LURYE v. SOUTHERN CALIFORNIA EDISON COMPANY (1999)

In this case a public utility contracted with a municipality to install and maintain the city's streetlights, including a lamp illuminating a marked crosswalk on one of the city's busiest thoroughfares.   But when the streetlight broke the utility failed to repair it for over five months.   We consider the issue whether the utility owed a duty to pedestrians using that crosswalk and thus was liable to a person struck by an automobile while crossing the street at nighttime whose driver allegedly was unable to see this pedestrian in the dark intersection.   Relying on a recent appellate opinion, the trial court found the utility owed no duty to pedestrians and granted summary judgment.   We conclude this public utility contracted with a public body to install and maintain equipment vital to the safety of certain members of the public.   In doing so it voluntarily and in this case for compensation undertook a duty not to endanger persons the equipment was designed to protect by failing to keep the equipment in operable condition.   Accordingly, we reverse the summary judgment.

FACTS AND PROCEEDINGS BELOW

Respondent, Southern California Edison (SCE), owned the streetlight located on the northwest corner at the intersection of Fountain and Fuller Avenues in West Hollywood.   Southern California Edison assumed the responsibility to service and maintain this streetlight, as well as others located in West Hollywood, pursuant to a contractual agreement with the City of West Hollywood dated and executed May 6, 1993.   This contract, entitled “Application and Special Contract for Pedestrian Lighting Service Utility-Owned System,” provided, that “Customer (West Hollywood) hereby requests the Company (Southern California Edison) to deliver electric energy and to supply pedestrian lighting,” and that Southern California Edison would be responsible for “maintenance and operation of the Pedestrian Lighting System” pursuant to the rates and schedule in the agreement.

This particular intersection had been the subject of numerous complaints by traffic investigators in the past.   Fountain Avenue was alleged to be a “very poorly” lit street.   On October 5, 1995, an automobile collided with the streetlight which hung directly over the crosswalk at Fountain and Fuller Avenues and nearly demolished it.   Within hours of the October 5th accident, SCE workers cleared the debris and capped the live wires which had fallen from the streetlight.   As the months rolled by, however, SCE did nothing further to repair or replace the damaged and inoperative streetlight.   The nearest operable streetlights were 89 feet, 120 feet, and 130 feet away from this intersection.

Nearly five months later this streetlight was still broken.   At 7:20 p.m., on March 2, 1996, appellant Isaak Lurye, a 67-year-old pedestrian, was walking across Fountain Avenue in the marked crosswalk formerly illuminated by the streetlight.   An automobile driven by Tina Bastijian approached the darkened intersection.   She later testified she could not see Lurye until she was 30 to 40 feet away.   As soon as she was able to make out a figure in the darkness Bastijian applied her brakes, but it was too late to avoid striking Lurye.

In his deposition, Juan Morales, another motorist, said he saw Lurye from one block away and immediately changed from the No. 1 lane to the No. 2 lane to avoid having to slow down for this pedestrian.   Morales also admitted, however, this crosswalk was not well lit and it was difficult to see Lurye due to darkness and mist.   The police report gave the cause of the accident as the driver's failure to stop for Lurye, a pedestrian within a marked crosswalk, in violation of the California Vehicle Code section 21950, subdivision (A).

SCE owns and maintains this streetlight, but failed to replace it until April 1996, approximately one month after Lurye was injured at the intersection.   SCE replaced the destroyed single lamp installation with two streetlights that stood side by side.   The record reflects the ultimate cost of repairs and replacement to SCE was $1,257.76 and involved a total of one man-hour.

On November 14, 1996, Lurye filed a personal injury suit against the City of Los Angeles, the City of West Hollywood, Southern California Edison, and Tina Bastijian, the driver of the vehicle.   In his claim, appellant alleged SCE “negligently maintained and controlled the intersection and that said location constituted a dangerous condition to pedestrians and drivers alike, due to the failure of defendant to replace a fallen streetlight and thereby illuminate the roadway.”   Appellant further alleged “said dangerous condition proximately and foreseeably caused claimant's injuries as a result of claimant being hit by moving car at high rate of speed,” and that SCE “had actual and constructive notice of such dangerous condition.”

Lurye submitted a statement of damages pursuant to section 425.11, subdivision (b) of the Code of Civil Procedure claiming special damages relating to medical expenses estimated at $200,000, and general damages of $2,800,000, among other further relief sought.

On January 17, 1997, respondent Southern California Edison filed its answer to the complaint denying generally and specifically each and every allegation of the complaint, denying plaintiff had been damaged in the amount alleged, and asserting eight affirmative defenses.

On or about July 25, 1997, Ms. Bastijian simultaneously filed an application for determination of good faith settlement with supporting declaration, and a notice of settlement in the amount of $50,000 which constituted the limits of Bastijian's Automobile Liability Policy.

On September 11, 1997, Southern California Edison filed a notice of motion and motion for summary judgment alleging there was no triable issue of fact, and notwithstanding this claim, that SCE did not owe a duty to appellant.   The City of West Hollywood was not a party to this motion for summary judgment.

In its motion for summary judgment SCE argued it owed no duty to appellant because of the exception to the general duty applicable to utilities carved out in White v. Southern California Edison Co. (1994) 25 Cal.App.4th 442, 30 Cal.Rptr.2d 431 (White ).   SCE claimed it was absolved of liability under the circumstances here because:  1) no “dangerous condition” existed at the location where appellant was injured, 2) failure to maintain the streetlight did not create a risk greater than the risk created by total absence of the streetlight in the first instance, and 3) appellant had not proven his reliance on operation of the streetlight.

