not electrocuted by coming into direct contact with a power line, but instead met his death when he came into contact with a branch which was touching a power line.

In reply to plaintiffs' opposition defendants offered the declaration of one Eli Camacho, a retired employee of the Los Angeles Department of Water and Power with 29 years' experience as a tree trimmer, tree trimming supervisor, and tree coordinator.   Mr. Camacho stated it is well known in the profession that a live tree branch can conduct electricity;  that is why trees often are struck by lightning.

The trial court granted the motion for summary judgment as to all defendants.   Plaintiffs moved for “reconsideration and/or new trial” on the ground, inter alia, that the defense of reasonable implied assumption of the risk is not available to defendant city because its negligence is predicated upon violation of a general order promulgated by the Public Utilities Commission of the State of California, which seeks to ensure the safety of the public in the construction, maintenance, operation and use of overhead electrical lines.

 Plaintiffs' motion for reconsideration or new trial was denied.   Summary judgment was entered in favor of defendants and against plaintiffs.   Plaintiffs appeal from the judgment.2

I

STANDARD OF REVIEW

 Summary judgment is proper only if no material factual issue exists or where the record establishes as a matter of law that a cause of action asserted against a party cannot prevail.  (Taylor v. Fields (1986) 178 Cal.App.3d 653, 659, 224 Cal.Rptr. 186.)   Where, as here, the moving party is the defendant he must either negate a necessary element of the plaintiff's case or establish a complete defense.  (O'Shea v. General Telephone Co. (1987) 193 Cal.App.3d 1040, 1047, 238 Cal.Rptr. 715.)   We proceed to address the issue of whether the trial court properly granted summary judgment on the ground that plaintiffs' action was barred by the defense of assumption of risk.

II

ASSUMPTION OF RISK

Plaintiffs contend the defense of reasonable implied assumption of the risk should be abolished as a complete bar to recovery and instead should be included as an element of comparative negligence.   After plaintiffs made this argument, the California Supreme Court issued its decision in Knight v. Jewett, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696.   Therein, the court ruled that “use of the ‘reasonable implied assumption of risk’/‘unreasonable implied assumption of risk’ terminology, as a means of differentiating between the cases in which a plaintiff is barred from bringing an action and those in which he or she is not barred, is more misleading than helpful.”  (3 Cal.4th at p. 309, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   Rather, the Court distinguished between primary and secondary assumption of risk cases.

The Court in Knight interpreted its prior decision in Li (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226) as distinguishing between “(1) those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk—the category of assumption of risk that the legal commentators generally refer to as ‘primary assumption of risk’—and (2) those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty—what most commentators have termed ‘secondary assumption of risk.’   Properly interpreted, the relevant passage in Li provides that the category of assumption of risk cases that is not merged into the comparative negligence system and in which the plaintiff's recovery continues to be completely barred involves those cases in which the defendant's conduct did not breach a legal duty of care to the plaintiff, i.e., ‘primary assumption of risk’ cases, whereas cases involving ‘secondary assumption of risk’ properly are merged into the comprehensive comparative fault system adopted in Li.”  (3 Cal.4th at p. 308, 11 Cal.Rptr.2d 2, 834 P.2d 696, fns. omitted.)

“[T]he question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff's conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.”  (Knight v. Jewett, supra, 3 Cal.4th at p. 309, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Knight involved a plaintiff injured in an informal game of touch football.   The court concluded “that a participant in an active sport breaches a legal duty of care to other participants—i.e., engages in conduct that properly may subject him or her to financial liability—only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.”  (3 Cal.4th at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Knight did not limit application of the primary assumption of risk doctrine to sports settings.  “In addition to the sports setting, the primary assumption of risk doctrine also comes into play in the category of cases often described as involving the ‘firefighter's rule.’  [Citation.]  In its most classic form, the firefighter's rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire;  the rule provides that the person who started the fire is not liable under such circumstances.   [Citation.]  Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront.  [Citations.]  Because the defendant in such a case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action even if the risk created by the fire was so great that a trier of fact could find it was unreasonable for the firefighter to choose to encounter the risk.”  (Knight v. Jewett, supra, 3 Cal.4th at pp. 309–310, fn. 5, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

 Applying Knight to this case, we conclude that defendants met the burden of establishing that this is a case of primary assumption of risk—where, by virtue of the nature of the activity and the parties' relationship to the activity, the defendants owed no legal duty to plaintiff.3  In the instant case, decedent was employed and compensated for work that carried with it certain endemic hazards, including the hazard of electrocution.   Decedent discussed with his wife the danger of trimming trees near electrical wires and on occasion had turned down jobs because electrical wires might interfere with the tree trimming.   No triable issue of fact is established by the fact that the electricity may have first passed from the power line through a live tree branch, rather than directly to decedent from the power line;  under either scenario, the risk of harm existed because of the same exposure to electrical wires and the same property of electricity.   In other words, both methods of electrocution are within the realm of hazards inherent in decedent's occupation.

 Plaintiffs contend defendants failed to meet their burden on summary judgment because the papers in support of their motion for summary judgment did not show the existence of an element necessary to establish the defense of reasonable implied assumption of the risk, viz., the decedent's actual knowledge of the very danger which caused his death.

After Knight, it is clear that application of the primary assumption of risk doctrine “does not depend on the particular plaintiff's subjective knowledge or appreciation of the potential risk․  [¶] Rather than being dependent on the knowledge or consent of the particular plaintiff, resolution of the question of the defendant's liability in such cases turns on whether the defendant had a legal duty to avoid such conduct or to protect the plaintiff against a particular risk of harm.”  (Knight v. Jewett, supra, 3 Cal.4th at pp. 316–317, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

We conclude that defendants owed no legal duty to eliminate or protect decedent against the risk of electrocution.   Therefore, this case falls within the primary assumption of risk doctrine, and plaintiffs' action against defendants is barred.

The dissenting opinion acknowledges that public policy considerations may exist to support the conclusion that the instant homeowners owe no duty of care to plaintiff Hacker;  however, the dissent argues that because the defendant city did not hire Hacker, those public policy considerations do not apply to the city, which the dissent characterizes as a “free rider” on the homeowner's payments to the independent contractor hired by the homeowner.

 We reject the implication in the dissenting opinion that the facts of this case or the applicable law require that we analyze the primary assumption of risk doctrine differently with respect to the defendant city.   The liability of a public entity is subject to any defenses that would be available to the public entity if it were a private person.  (Gov.Code, § 815, subd. (b);  Blakley v. State of California (1980) 108 Cal.App.3d 971, 975, 167 Cal.Rptr. 1.)

 Moreover, although the legal predicate for the city's liability is based on an alleged dangerous condition of its property, such liability should not be a direct function of the plaintiff's status as a trespasser, licensee, or invitee as to city.   As stated by the court in Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 198 Cal.Rptr. 208 [addressing the issue of whether plaintiffs' status as trespassers on a city beach, in violation of ordinance, defeats their recovery]:  “Even if the plaintiff's status as a trespasser, a licensee, or an invitee is relevant, the rigid distinctions based on that status have for the most part been eliminated by our Supreme Court in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561․  Rowland held that ‘continued adherence to the common law distinctions can only lead to injustice.’  (Id., at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561.)   The court held that, ‘although the plaintiff's status as a trespasser, licensee or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.’  (Ibid.)  The same should be true when the defendant is a public entity.”  (Swaner v. City of Santa Monica, supra, 150 Cal.App.3d at p. 810, 198 Cal.Rptr. 208.)

