Metropolitan News-Enterprise


Tuesday, August 5, 2008


Page 1


Court: No Duty by Homeowners to Warn of Power Lines


By STEVEN M. ELLIS, Staff Writer


Homeowners had no duty to warn a tree trimmer about the high voltage power lines upon which he electrocuted himself with a polesaw, the California Supreme Court held yesterday.

Reversing the judgment of Div. Six of this district’s Court of Appeal, the court held unanimously that a pair of Ventura County homeowners could not be held liable for the man’s death under a criminal law prohibiting the presence of tools or equipment from within six feet of such lines because the statute imposed a duty of care on the employee, not his employer.

Thomas and Vivian Nelson hired Julian Rodriguez and his landscaping service to “top” and trim several trees in their backyard in 2002, including a 15-foot eucalyptus tree growing underneath openly visible high voltage electrical lines.

Southern California Edison had the tree trimmed every second or third year to keep branches away from the lines, but after the utility’s tree trimmers failed to keep an appointment to do so, the Nelsons hired Rodriguez to trim the tree and several others in their backyard.

The Nelsons and their neighbors had previously hired Rodriguez to top and trim trees a number of times, but were unaware that he was an unlicensed contractor.

When Rodriguez arrived at the Nelson’s home on Feb. 14, 2002, with a crew of four men including Luis Flores, the Nelsons left to Rodriguez’s judgment how and at what height to trim the trees, and neither supervised the workers nor furnished any of the tools used.

Flores was working on the eucalyptus tree from a safety harness while the other men worked in the yard when the aluminum and wood polesaw he was using came into contact with the overhead line and he was electrocuted, causing his death.

His parents filed suit, alleging that the Nelsons negligently failed to keep their property in a reasonably safe condition, and failed to warn Rodriguez or his workers about the hazardous condition presented by the power lines.

After Ventura Superior Court Judge Vincent J. O’Neill Jr. determined that workers’ compensation laws did not apply, the plaintiffs argued that the Nelsons should be presumed negligent per se under Evidence Code Sec. 669 for their alleged violation of Penal Code Sec. 385(b), which makes it a misdemeanor for any person, either personally “or through an employee,” to move any tool or equipment within six feet of a high voltage overhead line.

The plaintiffs claimed that Sec. 385(b) section set forth a special duty of care that had been violated given the ultimate contact between Flores’ polesaw and the power lines, and that the Nelsons—if Flores could be found to have been their “employee”—were vicariously liable for breach of that duty, giving rise to a presumption of negligence under Evidence Code Sec. 669.

Seeking to demonstrate that Flores was an employee, the plaintiffs then pointed to the California Supreme Court’s opinion in State Compensation Ins. Fund v. Workers’ Comp. Appeals Bd. (1985) 40 Cal.3d 5 interpreting Labor Code Sec.2750.5 to mean that unlicensed contractors injured on the job are not independent contractors in the eyes of the law, but employees of the party who hired them for purposes of establishing workers’ compensation benefit eligibility.

O’Neill disagreed and submitted the matter to the jury on standard negligence instructions, with a verdict returning for the Nelsons, but Court of Appeal Presiding Justice Arthur Gilbert, joined by Justices Kenneth R. Yegan and Paul H. Coffee, reversed and remanded, agreeing with both prongs of the plaintiffs’ negligence per se theory.

However, the California Supreme Court, in an opinion by Justice Marvin R. Baxter, similarly reversed, ruling that the Court of Appeal’s conclusion that the homeowners owed a duty to Flores under Sec. 385(b) was error.

Noting that Evidence Code Sec. 669 imposes a per se presumption of negligence if someone violates a statute proximately causing death or injury resulting from an occurrence the statute was designed to prevent, but only if the victim was within a class of persons for whose protection the statute was adopted, Baxter wrote that plaintiffs had not shown the latter, and that it was Flores who was bound by a standard of care under Sec. 385(b).

“The standard of care imposed…amplifies the duty owed by persons using tools or operating equipment near power lines to anyone in the world at large who might be injured by such conduct…,” Baxter said, adding that the statute created no separate duty of care owed by an employer to an employee.

He explained:

“The Court of Appeal’s contrary holding effectively made these homeowners vicariously liable in tort to the deceased worker, whose own misdemeanor conduct violated Sec. 385(b) and proximately caused his fatal injuries, without regard to the fact that the homeowners had no control over the manner in which either the hired contractor or his workers performed their job.

“As tragic as this accident was…the homeowners breached no special duty of care owed to unlicensed contractor Rodriguez or his workers.”

Chief Justice Ronald M. George and Justices Joyce L. Kennard, Kathryn Mickle Werdegar, Ming W. Chin, Carlos R. Moreno and Carol A. Corrigan joined Baxter in his opinion.

The case is Ramirez v. Nelson, 08 S.O.S. 4747.


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