Metropolitan News-Enterprise


Friday, December 1, 2006


Page 4


Joint and Several Liability Unnecessary for Implied Indemnification—C.A.


By a MetNews Staff Writer


A landowner may seek indemnity from an electric utility company when sued by someone injured by power lines above her land, even though the utility is immune from a direct suit by the injured party, the Sixth District Court of Appeals has ruled.

The court reversed Santa Clara Superior Court Judge John F. Herlihy who, following the principle that “there can be no indemnity without liability,” had granted summary judgment to Pacific Gas and Electric Company in a cross-complaint for indemnity brought by landowner Eva Prince. 

Justice Nathan D. Mihara, writing for the Court of Appeal, said:

“Prince relied on PG&E to maintain the power lines, and PG&E is in a superior position to avoid, or insure against, the type of injury to third-parties that occurred in this case.”

In 1998, then-ten-year-old Joshua Jackson was in a friend’s yard flying Jackson’s new kite. The wind blew the kite out of his hands and carried it next door, to Prince’s property, where the kite became entangled in a power line owned by PG&E.

Jackson and his friend, Prince’s grandson, ran onto the Prince property. Prince was not home. When the boys could not reach the kite with a branch, Jackson tried dislodging it with a 19-foot aluminum pole they found nearby.

The pole touched the power line, and Jackson was severely injured.

Jackson sued PG&E through a guardian ad litem, but the court held the utility was immune from liability pursuant to a statute that provides that property owners owe no duty of care to those who enter their property uninvited for recreational use.

Jackson then sued Prince, and Prince cross-complained against PG&E for indemnity. Prince alleged that by failing to maintain adequate clearance between its power lines and the ground, PG&E breached its contractual duty to Prince to reasonably maintain and repair the easement.

PG&E moved for summary judgment against Prince arguing that since it was not liable to Jackson, it was not liable to Prince for indemnity. Prince moved for summary judgment against Jackson, based on the same statute used by PG&E in the prior case. Herlihy ruled that there was a question of fact as to whether Jackson was invited onto Prince’s property—Prince’s daughter was the one who suggested the boys go fly the kite—and denied Prince’s motion. But he granted summary judgment to PG&E on Prince’s cross-complaint.

Prince appealed, arguing that the “no indemnity without liability” principle applies only to tort-based indemnity, and not to her claim for implied contractual indemnity.

Mihara agreed, noting that easement owners have implied legal obligations to maintain and repair the easement, and to prevent injury to third persons and the servient tenement.

“PG&E . . . has contractual duties to Prince that are separate and distinct from the general duty of care to Jackson that is the subject of section 846. Prince’s claim for implied contractual indemnification does not rely on, or seek to enforce, the duty that is limited by section 846, but instead relies on duties arising from the easement,” he said.

Mihara concluded:

“Given the independent obligations between Prince and PG&E, we conclude that extending PG&E’s immunity to bar the cross-complaint would result only in unfairness.”

Justices Richard J. McAdams and Wendy Clark Duffy concurred in the opinion.

The case is Prince v. Pacific Gas & Electric Company, 06 SS 5855.


Copyright 2006, Metropolitan News Company