 The dissent also appears to suggest that the duty analysis under the primary assumption of risk doctrine set out in Knight should be resolved differently as to the city because it did not pay for Hacker's tree-trimming services and was responsible for maintaining the electrical wires.   However, there was no evidence presented in this case to show that the nature of the tree-trimming activity by Hacker was affected by the identity of the hirer, whether the hirer was the Nishimotos or the city.   In addition, it was undisputed that residents of the City of Glendale do not have to request a permit in order to trim trees in their yards even though such trees can also be trimmed by defendant city as part of its maintenance of electrical wires.

Under the circumstances of this case, it is clear from the facts that any duty on the part of the city to maintain its electrical wires does not alter the nature of the relationship between Hacker and the job he was hired to perform.   Any breach by city of a duty to inspect the wires is not a proximate cause of Hacker's injury because both the city and the homeowner had the right to trim the trees.   In other words, when the Nishimotos themselves inspected their property and hired Hacker to trim their trees, it became irrelevant whether or not the city also had undertaken its own inspection or action with respect to the trees.  “[B]reach of a duty to investigate is not a proximate cause of injuries flowing from the failure to prevent certain conduct by the object of investigation.”  (Brenneman v. State of California (1989) 208 Cal.App.3d 812, 818, 256 Cal.Rptr. 363.)

Under the facts of this case, we conclude that the primary assumption of risk doctrine applies to both the defendant homeowners and the City of Glendale.

III

 Repeating the argument first made in their motion for reconsideration, plaintiffs contend the defense of reasonable implied assumption of the risk is unavailable to defendant city because its negligence is predicated upon violation of a safety order made by the state public utilities commission.   (See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1113, pp. 526–527.)

 The short answer to this contention is that plaintiffs did not plead defendant's violation of a safety order.   The third amended complaint bases the city's liability upon an allegedly dangerous condition of public property.   A litigant seeking to plead the breach of a mandatory duty must specifically allege the applicable statute or regulation.  (Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1080, 235 Cal.Rptr. 844.)  “The moving party's burden on a motion for summary judgment is only to ‘negate the existence of triable issues of fact in a fashion that [entitles] it to judgment on the issues raised by the pleadings.  [Citation.]  It [is] not required to refute liability on some theoretical possibility not included in the pleadings.’  [Citation.]”  (American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281, 241 Cal.Rptr. 466.)

In any case, we conclude that any breach by city of a statutory duty to inspect its electrical wires and trim the trees on the Nishimoto's property does not impact our analysis of the primary assumption of risk doctrine in this case.

DISPOSITION

The judgment is affirmed.   The purported appeal from order denying plaintiffs' motion for reconsideration or new trial is dismissed.   Costs on appeal are awarded to defendants.

I respectfully dissent, for the second time.

When this case first came before our panel I dissented because I was concerned the majority had misapplied the then prevailing definition of “reasonable implied assumption of the risk” (RIAR) which focused on a plaintiff's subjective appreciation of the precise risk he or she was assuming.   This remains the construct endorsed by a three-justice minority of the California Supreme Court in the recent landmark opinion, Knight v. Jewett (1992) 3 Cal.4th 296, 322–338, 11 Cal.Rptr.2d 2, 834 P.2d 696, and had their view prevailed I could merely resurrect my initial dissent.

The plurality of justices in Jewett, however, shifted the focus of the implied assumption of the risk defense from RIAR based on an inquiry about the plaintiff's subjective state of mind to “primary assumption of the risk” (PAR) based on a policy analysis of the defendant's duty toward the plaintiff.   Under PAR, only when policy considerations dictate the class of which defendant is a member owes no duty to the class of which plaintiff is a member does the implied assumption of the risk defense operate as a complete bar to defendant's liability.   In all other cases, plaintiff's reasonable or unreasonable assumption of the risk is merely one factor to be incorporated in the comparative negligence equation.  (Knight v. Jewett, supra, 3 Cal.4th at pp. 303–315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

As has been observed in more than one subsequent appellate opinion, the Supreme Court could not be more sharply split on the fundamentals of the assumption of the risk doctrine.   Three Justices support each analysis—the plaintiff's subjective state of mind (RIAR) versus the objective appraisal of the defendant's duty (PAR).   The seventh, Justice Mosk, apparently does not approve of either, since he is convinced all forms of implied assumption of the risk have been subsumed in the comparative negligence doctrine.  (Knight v. Jewett, supra, 3 Cal.4th at pp. 321–322, 11 Cal.Rptr.2d 2, 834 P.2d 696, Mosk, J., conc. and dis.)   Nonetheless, Justice Mosk broke the tie by concurring in what he evidently perceived to be the lesser of two evils—the approach based on an objective policy analysis of the defendant's duty to the plaintiff.  (3 Cal.4th at p. 321, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Because of this profound analytical schism on our high court, I have decided to discuss this case under both definitions of the implied assumption of the risk defense.   In my view, whether one focuses on the deceased tree trimmer's subjective state of mind or on respondents' duty to those employed to trim trees, there are triable issues as to whether implied assumption of the risk constitutes an absolute bar to appellants' cause of action.   Accordingly, summary judgment was improper and the case should move on to a trial on the merits.

I begin with an evaluation of the evidence under the “minority” view in Jewett that the pertinent inquiry is whether the plaintiff actually comprehended the precise risk and voluntarily chose to confront it.   I do so because this allows a fuller presentation of the factual context.   Then I will turn to the “plurality” view that the proper inquiry is whether a given defendant owed a duty to plaintiff and attempt to weigh the policy considerations which might determine the answer to that inquiry in this case.

I. THERE ARE TRIABLE ISSUES WHETHER THIS TREE TRIMMER SUBJECTIVELY KNEW THE FACTS AND APPRECIATED THE DANGER THAT THESE WERE HIGH VOLTAGE POWER LINES AND THAT HE COULD BE ELECTROCUTED MERELY BY TOUCHING A TREE LIMB WHICH WAS IN CONTACT WITH ONE OF THESE LINES.

Prior to Jewett, at least, the implied—in contrast to express—assumption of the risk defense was subject to four critical limitations.

First, unlike contributory negligence, this defense employed a subjective test, not an objective, “reasonable person” standard.   The defendant had to prove this particular injured person actually knew the risk.   It was not enough to prove a reasonable person would know or should know the risk.  “Under contributory negligence, the plaintiff's conduct was measured against the objective standard of a hypothetical reasonable person.  (Citations omitted.)   Implied assumption of risk, in contrast, has always depended upon the plaintiff's subjective mental state;  ․” (Knight v. Jewett, supra, 3 Cal.4th at pp. 327–328, 11 Cal.Rptr.2d 2, 834 P.2d 696, Kennard, J., dis.)   Thus, in the instant case it was not enough to prove a reasonable tree trimmer would know the risk.   It had to be proved this particular individual tree trimmer actually knew.1

Second, the injured person had to know not merely the facts that create the danger;  he had to understand the existence and magnitude of the danger.2

Third, the injured person had to have specific knowledge of the particular danger which caused his injury not merely the general dangerousness of the activity in which he was engaged.3  “The defense of implied assumption of risk depends on the plaintiff's “ ‘actual knowledge of the specific danger involved.’ ”  (Citation omitted).”  (Knight v. Jewett, supra, 3 Cal.4th at p. 326, 11 Cal.Rptr.2d 2, 834 P.2d 696, Kennard, J., dis.)

Finally, whether a particular injured person actually possessed the requisite knowledge and reasonably assumed the risk was a question of fact reserved for the jury in all but the most extraordinary cases.4  “Whether the plaintiff knew and appreciated the specific risk, and voluntarily chose to encounter it, has generally been a jury question.”  (Ibid.)

The parties did not cite and my research did not yield any California appellate case involving tree trimmers falling afoul of electrified tree branches.   However, I did uncover a recent Arizona opinion which does.   (Gonzales v. Arizona Public Service Co. (1989) 161 Ariz. 84, 775 P.2d 1148, rev. den. June 27, 1989.)

