Metropolitan News-Enterprise


Friday, March 20, 2009


Page 3


S.C. Upholds Utility’s Immunity Claim in Suit by Injured Kite Flyer




A public utility with a power line easement is immune from the property owner’s claim for indemnity in an action by a person injured as a result of contact with the power line, the California Supreme Court unanimously ruled yesterday.

The justices, reversing the Sixth District Court of Appeal, held that Pacific Gas & Electric Company cannot be held liable for implied contractual indemnity on a claim as to which it was held statutorily immune from direct liability.

Suit was filed against PG&E after 10-year-old Joshua Jackson was seriously injured using an aluminum pole to try to dislodge a kite from an electrical power line. The line traversed property owned by Eve Prince, the grandmother of a friend with whom Jackson was playing.

Judgment was entered for PG&E after the trial judge concluded the company was protected under the recreational use immunity statute, Government Code Sec. 846. The law says that, unless an exception applies, a property owner “owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose.”

The judgment was affirmed by the Court of Appeal in Jackson v. Pacific Gas & Electric Co. (2001) 94 Cal.App.4th 1110.

The guardian ad litem later sued Prince, charging that she was liable under a statutory exception to recreational immunity. Prince in turn sued PG&E, claiming the company was liable for indemnity because it had breached its contractual duties to Prince as a landowner and had thereby subjected her to the burden of having to defend, and to potential liability on, the youngster’s claim.

The trial judge granted summary judgment to PG&E, but the Court of Appeal, in reversing, concluded that because the company’s duties to Prince were contractual, they were “separate and distinct” from “the duty that is limited by section 8465.”

But Justice Marvin Baxter, writing for the high court, said there could be no implied contractual indemnity without joint liability.

“We conclude that, even assuming a claim for implied contractual indemnity may be predicated on an alleged breach of an easement duty, PG&E’s immunity from liability to Jackson under section 846 nonetheless bars Prince from recovering indemnification as a matter of law,” the justice wrote.

Baxter distinguished workers’ compensation cases in which parties who were immune from direct liability were held potentially liable for implied contractual indemnity.

“In those cases, the courts either held or recognized that a worker’s compensation law did not preclude an entity from seeking implied contractual indemnity from a contractor for damages paid to an injured party, where the contractor was also the employer of the injured party,” the jurist wrote.

PG&E was in a different position, Baxter explained, because “the compensation laws in those cases were not comparable to section 846 and the recreational use immunity it affords.”

Justice Kathryn M. Werdegar, in a separate concurrence, said the “unwieldy doctrine of implied contractual indemnity...should be abandoned” since the need for the rule has been obviated by the development of equitable indemnity.

The case is Prince v. Pacific Gas & Electric Company, 09 S.O.S. 1666.


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