In opposition to SCE's motion for summary judgment, Lurye provided a certified copy of the deposition of Joseph Abercrombie, Deputy Traffic Investigator in the Los Angeles County Sheriff's Department, dated April 30,1997.   Abercrombie stated numerous other accidents had taken place up and down Fountain Avenue before Lurye was struck.   He personally investigated six vehicle pedestrian incidents at the subject location.   According to the deputy, in the absence of this streetlight there was a “pool of darkness” in the north half of the crosswalk.   Deputy Abercrombie also said, “I told [the head traffic investigator] that I was tired of scraping pedestrians off the street at this particular location.”

On appeal, appellant argues the facts of White are distinguishable and the White court expressly limited its reasoning and its holding to motorists, rendering it inapplicable to pedestrians.   Appellant argues the instant case is controlled instead by Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 220 Cal.Rptr. 181 (Antenor ).   The Antenor court held, “ ‘[a] duty to light, and the consequent liability for failure to do so, may, however, arise from some peculiar condition rendering lighting necessary in order to make the streets safe for travel.’ ”  (Antenor at p. 483, 220 Cal.Rptr. 181, quoting 39 Am.Jur.2d, Highways, Streets and Bridges, § 405, pp. 803-804.)   According to appellant, the issue presented is more properly framed as “[w]hich side of the line does the instant matter fall on?”   In other words, do the facts of the instant case establish “some peculiar condition rendering lighting necessary in order to make streets safe for travel” so as to fall within the rule of Antenor, rather than the exception of White ?   Appellant further claims the trial court improperly shifted the burden of proof on the motion for summary judgment to appellant, the non-moving party, the precise issue on which this court ruled in Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 20 Cal.Rptr.2d 296.

The trial court ruled for SCE. Relying on the White case, it held the defendant, Southern California Edison, owed no duty to plaintiff Lurye to maintain said streetlight in operable condition.   In granting summary judgment in favor of Southern California Edison the trial court explained, “of the three things that you need to make liability work, you need something that is greater for its risk of harm than darkness.”   Appellant Lurye appeals from this grant of summary judgment.

DISCUSSION

I. STANDARD OF REVIEW FOR SUMMARY JUDGMENT.

 “A defendant who moves for summary judgment must either prove an affirmative defense which would bar every cause of action pled in the complaint or disprove at least one essential element of each cause of action in the complaint.  (Twain Harte Associates, Ltd. v. County of Tuolumne (1990) 217 Cal.App.3d 71, 79-80, 265 Cal.Rptr. 737.)   The moving party must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial.  (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46;  Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1114, 229 Cal.Rptr. 531.)   If the defendant does not satisfy its burden as the moving party, the motion must be denied, and it is unnecessary for the court to consider the plaintiff's opposition, if any.   (Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 639, 177 Cal.Rptr. 445;  Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117, 127, 109 Cal.Rptr. 724.)

“In evaluating the correctness of a ruling under [Code of Civil Procedure] section 437c, we must independently review the record before the trial court.   Because the grant or denial of a motion under section 437c involves pure questions of law, we are required to reassess the legal significance and effect of the papers presented by the parties in connection with the motion.  (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1513, 285 Cal.Rptr. 385.)   We thus must apply the same three-step analysis required of the trial court:

“ ‘ “First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond․  [¶] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor․  [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” ’ ”  (Zuckerman v. Pacific Savings Bank (1986) 187 Cal.App.3d 1394, 1400-1401, 232 Cal.Rptr. 458;  see also Saldana v. Globe-Weis Systems Co., supra, 233 Cal.App.3d at p. 1513, 285 Cal.Rptr. 385.)

“In practical effect, we assume the role of a trial court and redetermine the merits of the motion.   In doing so, we must rigidly scrutinize the moving parties' papers.  (See Rincon v. Burbank Unified School Dist. (1986) 178 Cal.App.3d 949, 954-955 [224 Cal.Rptr. 88];  and Jos. Schlitz Brewing Co. v. Downey Distributor (1980) 109 Cal.App.3d 908, 915-918 [167 Cal.Rptr. 510].)”   (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548-549, 5 Cal.Rptr.2d 674, italics in original.)

With these standards in mind, we review the summary judgment in this case.   On the basis of that review, we conclude SCE owed a duty to pedestrians for the condition of streetlights it had contracted to install and maintain under either of two theories.   First, it owed a duty based on undertaking “for consideration to render services to [the city], which [it] should recognize as necessary for the protection of a third person” and by its “failure to exercise reasonable care” to protect its undertaking “harm is suffered because of reliance of [the city] upon the undertaking.”  (Rest.2d Torts, § 324A.) Second, it owed a duty based on undertaking to perform a duty owed pedestrians by the city to provide lighting at this particular intersection because of the “peculiar danger” the intersection posed if not lighted.  (Antenor v. City of Los Angeles, supra, 174 Cal.App.3d 477, 483, 220 Cal.Rptr. 181.)

II. SCE OWED A DUTY TO PEDESTRIANS TO MAINTAIN THIS STREETLIGHT EVEN IF THE CITY HAD NO DUTY TO PROVIDE STREETLIGHTING AT THIS INTERSECTION.