In this opinion, an Arizona Court of Appeal considered a factual situation nearly identical to the instant case.   It applied the principles discussed above to hold a person paid to trim trees did not assume the risk he would be electrocuted by a tree branch contacting a known power line.   Indeed the court went far beyond holding it was a triable issue whether the tree trimmer possessed the requisite knowledge.   The court held there was no triable issue but that the tree trimmer lacked that knowledge and therefore the reasonable assumption of the risk defense should not even be submitted to the jury.

The Arizona court first described the elements of the reasonable assumption of the risk defense in terms which resemble the “minority” view in Jewett.

“The elements of assumption of the risk are (1) a risk of harm to the plaintiff caused by a condition of the defendant's property, (2) plaintiff's actual knowledge of the risk and appreciation of its magnitude, and (3) plaintiff's voluntary choice to accept the risk given the circumstances.”  (Gonzales v. Arizona Public Service Co., supra, 775 P.2d at p. 1153.)

The court then proceeded to apply these well-accepted principles to the tree trimmer's unfortunate electrocution.

“[The defendant power company] argues that Gonzales knew of the specific risk of electrocution from the high power lines.   However, Gonzales was not electrocuted by virtue of directly coming into contact with the high power line.   The risk presented here requires closer analysis.   No evidence was presented that Gonzales was aware of the fact that should a tree branch from a tree in which he was positioned come into contact with a high power line, electricity could be conducted through the tree branch into the tree, thereby placing him at risk for electrocution․ [I]t was Gonzales' knowledge of that specific risk [italics in original) which was required to be established by [the defendant) before an instruction on assumption of the risk would have been appropriate․

“ ‘In order for the doctrine of assumption of risk to be applicable, a general knowledge of a danger is not sufficient but, rather, the plaintiff must have actual knowledge of the specific risk which injured him and appreciate its magnitude.  (Citations omitted.)’

“We find no error in the trial court's refusal to instruct the jury on the defense of assumption of the risk.”  (Gonzales v. Arizona Public Service Co., supra, 775 P.2d at pp. 1153–1154, italics added.)

The Virginia Supreme Court confronted a similar situation in 1983 and reached the same result, in that case holding there was enough evidence to justify an instruction on “contributory negligence” but not enough to warrant an “assumption of the risk” instruction.  (Virginia Elec. and Power Co. v. Winesett (1983) 225 Va. 459, 303 S.E.2d 868.)

In Winesett, a tree trimmer was electrocuted when a branch he had partially severed made contact with a high voltage power line.   There was no question he knew about the line, but no evidence he knew the line carried 7200 volts or understood a tree branch would conduct electricity to his body.  “It is true [an expert witness] testified that a tree worker should be instructed as to the danger arising from a limb striking an electric line.   There is no evidence, however, that [this particular tree trimmer] was aware that any of the lines carried high voltage or that a partially cut branch striking the top wire would conduct electric current through the branch and ultimately into his body.   We conclude that the trial court correctly ruled that there was no evidence that [the tree trimmer] fully appreciated the nature and extent of the danger and deliberately chose to subject himself to the risk.   We hold, therefore, that the court did not err in refusing the proffered instruction on assumption of risk.”  (Virginia Elec. and Power Co. v. Winesett, supra, 303 S.E.2d at p. 876.) 5

In the instant case, of course, we need not reach the question whether there is enough evidence Hacker actually knew of the specific risk of electrified tree branches to justify instructing a jury on the “reasonable assumption of the risk” defense.   Here the issue is whether the evidence supporting his knowledge and appreciation of this danger is so overwhelming no triable issue remains because “reasonable men could not differ as to the conclusion” he possessed the requisite knowledge and understanding as to this specific risk.   Unless it is the assumption of the risk defense should have been left for the jury to decide.

In actuality, while there is some evidence in the record suggesting Hacker was aware of the general dangerousness of power lines, there is a poverty of evidence on the only relevant question—was he actually and fully aware of the specific danger of electrocution by tree limb.   There is even a triable issue whether Hacker knew the specific wires going through this particular tree were high voltage power lines instead of cable TV lines, telephone lines, or the like.   Most of the evidence respondents offered on this threshold question supports opposing inferences.

To begin with, despite extensive discovery from Hacker's family, co-workers, and those who hired his services, respondents were not able to produce any statement from him reflecting his knowledge one could be electrocuted by touching a tree branch which was in contact with a power line.   In the absence of direct evidence as to his state of mind, respondents instead asked the trial court to infer this knowledge from other, circumstantial evidence.

Respondents first pointed to the fact Hacker received some training in tree trimming almost 15 years before the incident.   However, they tendered no evidence about the content of the “curriculum” for this training.   Was the danger of electrified tree branches featured in this instruction or was it even mentioned?   If it was part of the “curriculum” did Hacker still remember this “lesson” 15 years later?   As a matter of fact, what the depositions revealed about this training indicates it consisted of a few informal weekend sessions with someone presumably experienced in tree trimming.   There was not even any evidence this training covered the general topic of tree trimming near power lines.   One has to pile inference on inference on inference to move from the fact Hacker had a few weekends of informal training in the basics of tree trimming in the early 1970's to the proposition he knew about the specific danger of electrocution by tree branch in 1987.

Respondents next offered deposition testimony from family members about statements and conduct suggesting Hacker was aware of the general danger of tree trimming near power lines.   Indeed there was testimony in the record he sometimes turned down jobs where power lines were strung through or near the trees.   There also was deposition testimony that when he did trim trees despite this danger he used care to avoid the power lines.   Once again, however, all of this is evidence of Hacker's knowledge of the general danger posed by power lines.   It is not evidence suggesting he knew of the specific danger of electrocution by tree branch.

Respondents next tender evidence from the owners of the fatal tree and Hacker's employee about what happened on the day of the electrocution.   In their self-serving deposition testimony, the owners recite they told Hacker about the wires going through the tree and he reassured them he knew how to deal with that problem and had done so before.   The employee testified Hacker warned him about the wires and took pains to ensure the branches he sawed off did not hit the wires on the way down.   However, neither the owners nor the employee testified Hacker said anything about any danger from touching branches that were in contact with these wires.   Nor did they testify Hacker said these were power lines or refer to them as power lines.

Once again, there is nothing in this evidence demonstrating Hacker's knowledge of the specific danger that killed him.   Hacker's statements and comments are not even especially strong evidence of his knowledge of a general danger in trimming this particular tree.   Obviously tree trimmers must be careful when any kind of wire goes through the trees they are trimming.   To allow a careless scissor cut or falling branch to sever a cable TV line or a telephone line is to eliminate service to your employer's home.   So Hacker's statements and conduct on this occasion are consistent with a belief—albeit an erroneous belief—these wires were something other than power lines.   That, however, is not the principal point.   Whatever those statements and conduct imply about his knowledge of the general danger, they do not support an inference he was aware of the specific danger of electrocution by tree branch.

The only other evidence respondents proffered was a last minute deposition from an expert who testified “professional tree trimmers” are aware they can be electrocuted by touching tree branches that are in contact with high voltage power lines.   Even assuming this deposition were deemed admissible it is only some evidence, not conclusive evidence, on the question of this tree trimmer's subjective knowledge of and appreciation of the specific danger of electrocution by tree branch.   The test, once again, is not what a reasonable tree trimmer would know or what this tree trimmer should know.   It is what he, in fact, knows.   In the words of the Restatement, “If by reason of age, or lack of information, experience, intelligence, or judgment, the plaintiff does not understand the risk involved in a known situation, he will not be taken to assume the risk, ․” (Rest.2d Torts, § 496D, ch. 17A, com. (c) at p. 575.)   Here there is no evidence this tree trimmer possessed the knowledge, intelligence or judgment of the average—or even the below average—professional tree trimmer.   Hacker was not someone who apprenticed as a tree trimmer for a number of years and then started his own tree trimming business.   He was just a businessman, a gardener, who at some point decided to offer tree trimming services, too, and then simply started doing it.   Except for a few weekends of informal “training” in the early 1970's he was never educated or supervised in this function.   So little can be inferred about Hacker's actual knowledge from what professional tree trimmers “know” or “should know.”

