Royse v. Pacific Gas and Electric
Filed 9/12/12 Royse v. Pacific Gas and Electric CA1/4
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
JOSEPH
ROYSE,
Plaintiff and Appellant,
v.
PACIFIC GAS
AND ELECTRIC COMPANY et. al,
Defendants and Respondents.
A125829
(Humboldt County
Super. Ct.
No. DR050078)
In
this sixth appeal relating to personal
injuries Joseph Royse sustained in an accident on property known as the
Lost Coast Ranch, Royse appeals from a judgment on a jury verdict entered in
favor of Pacific Gas and Electric Company (PG&E), JLG Industries, Inc.
(JLG), and Darr-B, Inc., doing business as Don’s Rent-All. He also appeals from several of the trial
court’s prejudgment orders. We affirm
the judgment in favor of JLG, but otherwise reverse.
Many
of the underlying facts concerning this case have previously been set forth in
[nonpub. opn.] (Royse I)). We have also addressed several issues that arose in
Royse’s lawsuit against other defendants in his personal injury action. (See Royse
v. Phelps (April 15, 2009,
A121487) [nonpub. opn.] (Royse II));
(Royse III)); Royse v. Phelps (Jan. 10,
2012, A125621) [nonpub. opn.] (Royse
IV)); and Royse v. Heartworks
Studios, LLC (Jan. 10, 2012,
A126132) [nonpub. opn.] (Royse V)).
In
the present case, the following evidence was presented at trial
she worked as the innkeeper of the Lost Coast Ranch and hired Royse and Asa
Martin to work there. Their duties
included weeding, mowing the fields, and washing outside windows. At some point, in preparing the ranch to be
ready for guests, Wells directed Royse and Martin to clean the gutters of the
ranch house, a three-story structure.
She rented a boom lift from Don’s Rent-All for the job. Wells knew she would be on vacation on the
day the boom lift was to be delivered so she directed George Enos to supervise
Royse and Martin in her absence.
Enos
and his wife were caretakers at the ranch and resided there. On August
3, 2004, Enos was working at the ranch when Joshua Schaafsma, the
delivery person from Don’s Rent-All, dropped off the boom lift. Upon delivery of the boom lift, Schaafsma
gave Royse, Martin, and Enos about five minutes of instructions on operating
it. Schaafsma spoke briefly about the
controls and pointed out the harnesses at the bottom of the basket. Schaafsma
testified that he thought he showed them where the safety manual was located,
but Martin and Enos claimed that he did not.
Schaafsma was a “fairly new employee†and had not participated in a
training class on how to operate the boom lift.
Another employee instructed him on the boom lift. Schaafsma wrote a report about the instructions
he gave to employees at the Lost Coast Ranch after the accident. The instructions did not include a
description of the decals on the machine, advisements about the electrical
hazards on the property, or an inquiry into the training levels of Royse,
Martin, or Enos. Nor did Schaafsma
conduct an inspection of the work site during his delivery of the boom
lift. Schaafsma moved the boom lift to
the area behind the house before leaving the ranch. Enos could not recall the specifics of any
instructions that were given; he was not going to be operating the unit so he
assumed that the directions were meant for Royse and Martin.
Royse
got into the basket of the boom lift and began cleaning the gutters. He had a five gallon bucket with him in the
basket and would fill it with debris and then lower the boom lift and hand it
to Enos. As Royse approached the back of
the house in the boom lift, he was unable to get further in toward the back of
the house because of a curb. Royse was
positioned in the basket just above a rhododendron bush. Royse then raised the boom lift to the level
of the gutter. After cleaning the gutter
on the north corner of the house’s chimney, Royse then pivoted the boom lift
and rotated the basket about two to three feet from the house, and lowered the
lift to just above the rhododendron bush.
Royse, presumably in an attempt to avoid damaging the rhododendron bush,
pivoted the boom lift again resulting in him coming into contact with the overhead
high voltage power lines. The back of
Royse’s head came in contact with the wire resulting in severe injuries.
I, supra, A117798, A117875 at p.
2.)
Russell
Biasca was the manager of Don’s Rent-All
at the time of the accident. Don’s
Rent-All obtained the lift that was eventually delivered to Lost Coast Ranch
from a broker; it did not purchase it directly from JLG, the manufacturer. After it was acquired, Don’s Rent-All
repainted it and replaced the decals on it to make it appear “brand new.†The decals were ordered and received from
JLG. Generally, a Don’s Rent-All
employee would replace the decals in accordance with the photographs in the
parts book.
PG&E
owned and maintained the power line with which Royse came into contact. It was a twelve thousand volt line that was
constructed in 1953. The ranch house was
not built until 1983 or 1984. Jack
Foster, a former electric compliance supervisor at PG&E, testified that
General Order 95 (GO 95) sets forth the state’s requirements for construction
of overhead power lines. He testified
that GO 95 sets the minimum distances that are suggested in order to maintain
safety to the general public and those people working around power lines.
Thomas
Shefchick, a forensic electrical engineer, investigated the accident scene and
concluded that there were several safety hazards. He testified that the power lines were too
close to the side of the ranch house which would require periodic
maintenance. As a result, “it would be
virtually impossible to safely perform work on the exterior of the
building.†He observed that the power
lines were below the roof line and the gutters of the ranch house. Shefchick opined that Royse was traveling
with his back to the power line at the time he made contact with the line. Shefchick concluded that it was PG&E’s
responsibility to maintain the power lines a safe distance away from the
house.