 We first consider whether SCE owed a duty to pedestrians such as plaintiff when crossing the street in marked crosswalks dependent for their illumination on streetlights SCE installed and maintained over such crosswalks, even if the city owed no duty to provide such streetlights.   This inquiry leads us directly to section 324A of the Restatement Second of Torts which provides in pertinent part:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”  (Rest.2d Torts (1965) § 324A, p. 142, or “section 324A”.)

The facts of this case fit squarely within section 324A. The gravamen of appellant's complaint alleges SCE is liable because it failed to exercise reasonable care in performance of its assumed undertaking.   That is, SCE undertook “for consideration to render services to [the city] which [it] should recognize as necessary for the protection of [pedestrians walking in marked crosswalks at nighttime].   Thus, SCE is liable “to [such pedestrians] for physical harm resulting from [its] failure to exercise reasonable care ․” if any one of three conditions discussed shortly also exists.

 Section 324A “is predicated upon, and in no way alters, the traditional requirement of a foreseeable harm to a foreseeable class of plaintiffs.”  (Kane v. Hartford Accident & Indemnity Co. (1979) 98 Cal.App.3d 350, 357, 159 Cal.Rptr. 446.)   In Justice Cardozo's words in Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339, 162 N.E. 99, 100, “the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty.”   Indeed, duty and foreseeability are inextricably bound with the “risk reasonably to be perceived [defining] the duty to be obeyed․”  (Palsgraf v. Long Island R. Co., supra, 162 N.E. 99, 100.)

Here it is difficult to dispute SCE could reasonably foresee pedestrians crossing marked intersections at night would be in significantly greater danger of being struck by oncoming vehicles if those crossings were unlit than if they were lit.   So they undertook, for consideration, to provide the lighting so important to the safety of those pedestrians.   It also is difficult to dispute SCE could reasonably foresee those pedestrians were in danger of physical harm if SCE negligently failed to keep those streetlights lit.   It is irrelevant whether the city had a duty to install streetlights at this particular marked crossing or any other.   SCE voluntarily and for compensation undertook to render this service so necessary for the protection of pedestrians using these crosswalks at night.   It had a duty to them, and thus to Mr. Lurye, whether the city did or not.

“Over 30 years ago, [the Supreme Court of California] described this negligent undertaking theory of liability ․ [as] ‘firmly rooted in the common law [of negligence].’ ”  (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 613, 76 Cal.Rptr.2d 479, 957 P.2d 1313, quoting Schwartz v. Helms Bakery Ltd. (1967) 67 Cal.2d 232, 238, 60 Cal.Rptr. 510, 430 P.2d 68.)   Thus, the rule embodied in the Restatement Second of Torts, section 324A appears to be the law in California.  (FNS Mortgage Service. Corp. v. Pacific General Group, Inc. (1994) 24 Cal.App.4th 1564, 1567, 29 Cal.Rptr.2d 916 [plumbing association subject to liability resulting from its failure to exercise reasonable care in its undertaking to enforce plumbing standards which conformed to its own rules as well as the uniform building code].)

On further scrutiny, the language of section 324A sets forth five distinct elements.  (Kirk v. United States (D.N.H.1985) 604 F.Supp. 1474, 1481-1483.) ¹  Since its three provisional requirements are phrased in the disjunctive,² section 324A merely requires a showing any one of the three circumstances, either (a), or (b), or (c) as quoted above, is satisfied by a preponderance of the evidence, in order for a court to impose, subsection liability on a defendant to a third person for a negligent undertaking.  (See, e.g., Kirk v. United States, supra, 604 F.Supp. 1474, 1482.)   Thus, liability in a particular case could rest on any one of these three prongs.   At least two of the three-(b) and (c)-apply here.   We discuss (c) in this section and (b) in section III.

 SCE's negligent failure to maintain this streetlight breached a duty it owed Lurye and other pedestrians under section 324A, subsection c, since “the harm [was] suffered because of reliance of the other or the third person on the undertaking.”  (Rest.2d Torts, § 324A, italics added.)  “Where the reliance of the other ․ induced him to forgo other remedies or precautions against such risk, the harm results from the negligence as fully as if the actor had created the risk.”  (Id., italics added.).   Thus, whether or not appellant Lurye himself relied on SCE's undertaking to provide maintenance for the streetlighting is immaterial.   The City of West Hollywood absolutely relied on SCE's proper performance here, and was entitled to do so.   Because of that reliance, it was denied the opportunity to hire another contractor who would perform properly - or for the city to employ additional staff to perform this function.   The city's reliance on SCE thus induced it to forego these other remedies or precautions against the risk of an unlighted marked crosswalk at one of its most dangerous intersections, to the great sorrow of the third party, Lurye.   Accordingly, the liability of SCE to Lurye rests firmly on subsection (c).

It may be helpful to consider an analogous situation.   We assume for the time being the city had no duty to provide streetlighting at this marked crosswalk and thus was in the same posture as a “good Samaritan” who elects to rush to the aid of an injured person.   Before the city can get there, however, a “substitute Samaritan” suddenly yells out:  “Don't bother helping out!   Give me enough money and I'll take care of the poor guy!”   The “substitute Samaritan” then pockets the city's money and walks away, leaving the injured person untreated and suffering on the roadside.   That “substitute Samaritan” is clearly liable to the injured person under the principles of section 324A by denying him the city's help or the help of others the city might have hired who would have taken care of him properly.