Conceivably, the evidence respondents offered in support of their motion would be enough to justify an assumption of the risk instruction asking the jury to decide the question, were the “minority” formulation of “reasonable assumption of the risk” to be applied.   It would not, however, be the sort of evidence to hang a summary judgment on.

Meantime there is evidence in the record that weighs heavily on the other side of the ledger.   This evidence affirmatively supports the inference Hacker was unaware of the specific danger the branches on this particular tree might electrocute him.

It is undisputed Hacker was using an aluminum ladder at the time he suffered this fatal injury.   This fact is inconsistent with a conclusion Hacker actually knew these were high voltage power lines going through the tree branches and actually understood he could be electrocuted by merely touching one of the branches.   A tree trimmer who fails to appreciate the danger a shiny metal ladder will conduct electricity and electrocute anyone standing on that ladder is unlikely to appreciate the danger an innocent appearing, leafy green tree branch poses that threat.   Conversely, any tree trimmer who comprehends the conductivity of an aluminum ladder is unlikely to use it to climb among branches he understands could become electrified at any moment.   A tree trimmer might be confident he could avoid physical contact with the power lines themselves and thus be willing to stand on a metal ladder.   There is no way he could expect to avoid contact with the very tree branches he was hired to saw, cut and trim.

Thus, Hacker's conduct in using this metal ladder is most consistent with an inference he either did not know these were power lines or did not realize the tree branches he was trimming could become electrified limbs of death.   Either way he would not possess the subjective knowledge and appreciation of the specific danger he faced which is the sine qua non of the “reasonable assumption of the risk” defense as defined by the three justices in the “minority” in Jewett.  (Knight v. Jewett (1992) 3 Cal.4th at pp. 322–338, 11 Cal.Rptr.2d 2, 834 P.2d 696.

Given the weakness of the evidence favoring the inference Hacker subjectively understood the specific danger he confronted and the relative strength of the evidence favoring the inference he lacked this understanding, summary judgment was inappropriate assuming, as the Jewett minority urged, the proper inquiry is the decedent tree trimmer's subjective state of mind.   If this were to be the standard, can there be any doubt there is at least a triable issue whether this tree trimmer voluntarily began cutting the leafy green branches of this tree while comprehending those same tree limbs were or could be lethally charged with high voltage electricity?

II. TREE TRIMMERS AS A CLASS JUST AS OTHER PERSONS ARE OWED A DUTY OF CARE BY POWER SUPPLIERS WHOSE OVERHEAD POWER LINES INTRUDE UPON TREES AND THUS PRIMARY ASSUMPTION OF THE RISK DOES NOT APPLY TO AVOID LIABILITY TO TREE TRIMMERS WHO ARE INJURED BY POWER LINES WHILE TRIMMING TREES.

Under the analysis adopted in the “plurality” decision in Jewett, assumption of the risk is an absolute defense only when public policy dictates the class of which a defendant is a member should owe no duty of care to the class of which a plaintiff is a member.   According to this analysis, the inquiry does not begin with the question whether the plaintiff assumed the risk, in this instance the question whether this tree trimmer subjectively comprehended the precise risk of electrified branches and reasonably or unreasonably confronted that risk.   Rather the inquiry begins—and ends—with a traditional full scale duty analysis, such as was fully developed in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561.

If this multifactor policy analysis yields the conclusion the class of which the defendant is a member should owe a duty of care to the class of which plaintiff is a member in relation to the activity involved then primary assumption of the risk does not apply and defendant's liability is measured under comparative negligence principles.   The policy considerations supporting imposition of a duty of care on the defendant class in favor of the plaintiff class are balanced against the policy considerations supporting an elimination (or reduction) of that duty.   Only when the factors favoring elimination (or reduction) of the duty outweigh those supporting imposition of the duty is the duty of care eliminated (or reduced) as to the class of which defendant is a member.   And only in that circumstance can it be said plaintiff has assumed the risk of injury in the primary sense.

This is the form of analysis the plurality itself used in Jewett to determine whether primary assumption of the risk applied.   In that case, the parties were coparticipants in a touch football game.   Most if not all participants in such competitive contact sports are aware there is a risk of injury through overexuberant play by other players.   But that subjective appreciation of risk was not the focal point of the Supreme Court's attention.   Rather the plurality opinion, at least, looked to the policy implications of imposing a duty of care on participants toward their coparticipants in these contests.   The high court decided public policy considerations militated against a duty of care, primarily because “vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct․  [E]ven when a participant's conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.”   (Knight v. Jewett, supra, 3 Cal.4th at pp. 318–319, 11 Cal.Rptr.2d 2, 834 P.2d 696.)  (Emphasis in original.)

Thus, under the plurality view in Jewett the question whether the tree trimmer in this case was subjectively aware of the precise danger of electrocution through tree branch and voluntarily undertook this tree-trimming job despite that knowledge is irrelevant to whether the defendant city whose power lines caused the tree trimmer's electrocution and death owed a duty of care to this tree trimmer.   Instead the analysis here as in Jewett properly focuses on the policy factors affecting the defendant's duty to the plaintiff in the context of this particular activity.   The question is:  Do third parties who are responsible for the dangerous condition of overhead power lines intertwined with tree branches on a given property owe a duty of care toward tree trimmers whom property owners employ to trim the trees on that property.

Here we have the respondent city, a distributor of high voltage electricity, which has allowed its power lines to intrude through the branches of a tree near a residence.   The city knew or should have known this created a dangerous condition.   Indeed the city allowed this condition to exist in apparent violation not only of the common law duty of due care but also of a specific safety order promulgated by the state Public Utilities Commission.   This order provides “the owners and employees of [electric supply systems] shall at all times exercise due care to reduce to a minimum the hazard of accidental injury to their own or fellow employees, to the public and other utilities due to the presence of overhead wires”.  (Gen. Order No. 95, rule 35, rule 31.1.)   This order expressly requires these companies to inspect power lines frequently and itself trim trees to insure the lines clear branches and foliage by a safe margin.  (Gen. Order No. 95, rule 35, rule 31.2.) 6

There is evidence in the record respondent City of Glendale had not inspected power lines for this problem in the neighborhood where this tree is located for some three years prior to this fatal incident.

At a minimum, the existence of this safety order serves to underscore the duties owed by those who distribute high voltage electricity, which like the automobile, poses such a great danger of death and injury unless those that operate the system take due care.   Accepting the truth of the evidence in this record, this power company allowed a condition to fester for several years that could have produced injury or death in many ways.   The residents could have elected to try to trim this tree themselves and mounted their own aluminum ladder to suffer the same fate as Hacker did.   Or a neighborhood child could have climbed the tree and grabbed hold of an innocent looking wire learning to his surprise and sorrow it carried high voltage electricity.   Or a tree branch could have rubbed the power line the wrong way and sparked a spontaneous fire or a rotten limb could have fallen on the power line and severed it with the same disastrous results.

Thus, this a very different situation from a horse race or a flag football game where, for public policy reasons, society may want to eliminate or reduce the duty of care a contestant owes other participants.   These are the types of factual situations over which the debate about “reasonable implied assumption of the risk” generally rages.   After assessing a complex of competing policy considerations courts have decided society is better off if we declare the ordinary duty of due care does not apply with regard to certain narrowly circumscribed activities.

