HACKER v. CITY OF GLENDALE (1991)

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

DISCUSSION

I

 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.   The weight of authority in California is to the contrary and we therefore reject the contention

In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, the Supreme Court abolished the “all-or-nothing” rule of contributory negligence and replaced it with a system of comparative negligence.   In determining the effect of this change on the doctrine of assumption of the risk, the court stated:  “[W]e have recognized in this state that this defense [assumption of the risk] overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses.  ‘To simplify greatly, it has been observed ․ that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence, plaintiff's conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence․  Other kinds of situations within the doctrine of assumption of the risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him.   Such a situation would not involve contributory negligence, but rather a reduction of defendant's duty of care.’  [Citations.]  We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of the risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence.”  (Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 824–825, 119 Cal.Rptr. 858, 532 P.2d 1226;  original emphasis.)

In addition to unreasonable implied assumption of the risk discussed in Li, commentators have recognized another form of that defense, viz., reasonable implied assumption of the risk (Gonzalez v. Garcia (1977) 75 Cal.App.3d 874, 878, 142 Cal.Rptr. 503) which occurs where the plaintiff's reasonable conduct in encountering a known danger raises the inference that he has agreed to relieve the defendant of his duty of care.  (Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1477, 255 Cal.Rptr. 755.)   While Li abolished the defense of unreasonable implied assumption of the risk, it did not determine whether the defense of reasonable implied assumption of the risk survives the adoption of comparative fault.³  The appellate courts of this state have considered the question, with varying results.

In Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578, it was held that the defense of reasonable implied assumption of the risk was abolished as a separate defense by adoption of the comparative negligence system.   While the court noted Li's statement that there may be situations in which plaintiff is “held to agree” to relieve defendant of an obligation of reasonable conduct toward him, the court concluded it is only where plaintiff expressly agrees to assume the risk that defendant is relieved of a duty of care toward plaintiff, thus barring recovery.  (Segoviano v. Housing Authority, supra, 143 Cal.App.3d at pp. 168–170, 191 Cal.Rptr. 578.)   The court added:  “The Supreme Court recognized that implied assumption of the risk if unreasonable could be fairly handled under the comparative negligence concept, i.e., the plaintiff's recovery would be reduced to the extent his own lack of reasonable care contributed to his injury.   If the plaintiff's conduct was entirely reasonable under all of the circumstances, we find no basis in reason or equity for barring his recovery.   Elimination of RIAR [reasonable implied assumption of risk] as a separate defense avoids punishing reasonable conduct.”  (Id., at p. 170, 191 Cal.Rptr. 578.)

Segoviano is the only California case which so holds.  Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536 concluded that the doctrine of reasonable implied assumption of the risk survives comparative fault as a viable defense.   The court there criticized Segoviano, noting that its explanation of rewarding or punishing plaintiff has nothing to do with the propriety of preserving the defense of reasonable implied assumption of the risk.   Rather, the explanation “is found in the expectation of the defendant.   He or she is permitted to ignore reasonably assumed risks and is not required to take extraordinary precautions with respect to them.   The defendant must, however, anticipate that some risks will be unreasonably undertaken, and a failure to guard against those may result in liability.”  (Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 104–105, 243 Cal.Rptr. 536.)   The Ordway court concluded:  “The correct analysis is this:  The doctrine of reasonable implied assumption of risk is only another way of stating that the defendant's duty of care has been reduced in proportion to the hazards attendant to the event.   Where no duty of care is owed with respect to a particular mishap, there can be no breach;  consequently, as a matter of law, a personal injury plaintiff who has voluntarily—and reasonably—assumed the risk cannot prevail.   Or stated another way, the individual who knowingly and voluntarily assumes a risk, whether for recreational enjoyment, economic reward, or some similar purpose, is deemed to have reduced the defendant's duty of care.”  (Id., at p. 104, 243 Cal.Rptr. 536.)

Other cases likewise have concluded that reasonable implied assumption of risk remains a viable defense.  (Nunez v. R'Bibo (1989) 211 Cal.App.3d 559, 562, 260 Cal.Rptr. 1;  Von Beltz v. Stuntman, Inc., supra, 207 Cal.App.3d 1467, 1478, 255 Cal.Rptr. 755;  Nelson v. Hall (1985) 165 Cal.App.3d 709, 714, 211 Cal.Rptr. 668;  Baker v. Superior Court (1982) 129 Cal.App.3d 710, 719–720, 181 Cal.Rptr. 311.)