Shefchick
further testified that the accident would not have occurred if the power lines
had been de-energized prior to commencement of the work. He also suggested that professionals should
have planned and performed the work due to the presence of high voltage power
lines in close proximity to the ranch house.
Royse would not have been injured had the job been properly planned as
he would not have been performing the work that he was doing.
Dr.
T.C. Cheng, the director of the electric power program at the University
of Southern California, testified
that the power lines at the site of the accident exceeded the minimum height
requirements of GO 95, opining that the minimum legal height of the line over a
pedestrian area was 17 feet. He further
opined that the location of the power lines from the ranch house was safe.
Edward
Karnes, a human factors engineer, testified concerning the design safety
hierarchy approach to the design process which involved a three step
process. The first step is to change the
design of the product to eliminate the hazard.
If that cannot be accomplished for technical or economic reasons, the
second approach is to guard against the hazard by some method of preventing
access to the hazardous situation. The
third approach and least desirable is to provide warnings of the hazard. He opined that electrocution was one of the
identifiable hazards of an aerial man lift due to the potential to come into
contact with high voltage power lines.
We
will address further evidence in the record as it pertains to our discussion of
the issues raised on appeal.
Claims against PG&E
Royse
first contends that the trial court erroneously granted PG&E’s motion for
summary adjudication on his cause of action for negligence per se. In its motion, PG&E argued that it was in
compliance with the Public Utilities Commission’s (PUC) Rule 37 of GO 95
because the 12,000 volt (12kV) electrical line had a 20 feet, 3 inches ground
clearance at the point of contact and thus exceeded the 17 feet vertical ground
clearance required by GO 95, Table 1, Case No. 5E. Royse, in turn, urged that the correct GO 95
applicable requirement was that provided in Table 1, Case No. 4E, because he
was injured in an area “ ‘capable of being traversed by vehicles or
agricultural equipment’ †and therefore the minimum height requirement for
the electrical conductor was 22 feet, 6 inches.
was applicable and that the electrical line was required to have a minimum
height of 17 feet because Royse was injured in an area that was only accessible
to pedestrians. “The fact that the boom
lift was parked on the driveway, and at that location the line may have been in
non-conformance to the 25 foot height requirement, is not evidence of
negligence per se at the accident site.â€
At
the time of the accident, GO 95, Rule 37 provided, in pertinent part, as
follows: “Clearances between overhead
conductors, guys, messengers or trolley span wires and tops of rails, surfaces
of thoroughfares or other generally accessible areas across, along or above
which any of the former pass; also the clearances between conductors, guys, messengers
or trolley span wires and buildings, poles, structures, or other objects, shall
not be less than those set forth in Table 1, at temperature of 60 [degrees] F.
and no wind. [¶] The clearances
specified in Table 1, Case 1, Columns A, B, D, E and F, shall in no case be
reduced more than 5 [percent] below the tabular values because of temperature
and loading as specified in Rule 43. . . .
The clearances specified in Table 1, Cases 2 to 6 inclusive, shall in no
case be reduced more than 10 [percent] below the tabular values because of
temperature and loading as specified in rule 43 . . . . [¶] . .
. [¶] All clearances of 5 inches or more shall be applicable from the
center lines of conductors concerned.â€
Table 1 of Rule 37 sets forth the basic minimum allowable vertical
clearance of wire above railroads, thoroughfares, ground or water surfaces,
poles, buildings, structures or other objects.
As relevant here, Table 1 provided that the minimum clearance for supply
conductors and supply cables of 750 to 22,500 volts that were “[a]bove ground
along thoroughfares in rural districts or across other areas capable of being
traversed by vehicles or agricultural equipment†was 25 feet. The minimum clearance for the identical
conductors over vertical ground in areas accessible to pedestrians only was 17
feet.
On
January 13, 2005, the PUC
amended GO 95, Rule 37 and added the following language: “When measuring the minimum allowable
vertical conductor clearances in a span, the minimum clearance applies to the specific
location under the span being measured and not for the entire span.†(PRC No. 33-GO 95, Rule 37, p. A-92.) The PUC explained its rationale for
instituting the rule change as a clarification of Rule 37: “The current rule does not clearly state the
principle that the required minimum clearance of a given span is specific to
the location where the clearance is measured.
This proposal will clarify Rule 37 so as to ensure that the minimum
clearance for a span which passes over a variety of ground, water, or building
configurations will be determined based upon the configuration at the location
where the clearance is measured, and not another location where the minimum
clearance is greater or lesser.†(PRC
No. 33-GO 95, Rule 37, p. A-90.) The
PUC’s decision revising GO 95, Rule 37 was “effective one year after the date
of today’s decision†or January 13,
2006. (Cal.P.U.C., Decision
05-01-030 (Jan. 13, 2005), p. 48.) Thus,
in August 2004, when Royse was injured, Rule 37 did not contain the language requiring
that the minimum clearance for a span be based on the specific location where
the clearance was measured as opposed to the clearance for the entire span.
PG&E,
however, relied on the revisions to Rule 37 as if they applied at the time of
the accident and argued that Rule 37 is site specific. It urged that the height requirements of GO
95 are based on the nature of the surface area under the span being measured
and not the entire span, and therefore whether the basket of the boom lift
could extend beyond any given surface area into the line was irrelevant. Further, it contended that to the extent
there was any ambiguity about whether Rule 37 was site specific, the “ambiguity
was eliminated when the PUC clarified its rules in 2005 and set forth that the
vertical conduct or clearance is measured from the specific location under the
span being measured and not the entire span.â€
The trial court adopted this interpretation in determining that the
applicable minimum height of the line was that directly over the accident
site. The court hence erroneously
considered the rule as it was amended instead of the version as it existed at
the time of accident.