Under the “primary assumption of the risk” analysis favored by the Jewett plurality people who choose to engage in certain activities can be viewed as “assuming the risk” for any injuries they suffer because they elect to involve themselves in activities society, for independent policy reasons, deems should not be subject to the ordinary duties of due care.   This does not mean people who engage in other activities with knowledge of the risks involved in those activities should be barred from recovery for their injuries just because it can be said they knew the activity carried a risk of injury and yet chose to engage in that activity.   To put in another way, “primary assumption of the risk” is an effect flowing from a societal decision not to compensate injuries occurring in certain activities.   The plaintiff's knowing assumption of an evident risk is not a legitimate cause for denying compensation to those injured while engaged in other activities.

I seriously question whether “primary assumption of the risk” properly applies to bar recovery completely in any case where the human endeavor involved is one in which society is best served by requiring the participants to exercise due care.   In those situations, the comparative negligence doctrine is the far superior approach in both theory and practice.   It supplies a means for weighing how much of the plaintiff's injury is attributable to the defendant's breach of its duty of due care toward others and how much is attributable to the plaintiff's breach of his duty of due care toward himself.   In doing so, it not only measures out the proper ration of compensation to the injured it also administers the proper levels of financial incentives to encourage safer behavior by both parties.7

The public policy analysis which eliminates the duty of due care among participants in athletic contests and the like has no relevance to cases like the present one.   Society has nothing to gain—and much to lose—by eliminating or reducing the duty of care electric power distributors owe toward anyone and everyone to keep their high voltage lines clear of trees and tree branches.   The fact the victim here happened to be a professional tree trimmer should not relieve the power company entirely from all liability for the injury caused by its own negligence in allowing this dangerous condition to exist.   To allow the power supplier a “primary assumption of the risk” defense would only provide a windfall to an errant defendant just because its negligence happened to hurt a professional and possibly knowledgeable victim rather than the many other members of the public who could suffer from its ongoing negligence.

 The “Firefighter's Rule” Subcategory of Primary Assumption of the Risk Does Not Apply To Relieve a Distributor of Electric Power of a Duty of Care Toward Persons Employed to Trim Trees.

The majority opinion analogies this tree trimmer to a public firefighter and applies an expanded version of the “firefighters' rule” to except professional tree trimmers from the duty of care electric power suppliers owe to every one else.   According to this argument, one of the many risks of the tree trimming profession is that one will be electrocuted by nearby high voltage power lines.   By contracting with a property owner to trim that owner's trees, the tree trimmer is deemed to relieve others of any duty of care with respect to any risk of that profession.  (Maj. opn. at p. 851.)   Since one of those risks is of electrocution by power line the majority opinion takes the position no duty is owed professional tree trimmers by those responsible for creating the dangerous condition of power lines intruding through tree branches.   Accordingly, since no duty is owed this category of plaintiff, the city can assert the “primary assumption of the risk” defense against the city.

I have two fundamental problems with this interpretation of the “primary assumption of the risk” doctrine.

First, assuming the fact someone pays another to perform some task can or should exempt the “payer” from a duty of care as to any risk inherent in that task, that does not mean anyone other than the “payer” is relieved from a duty of care that third person ordinarily would owe to others for risks involved in performance of that task.

Second, even as to the “payer” I question whether there is or should be an exemption for any risks that “payer's” own conduct created, unless the “payee” is being employed for the express purpose of confronting and remedying the specific dangerous condition the “payer's” negligence created.  (Thus, when the general public pays firefighters to confront and extinguish the dangerous condition of a fire, the general public, including the members of that public whose negligence caused the fire, are absolved of any duty of care toward those firefighters.   But members of the general public continue to have a duty of care toward public employees, such as highway workers, who are employed to do jobs which carry a substantial risk of injury but which are not focused exclusively on confronting and curing a specific dangerous condition.)

1. Electric Power Distributors Owe a Duty of Care to Those Employed by Property Owners to Trim Trees Just As They Would to Anyone Else Who Climbed or Otherwise Came Into Contact With Those Trees.

As to my first concern, it is possible to conceive public policy considerations which might support exempting someone who hires an independent contractor to perform a certain task from a duty of care toward that contractor as to risks for which the employer might be responsible (as a property owner or otherwise) and which accompany performance of that task.   Conceivably, the compensation paid the independent contractor could be deemed to include a bonus for accepting those risks which are inherent in performance of that task.   Alternatively, the payment could be deemed to include a sum which the independent contractor could use to pay premiums on insurance to compensate the contractor should he or she be injured when one of those risks becomes a reality.  (Especially in situations such as when a homeowner contracts with a full-time professional to do some work on the homeowner's property it may be easier for the professional to take out insurance on the risks of that profession than for the homeowner to ensure against the possibility the homeowner's negligence will create one of those risks and thereby injure the professional.   But this would not be true for a casual or part-time worker employed to perform the same task.)

Without concluding the person who hires an independent contractor should be relieved of a duty of care toward the contractor, I want to emphasize none of these public policy considerations apply to third parties who were not part of the hiring relationship.   Of special relevance here, there is no reason third parties should be exempted from a duty of care toward the independent contractor a homeowner is paying to improve his or her property.   In no way can it be said these third parties are paying the professional to assume the risks of the task he or she is performing.   Nor can it be said the third parties are paying a fee which includes money for the independent contractor's insurance premiums.

Furthermore, I can see no justification for allowing these third parties to be “free riders” on the homeowner's payments to the independent contractor the homeowner has hired.   Indeed to do so would increase the amount of the bonus or insurance premium the homeowner would have to pay to obtain the services of the professional.   Independent contractors could no longer look to third parties for compensation for injuries they might suffer as a result of the actions of those third parties as opposed to the homeowner's own negligence.   Consequently, they would have to demand a larger fee from the homeowner to cover those additional risks.

All of this means it would be the homeowner rather than the responsible third parties who would bear the cost of compensating the independent contractors they hire to work on their property for the risks and injuries these third parties caused.   This appears to be a misallocation of the burden of injury compensation.   It also appears to distort the tort system's scheme of disincentives which ideally impose additional costs on those committing tortious acts thereby discouraging this sort of unsafe conduct.   Third parties whose own negligence harmed people hired by homeowners would get off scot free.   Under the majority opinion's view of “primary assumption of the risk” these negligent third parties would not have to pay any part of the cost of compensating these independent contractors for the injuries their negligence caused.   Moreover, because of that, they would have less reason to avoid that negligent conduct in the future.

To illustrate my point, imagine one of the “inherent risks” of being a tree trimmer is that someone will negligently drive a car into the tree you are trimming and the impact will throw you to the ground.  (This does not require a great deal of imagination since I suspect there is just as great a chance this will happen as that a tree trimmer will be electrocuted by an electrified tree branch.)   Further assume the tree trimmer in this case was killed not by a tree branch but because a drunk driver plowed into the tree he was working on and propelled him out of the branches to his death.

Should the tree trimmer's heirs have a cause of action against the drunk driver despite the “primary assumption of the risk” defense?   If the answer is yes, then in the instant case obviously appellants have a cause of action against the city whose allegedly negligent care of its high voltage overhead power lines was equally responsible for the tree trimmer's actual death.   To answer no to this question would be to relieve the drunk driver of any financial responsibility for a death his or her negligence caused merely because the victim was working for somebody else at the time the driver crashed into the tree.   Unless the fact the tree trimmer had been hired by the homeowners to trim the trees on their property is enough to immunize all third party tortfeasors from liability for any injuries which somehow are deemed to be risks of the tree trimming profession, both the drunk driver in the hypothetical and the City of Glendale in the instant case owe a duty of care to the tree trimmer.