 The reasoning of Ordway convinces us that the defense of reasonable implied assumption of the risk survives the adoption of comparative fault and, where applicable, provides a complete defense to a negligence action.⁴

II

 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.)

 Plaintiffs contend defendants failed to meet that burden 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.

“The doctrine of assumption of the risk ․ applies only when the accident arises from a danger known to the victim before the accident and where the evidence shows that the victim voluntarily chose to enter or remain in the zone of known danger.   Actual, and not merely constructive, knowledge of the danger is required․  [¶] To warrant the application of the doctrine the evidence must show that the victim appreciated the specific danger involved.   He does not assume any risk he does not know or appreciate.  [Citation.]  Stated another way, before the doctrine is applicable, the victim must have not only general knowledge of a danger, but must have knowledge of the particular danger, that is, knowledge of the magnitude of the risk involved.”  (Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 270–271, 32 Cal.Rptr. 193, 383 P.2d 777;  see also Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 406, 143 Cal.Rptr. 13, 572 P.2d 1155;  6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 1106, p. 519.)

Defendants' evidence in support of the motion established that the decedent had actual knowledge of the presence of power lines in the Nishimotos' tree which he was hired to trim.   It also appears that decedent had actual knowledge of the danger of trimming trees near electrical wires, as shown by the deposition testimony of his wife, plaintiff Eleanor Hacker, that he was aware of such danger.   In opposition to the motion plaintiffs presented evidence that decedent was electrocuted not by coming into direct contact with a wire, but by coming into contact with a tree branch that was touching a wire.   In response to this showing defendants submitted the declaration of an expert, Mr. Camacho, who stated that it is well known in the tree trimming business that a live tree branch can conduct electricity.   In granting the motion for summary judgment the trial court did not consider the Camacho declaration.⁵

 In reviewing a summary judgment, we must make an independent determination of the construction and effect of the papers submitted to the trial court.  (Walter E. Heller Western, Inc. v. Tecrim Corp. (1987) 196 Cal.App.3d 149, 156, 241 Cal.Rptr. 677.)   However, our review is limited to the facts shown in the documents before the court at the time it ruled on the motion.  (Zeilman v. County of Kern (1985) 168 Cal.App.3d 1174, 1178–1179, 214 Cal.Rptr. 746;  Bonus–Built, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442, 186 Cal.Rptr. 357.)   Accordingly, we disregard the Camacho declaration in assessing the sufficiency of defendants' showing in support of the motion.

Even without the Camacho declaration, it is clear that decedent had knowledge of the very danger which caused his death, i.e., electrical wires.   He met his death by electrocution, a risk of which he, as a professional tree trimmer, was well aware.   The fact that he was electrocuted by coming into contact with a tree branch instead of the wire itself is immaterial.   This case is distinguishable from Carr v. Pacific Tel. Co. (1972) 26 Cal.App.3d 537, 103 Cal.Rptr. 120, wherein a tree trimmer, while attempting to remove a tree that had fallen across a telephone line, was killed when the tree was flung into the air as a result of tension created by the telephone lines.   It was held that reasonable implied assumption of the risk did not apply because nothing in the record showed decedent knew or must have known that the tree trunk was apt to spring into the air and fall on him or anyone else.   In stark contrast to that situation, decedent here was aware of and fully appreciated the specific danger which caused his death:  electrocution by wires running through a tree he was hired to trim.

In Walters v. Sloan (1977) 20 Cal.3d 199, 142 Cal.Rptr. 152, 571 P.2d 609, a post-Li case, the Supreme Court reaffirmed the fireman's rule and in so doing made the following observations which likewise are applicable here:  “[O]ne who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby.   We have consistently applied this concept in our recent pronouncements in other cases of basic tort doctrine․  [¶] The principle denying recovery to those voluntarily undertaking the hazard causing injury is fundamental in a number of doctrines, including nullification of the duty of care, satisfaction of the duty to warn because the hazard is known, contributory negligence, and assumption of the risk, as well as the fireman's rule.  [Citations.]  It is unnecessary to attempt to separate the legal theories or to catalog their limitations.   The rule finds its clearest application in situations like that before us—a person who, fully aware of the hazard created by the defendant's negligence, voluntarily confronts the risk for compensation.”  (Id., at p. 204, 142 Cal.Rptr. 152, 571 P.2d 609;  see also Nelson v. Hall, supra, 165 Cal.App.3d 709, 714, 211 Cal.Rptr. 668.)