PG&E
contends that this court should consider the revisions to Rule 37 in
interpreting the meaning of the rule as it existed at the time of the
accident. It relies on the proposition
that an amendment that merely clarifies a law may be given retroactive
effect. (See Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th
914, 922 (Carter); 7 Witkin, Summary
of Cal. Law (10th ed. 2005) Const. Law, § 624, p. 1018.) The question of whether a statute should
apply retrospectively or only prospectively is, in the first instance, however,
a policy question for the legislative body enacting the statute. (Evangelatos
v. Superior Court (1988) 44 Cal.3d 1188, 1206.) And, California
courts have long followed the general rule that statutes are to be given a
prospective operation and are not retroactive unless the Legislature expresses
a different intention. (
retroactively when it substantially changes the legal consequences of past
actions, or upsets expectations based in prior law.†(Carter,
supra, 38 Cal.4th at p. 922.)
Here,
the PUC not only has not indicated that its revisions to GO 95 are retroactive,
but it has expressly declared that the revisions are not effective until a year
after the date of the decision of January
13, 2005. The PUC thus clearly
intended that the amendment to Rule 37 apply prospectively and not to existing
clearance requirements for overhead lines.
(Western Security Bank v. Superior
Court (1997) 15 Cal.4th 232, 243 [“statutes do not operate retrospectively
unless the Legislature plainly intended them to do soâ€].) As applied to this case, Rule 37 at the time
of the accident required that the overhead power lines be a minimum of 22 feet
and 6 inches because the line was both above a thoroughfare in a rural district
and in an area capable of being traversed by agricultural equipment and also
above ground in an area accessible to pedestrians. Indeed, PG&E admitted in its response to
Royse’s statement of undisputed facts that the base of the boom lift was both
on the driveway and “also in the bushes that separated the driveway from the
adjacent landscaped area.†Because at
the time of the accident, Rule 37 had not been amended to require that the
minimum clearance be applied to a specific location under the span as opposed
to entire span, PG&E was required to measure the minimum allowable vertical
clearance for the line at the point where it was capable of being traversed by
agricultural equipment, not simply the point that might have been accessible to
pedestrians. The overhead power line
hence was required to be a minimum of 22 feet, 6 inches.
Our
interpretation of Rule 37 is consistent with the rationale for the revision as
stated in the PUC’s decision adopting the changes: “The current rule does not clearly state the
principle that the required minimum clearance of a given span is specific to
the location where the clearance is measured.
This proposal will clarify Rule 37 so as to ensure that the minimum
clearance for a span which passes over a variety of ground, water, or building
configurations will be determined based upon the configuration at the location
where the clearance is measured, and not another location where the minimum
clearance is greater or lesser.†(PRC
No. 33–GO 95, Rule 37, p. A-90.)
Inasmuch as Rule 37 was ambiguous prior to the accident, PG&E was
required to maintain the power line at the requisite height “from the center
lines of conductors concerned.â€
name="_ftnref4" title="">[4] As Royse notes “[t]his interpretation is
entirely consistent with Rule 14 of [GO] 95 which states, ‘in cases where two
or more requirements establish limiting conditions the most stringent condition
shall be met, thus providing compliance with the other applicable
conditions.’ â€
Irrespective
of our interpretation of Rule 37, the trial court also erred in deciding the
question of whether the area of the accident was accessible only by pedestrians
or could be traversed by a vehicle or agricultural equipment as a matter of
law. (See Aguirre v. City of Los Angeles (1956) 46 Cal.2d 841, 844.) Rule 37 of GO 95 requires a basic minimum
vertical clearance of 25 feet above the ground along thoroughfares in rural
districts or across other areas capable of being traversed by vehicles or
agricultural equipment. The record here
shows that Royse was not a pedestrian at the time of the accident but in a boom
lift, a piece of equipment also known as
a cherry picker, i.e. a piece of agricultural equipment. Hence, while some of the evidence showed
that Royse was positioned in the basket of the boom lift above a pedestrian
area, it is also true that the area was actually
being traversed by the boom lift at the time of the accident. This created a factual dispute as to whether
Case 5 was even applicable.
Additionally,
it was undisputed that the base of the boom lift was parked on a driveway over
which the minimum height requirement was 22 feet, 6 inches, and the electrical
line did not conform to that requirement.
The fact that PG&E was not in compliance with GO 95 over the
driveway could very well have been a proximate cause of the accident.
22 feet, 6 inches (i.e. three and one-half feet higher), it is likely that the
line at the point of contact, in close proximity to the driveway, would also
have been higher, preventing the accident that occurred. Causation was a question of fact for the
jury. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 463.) The trial court thus erred
in prohibiting Royse from telling the jury that PG&E was in violation of
the regulation at the location where the boom lift was parked, not far from
where the accident occurred.
PG&E
relies on Nevis v. Pacific Gas &
Electric Co. (1954) 43 Cal.2d 626 (Nevis) to support its contentions with respect to GO
95. In Nevis, the
plaintiff was injured while he was operating a boom on a hay derrick on ranch
land. (Id. at p. 628.) He came into
contact with high voltage wires “some 600 feet on past the house†on the
property. (Ibid.) The hay derrick “was
mounted upon a carriage fitted with wheels, was drawn about and operated by
[the] jeep†which was equipped with the boom.