In the instant case, SCE is the well-paid “substitute Samaritan” that for five months allegedly failed to maintain the streetlight it had contracted with the city to provide over this marked crosswalk.   Whether the city had a duty to light this crosswalk or had acted as a “good Samaritan” in doing so is irrelevant.   SCE had voluntarily and for compensation assumed a duty to those who would be protected by the existence and maintenance of that streetlight.   The city relied on that performance and this pedestrian, Lurye, allegedly suffered injury because the city relied and SCE failed to perform.

It is not surprising to find other state and federal courts have adopted and applied section 324A to circumstances analogous to those we find here.   (See, e.g., Long v. District of Columbia (D.C.Cir.1987) 820 F.2d 409, 418-419 [electric company, by contracting with District of Columbia to perform maintenance services on traffic signals, assumed a duty to perform contractual commitment with reasonable care, and could be held liable for injuries caused by its failure to perform with reasonable care services it had contracted to render];  David v. Broadway Maintenance Corp. (E.D.Pa.1978) 451 F.Supp. 877, 881-882 [applying state law to find a street light maintenance company liable to a pedestrian for injuries caused by the company's negligent maintenance of a streetlight];  Fink v. Kasler Corp. (1982) 3 Haw.App. 270, 649 P.2d 1173, 1174 [holding a company which contracted with state to maintain stop signs owed duty to members of traveling public to maintain signs with reasonable care];  Schmeck v. City of Shawnee (1982) 232 Kan. 11, 651 P.2d 585, 596-598 [affirming jury award against a power company since the company, which had contracted with the city to install traffic lights, owed a duty to automobile passengers to do so with reasonable care].)

These out-of-state opinions lend further support to the position SCE can and should be held liable to Lurye for injuries proximately caused by its failure to carry out the service it contracted to render with due care.   For reasons explained later ³ , California's only authority ⁴ which could be construed to take a contrary position is not persuasive in the context of this case.

III. ALTERNATIVELY, THERE IS A TRIABLE ISSUE SCE OWED A DUTY BECAUSE IT ASSUMED ANY DUTY THE CITY OWED TO PROVIDE LIGHTING AT THIS PARTICULAR CROSSWALK AND THERE WAS A TRIABLE ISSUE THIS CROSSWALK PRESENTED A “PECULIAR CONDITION OR RISK” IF NOT PROPERLY LIGHTED AND THEREFORE THAT THE CITY OWED SUCH A DUTY.

In the prior section we determined SCE owed a duty to pedestrians such as Lurye who walked at night over marked crosswalks illuminated solely by streetlights it had undertaken to install and maintain, even assuming the city with which it contracted owed no duty to provide such lighting.   In this section we consider an independent basis for SCE's liability:  did West Hollywood have a duty to provide lighting at this particular crosswalk which duty SCE assumed by contracting to install and maintain the streetlight illuminating this crosswalk.   Returning to the Restatement of Torts, the issue is whether SCE owed a duty to Lurye under section 324A, subsection (b), the subsection imposing liability on those who have “undertaken to perform a duty owed by the other to the third person,” in this instance a duty the city may owe to pedestrians walking at night in this crosswalk.   If West Hollywood owed a duty, SCE clearly did.   As emphasized in Antenor, the city, in turn, can owe a duty to provide lighting at this particular marked crosswalk because the facts establish “ ‘some peculiar condition rendering lighting necessary in order to make the streets safe for travel?’ ”⁵  In the context of a summary judgment motion, the issue is more properly framed as whether a triable issue exists whether there is such a “peculiar condition” at this particular marked crosswalk over this particular intersection.

Antenor involved a suit against a city by two pedestrians who were struck by a car while crossing a city street in an unmarked crosswalk.  (Antenor, at p. 479, 220 Cal.Rptr. 181.)   There, the plaintiffs alleged lack of pedestrian and/or traffic control, and inadequate lighting factored into the city's maintaining a dangerous condition of public property.  (Ibid.) The Court found the city was under no duty to light its streets in the first instance, and the risks existing at the intersection did not constitute a “dangerous condition” under Government Code section 830.2, since they were of a minor, trivial or insignificant nature.⁶

After recognizing Government Code section 830.2 codified a line of sidewalk case decisions, the court in Antenor adopted the analytic approach incorporated in those opinions.  (Antenor at pp. 482-483, 220 Cal.Rptr. 181, citing Barone v. City of San Jose (1978) 79 Cal.App.3d 284, 290-291, 144 Cal.Rptr. 836;  Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734, 139 Cal.Rptr. 876.)   The Barone court suggested, “the correct approach in cases of this nature is to determine first if the claimed defect is too trivial, as a matter of law, to be dangerous.  [This] inquiry ․ is a logical preliminary step before reaching the larger question of whether the nature of the defect, along with other circumstances, is sufficient to raise a jury question concerning notice.” ⁷  Similarly, Fielder reasoned, “evidence that other accidents have occurred on the same spot goes toward proof that there is substantial risk that injury will occur by persons [using] due care.” ⁸

 The frequency of prior accidents at the same crosswalk in the instant case supplies evidence it posed a substantial risk of injury to persons using the crosswalk, even if they were doing so with due care.   Further, given this was a marked crosswalk, it invited pedestrians to enter the street at this point and to assume motorists would be able to see them and stop for them.   Without lighting, however, it was a trap for the unwary, creating a “peculiar risk” of injury or a “peculiar condition” to anyone who entered the crosswalk after dark.   That risk was obvious to SCE personnel when they responded to the October 1995 accident that severely damaged the only streetlight illuminating this particular marked crosswalk.