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.  “The moving party's burden on a motion for summary judgment is only to ‘negate the existence of triable issues 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.)

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.   As construed and applied by the majority in this case, the assumption of the risk defense resurrects the discredited and discarded defense of contributory negligence in all—or at least nearly all—its “glory.”

Assuming the so-called “reasonable implied assumption of the risk” (RIAR) defense survives California's acceptance of “comparative negligence,” that defense should be confined to its limited pre-Li definition and role.   It should not be allowed to evolve into the ghost of contributory negligence past inhabiting the form of assumption of the risk present.¹

From my review of the record and the law in this case, I find two independent and sufficient grounds compelling reversal of the summary judgment:  (1) There are triable issues whether all elements of the reasonable implied assumption of the risk defense were satisfied.  (2) There are triable issues whether the deceased tree trimmer unreasonably assumed the risk and therefore was “comparatively negligent.”   I further regard this case as a prime example of why “reasonable implied assumption of the risk” should not survive the demise of contributory negligence and the advent of comparative negligence.

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.

The trial court and the majority of this court do not appear to pay sufficient heed to four critical limitations on the “reasonable implied assumption of the risk” defense.

First, unlike contributory negligence, this defense employs a subjective test, not an objective, “reasonable person” standard.   The defendant must prove this particular injured person actually knew the risk.   It is not enough to prove a reasonable person would know or should know the risk.   It is not even enough to prove a reasonable tree trimmer would know the risk.   It must be proved this particular individual tree trimmer actually knew.²

Secondly, the injured person must know not merely the facts that create the danger;  he must understand the existence and magnitude of the danger.³

Thirdly, the injured person must have specific knowledge of the particular danger which caused his injury not merely the general dangerousness of the activity in which he is engaged.⁴

Finally, whether a particular injured person actually possessed the requisite knowledge and reasonably assumed the risk is a question of fact reserved for the jury in all but the most extraordinary cases.⁵

The parties did not cite and my research has not yielded any California appellate case involving tree trimmers falling afoul of electrified tree branches.   However, we did uncover a recent Arizona opinion which does.   (Gonzales v. Arizona Public Service Co. (App.1989) 161 Ariz. 84, 775 P.2d 1148, rev. den. June 27, 1989.)   Since California and Arizona adhere to the same legal principles as to the assumption of risk defense, I find this opinion nearly as persuasive as one emanating from a sister California appellate court.   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 need not even be submitted to the jury.

The Arizona court first described the elements of the reasonable assumption of the risk defense in terms that parallel California law on the subject.

“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 1148, 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 1148, 1153–54, 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 Electric and Power Company 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 Electric and Power Company v. Winesett, supra, 303 S.E.2d 868, 876.)⁶

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 electrocution by tree branch 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 ask the courts to infer this knowledge from other, circumstantial evidence.

Respondents first point to the fact Hacker received some training in tree trimming almost fifteen years before the incident.   However, they tender no evidence about the content of the “curriculum” for this training.   Was the danger of electrified tree branches featured or was it even mentioned?   If it was part of the “curriculum” did Hacker still remember this “lesson” fifteen 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 is 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 offer 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.   The majority opinion properly rules this deposition is inadmissible.   Yet even assuming it were 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, com. 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 a “reasonable assumption of the risk” instruction asking the jury to decide the question.   It is not, however, 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 lethal.   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.

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 it is difficult to comprehend how the trial judge and the majority of this court could have found there was not even a triable issue on this question.   Whatever one's views on the survival of the “reasonable implied assumption of the risk” defense (see pages 384–388, infra ) and even assuming one accepts the possibility a judge could ever decide a plaintiff assumed the risk as a matter of law, this case is far too close to dispose of on this summary basis.

II. THERE IS A TRIABLE ISSUE WHETHER HACKER'S BEHAVIOR IS CONSISTENT WITH AN “UNREASONABLE” (RATHER THAN A “REASONABLE”) ASSUMPTION OF THE RISK WHICH DEFENSE HAS BEEN SUBSUMED AS A PART OF COMPARATIVE NEGLIGENCE.

The doctrine of implied assumption of risk has a dual nature.   The principle first contemplates those situations in which a plaintiff acts reasonably in assuming the particular risk involved.