(Id. at pp. 627-628.) Plaintiff, who was in the jeep, was injured
when he pulled the derrick into a different position to facilitate loading of
hay, and swung the boom into contact with the overhead wires. (Id. at
p. 628.) The boom in its upright
position could swing to the right or to the left when it was being moved. The plaintiff was not aware of the contact,
until he stopped the jeep and stepped out of it, and grounded the current
through the jeep and his body. (
The jury found that PG&E was negligent in its maintenance of the
high voltage wires on the property. (
In
Nevis, the
court addressed an instructional error and did not interpret GO 95, as it
existed at the time of Royse’s accident.
(See Santisas v. Goodin (1998)
17 Cal.4th 599, 613 [appellate decisions are not authority for points not
actually involved and decided].) Rather,
Rule 54.4-A(2), subparagraph (b) then allowed for a “reduction of the clearance
[from the minimum clearance of 25 feet of Rule 37] to 18 feet ‘for lines across
areas capable of being traversed by agricultural equipment and along roads
where no part of the line overhangs any traversable portions of a public or
private roadway.’ †(Nevis, supra, 43
Cal.2d at p. 629, quoting GO 95, rule 54.4-A (2).)
the boom contacted the wires because it was in an area “ ‘capable of being
traversed by agricultural equipment’ †but were subject to the 22 feet
requirement over the private roadway surrounding the area where the accident
occurred. (Nevis, supra, 43 Cal.2d at p. 629.)
The court determined that it was error to instruct the jury that
PG&E was required to maintain its power lines at 22 feet since the accident
occurred in an area capable of being traversed by agricultural equipment. (Id. at
p. 630.)
Nevis
does not apply because it construes a rule that has been superseded. Nonetheless, this is a case where, as in
arguably a piece of agricultural equipment, was operating in a specific area
that the evidence suggests was an area capable of being traversed by that type
of equipment. While PG&E maintains
all the evidence shows that the surface area under the 12kV conductor at the
point at which Royse made contact with it was accessible only to pedestrians,
the fact that Royse was there in a “cherry picker†is itself evidence that he
was in an area capable of being traversed by agricultural equipment. Additionally, as we have noted, the trial
court failed to apply the correct clearance requirements of GO 95, Rule 37 to
Royse’s case because the area-specific minimum clearance rules it applied were
not then in effect. A triable issue of
fact therefore existed with respect to the clearance requirements of GO 95 that
were implicated, and the trial court should not have granted summary
adjudication.
(1954) 43 Cal.2d 265, cited by PG&E is of similar import. Dunn
also involved GO 95 and Rule 37, but as in Nevis,
the case turned on the application of the 18 foot height requirement of
subparagraph (b) of rule 54.4-A “ ‘for lines across areas capable of being
traversed by agricultural equipment.’ â€
(Id. at p. 272.) In any event, the language of rule 54.4-A(2)
at issue in Dunn lends support to
Royse’s interpretation of Case 4E of Rule 37, since, like the accident site in
injured in an area capable of being traversed by agricultural equipment.
In
sum, the trial court erroneously granted summary adjudication on Royse’s
negligence per se claim. Royse should be
given an opportunity to prove that PG&E’s violation of the minimum
clearance requirements for the 12kV power line evidenced negligence per se,
both in the location of the accident and in the location where the boom lift
was parked. In light of the court’s
erroneous rulings on PG&E’s summary adjudication motion and the motion in
limine, Royse’s negligence cause of action against PG&E must be retried as
the court’s rulings permeated Royse’s entire action against PG&E.
Pre-trial rulings
(a).
Twelfth Cause of Action for Failure to Warn of a Safer Alternative Design
Royse
alleged four causes of action against both JLG and Don’s Rent-All.
JLG and Don’s Rent-All were strictly liable because they failed to warn that a
safer, alternative design of a boom lift was available that would have
prevented an injury arising from contact with high voltage power lines while
using the lift. In his thirteenth cause
of action, Royse alleged that JLG and Don’s Rent-All failed to warn or instruct
him about the proper use of aerial work platforms around high voltage power
lines. Finally, in his fourteenth cause
of action, Royse claimed that JLG and Don’s Rent-All knowingly maintained a
defective aerial work platform design on the market that was not properly
insulated. JLG moved for summary
adjudication on these causes of action, contending that it had no duty to warn
Royse regarding the safety features of products manufactured by others; that it
provided adequate warnings regarding the proper use of its equipment around
high voltage power lines, and that its aerial work platform was designed and
manufactured in conformance with applicable safe practices in the
industry. Don’s Rent-All joined in the
motion. The trial court granted the
motion for summary adjudication.
name="_ftnref9" title="">[9]
We review a
trial court’s grant of summary adjudication de novo. (See Dore
v. Arnold
388-389.) “In performing our de novo
review, we must view the evidence in a light favorable to [the] plaintiff as
the losing party, [citation], liberally, construing [his] evidentiary
submission while strictly scrutinizing defendants’ own showing, and resolving
any evidentiary doubts or ambiguities in plaintiff’s favor.†(Saelzler
v. Advanced Group 400 (2001) 25
Cal.4th 763, 768-769.)
A defendant
seeking summary judgment “bears an initial burden of production to make a prima
facie showing of the nonexistence of any triable issue of material fact; if he
carries his burden of production, he causes a shift, and the opposing party is
then subjected to a burden of production of his own to make a prima facie
showing of the existence of a triable issue of material fact.†(Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) California
law requires that “a defendant moving for summary judgment [ ] present
evidence, and not simply point out that the plaintiff does not possess, and
cannot reasonably obtain, needed evidence.â€
(Id. at p. 854, fn. omitted.)