The court in White found an unlighted intersection presented no “peculiar condition” significantly increasing the risk of injury to people driving in automobiles easily seen because they were equipped with headlights.   (White, supra, at p. 452, 30 Cal.Rptr.2d 431.)  (The White court said nothing, however, about the risk of injury to pedestrians walking in an unlighted marked crosswalk.)  White also held a California statutory provision imposing “damages caused by [a public utility's] acts or omissions in violation of the Constitution, a statute or order of the Public Utilities Commission,” was of no assistance to the plaintiff's case in absence of a dangerous condition.⁹

Here, in contrast, Lurye, a pedestrian, has produced sufficient facts to raise a triable issue whether the intersection at Fountain and Fuller was in special need of lighting in order to reduce the risk of injury to pedestrians walking in this marked crosswalk at night.   The accident investigator's testimony the defunct streetlight created a “pool of darkness” over at least half the crosswalk supplied more than enough evidence to establish at least a triable issue whether “special conditions” required a functioning streetlight at this intersection.

“ ‘Except as provided by statute,’ ” in order to impose liability on a public entity where a dangerous condition is alleged to be a cause of injury, a plaintiff must establish “ ‘the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred,’ and that it was created by an employee's wrongful act or omission or the entity had notice in time to take protective measures.”  (5 Witkin, Summary of Cal. Law (9th ed.   1988) Torts, § 172, p. 256, quoting Government Code section 835, original italics, italics added.)

 The elements as established here, are “(a) ‘foreseeable use’ by persons themselves acting with due care, and (b) a ‘substantial’ risk of injury.  (See Dahlquist v. California (1966) 243 Cal.App.2d 208, 211, 52 Cal.Rptr. 324 [pleading held sufficient];  Callahan v. San Francisco (1967) 249 Cal.App.2d 696, 703, 57 Cal.Rptr. 639 [liability extends to persons generally, not just those acting with due care];  Swaner v. Santa Monica (1984) 150 Cal.App.3d 789, 799, 198 Cal.Rptr. 208;  C.E.B., Government Tort Liability Practice § 3.4;  BAJI (7th ed.), Nos.11.53, 11.54.)”  (5 Witkin, Summary of Cal., Law (9th ed.   1988) Torts, § 172, p. 257.)   Furthermore, the Government Code refers to “due care when used by the public generally,” and not necessarily the particular plaintiff.  (5 Witkin, Summary of Cal. Law (9th ed.   1988) Torts § 173, p. 257.)   Thus, even if appellant was contributorily negligent for either “appearing to stop in the crosswalk” or “walking slowly,” “a third party's negligent use of property does not negate the existence of a dangerous condition.”  (5 Witkin, Summary of Cal. Law (9th ed.   1988) Torts § 177, p. 260, citing Mathews v. California (1978) 82 Cal.App.3d 116, 121, 145 Cal.Rptr. 443.)   Here, the dangerous condition existed prior to the time the streetlight became inoperative, making appellant's situation one which exemplifies a peculiar risk or condition in special need of lighting.

 This hazard was compounded by the existence of the marked crosswalk at Fountain and Fuller Avenues.   Indeed pedestrians have a right to rely on the existence of a marked crosswalk as indicating a safe place to cross the street.¹⁰  According to Lurye, on his way home from mailing a letter, he entered the marked crosswalk at the northwest corner of Fountain and Fuller Avenues.   Thus, from appellant's perspective as a pedestrian in a marked crosswalk, eastbound and westbound vehicular traffic would yield the right of way to him.   The streetlight, which was positioned directly over the marked crosswalk, had been inoperative for five months prior to the date of this accident.   Yet SCE had not posted a sign or barrier warning pedestrians against using this particular marked crosswalk during nighttime hours.   This clearly was an invitation to appellant, and to other pedestrians crossing there at night, to do so even in the absence of the lighting previously available there.

All the other elements of a cause of action against SCE based on a “dangerous condition” likewise are satisfied or remain triable issues.   SCE undertook to service and maintain the streetlights for the City of West Hollywood, thus assuming the city's duty to provide adequate lighting at this intersection crosswalk.   The statements of Deputy Traffic Investigator Abercrombie reveal a history of prior accidents at the Fountain and Fuller Avenues.   Abercrombie himself investigated six accidents involving pedestrians there.   Thus, SCE had constructive notice of the hazards created by the traffic pattern at this location.   Moreover, SCE had actual notice of the inoperable condition of the streetlight since SCE cleared the debris and capped the live wires exposed as a result of the October 7, 1995, accident within 24 hours of its occurrence.

At a minimum, then, the present case presented a triable issue whether this particular marked crosswalk posed a “peculiar condition rendering lighting necessary in order to make” it safe for travel by pedestrians.   If the jury concludes this “peculiar condition” exists then West Hollywood had a duty to provide the necessary lighting.   And since SCE eagerly signed on to discharge West Hollywood's duty to install and maintain that lighting, it also acquired the duty West Hollywood owed to pedestrians, such as Lurye, who were walking in that marked crosswalk at nighttime.¹¹

IV. THERE ARE TRIABLE ISSUES AS TO SCE'S BREACH OF DUTY AND CAUSATION.

 In order to avoid a further game of ping pong between the trial and appellate court in this case-especially at the expense of a plaintiff now in his early 70's-we also consider whether the record reflects triable issues as to SCE's breach of its duty of due care toward Lurye and the causal link between that breach and Lurye's injuries.   As explained below, we conclude triable issues exist as to both of these elements of Lurye's cause of action.