However, the doctrine also encompasses situations when an injured plaintiff “acts unreasonably in assuming a particular risk”.  (57 Am.Jur.2d 717, § 810.)

But when the injured person unreasonably assumes the risk he “help[ed] in proximately causing the injury of which [he] complains.”  (Saeter v. Harley Davidson Motor Co. (1960) 186 Cal.App.2d 248, 256, 8 Cal.Rptr. 747.)

The affirmative defense of unreasonable assumption of risk is, therefore, a “mere variant of the doctrine of contributory negligence.”  (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226;  see also Bunch v. Eason (1950) 95 Cal.App.2d 845, 849, 214 P.2d 28.)   As set forth in 82 American Law Reports, Second Series at page 1250, the “[a]pplication of the doctrine of assumed risk is often simply another way of applying the rule of contributory negligence, and frequently the difference between the two is merely a difference in the choice of language or style of expression.   In other words, the fact that one knows of potential danger and voluntarily subjects himself thereto may and often does render him contributorily negligent if accident or injury ensues.”  (Citing Gargaro v. Kroger Grocery and Baking Company (1938) 22 Tenn.App. 70, 118 S.W.2d 561;  Wilson v. Moudy (1938) 22 Tenn.App. 356, 123 S.W.2d 828).

Consequently, there is a general consensus implied assumption of risk is absorbed into the concept of comparative negligence “when it appears in its unreasonable form.”  (Prosser & Keeton, Torts, (5th ed. 1984) at p. 497, italics added.)   Indeed the California Supreme Court adopted this principle in the very opinion in which it substituted comparative negligence for contributory negligence in this state.  (Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 discussed at pp. 384–385, infra.)   As our high court observed in a later opinion, “[W]hen a plaintiff's voluntary encounter with a known risk is unreasonable, his conduct is in reality a form of contributory negligence ․ [t]o the extent that the burden of plaintiff's loss is divided between the parties in proportion to the percentage of fault attributable to each of them.”  (Lipson v. Superior Court (1982) 31 Cal.3d 362, 375–376, fn. 8, 182 Cal.Rptr. 629, 644 P.2d 822;  Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162.)

Put another way, “[i]n those situations in which a plaintiff acts unreasonably in encountering a specific risk, the claim of assumption of risk is merged into the system of assessing liability according to fault.”  (Paula v. Gagnon (1978) 81 Cal.App.3d 680, 685, 146 Cal.Rptr. 702, italics added.)   Thus, if decedent in the present action is found to have unreasonably assumed the risk, California's comparative fault system as set forth in Li will serve only to reduce appellant's damages, not bar them altogether.  (Paula v. Gagnon, supra, at p. 685, 146 Cal.Rptr. 702.)

That decedent unreasonably assumed the risk of his injury finds ample support in the record.   Deposition testimony of both Hacker's son and the property owner's wife indicated decedent knowingly stood on an aluminum ladder while cutting respondent's tree branches despite the fact they were precariously close to several wires.   If we assume, as the majority does, that Hacker knew these wires were high voltage power lines this alone is ample evidence he encountered a known risk unreasonably by standing on an electricity-conducting metal ladder which could form a direct circuit between a power line and the ground.   If we further assume, as the majority does, that Hacker was aware the tree branches he was cutting and trimming could become electrified, too, it is even more unreasonable to encounter this known risk of electrocution on a metal ladder.

The unreasonability of Hacker's behavior in assuming the risk of electrocution by tree branch becomes even more apparent if we consider the deposition testimony of respondent's expert.   I recognize the majority ruled this deposition inadmissible.   Nonetheless, I also recognize the irony that the only evidence the respondents introduced that might reasonably support an inference Hacker may have understood the risk of electrocution by tree branch also supports an inference Hacker encountered that risk in an unreasonable, contributorily negligent manner.

The respondents' expert not only testified that “professional tree trimmers” know a tree branch can transmit lethal charges of electricity, he also testified “professional tree trimmers” will use an elaborate set of precautions when trimming trees near power lines.   These precautions include the use of non-conductive ladders and other non-conductive paraphernalia and the deployment of a series of procedures calculated to reduce the chances of electrocution.   It is undisputed Hacker took none of these precautions.   If we accept the premise he understood the existence and magnitude of the specific risk, by failing to take any of these precautions Hacker unreasonably assumed the risk of electrocution by tree branch.   Or to put it another way, knowing and fully appreciating this risk, he was contributorily negligent in the way he encountered the risk.   Hacker breached his “duty to use ordinary care for his own safety, including observation of the known and obvious dangers and perils” (and was) “negligent as a matter of law.”  (Inouye v. Pacific Gas and Electric Co. (1959) 53 Cal.2d 361, 366, 1 Cal.Rptr. 848, 348 P.2d 208.)