For reasons discussed above, public policy is served by imposing a duty of care on these third party tortfeasors no matter what may be done about the duty of care homeowners ordinarily owe to the independent contractors they hire.   For those same reasons, there is no policy justification for relieving third parties of their duty of care to these independent contractors merely because the homeowner may be deemed to have paid the contractor for the risk that the homeowner's own negligence will cause the contractor some injury.8  Under the analysis of the Jewett plurality, this, of course, is the same thing as saying these third parties, such as the city in this case, are not entitled to a “primary assumption of the risk” defense.

2. The “Firefighter's Rule” Rationale Only Applies to Those Persons Who Are Employed for the Specific Purpose of Confronting and Remedying a Highly Dangerous Situation Not Those Employed to Perform Other Tasks Which Happen to Involve Danger.

There is a second, independent, and sufficient, reason primary assumption of the risk does not apply to relieve the city completely from liability for the tree trimmer's injury and death.   The “expanded firefighter's rule” simply cannot be construed to eliminate a duty of care as to every danger “inherent (i.e., “foreseeable”) in the performance of a given task a person may be hired to do.   At most, the “expanded firefighter's rule” can be construed to eliminate the duty of care toward those specifically employed to confront and remedy a particular type of dangerous situation.

To illustrate the distinction, contrast how California law treats those public employees who are firefighters and those employees who are highway maintenance workers.   Members of the general public owe no duty of care toward public firefighters with respect to any negligence which may result in a fire starting.   But members of the public owe a duty of due care as to negligence on their part in driving their automobiles which may cause injury (and often death) to public highway workers.  (Scott v. City & County of San Francisco (1949) 91 Cal.App.2d 887, 890, 206 P.2d 45;  Roddy v. American Smelting etc. Co. (1939) 34 Cal.App.2d 457, 93 P.2d 841;  Mecham v. Crump (1934) 137 Cal.App. 200, 30 P.2d 568.)   This is so despite the fact the risk a highway worker will be injured because of a negligent driver is probably just as great as that a firefighter will be injured while seeking to put out a fire caused by the negligence of a member of the public.

Both risks are “inherent” (and highly foreseeable) in the performance of the required duties of these two types of public employee—the firefighter and the highway worker.   Yet there is a duty toward one and no duty toward the other.   Why?  The answer can be extracted from prior decisions.   The firefighter's rule has always been narrowly circumscribed to apply to public employees whose primary duty is to confront and attempt to remedy some known highly dangerous condition.   And among public employees, at least, those dangerous conditions thus far have been limited to fire and crime with only firefighters and crime fighters (i.e., police) excluded from tort recovery by the firefighter's rule.  (Hubbard v. Boelt (1980) 28 Cal.3d 480, 169 Cal.Rptr. 706, 620 P.2d 156 [extending firefighter's rule to police officers].)   Highway workers, in contrast, are employed to perform a task which carries perhaps equal risks of injury.   But they are not asked to confront and remedy those dangers.   The dangers, that is the risks of injury, are merely an unfortunate but inherent and inevitable condition which goes along with performing the task of maintaining and improving highways.

The Supreme Courts of New Jersey and Michigan have underscored this distinction.   As New Jersey's high court held “Governmental entities maintain police and fire departments in anticipation of those inevitable physical perils that burden the human condition, whereas most public employment posts are created not to confront dangers that will arise but to perform some other public function that may incidentally involve risk.”  (Berko v. Freda (1983) 93 N.J. 81, 459 A.2d 663, 666 [holding police officers but not other public employees are covered by fireman's rule].)

The Michigan Supreme Court likewise has been careful both to limit the “firefighter's rule” exclusion from liability to police and firefighters and to justify that special, disadvantageous status these safety officers occupy.   “Other occupations involve risk, but no court has adopted a rule of nonliability for injuries arising out of the inherent dangers of those occupations.   The Court of Appeals stated, therefore, that ‘adoption of the fireman's rule would make firefighters second-class citizens with fewer rights than those enjoyed by other employees.’  (Citation omitted.)

“What this argument fails to take into account is the fundamental difference between the function of safety officers and that of other occupations peripherally involving danger.   The very nature of police work and fire fighting is to confront danger.   The purpose of these professions is to protect the public.   It is this relationship between police officers, firefighters, and society which distinguishes safety officers from other employees.   Thus, safety officers are not ‘second-class citizens,’ but, rather, are ‘different’ than other employees.”  (Kreski v. Modern Wholesale Electric Supply, (1987) 429 Mich. 347, 415 N.W.2d 178, 187.)

Applying this distinction, it is apparent the tree trimmer here was not a firefighter or police officer.   He was not even hired to confront and remedy the danger of power lines intruding through the branches of this property owner's trees.   As far as the evidence before the trial court on the summary judgment motion, there is nothing to suggest either the property owner or the city was paying the tree trimmer specifically to get rid of this danger.   That is, no one said, “What I am hiring you to do is trim away the branches that are anywhere near the power lines so the danger that condition creates is eliminated.”   To the contrary, the evidence is consistent with the conclusion this tree trimmer was hired for the traditional asthetic purpose—to improve the health and appearance of these trees.   Thus, he was not employed to confront and remedy the danger posed by these power lines but merely to trim the tree.   The power lines were merely one of the many “inherent” risks one endures if one chooses to trim trees.

To go beyond the narrow category of worker traditionally embraced within the “firefighter's rule” 9 , as the majority advocates, would strip California workers of the protections historically afforded them under the state's tort system.   At present, for instance, employees cannot sue their employers in tort because they are confined to the remedies under workers' compensation.   However, they can sue third parties whose negligence contributed independently to their injuries.  (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 72 Cal.Rptr. 217, 445 P.2d 881;  Ferrel v. Safway Steel Scaffolds (1962) 57 Cal.2d 651, 21 Cal.Rptr. 575, 371 P.2d 311.)   Yet under the rationale of the majority opinion they would be foreclosed from suing those third party tortfeasors whenever the tortfeasor's negligence was an “inherent” risk of that employee's job.   Since many if not most forms of third party negligence which actually cause injury are as inherent in those jobs as were the power lines to the job of tree trimming in the instant case, it would be the rare case where primary assumption of the risk—as interpreted by the majority opinion—would not preclude an employee from suing the third party tort feasor whose negligence caused or contributed to that employee's injury.

Nearly every job whether performed by an employee or an independent contractor has “inherent risks” of injury.   Many tasks in construction, manufacturing and the like are accompanied by several risks of different types, all of which can produce serious injury.   More often than not it is the “inherent risks” which indeed become reality and cause the employee or independent contractor to suffer injury or death.   In fashioning its expansive interpretation of the firefighter's rule rationale as a form of “primary assumption of the risk,” the majority of this court, I fear, has forged a doctrine which threatens to deprive every working man and woman of their rights to adequate compensation for their injuries and eventually to jeopardize their safety in the workplace as well.

It may be the majority intends to limit its interpretation of the expanded firefighter's rule to the situation where the danger created by the third party tortfeasor is not only an inherent risk but one of which the employee or independent contractor was aware.   That is, the danger which eventually caused the injury must be both an inherent and known risk of the job which the employee or independent contractor chose to ignore in order to carry forward with the job.

But this qualification would bring us back to an inquiry about the plaintiff's subjective knowledge of a specific risk, the very inquiry the plurality of the high court eschewed in Jewett.  (If we were indeed to make that inquiry in the instant case, for reasons explained earlier in this dissent, we would find there was a triable issue as to whether or not this tree trimmer knew of the precise risk of an electrified tree limb which went along with the job he had agreed to undertake.   See pp. 3–16, ante.)