We first find at least a triable issue SCE breached the duty defined by the extent of its voluntary undertaking.   Here, SCE undertook to service and maintain the “pedestrian lighting system” for the City of West Hollywood in return for an agreed upon amount of compensation.  “Service and maintenance” undoubtedly includes repair or replacement of damaged or defective streetlights.   Further, in view of the contractual agreement between SCE and West Hollywood, no entity other than SCE would have been expected to repair or replace the damaged streetlight.   In fact, SCE workers responded within hours of the accident to clear debris and cap the exposed live wires.   Reasonable prudence suggests the next step should have been to repair and/or replace the damaged streetlight as soon as possible in order to prevent foreseeable harm to foreseeable plaintiffs, in this case pedestrians crossing the street at nighttime.   Yet the record reflects SCE waited almost another month after the Lurye incident - and six months after it was broken-to fix this streetlight.   Accordingly, the record contains more than enough evidence to create a triable issue that SCE breached a duty of care it owed Isaak Lurye, a foreseeable plaintiff within the orbit of risk created by the negligence of SCE workers when they failed to timely repair and/or replace the damaged streetlight which had previously illuminated the crosswalk.

 The record also provides ample evidence to create a triable issue SCE's breach was a proximate cause of Lurye's injuries.   It includes testimony from the traffic accident investigator the broken streetlight created a “pool of darkness” over the portion of the marked intersection where Lurye was walking when struck by Bastijian's automobile.   Bastijian, in turn, testified she couldn't see Lurye in this pool of darkness until it was too late to stop without hitting him.   While it is true another driver approaching the same intersection said he could spot Lurye in time to swerve around him, his testimony just sets up a credibility contest for the jury to sort out.   Indeed this sort of contradictory evidence is the essence of a “triable issue.”   If the jury believes Bastijian as reinforced by the traffic investigator's testimony it could reasonably conclude SCE's failure to repair this streetlight rendered Lurye invisible to the oncoming Bastijian vehicle and thus was a proximate cause if not the most important cause of the accident and of Lurye's injuries.

V. WHITE v. SOUTHERN CALIFORNIA EDISON IS INAPPLICABLE TO THIS SET OF FACTS

 As SCE conceded in its reply brief, the White Court did not purport to completely extinguish a utility company's responsibility for negligently maintaining streetlights.   Rather, White recognized that under limited circumstances, a duty may arise and quoted Antenor 's proviso, “some peculiar condition [may render] lighting necessary in order to make the streets safe for travel.”  (White at p. 451, 30 Cal.Rptr.2d 431, quoting Antenor at p. 483, 220 Cal.Rptr. 181.)   With this limitation in mind, White articulated a three-prong test, which places the burden of proof on the defendant public utility to defeat liability.  (White, at p. 451, 30 Cal.Rptr.2d 431.)   To avoid imposition of a duty or liability, White requires the absence of:  1) a dangerous condition, 2) an increased risk caused by failure to maintain the streetlight which is greater than the risk created by total absence of the streetlight, and 3) reliance on part of the plaintiff.  (White at p. 451, 30 Cal.Rptr.2d 431.)   To restate the proposition the White opinion declared, if a single one of these three prongs exists the public utility is liable.

 It appears the trial court misconstrued White.   The trial court based its summary judgment ruling solely on White 's second prong, finding White stood for the proposition that, “of the three things you need to make liability work, you need something that is greater for its risk of harm than darkness.”   We disagree “three things” are needed for liability, one being sufficient even under White.   We further disagree with the notion that in the context of the instant case the failure to maintain the streetlight must create a greater risk than that posed by darkness.   The proper test is whether the risk of injury from the failure to maintain the streetlight is greater than the risk when the streetlight is functioning and casting light on the crosswalk and the pedestrians crossing the street at that location.

In White the court already had found there was no “peculiar condition” imposing a duty to provide a streetlight at the intersection in that case.   For reasons explained above, here we have found a triable issue whether such a risk exists and hence whether there is such a duty.   Consequently, here the critical comparison is between the situation where the duty is breached and where it is satisfied-the contrast between an unlit crosswalk with a broken streetlight and that same crosswalk when lit by a functioning streetlight - not between a crosswalk with a broken streetlight and one without a streetlight at all.  (We have further found a duty under section 324A. subdivision(c) which is not dependent on the existence of a “peculiar condition” requiring lighting at this intersection.   So once again the proper comparison would be between an intersection with a broken streetlight and one with a functioning streetlight.)

White also is distinguishable from the instant case based on material differences in their facts.  White involved two motorists in a motor vehicle collision at an intersection, whereas here a pedestrian in a marked crosswalk was injured by a motorist.   Automobiles come equipped with headlights;  pedestrians don't.   Another car's headlights are visible to other motorists in a way pedestrians are not.   Thus, streetlights are far less important to the safety of motorists approaching an intersection than they are to pedestrians walking within a marked crosswalk at that same intersection.

This affects both of the alternative grounds for imposing a duty on SCE discussed above.   Under the terms of section 324A, the scope of the duty is limited to third parties who would be foreseeably harmed by a negligent performance of SCE's voluntary undertaking to maintain the city's streetlights.   Motorists are not placed at significant risk by the failure to have a lighted streetlight over this marked crosswalk.   But pedestrians are.   Similarly, the city's duty to provide streetlighting at this intersection, a duty SCE contracted to assume, depends on a finding the absence of a streetlight at this location represented a “peculiar condition” requiring streetlighting to avoid a substantial risk of injury to some class of persons.   Pedestrians walking in this marked crosswalk represent such a class of persons confronting such a “peculiar condition.”   The same cannot be said of motorists approaching that same intersection.   Accordingly, under neither theory employed in this opinion would SCE necessarily owe a duty to the motorists in White, even though it owes a duty to this pedestrian under both.