Royse
argues that JLG and Don’s Rent-All were required to inform him of the
availability of a safer alternative design manufactured by others. He alleges that warnings would have afforded
him the opportunity to choose a safer insulated work platform that would have
prevented him from injury.
“[A]
product is defective in design either (1) if the product has failed to perform
as safely as an ordinary consumer would expect when used in an intended or
reasonably foreseeable manner, or (2) if, in light of the relevant factors
. . . the benefits of the challenged design do not outweigh the risk
of danger inherent in such design.†(
Cal.3d 413, 418.) “[I]n evaluating the
adequacy of a product’s design pursuant to this latter standard, a jury may
consider, among other relevant factors, the gravity of the danger posed by the
challenged design, the likelihood that such danger would occur,
alternative design, the financial cost of an improved design, and the adverse
consequences to the product and to the consumer that would result from an
alternative design.†(
design is relevant to the analysis of whether a product is defective, strict
liability for duty to warn of design defects focuses on whether a manufacturer
knew or should have known that its product was dangerous and failed to give
warnings to ensure safe use. (See
(1991) 53 Cal.3d 987, 996.)
Royse
has not cited to any authority to support his theory that JLG and Don’s
Rent-All were subject to strict liability for failing to warn him that other
manufacturers produced a safer alternative design. And, while manufacturers have a duty to warn
consumers about the hazards in their own products, we have found no authority
imposing a duty on them to warn consumers that a safer alternative design
exists elsewhere. (See
(2009) 171 Cal.App.4th 564, 577.) “Other
manufacturers cannot be expected to determine the relative dangers of various
products they do not produce or sell and certainly do not have a chance to
inspect or evaluate.†(
would impose a duty upon Ford Motor Company to warn customers that
Mercedes-Benz offers safety features that are not available on its
automobiles. JLG and Don’s Rent-All did
not have a duty to warn Royse of a safer alternative design; the court properly
granted summary adjudication on the twelfth cause of action.
Action for Failure to Warn of Proper Use
Around Power Lines
Royse alleged that JLG and Don’s Rent-All failed to warn or instruct about the
proper use of aerial work platforms around high voltage power lines. The trial court granted summary adjudication
on this claim, finding that JLG and Don’s Rent-All provided adequate and
sufficient warnings.
Strict
liability for product defects can be based on the failure to give adequate
warnings or instructions of the product’s dangerousness. (Taylor
v. Elliot Turbomachinery Co. Inc., supra,
171 Cal.App.4th at p. 577.) “Our
law recognizes that even ‘ “a product flawlessly designed and produced may
nevertheless possess such risks to the user without a suitable warning that it
becomes ‘defective’ simply by the absence of a warning†[Citation.]’
[Citation.] . . .
Thus, manufacturers have a duty to warn consumers about the hazards
inherent in their products.
[Citation.] The purpose of
requiring adequate warnings is to inform consumers about a product’s hazards
and faults of which they are unaware, so that the consumer may then either
refrain from using the product altogether or avoid the danger by careful
use.†(Ibid., fn. omitted.)
JLG
provided an operator’s manual and sent warning decals for placement on the boom
lift to Don’s Rent-All. JLG identified
power lines as a hazard and provided a decal labeled “danger†which also stated
the electrocution hazard. The decal,
addressing various hazards associated with improper use of the machine, is
ordinarily placed below the platform control box on the work platform of the boom
lift. Don’s Rent-All failed to affix
that decal on the control panel. The
missing decal was approximately two feet wide by a foot and a half in
length. It was undisputed that JLG
provided an operator’s manual for the boom lift and that it was in the work
platform at the time of the accident.
It, however, was in an unlabeled plastic box on the work platform, and
there were no decals or other notices advising an operator as to the location
of the manual. JLG did not manufacture
insulated boom lifts as its machines were not intended to be used in the
vicinity of power lines.
Don’s
Rent-All rented the boom lift that was involved in the accident.
Royse, Enos, and Martin brief instructions on the use of the boom lift and its
safety features. In his deposition, he
stated that he told them to “stay clear of power lines; if you have to operate
near them, be aware of where they are and stay X amount of distance. And I’m unable to remember the distance
. . . .†He further
averred that if he “remembered correctly,†he showed them where the instruction
manual for the boom lift was located.
Enos,
in turn, declared, that he did not discuss the high voltage lines with either
Royse or Martin prior to the accident and had no knowledge that Royse should
stay “X amount†of feet away from the power lines. Enos also stated that Schaafsma gave them no
specific safety instructions about the use of the boom lift but simply showed
them how to turn it on and off and how to move it around. According to Enos, Schaafsma did not inspect
the area where Royse was to be working.
Martin declared that Schaafsma “went over a little bit about the lift
and showed us . . . the turn-off button on the side and then kind of
what the controls did,†spending two to five minutes. Martin recalled that Schaafsma also mentioned
the harnesses
title="">[11]
and the emergency turn-off button before he left. Schaafsma did not point out any documents on
the machine or the box where the manual was located. Martin, who operated the boom lift a short
time before Royse took control of it, declared that he did not see any of the
warnings and decals that were on the body of the machine from the work
platform. Martin stated that you would
have to be on the ground to see the decals on the machine.