The case of Paula v. Gagnon, supra, 81 Cal.App.3d 680, 146 Cal.Rptr. 702 is instructive.   In Paula, plaintiff wife brought a wrongful death action against three taverns for damages for her husband's death in a single-car accident.   The widow alleged the tavern keepers served decedent alcoholic beverages despite his obvious intoxication, thereby depriving him of the ability to safely operate his vehicle.   The tavern owners countered with an “assumption of the risk” defense, claiming the decedent had assumed the risk of injury by driving while intoxicated.

The appellate court determined defendant's conduct was an unreasonable assumption of risk.   The court reasoned “the decedent, allegedly having become intoxicated, was faced with the choice of either driving home or seeking assistance.   By choosing to drive home, he acted unreasonably in the face of a known risk.   This conduct falls squarely within the area that Li merged into the system of comparative negligence.  [Citations.]  The principles of Li dictate that (reasonable) assumption of risk apply only in the clearest instances of release of duty.   A customer's conduct in requesting and consuming drinks from a bartender beyond the point of intoxication does not meet this standard.”  (Paula v. Gagnon, supra, at p. 685, 146 Cal.Rptr. 702.)

Such is the case at bar.   Hacker's decision to utilize the aluminum ladder and his failure to take other precautions required when trimming a tree near power lines was a clear-cut example of unreasonable assumption of the risk.   As such, it constituted the breach of his duty to use ordinary care for his own safety.   Under Li and the general principles of comparative negligence and unreasonable assumption of the risk, this contributory negligence should be balanced against respondents' negligence and the damages adjusted accordingly.

Appellant widow here should have had the opportunity to present her case to a jury, since it was for it alone to decide “[w]hether the plaintiff's decision to expose himself or herself to the risk of injury was unreasonable under all of the circumstances․”  (Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 164, 191 Cal.Rptr. 578.)   Once the jury ascertained Hacker's choice was an unreasonable one, it might then, pursuant to Li, arrive at an “an allocation of damages between the plaintiff and the defendant.”  (Id.)

The factual determination as to the propriety of Hacker's actions was one for the trier of fact.   A jury confronted with this situation might well have decided decedent's actions fell below the standard of care which a person of ordinary prudence would exercise to avoid injury.  (BAJI No.3.10 (7th ed. 1986.)   It cannot be held as a matter of law that decedent's decision to utilize a metal ladder in close proximity to active power lines and with an understanding the tree branches he was trimming could carry fatal charges of electricity was a “reasonable” as opposed to an “unreasonable” assumption of the risk.   It was therefore improper for the court below to dispose of this case by way of summary judgment even if we accept as a matter of law the dubious proposition Hacker understood the risk of electrocution by tree branch.

In my view, Hacker's conduct in using a metal ladder and failing to take the precautions expected of a reasonable professional tree trimmer when trimming trees near power lines supports either of two inferences.   First, it supports the inference he failed to understand the existence and magnitude of the specific risk either because he was unaware these lines carried high voltage electricity or because he was unaware the very tree branches he was trimming could carry fatal charges of electricity.   Alternatively, this same conduct supports the inference that if he understood the specific risk he chose to encounter that risk in an unreasonable (i.e., contributorily negligent) manner.   In either event, the absolute defense of “reasonable implied assumption of the risk” is unavailable.   If anything, he was guilty of “contributory negligence” which should have gone to the jury as a question of comparative negligence.

III. THE DEFENSE OF “REASONABLE IMPLIED ASSUMPTION OF THE RISK” SHOULD BE SUBSUMED UNDER THE DOCTRINE OF COMPARATIVE NEGLIGENCE.

In 1975, the Supreme Court abandoned the inequitable rule of contributory negligence in favor of a comparative fault system.  (Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 812–813, 119 Cal.Rptr. 858, 532 P.2d 1226.)   In so doing, the Supreme Court also considered the continued existence of the doctrine of assumption of risk.