There were other salient differences between White and the instant case.   The inoperative streetlight here hung directly over the marked crosswalk, not 132 feet away as in White.   Furthermore, in White the defendant utility had no notice the streetlight was not functioning.   Here, SCE had actual notice of the damaged streetlight, since within 24 hours of the October 7, 1995, accident, SCE workers cleared the debris and capped the live wires.   After that notice, the utility had a full five months to repair this streetlight and still avoid serious injury to this pedestrian.¹²

VI. SCE'S STATUS AS A PUBLIC UTILITY DID NOT CONFER IMMUNITY FROM LIABILITY FOR ITS ALLEGED NEGLIGENCE IN FAILING TO REPAIR THIS STREETLIGHT.

 Finally, we observe SCE's status as a public utility is irrelevant to its liability for this tort.   The cases conferring immunity on utilities for harm third parties suffer due to power shutdowns and similar events affecting the supply of electricity to its customers ¹³ simply do not apply here.   Nor does SCE's argument that imposing a duty in this case will somehow increase the rates it must charge its customers on their monthly utility bills.

Lurye sues SCE not in its capacity as a supplier of electric power, but rather in a capacity analogous to any other contractor hired to service and maintain equipment vital to public safety.   Notably, installation and maintenance of streetlights is outside the scope of this public utility's traditional function, which is ordinarily to provide electricity to the public.   West Hollywood could have contracted with any number of other types of business enterprise to install and maintain its streetlights - or undertaken that task itself as a municipal function.   West Hollywood - not SCE's utility customers-pays SCE for operating these streetlights.   Similarly, SCE's streetlight customers, not its utility customers, would or at least should absorb any increased costs this utility may have to pass along because of damage awards or insurance premium increases resulting from its negligence in this sideline activity.   There is no reason a utility should have a competitive advantage over other enterprises seeking to enter the “streetlight business” by being given an immunity from liability others in the same activity do not enjoy.

 This is not a case where the streetlight was out because SCE experienced a power failure and streetlights went dark throughout the neighborhood.   Rather it was out because this particular light suffered damage and SCE failed to repair it - for five months.   Like any other firm hired to install and maintain the city's streetlights, this public utility should be held liable for its negligent performance of the duty it so willingly undertook in order to earn some more money.¹⁴

Simply stated, the duty SCE owed here has nothing to do with the supply of power by a public utility but with the utility's decision to go into an ancillary field, the installation and maintenance of streetlights.   Any damage awards or insurance premiums attributable to its negligence in conducting this ancillary business should not affect the rates SCE charges its utility customers but rather the fees it charges those who contract with it to install and maintain street lights.   This public utility is no more entitled to immunity for harm its negligence may have caused than any other business undertaking responsibility for West Hollywood's streetlights.

DISPOSITION

The summary judgment is reversed, and the case remanded for further proceedings consistent with this opinion.   Appellant to recover his costs on appeal.

FOOTNOTES

1.   The first four elements encompass the elements of duty, breach, and harm found in the traditional negligence analysis, and are provided by the terms:“[1] one who undertakes, gratuitously or for consideration,”“[2] to render services to another,”“[3] which he should recognize as necessary for the protection of a third person or his things,”“[4] is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking ․;”and the fifth element embodies the section's three provisional requirements:“[5] if”  “(a) his failure to exercise reasonable care increases the risk of such harm, or“(b) he has undertaken to perform a duty owed by the other to the third person, or“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”(Rest.2d Torts, § 324A, p. 142, italics added.)

2.   Section 324A provides for imposition of liability if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person on the undertaking.

3.   See section V, infra.

4.   See White v. Southern California Edison, supra, 25 Cal.App.4th 442, 451, 30 Cal.Rptr.2d 431, finding no do duty to motorists as opposed to pedestrians.

5.   Antenor v. City of Los Angeles, supra, 174 Cal.App.3d 477, 483, 220 Cal.Rptr. 181, italics added.   The general rule provides, “[i]n the absence of a statutory or charter provision to the contrary, it is generally held that a municipality is under no duty to light its streets even though it is given the power to do so, and hence, that its failure to light them is not actionable negligence, and will not render it liable in damages to a traveler who is injured solely by reason thereof.”  (39 Am.Jur.2d, Highways, Streets and Bridges § 405, at pp. 803-804.)   Nevertheless, “[a] duty to light, and the consequent liability for failure to do so, may, however, arise from some peculiar condition rendering lighting necessary in order to make the streets safe for travel.”   (Antenor v. City of Los Angeles, supra, 174 Cal.App.3d 477, 483, 220 Cal.Rptr. 181.)

6.   Antenor at p. 481, fn. 2, 220 Cal.Rptr. 181. “Government Code section 830.2 provides, in pertinent part, that:  ‘A condition is not a dangerous condition ․ if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.’ ”  (Ibid.)

7.   “This initial inquiry into the question of ‘dangerousness' would involve consideration of matters as the size and location of the defect with respect to the surrounding area and lighting conditions and whether it has been the cause of other accidents;  while the question of notice would necessarily involve not only the factors which are primarily related to ‘dangerousness,’ but also such matters as visibility of the condition, the frequency of travel in the area and the probability, if any, that a reasonable inspection by the appropriate public officials would have discovered its existence and its dangerous character.”  (Barone v. City of San Jose, supra, 79 Cal.App.3d 284, 290-291, 144 Cal.Rptr. 836, italics added.)