The
evidence before the court at the time of the summary adjudication motion
demonstrated there was a triable issue of fact as to whether Don’s Rent-All
failed to give adequate warnings or instruct Royse about the use of the boom
lift around high-voltage power lines, particularly in light of the evidence
that Don’s Rent-All’s failed to affix the two feet by one-and-a-half feet decal
concerning the electrocution hazard and other dangers in the work
platform. (See Burke v. Almaden Vineyards, Inc. (1978) 86 Cal.App.3d 768, 772
[strict liability may attach to a supplier of an unreasonably dangerous product
if appropriate and conspicuous warning is not given].) Further, the issue of what instructions were
given when the boom lift was delivered was in dispute. Schaafsma’s recollection of his instructions
that he warned Royse, Martin, and Enos of the hazards of the power lines and
showed them where the manual was located was in stark contrast to that of
Martin and Enos who declared that no warnings or safety instructions were
given. The question of whether Don’s
Rent-All exercised due care in providing adequate warnings and instruction
about the use of the boom lift was one for the jury. (Maneely
v. General Motors Corp. (9th Cir. 1997) 108 F.3d 1176, 1179 [although
question of whether duty exists is one of law, question of whether risk is
obvious or generally known is one of fact that should be decided by the jury].)
In
light of our resolution of this issue, we must also reverse the judgment on
Royse’s negligent entrustment and negligent failure to warn and instruct causes
of action. Due to the court’s summary
adjudication ruling, Royse was precluded from introducing evidence of the lack
of a missing warning decal on the control panel of the boom lift. Thus, Royse was unable to present the
testimony of Edward Karnes, an expert witness in human factors engineering at
trial on this issue. This testimony
might have been pivotal on the issue at trial.
Karnes testified during an Evidence Code section 402 hearing, that the
missing decal “was a very prominent warning [ordinarily] located in front of
the operator’s station in the platform that dealt with various hazards
associated with use of the lift. Very
prominent information was provided about an electrocution hazard along with a
pictogram that’s very useful in terms of providing, alerting people to warning
situations or messages . . . . [T]he electrocution hazard
. . . would have been very adequately and prominently displayed in
front of the operator at the operator’s station platform
. . . .†Karnes opined
that the warning of the electrocution hazard was inadequate as it was not
available to the operator at the time of the incident. He explained that a warning should be
conspicuous and located in a position where it will be seen by the person at
risk. He further opined that an entity
providing the boom lift to a consumer without the warning provided by the
manufacturer would have breached its standard of care. The court ruled that Karnes could not testify
as to the adequacy of the warnings at trial because the issue was not before
the jury due to the earlier ruling on summary adjudication that the warnings
were adequate. Royse is entitled to a
trial on his theory that the warnings on the boom lift, as provided by Don’s
Rent-All, were inadequate.
The
trial court properly granted summary adjudication in favor of JLG on the
thirteenth cause of action. Royse failed
to present any evidence that the warnings and manual provided by JLG with the
boom lift were inadequate. Nor was there
any evidence that JLG was remiss in not instructing Don’s Rent-All on the
placement of the warnings. On the record
before us, we cannot conclude that there is a triable issue on the question of
whether JLG failed to warn of the hazards associated with using the boom lift.
In
his fourteenth cause of action, Royse alleged that JLG and Don’s Rent-All were
strictly liable because they failed to provide a boom lift that was insulated
against electrical shock. He also sought
punitive damages claiming that their defective design of the boom lift
demonstrated a conscious and careless disregard of public safety sufficient to
show malice. The trial court granted
summary adjudication on this claim, finding that the evidence showed that the
boom lift was designed and manufactured in conformance with applicable safe
practices in the industry and was safe for its intended use.
JLG
presented evidence that the boom lift was designed and manufactured in
accordance with industry standards,
that it was not intended for use around power lines and that both the manual
and the warnings on the machine stated that the operator must maintain a
clearance of at least 10 feet between any part of the machine and any
electrical line. JLG also presented the
deposition testimony of Stephen Forgas, JLG’s director of product safety and
reliability, who averred that while the boom lift could be used in the process
of cleaning house gutters, it was not electrically insulated as it was not
intended to be used in the vicinity of power lines. Forgas declared that a different machine is
available for use around power lines and a specific industry exists that
manufactures those machines. JLG’s boom
lift was built to be used in
construction and maintenance where damage and contamination from paint, dirt,
Gunite
and water might occur upon the platform
or on the boom itself. An insulated
machine would not be proper in that setting, and could suffer damage due to the
contaminants thus reducing its insulated properties.
Forgas
additionally opined that proximity warning devices
were unreliable. In its moving papers,
JLG argued that it was safer to use a warning decal to warn operators that the
boom lift was not insulated and to avoid contacting power lines rather than
create a false sense of security with
insulation or a proximity warning device.
Royse
presented several declarations from experts in opposition to the motion. Donald Berman, a design safety engineer,
averred that proximity warning devices and insulated work platforms had been
available for decades to protect against the dangers associated with using
equipment near overhead high voltage lines.
He also opined that “[t]he fact that [insulated work platforms for boom
type lifts] are manufactured and marketed within the industry is an indication
by itself that cost considerations are not an impediment to incorporating
insulated work platforms into the design of a man lift of the type represented
by JLG Model 450A.†He further concluded
that JLG’s reasons for not utilizing an insulated platform and not providing a
proximity safety device were not valid.