“As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses.  ‘To simplify greatly, it has been observed ․ that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence, plaintiff's conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence․  Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him.   Such a situation would not involve contributory negligence, but rather a reduction of defendant's duty of care.’  [Citations.]  We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence.”  (Id. at pp. 824–825, 119 Cal.Rptr. 858, 532 P.2d 1226, original emphasis.)

In a prior opinion subsequently accepted for review by the California Supreme Court, my colleagues and I concluded it is unclear whether the California Supreme Court intended reasonable implied assumption of risk to survive Li v. Yellow Cab Co.   As the majority of courts before us have determined, it is clear the Supreme Court abolished one form of assumption of risk, i.e., where the defendant has acted unreasonably or, to be more accurate within the comparative negligence scheme, negligently in assuming a known risk.  (See pages 382–383, supra, and cases cited therein.)   It is equally clear express assumption of risk survives California's adoption of comparative negligence.   But the Supreme Court did not explicitly address reasonable implied assumption of risk.

The majority view among California's intermediate appellate courts not to completely abolish the reasonable-implied assumption of risk doctrine is consistent with a number of out-of state courts which have also addressed this issue.   My research has identified seven other states which have decided to retain reasonable-implied assumption of risk following adoption of a comparative fault system.  (See Duffy v. Midlothian Country Club (1985) 135 Ill.App.3d 429, 90 Ill.Dec. 237, 242, 481 N.E.2d 1037, 1042;  Chapman v. Craig (Iowa 1988) 431 N.W.2d 770, 771;  Thompson v. Ruidoso–Sunland, Inc. (1987) 105 N.M. 487, 734 P.2d 267, 271;  Turcotte v. Fell (1986) 68 N.Y.2d 432, 510 N.Y.S.2d 49, 53, 502 N.E.2d 964, 968;  Mima v. City of Akron (1986) 31 Ohio App.3d 124, 508 N.E.2d 974, 975;  Fish v. Gosnell (1983) 316 Pa.Super. 565, 463 A.2d 1042, 1048–1049;  Mignone v. Fieldcrest Mills (R.I.1989) 556 A.2d 35, 38.)

However, the opposite view has been expressed persuasively by a number of leading commentators and has been adopted by the large majority of comparative fault jurisdictions.   Various courts and commentators have articulated reasons for a complete abolition of the doctrine based upon principles of fairness and convenience.  (See, e.g., Harper, James & Gray, Law of Torts, supra, § 21.0, p. 190;  James, Assumption of Risk:  Unhappy Reincarnation, (1968) 78 Yale L.J. 185;  Harrison v. Taylor (1989) 115 Idaho 588, 768 P.2d 1321, 1324;  Blackburn v. Dorta (Fla.1977) 348 So.2d 287, 291–292;  Murray v. Ramada Inns, Inc. (La.1988) 521 So.2d 1123, 1133–1134;  Meese v. Brigham Young University (Utah 1981) 639 P.2d 720, 725.  Springrose v. Willmore (1971) 292 Minn. 23, 192 N.W.2d 826).   Moreover, another five states placed significant limitations on the doctrine.  (See Thompson v. Crownover (1989) 259 Ga. 126, 377 S.E.2d 660, 662, modified at 259 Ga. 126, 381 S.E.2d 283;  Smith v. Blakey (1973) 213 Kan. 91, 515 P.2d 1062, 1070;  Singleton v. Wiley (Miss.1979) 372 So.2d 272, 275;  Melendres v. Soales (1981) 105 Mich.App. 73, 306 N.W.2d 399, 404;  Landrum v. Roddy (1943) 143 Neb. 934, 12 N.W.2d 82, 89;  Ballard v. Happy Jack's Supper Club (S.D.1988) 425 N.W.2d 385, 389.)

The many vocal detractors of the continued viability of assumption of risk include Professors Harper, James & Gray.   In their treatise, The Law of Torts, these commentators severely criticize the assumption of risk doctrine as an antiquated legal theory which has been subsumed into the existing legal principles of duty and comparative fault.  (Harper, James & Gray, Law of Torts, supra, § 21.8, p. 259.)