8.   Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734, 139 Cal.Rptr. 876.

9.   White at pages 452-454, quoting Public Utilities Code section 2106.  “First, it is clear the Legislature did not intend to incorporate wholesale the duties of public entities into Public Utilities Code section 2106.   Second, a public entity's duty to maintain illumination equipment on its highways does not create a duty to third parties for its failure to do so in the absence of a dangerous condition.   Accordingly, we find no statutory scheme imposing a duty on public utilities to third parties for failure to maintain streetlights.”   (Ibid., italics added.)

10.   Louisville & Nashville RR. v. Taylor (Ky.Ct.App.1956) 290 S.W.2d 608, 610[“[A] pedestrian has the right to travel upon any part of a street and has the right to assume the way is reasonably safe where pedestrians may be expected to go.”]

11.   Since we find two independent and sufficient grounds exist for imposing a duty on SCE, we need not and do not address other potential bases for such a duty, including:  (1) whether SCE assumed a duty the city owed, even in the absence of a duty to provide lighting at this particular location, to properly maintain the lighting because it had voluntarily chosen to provide this lighting and invited the public to rely on its availability.  (See, e.g., De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, 746, 94 Cal.Rptr. 175);  (2) Whether SCE owed a duty to warn pedestrians about the danger involved in using this marked crosswalk at night until the streetlight was repaired, since pedestrians may have been unaware of the “pool of darkness” the absence of a streetlight created in a portion of this particular crosswalk.  (See, e.g., Galiano v. Pacific Gas & Elec. Co.(1937) 20 Cal.App.2d 534, 543, 67 P.2d 388 [“duty of warning the traveling public of any other condition which endangers [safe] travel”].)

12.   In a recent decision filed after oral argument in this case, a Fourth District panel relied heavily on White,supra, to determine a city owed no duty even to a pedestrian to provide lighting over a crosswalk.  (Plattner v. City of Riverside (1999) 69 Cal.App.4th 1441, 82 Cal.Rptr.2d 211.)   This opinion is readily distinguishable, however.   As to the first ground of our opinion, based on section 324A subdivision (c), the Fourth District only considered the city's duty not that of a private company contracting with the city.   Thus the court had no reason to even consider whether a utility or other private contractor is liable for negligently undertaking a responsibility important to public safety the city has relied on it to perform properly and thus foregone other contractors or alternatives who would have provided the desired protection.  (See section II above.)   Nor did the Plattner court consider the other independent and sufficient ground for our opinion, based on section 324A subdivision (b)-the existence of a triable issue this particular crosswalk posed a “peculiar condition” necessitating streetlighting (see section III).   In Plattner, the plaintiff conceded no such condition existed and the city had no duty to install a streetlight over the crosswalk.  (69 Cal.App.4th at p. 1444, 82 Cal.Rptr.2d 211.)   Instead that plaintiff relied entirely on another contention, “once the city installed the light it had a duty to maintain that streetlight in working order.”  (Ibid.) Unlike the instant case, the Plattner plaintiff neither argued nor presented evidence to support a finding a “peculiar condition” existed at the particular crosswalk.   Consequently, the Plattner court had no occasion to consider nor rule on the issue decided in this case.

13.   See, e.g., Niehaus Bros. Co. v. Contra Costa Water Co. (1911) 159 Cal. 305, 322-323, 113 P. 375 [no liability when public utility supplies suffers an interruption, in this case water required to suppress a fire which damaged plaintiff's property];  Lowenschuss v. Southern Cal. Gas Co. (1992) 11 Cal.App.4th 496, 500-501, 14 Cal.Rptr.2d 59 [utility has no duty to shut off gas to neighborhood of homes in path of fire].)

14.   Public utilities do not enjoy a general grant of immunity.   To the contrary, they owe the usual duty to exercise reasonable care in the conduct of their business activities.  (See, e.g., Langley v. Pacific Gas & Electric Co. (1953) 41 Cal.2d 655, 660-61, 262 P.2d 846;  Gerberich v. Southern California Edison Co. (1935) 5 Cal.2d 46, 52, 53 P.2d 948 [utility liable for misplacement of utility pole];  Monroe v. San Joaquin Light & Power Corp. (1941) 42 Cal.App.2d 641, 647, 109 P.2d 720 [utility liable for faulty installation of electrical equipment causing severe electric shock];  Erde v. City of Los Angeles (1953) 116 Cal.App.2d 565, 568-569, 254 P.2d 110 [utility not absolved from liability as a matter of law from liability for falling light standard].The instant case is closer to these latter cases than it is to the power failure cases and their kin.   Here the public utility failed to exercise due care in the maintenance of a streetlight it had contracted to maintain.   This is akin to the misplacement of a power pole or faulty installation of other equipment for which utilities have been held liable.   Significantly, they were held liable for these acts of negligence even though they occurred as part of the company's delivery of electricity or other utility to their customers.   In those cases, the public utility was held liable even though any damage awards or higher insurance costs presumably would be passed on to the regular utility customers in the form of higher rates.   For reasons explained above, in this case it is the customers of SCE's streetlight maintenance business not its regular utility customers who would have to bear these additional costs.

JOHNSON, J.

LILLIE, P.J., concurs. WOODS, J., concurs in the judgment only.