Berman was not aware of any studies that concluded that owners of aerial
lifts would not be able to properly maintain a work platform to maintain its
insulated properties. He referred to a
report published in March 2002 which analyzed the hazards associated with power
line contacts by boom equipment. The
study concluded that there was no “ ‘false sense of security’ â€
created by providing safety features on boomed equipment. Berman thus opined that “relying upon the
‘false sense of security’ hypothesis as a justification for not incorporating
insulated work platforms on aerial man lifts is a conscious disregard of the
safety of the operator and it is foreseeable that the man lifts will be used
around high power electric lines.â€
Shefchick,
an expert in electrical engineering, declared that the severity of Royse’s
electrical shock injury would have been significantly reduced or entirely
eliminated had he used an insulated work platform.
Karnes,
Royse’s expert, also opined that the false sense of security theory had found
no reliable support in the scientific literature and cited various articles. He noted that as to operators of aerial work
platforms, there was no credible evidence that operators were more careless
regarding contact with power lines if their platforms were insulated. Further, he opined that “[t]he false sense of
security rationalization, when used to justify a failure to provide a safety
accommodation, runs counter to the widely accepted safety/engineering principal
of the ‘safety hierarchy.’ †Karnes
concluded that JLG’s failure to incorporate known safety components in the boom
lift’s design to eliminate or greatly reduce the likelihood of serious injury
was in conscious disregard for the safety of the users of the equipment.
Royse
suggests that there is a triable issue on whether JLG acted maliciously because
it failed to design an insulated boom lift knowing that it was foreseeable that
an uninsulated boom lift might be used near a high-voltage power line. In order to prove that the boom lift was
defective as manufactured, however, Royse was required to show that it failed
to perform as safely as an ordinary consumer would expect when used in a
foreseeable manner or that the benefits of the design did not outweigh the
risks of danger inherent in the design.
(See Barker v. Lull Engineering
Co., supra, 20 Cal.3d at
pp. 418.) Further, in order to
prove malice, Royse was required to show that JLG acted “with a willful and
conscious disregard of the rights or safety of others.†(Civ. Code, § 3294, subd. (c)(1).) An award of punitive damages for the
manufacture and sale of a defective product is proper where the “ ‘defendant
was aware of the probable dangerous consequence of his conduct, and [] he
[willfully] and deliberately failed to avoid those consequences.’ [Citation.]â€
(Hasson v. Ford Motor Co.
(1982) 32 Cal.3d 388, 402.)
Here,
the trial court, given the competing theories concerning the feasibility of
designing a safer boom lift, concluded there were no triable issues of fact
because the boom was designed in accordance with applicable industry safety
standards and was safe for its intended use.
The court accepted JLG’s defenses that its boom lift was manufactured in
accordance with industry standards and that it was not intended to be insulated
but rather to be used in manufacturing and maintenance and away from power
lines.
Royse
challenges the court’s ruling, but he has failed to provide an adequate record
for review. An appellant intending “to
raise any issue that requires consideration of the oral proceedings in the
superior court†must include a reporter’s transcript of the proceedings or an
agreed or settled statement in the record on appeal. (Cal. Rules of Court, rule 8.120(b).) “ ‘ “A judgment or order of the lower court
is presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent, and error
must be affirmatively shown.†. . .
[Citation[.]]’ . . . ‘A necessary corollary to this rule
is that if the record is inadequate for meaningful review, the appellant
defaults and the decision of the trial court should be affirmed.’ †(Gee v.
American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412,
1416.) While Royse’s evidence supported
an argument that an insulated boom lift and a proximity warning device would
likely have prevented his injuries, there appears to have been no basis for the
court to conclude that JLG’s product was defectively designed. The evidence supported JLG’s position that
its product was not manufactured for or intended to be used near power lines.
summary adjudication on this issue.
2. The Trial
against JLG and Don’s Rent-All
The
parties proceeded to trial on the eleventh cause of action under which Royse
alleged the boom lift was defectively designed for its intended use of
elevating workers into the air because it was not insulated and it was
foreseeable that it would be used near high voltage power lines where
electrocution was a hazard. The jury
found against Royse, returning a special verdict finding that the boom lift was
not used or misused in a way that was reasonably foreseeable to JLG.
On
appeal, Royse contends that the trial court erroneously denied his motion in
limine to preclude JLG
evidence of the custom and usage of boom lifts in the industry to establish
that the boom lift was not defective.
The court denied the motion only insofar as Royse sought to preclude
testimony of custom and usage of the boom lifts in the industry on the issue of
foreseeability. The court’s ruling on
Royse’s motion was as follows: “First,
as pertains to this motion, there’s nothing before me about whether or not you
can present evidence that the boom lift was designed or built according to the
[ANSI] standards. So, I’m not
prohibiting that. I do grant the motion
in so far as it relates to the boom lift being –strike that–as it relates to
custom and usage. [¶] As to
designability, I deny the motion as [] it relates to custom and usage as to how
it is actually used in the field, which would relate to the issue of
foreseeability. . . .â€
Thus, the court’s ruling permitted evidence of the boom lift’s customary
usage in the construction and maintenance industry as it pertained to foreseeable
use. The court’s ruling excluded only
evidence of custom and usage in the industry as to how boom lifts are
designed. The parties, however, agreed
that evidence that the boom lift was constructed in accordance with ANSI
standards would be admissible. The
court’s ruling was therefore consistent with the law. (See Akers
v. Kelley Co. (1985) 173 Cal.App.3d 633, 652 [evidence of custom or usage
in the trade in determining whether a design defect existed is inadmissible],
disapproved on another ground in People
v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5; Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 804 and fn.
10, [same].)