Focusing on the defendant's duty rather than the plaintiff's knowledge, as the Jewett plurality has instructed us to do, there is no reason to distinguish between employees or independent contractors who knew of the danger the defendant's negligence has created as opposed to those who were unaware of the danger.   It is true the plaintiff may be less deserving of full compensation for the injury he or she sustained after choosing to go forward with the task with full knowledge there was a special risk of injury.   Indeed almost certainly such a plaintiff will emerge with a smaller award under comparative negligence principles than would someone who is injured in the same way but who was unaware of the risk.   But a defendant is no less culpable morally for the danger that tortfeasor's negligence created just because the person who was injured happened to know of the risk than if the injured party had not known of the danger.   Moreover, there is no less reason under tort principles for requiring that a tortfeasor bear the cost of compensating those injured through his or her negligence just because the injured party knew of the danger the tortfeasor's negligence created.   Furthermore, there is just as much reason to impose those compensation costs as a disincentive to future negligent conduct on the part of that tortfeasor when the injured party was aware of the risk as when he or she was unaware of the risk.

In my view neither knowledge of the risk nor the inherent nature of a risk which is part of a certain job is sufficient reason for denying recovery to an employee or independent contractor who may be injured when performing his job.   The reasons for imposing a duty of care on the tort feasor causing the risk to the employee or independent contractor remain irrespective of the “inherent” nature of the risk or the employee/independent contractor's knowledge of that risk.   Any adjustments in the compensation burden which are warranted by the respective culpability of plaintiff and defendant are best worked out through the comparative negligence process.

This distinction also finds expression in another limitation the California Supreme Court has placed on the reach of the “firefighters' rule” rationale.   As Justice Richardson wrote for the majority in Hubbard v. Boelt:  “The rule, ․ is based on the principle that it is the business of a fireman or policeman to deal with particular hazards, and that accordingly ‘he cannot complain of negligence in the creation of the very occasion for his engagement.’  (Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 359, 72 Cal.Rptr. 119 ․;  see Walters v. Sloan (1977) 20 Cal.3d 199, 202, 142 Cal.Rptr. 152, 571 P.2d 609;  Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 369, 99 Cal.Rptr. 29, 491 P.2d 821․”  (Hubbard v. Boelt, supra, 28 Cal.3d 480, 484, 169 Cal.Rptr. 706, 620 P.2d 156, italics added.)

This principle presumably is based on a conclusion that except for the rare instance of spontaneous combustion nearly every fire can be traced to someone's negligence.   Without such negligence, there would be no reason to employ firefighters.   Thus, in a sense firefighters have jobs because of this negligence and should not be allowed to sue those but for whose misconduct they would be in another line of work.   For that reason, in the language of “primary assumption of the risk” firefighters and the like are not owed a duty of care by those whose negligence provides them a living.

This limitation within the “firefighters' rule” rationale serves to emphasize once again the distinction between the tree trimmer in this case and those such as firefighters whose very job is to remedy the dangers caused by other people's negligence.   There is nothing in the evidence before the trial court suggesting the “very occasion for engagement” of the tree trimmer in this case was to remedy the dangerous condition of power lines intruding through these trees.   To the contrary, he was hired for the traditional purpose—to contribute to the health and appearance of the trees by trimming back the branches.   At most, he was trimming these trees despite the danger the city's negligence had created not because of that danger.   Moreover, he would have been hired to trim these trees even if the closest power line was two blocks away.   Accordingly, in no sense can it be said the city's negligence was the cause of his engagement or that he would not be a tree trimmer without the dangerous condition this type of negligence creates.

For all the reasons expressed in this opinion, I would reverse the summary judgment and allow the jury to resolve the several triable issues presented in the record of this case.

FOOTNOTES

1.   Plaintiffs dismissed the appeal as to defendant R.D. Werner Company, Inc.   Accordingly, we ignore Werner as a defendant in this lawsuit.Pursuant to an order of the California Supreme Court, we have vacated our decision filed March 22, 1991, and herein have reconsidered the matter in light of Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696.

2.   Plaintiffs purport to appeal also from the order denying their motion for reconsideration or new trial.   An order denying a motion for reconsideration is not appealable.  (Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1160–1161, 250 Cal.Rptr. 435.)   While a motion for new trial may be brought after summary judgment (Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 203, 218 Cal.Rptr. 815), an order denying a motion for new trial likewise is not appealable.  (Fogo v. Cutter Laboratories, Inc. (1977) 68 Cal.App.3d 744, 748–749, 137 Cal.Rptr. 417.)   Accordingly, we dismiss plaintiffs' purported appeal from the order denying their motion for reconsideration or new trial.

3.   Assumption of the risk also is an available defense to plaintiffs' cause of action against the city alleging a dangerous condition of public property.  (Gov.Code, § 815, subd. (b);  see also Chase v. Shasta Lake Union Sch. Dist. (1968) 259 Cal.App.2d 612, 615, 66 Cal.Rptr. 517.)

1.   “The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates.   In this it differs from the objective standard which is applied to contributory negligence․  If by reason of age, or lack of information, experience, intelligence or judgment, the plaintiff does not understand the risk involved in a known situation, he will not be taken to assume the risk, although it may still be found that his conduct is contributory negligence because it does not conform to the community standard of the reasonable man.”  (Rest.2d Torts, § 496D, com. at p. 575, italics added.)This clearly was the law in California, as well as most jurisdictions.   As Witkin highlights:  “The distinction between assumption of risk and contributory negligence is not merely a matter of correct usage of descriptive terminology.   The former standard instruction that one assumes a risk ‘when he knows, or in the exercise of ordinary care would know, that a danger exists,’ is erroneous.   It may be contributory negligence to fail to discover the danger, but there is no assumption of risk without actual [italics in original) knowledge arrived at, e.g., through experience, observation or warning.”  (6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 1106, and numerous cases cited therein, italics added.)

2.   “[The plaintiff] must not only know of the facts which create the danger, but he must comprehend and appreciate the nature of the danger he confronts.  “ ‘A defect and the danger arising from it are not necessarily to be identified, and a person may know of one without appreciating the other.’ ”  (Prosser & Keeton on Torts (5th ed. 1984) § 68 at p. 487.)  “[B]efore the [assumption of the risk] doctrine is applicable the victim must have ‘appreciation of the danger,’ and that such requirement is independent of the requirement of actual general knowledge of a danger.   In other words, actual knowledge of a danger is not interchangeable with appreciation of the risk.”  (Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 271–272, 32 Cal.Rptr. 193, 383 P.2d 777.)

3.   “The [reasonable assumption of the risk] doctrine requires knowledge of the particular risk and appreciation of its magnitude.”  (6 Witkin, Summary of Cal.Law, supra, Torts, § 1106, at p. 519, and cases cited therein, italics added.)   Or, as our Supreme Court held:  “ ‘Actual knowledge of the existence of a specific danger is an essential and indispensable element of the defense of assumption of the risk.’ ” ․ [¶]  In this state the rule is clearly established that before the jury may be properly instructed on the doctrine there must be evidence not only that the plaintiff knew that he was stepping into a place of danger, but also had actual knowledge of the specific danger involved.”  (Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d at pp. 273, 274, 32 Cal.Rptr. 193, 383 P.2d 777, italics added.)In Vierra, the Supreme Court ruled it was error to even instruct on an assumption of the risk defense where the plaintiff was injured by a flying piece from a cement drill.   Evidence he knew the danger he could be injured by flying pieces of concrete did not mean he appreciated the specific danger of flying pieces of metal from the drill.  (See also, e.g., Curran v. Green Hills Country Club (1972) 24 Cal.App.3d 501, 504, 101 Cal.Rptr. 158 [homeowner residing on golf course aware of general danger of misdirected golf balls not aware of specific danger that golfers would be nearby at time of day when injured];  Carr v. Pacific Tel. Co. (1972) 26 Cal.App.3d 537, 542, 103 Cal.Rptr. 120 [tree trimmer employed to remove uprooted tree ensnarled in telephone lines aware of general danger lines might snap but not specific danger the lines could spring the tree trunk in the air and kill him];  Hall v. Macco Corp. (1961) 198 Cal.App.2d 415, 18 Cal.Rptr. 273 [assumption of risk instructions inappropriate where plaintiff knew of danger of burning bridge but not the specific danger a gas line under the bridge might explode].)