“The doctrine of assumption of risk, however it is analyzed and defined, is in most of its aspects a defendant's doctrine that restricts liability and so cuts down the compensation of accident victims.   It is a heritage of the extreme individualism of the early industrial revolution.   But quite aside from any questions of policy or of substance, the concept of assuming the risk is purely duplicative of other more widely understood concepts, such as scope of duty or contributory negligence․  [¶] Except for express assumption of risk, therefore, the term and the concept should be abolished.   It adds nothing to modern law except confusion․  There is only one thing that can be said for assumption of risk.   In the confusion it introduces, it sometimes—ironically and quite capriciously—leads to a relaxation of an overstrict rule in some other field.   The aura of disfavor that has come to surround it may occasionally turn out to be the kiss of death to some other bad rule with which it has become associated․  [T]his sort of thing is a poor excuse indeed for continuing the confusion of an unfortunate form of words.”  (Id. at pp. 259–260, fns. omitted;  accord Leavitt v. Gillaspie (Alaska 1968) 443 P.2d 61, 68;  Rini v. Oaklawn Jockey Club (8th Cir.1988) 861 F.2d 502, 507 [construing Arkansas law];  Brown v. Kreuser (1977) 38 Colo.App. 554, 560 P.2d 105, 108;  Wendland v. Ridgefield Const. Services, Inc. (1983) 190 Conn. 791, 462 A.2d 1043, 1047;  Zahrte v. Sturm, Ruger & Co. (1983) 203 Mont. 90, 661 P.2d 17, 18;  Mizushima v. Sunset Ranch, Inc. (1987) 103 Nev. 259, 737 P.2d 1158, 1159;  England v. Tasker (1987) 129 N.H. 467, 529 A.2d 938, 940;  McGrath v. American Cyanamid Co. (1963) 41 N.J. 272, 196 A.2d 238, 239;  First Trust Co. v. Scheels Hardware (N.D.1988) 429 N.W.2d 5, 9;  Thompson v. Weaver (1977) 277 Or. 299, 560 P.2d 620, 623;  Farley v. M M Cattle Company (Tex.1975) 529 S.W.2d 751, 758;  Meese v. Brigham Young University, supra, 639 P.2d at p. 725.)

In a related argument, Professor Schwartz notes that retention of assumption of risk as an absolute defense conflicts with the intent underlying the comparative fault system.  “By consent to an intentional tort, plaintiff manifests his agreement to the actual invasion of his interest in person or property.   On the other hand, when plaintiff assumes a risk, he volunteers to be subject to a possible injury.   This is a giant step away from consent when viewed from the perspective of whether plaintiff actually agreed to hold defendant blameless for the risk.

“In that light, facts constituting assumption of risk are as close to contributory negligence as they are to consent.   The scores of cases that have attempted to characterize plaintiff's conduct as assumption of risk or contributory negligence demonstrate this.

“A rigorous application of implied assumption of risk as an absolute defense could serve to undermine seriously the general purpose of a comparative negligence statute to apportion damages on the basis of fault.   This is perhaps the reason that every commentator who has addressed himself to this specific problem has agreed that plaintiff should not have his claim barred if he has impliedly assumed the risk, but rather that this conduct should be considered in apportioning damages under the statute.”  (Schwartz, Comparative Negligence, supra, § 9.5, pp. 179–180, original emphasis;  see Blackburn v. Dorta, supra, 348 So.2d at pp. 292–293;  Harrison v. Taylor, supra, 768 P.2d at p. 1324;  Wilson v. Gordon (Me.1976) 354 A.2d 398, 402;  Abernathy v. Eline Oil Field Services, Inc. (1982) 200 Mont. 205, 650 P.2d 772, 774–775;  Murray v. Ramada Inns, Inc., supra, 521 So.2d at p. 1133;  Perkins v. Windsor Hosp. Corp. (1982) 142 Vt. 305, 455 A.2d 810, 814;  Kirk v. Washington State University (1987) 109 Wash.2d 448, 746 P.2d 285, 291.)

I find these arguments based on both logic and public policy to be persuasive.   I find them especially persuasive in the context of this case.

Here we have one of the respondents, a distributor of high voltage electricity, which has allowed its power lines to intrude through the branches of a tree near a residence.   It did so 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 stating “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”.   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.  (General Order No. 95, Rule 35, Rule 31.2.)   There is evidence in the record the respondent had not inspected in the neighborhood of this tree for some three years prior to this fatal incident.

The existence of this safety order underscores 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 is a very different situation from a horse race or even a flag football game where, for public policy reasons, society may want to eliminate or reduce the duty of care a contestant or contest operator 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 it may well be that courts may decide that society is better off if we declare the ordinary duty of due care does not apply with regard to certain narrowly circumscribed activities.   People engaging in those 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.   That 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 because it can be said they “assumed the risk.”