Royse
next contends that the jury’s verdict that the boom lift was not “used or
misused in a way that was reasonably foreseeable to JLG†was legally
erroneous. His argument is in effect a
challenge to the sufficiency of the evidence to support the verdict. “ ‘When a finding of fact is attacked on the
ground that there is not any substantial evidence to sustain it, the power of
an appellate court begins and
whether there is any substantial evidence contradicted or uncontradicted which
will support the finding of fact.’
[Citations.]†(
(1971) 3 Cal.3d 875, 881.)
Although
Royse failed to set forth in his argument any of the evidence he claims would
have supported a contrary jury verdict on this issue, we have conducted an
independent review of the record and conclude that the jury’s verdict in favor
of JLG is supported by substantial evidence.
There was ample evidence in the record that Royse’s action in operating
the boom lift in close proximity to a high-voltage power line was not
foreseeable to JLG.
Barris
Evulich, an engineer and member of ANSI’s committee on Title A92 and several
subcommittees which have the responsibilities of drafting and approval of ANSI
standards, opined that the design of JLG’s boom lift was reasonable and based
on sound engineering principles and practices.
It was not designed to be used near power lines, and both JLG’s
instructions and OSHA prohibited the use of the boom lift near power
lines. Evulich concluded that it was not
foreseeable that Royse would operate a boom lift in close proximity to a
high-voltage power line.
Dr.
Cheng testified that an insulated boom would be the last defense and would come
into play only if the defenses of staying away from power lines, and being
trained to work around them and de-energizing the power lines or insulating
them failed. He opined that the use of
the boom lift by Royse was not proper because there was insufficient space
between the power lines and the building to accommodate work in that location
without violating OSHA requirements. He
further concluded that no lifting equipment was proper, even if insulated,
because there was insufficient space to get it into position at the accident
site.
Gene
Broadman, a mechanical engineer, also concluded that the location of the
accident “made the safe operation of the equipment an impossibility†due to the
inability to maintain a proper distance to the high voltage power line. He testified that the boom lift could not
have been safely used to clean the gutters in the accident location if the
power lines were energized.
In
sum, there was substantial evidence before the jury that the boom lift was not
used in an intended or reasonably foreseeable manner given the close proximity
of the power lines to the house at the site of the accident. Consequently, the jury’s verdict on the
eleventh cause of action was not legally erroneous.
(b). The verdict form
Royse
faults the jury’s failure to allocate percentages of fault on the verdict form
even though the jury found in favor of defendants on all causes of action that
were submitted to it on the special verdict form. Royse argues that the jury’s failure to place
a zero in the blanks next to the parties’ names to reflect the percentage of
responsibility for his injuries rendered the verdict “hopelessly ambiguous.â€
“
‘[A]n appellate court will interpret the verdict if it is possible to give a
correct interpretation,’ but will reverse if the verdict is ‘hopelessly
ambiguous.’ [Citation.]†(Roby
v. McKesson Corp. (2009) 47 Cal.4th 686, 705.) Here, it is clear that the jury found against
Royse on the issues before it. Its
failure to include zeros in the blanks for allocating percentages of fault was
not contradictory with its verdict. The
jury awarded no damages to Royse. Since
the jury concluded that none of the defendants were at fault, there was no
reason for it to allocate a percentage of fault to them. The jury’s failure to place a zero next to
each of the defendant’s names on the verdict form did not render the verdict
Royse
argues that his experts were improperly excluded from giving testimony at trial
unless they gave the same testimony in their depositions. Apparently, his argument refers to a motion
in limine by PG&E which sought to prohibit Royse’s experts from testifying
to opinions not expressed at their depositions.
As
PG&E points out, the trial court did not grant this motion. The court opined that the motion was
premature and that it would consider the issue if it arose during trial. The court thus deemed the motion “as
withdrawn subject to being renewed at trial on a witness-by witness
basis.†Royse fails to present any
argument concerning what evidence he was precluded from offering as a result of
the court’s ruling or how he was otherwise prejudiced by the court’s
ruling. We deem the issue waived.
DISPOSITION
The judgment
entered in favor of PG&E and Don’s Rent-All is reversed. The judgment in favor of JLG is affirmed.
they pertain to PG&E and Don’s Rent-All.
JLG shall recover its costs on appeal.
_________________________
RIVERA,
J.
We concur:
_________________________
REARDON, ACTING P. J.
_________________________
SEPULVEDA, J.*
* Retired Associate Justice of
the Court of Appeal, First Appellate District, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
name="_ftn1" title="">[1]
Our review of this case was made extremely difficult due to Royse’s failure to
set forth a complete statement of facts supported by adequate citations to the
record. In particular, many of his
assertions of fact are either supported by a reference to large blocks of pages
or to no citations at all. We remind counsel
for Royse that an appellant has a duty to provide adequate record citations
including cites for every statement
of fact. (Cal. Rules of Court, rule
8.204(a)(1)(C) [“Support any reference to a matter in the record by a citation
to the volume and page number of the record where the matter appearsâ€]; see
also Bernard v. Hartford Fire Ins. Co.
(1991) 226 Cal.App.3d 1203, 1205.) The
problem in this case was especially acute considering the length of the record
and the repeated failures throughout Royse’s briefs to cite to the record.
name="_ftn2" title="">[2]
Enos was aware that there had been prior problems with the high voltage power
lines at the ranch. On one occasion, a
professional tree trimmer caused a branch to fall onto the power lines. On another occasion, a power line broke and
fell across a car and a truck that were parked at the ranch. There was an additional incident involving a
broken high voltage line near the barn on the property.