4.   “Whether the plaintiff knows of the existence of the risk, or whether he understands and appreciates its magnitude and its unreasonable character, is a question of fact, usually to be determined by the jury under proper instructions from the court.   The court may itself determine the issue only where reasonable men could not differ as to the conclusion. ”  (Rest.2d Torts, supra, § 496D, ch. 17A, com. (e) at p. 575, italics added.)  “Since in the ordinary case there is no conclusive evidence against the plaintiff on these issues, they are normally for the jury to decide.”  (Prosser & Keeton on Torts, supra, § 68 at p. 487, italics added.)

5.   Other out-of-state cases involve tree trimmers injured or killed by power lines running near or through trees.   However, something other than a tree branch made contact with the line.   Nonetheless, these cases are sometime instructive.   For example, in Dobson v. Louisiana Power and Light Company (La.App. 1 Cir.1989) 550 So.2d 1334 an experienced professional tree trimmer was electrocuted when his safety line touched a known high voltage power line as he descended with his back to the line.   On appeal, the defendant complained the trial court erred in failing to apply comparative negligence and in failing to find the tree trimmer had assumed the risk.   The appellate court noted an expert witness testified the deceased tree trimmer “was obviously not knowledgeable of the dangers associated with working near high voltage electricity because a reasonable knowledgeable person who climbs and trims trees for a living [as this plaintiff did] would not have performed the work in the manner it was performed.”  (550 So.2d at p. 1337.)   The court did not find error in failing to sustain the assumption of the risk defense, but instead treated the tree trimmer's conduct as a matter of comparative negligence.  “After careful review of the record we find that trial court was clearly wrong in determining decedent was not negligent․  [W]e conclude that fault should be apportioned 70% to decedent and 30% fault to defendant.”  (Id.)

6.   The majority opinion refuses to consider this safety order because its violation was not pled as a separate cause of action and was not called to the attention of the trial court until the motion to reconsider the summary judgment order.  (Maj. opn. at pp. 852–853.)   I do not regard this safety order as crucial to the position adopted in this dissent, since the city's duty of care as a purveyor of electricity through high power overhead lines does not depend upon the existence of this safety order.   That duty exists under the common law as well.Nonetheless, I believe the safety order is properly considered.   The violation of such an order need not be pled as a different and separate cause of action, but rather is embraced within the negligence count of the complaint.   It merely provides further support for the existence and extent of the duty of care the city already owes under common law tort principles for the dangerous condition it has created.   Even if the violation of the safety order had to be pled as an independent cause of action, the trial court could have allowed the complaint to be amended at the time of the motion to reconsider had the court recognized the order was fatal to the summary judgment it had granted previously.Furthermore, even if this safety order had been called to this court's attention for the first time on appeal, it would have been proper for us to consider it.   It is akin to this court learning of a new case or a statute or court rule which was not brought to the attention of the trial court yet alters the legal principles governing the disposition of the appeal in some way.   Here the legal change came in the form of an administrative regulation—a safety order—rather than a statute, a court rule or an appellate decision.   This regulation defines the standard of care defendant owes third parties with more precision than does the common law and arguably raises that standard to a more demanding level than does the common law.   As such, it does no more nor less than any other source of law—a statute, court rule, appellate decision—which might affect an issue this court was considering on appeal.   And it is no less deserving of consideration by this court than any of these other sources of law which might influence our decision as to the existence or extent of the duty of care defendant owes to plaintiff.Notably, in Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724, another implied assumption of risk decision, the California Supreme Court found it appropriate to give full consideration to a statute its research had uncovered for the first time on appeal which potentially created a duty of care not found in the common law.  “Although the statute was not cited or relied on in the trial court, it is appropriate for us to consider the provision in determining the legal issue of the existence and scope of the duty owed by a ski boat driver to a towed water-skier.   The matter is one of general public significance and interest, affecting all persons in the state engaged in waterskiing.  (Citations omitted.)”  (3 Cal.4th at p. 346, fn. 2, 11 Cal.Rptr.2d 30, 834 P.2d 724.)   If it is proper to consider these sources of law when they come to the court's attention for the first time at the appellate stage, a fortiori, it is proper to do so when as in this case they have been brought to the trial court's attention through a motion to reconsider.

7.   It is revealing how one “comparative negligence” jurisdiction treated the very situation involved in this case.   It first added up the several ways in which the power company had been negligent, then added up the several ways in which the tree trimmer had been negligent and, in the facts of that case, apportioned the fault 30 percent to the power company and 70 percent to the tree trimmer.  (Dobson v. Louisiana Power and Light Company, supra, 550 So.2d 1334, 1337.)   This course likewise is the one which best implements the basic policies of negligence law in California.

8.   Since this is a dissent, I will not bother taking up the far closer question whether summary judgment was proper as to the respondent homeowners.   To my mind, the proper resolution of this question would not involve the assumption of the risk defense in either the “plurality” version or the “minority” version.   Rather it would turn on an inquiry as to the legal relationship between a property owner and an independent contractor hired to work on the former's property.   Under this analysis, there is no question the homeowners owed a defined duty of care toward this tree trimmer as to dangerous conditions on their property.  (6 Witkin, Summary of Cal.Law (9th ed. 1988), Torts, §§ 924, 927, 935, and cases cited therein.)   Nonetheless, it is conceivable the evidence before the trial court on the summary judgment motion demonstrated conclusively the homeowners here discharged this duty to the tree trimmer by warning him about the dangerous condition posed by the wires running through the trees on their property.  (Ibid.)  On the other hand, since the trial court did not analyze the evidence from this perspective but from an assumption of the risk perspective, I would be inclined to remand for reconsideration of the credibility and sufficiency of the evidence on the precise question of whether there remains a triable issue respondent homeowners discharged their duty of care toward this tree trimmer.

9.   In recent years, some appellate courts have applied a “firefighter's rule” type rationale to veterinarians who attempted to sue dog owners when they were bitten by the animals they were treating.  (See, e.g., Nelson v. Hall (1985) 165 Cal.App.3d 709, 211 Cal.Rptr. 668.)   While a unique confluence of policy considerations may justify a narrow exclusion from liability for dog owners who seek help from veterinarians, the existence of this “veterinarian's rule” exception provides no precedent for extending the “primary assumption of the risk” defense to the customer's and clients of other independent contractors/employees.   A list of a few of these many factors suggests how special a case veterinarians represent.   Veterinarians are licensed medical professionals.   They are specialists in animal behavior as well as disease.   And in all the appellate cases considered thus far, at least, veterinarians have been treating the offending dogs on their own premises where they have complete knowledge and control of the environment and the protective measures to be taken.   They can muzzle any and all dogs while handling or treating them.   They can administer appropriate medications to pacify the animals.   It is the dog rather than the owner whose acts cause the injury.   Indeed the dog seldom, if ever, bites the veterinarian as a result of something the owner did.   Indeed the owner is compelled to surrender control of the dog to the veterinarian during treatment.   It also is easier for the veterinarian to obtain insurance against the possibility a dog who is a patient will bite the veterinarian than for dog owners to purchase insurance against the risk their dogs biting the veterinarian who is treating them.

LILLIE, Presiding Justice.

FRED WOODS, J., concurs.