Properly conceived, “assumption of the risk” is an effect flowing from a societal decision not to compensate injuries occurring in certain activities.   In my opinion, it should not be a cause for denying any compensation whatever to those injured while engaged in other activities.

Thus, if we decide horse races will become too tame (or other negative consequences will follow) if we impose a duty of due care on jockeys, we can decide to relieve jockeys of that duty.   By doing so, we are telling jockeys they must “assume the risk” of injury if they elect to engage in that activity, their chosen profession.   As a matter of tort theory, I have no quarrel this particular form of “assumption of the risk” survives the substitution of comparative negligence for contributory negligence.   However, that is very different from saying that those who understand the risk of injury at the hands of negligent drivers if they decide to drive on a busy freeway have “assumed the risk” and should be barred from recovery if that risk becomes reality.   True, we have not yet reached the point where the “reasonable assumption of the risk” defense applies to freeway drivers.   Nonetheless, as a matter of logic it is hard to distinguish car drivers taking their chances on a freeway from some of the risks plaintiffs have been deemed to assume while engaged in other similar activities where participants still owe each other a duty of due care.

In any event, I question whether “reasonable assumption of the risk” should ever apply 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.

Whatever the outcome of the debate over athletic contests and the like it has little 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.   Even assuming it were a fully informed and careful tree trimmer who had been electrocuted by this tree branch while “reasonably encountering” this known specific risk and despite taking all reasonable precautions that happenstance should not relieve the power company entirely from all liability for its own negligence in allowing this dangerous condition to exist.   It would only be a windfall to an errant defendant that its negligence hurt a knowledgeable victim rather than the many other members of the public who could suffer from its ongoing negligence.

It is revealing how one “comparative negligence” jurisdiction treated this very situation.   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.)   If this is not too daunting a task for the Louisiana judicial system, I see no reason it should be beyond the jurors and judges of California to undertake.   And, this course most certainly is the one which best implements the basic policies of negligence law in this jurisdiction.

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's presence as a defendant in this lawsuit.

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.   The definitive answer to this question is forthcoming, for on May 23, 1990, the Supreme Court granted review of two cases which reached opposite conclusions on the issue:  Harrold v. Rolling J Ranch, No. S014818 (better reasoned view supports abolishment of defense of reasonable implied assumption of risk) and Ford v. Gouin, No. S014828 (adoption of comparative negligence did not abolish that defense).

4.   Reasonable implied 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);  Chase v. Shasta Lake Union Sch. Dist. (1968) 259 Cal.App.2d 612, 615, 66 Cal.Rptr. 517.)

5.   Although the record is not entirely clear on the point, it appears that the court excluded the Camacho declaration not on evidentiary grounds but in response to plaintiffs' objection that the declaration was included with defendants' reply to the opposition and plaintiffs therefore had no opportunity to rebut the evidence contained in the declaration.   At the hearing on plaintiffs' motion for reconsideration the court purported to reverse its earlier ruling to the extent of allowing the Camacho declaration to become “a part of the record.”

1.   That there is some danger this may happen is suggested by the fact respondents pleaded the facts of this case as a “contributory negligence” defense and not “assumption of the risk” in all three answers they filed to successive versions of plaintiff's complaint.   It was not until the summary judgment motion and after Ordway was filed that they suddenly converted the same facts into an “assumption of the risk” defense.Further evidence of this trend can be gleaned from a nationwide review of the appellate cases involving the basic factual pattern of someone being electrocuted by power lines situated in or near trees.   In nearly all, the defendants pleaded the plaintiff's actions as “contributory negligence” not “assumption of the risk.”  (See cases collected in “Liability for injury or death of adult from electric wires passing through or near trees,” 40 A.L.R.2d, p. 1299;  and “Liability for injury or death resulting when object is manually brought into contact with, or close proximity to, electric line,” 33 A.L.R.4th 809.)

2.   “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 is 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 (5th ed. 1989) Torts, § 1106, and numerous cases cited therein, italics added.)

3.   “[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), at p. 487.)   “[B)efore the [assumption of the risk) doctrine is applicable the victim must have ‘appreciation of the danger,’ and 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.)

4.   “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 266, 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].)

5.   “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, 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, at p. 487, italics added.)

6.   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 case 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.”

LILLIE, Presiding Justice.

FRED WOODS, J., concurs.