Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INC079026 John G. Evans, Judge.
Estey & Bomberger and Ljubisa Kostic for Plaintiffs and Appellants.
Southern California Edison Company, Laura A. Meyerson, Patricia A. Cirucci and Douglas P. Ditonto for Defendant and Respondent.
OPINION
McKinster Acting P.J.
Plaintiffs and appellants Maria Sanchez, Gloria Sanchez, Angelique Sanchez, and Sean Sanchez (hereafter plaintiffs) are the adult children of Mary Louise Medlin who was hit by a car and killed in the evening on November 15, 2007, while she was walking across Hacienda Avenue at its intersection with Tamar Drive in the City of Desert Hot Springs, California. The intersection does not have marked crosswalks, and vehicle traffic is not controlled by either a traffic signal or stop sign. In addition, a streetlight at the intersection did not work on November 15, 2007, and had not been working for many months.
Plaintiffs filed a wrongful death action on July 24, 2008, against various defendants, including defendant and respondent, Southern California Edison (hereafter SCE). Plaintiffs alleged that SCE negligently maintained the streetlight at the intersection and as a result created a dangerous condition. After answering plaintiffs’ complaint, SCE moved for summary judgment under Code of Civil Procedure Section 437c, on the ground that it does not owe a duty of care to plaintiffs’ decedent. The trial court granted SCE’s motion and plaintiffs appeal from the subsequently entered judgment.
Plaintiffs filed a motion for new trial which the trial court also denied. Plaintiffs do not challenge that ruling in this appeal.
In this appeal, plaintiffs challenge the trial court’s order granting SCE’s motion for summary judgment. We conclude that ruling is correct. Therefore, we will affirm the judgment.
DISCUSSION
1.
STANDARD OF REVIEW
On appeal, we review de novo an order granting summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The trial court must grant a summary judgment motion when the evidence shows that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar, at p. 843.) In making this determination, courts view the evidence, including all reasonable inferences supported by that evidence, in the light most favorable to the nonmoving party. (Code Civ. Proc., § 437c, subd. (c); Aguilar, at p. 843.) A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, at pp. 849, 850-851, 854-855.) The burden then shifts to the plaintiff to produce specific facts showing a triable issue as to the cause of action or the defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at pp. 849, 850-851.) Despite the shifting burdens of production, the defendant, as the moving party, always bears the ultimate burden of persuasion as to whether summary judgment is warranted. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, at p. 850.)
2.
ANALYSIS
In its separate statement of undisputed material facts submitted in support of its motion for summary judgment, SCE asserted it was undisputed that (1) plaintiffs’ mother was crossing Hacienda Avenue at or near its intersection with Tamar Drive in the City of Desert Hot Springs when she was hit and killed by a car being driven by Joan Lopez Arellano; (2) a streetlight located in the area was not working; (3) pursuant to a street lighting agreement with Desert Hot Springs Lighting Maintenance District (hereafter Desert Hot Springs), SCE provides electrical service to the streetlights; (4) SCE owns, operates, and maintains the streetlights which are installed entirely for the benefit of Desert Hot Springs and are not used to transmit or distribute electricity to other SCE customers; and (5) SCE placed the streetlights at locations specified by Desert Hot Springs.
In their opposition, plaintiffs disputed the assertion in SCE’s undisputed fact No. 4 that SCE installs streetlights entirely for the benefit of Desert Hot Springs. Plaintiffs asserted that pedestrians use and rely on the streetlights and SCE sells electricity in exchange for the duty to maintain the streetlights. In their own statement of additional undisputed material facts, plaintiffs asserted it is undisputed that the unmarked crosswalk in question is directly across from a senior citizens apartment complex where their mother lived; the only streetlight in the area had not worked for between several months and a year prior to the accident; in March 1965, the City of Desert Hot Springs adopted Ordinance No. 42 pursuant to which it granted SCE the exclusive right to sell electricity within the City of Desert Hot Springs and imposed the duty on Edison to maintain streetlights in the city; SCE also entered into a street lighting agreement with the City of Desert Hot Springs pursuant to which it was required to maintain streetlights in the city; and before the accident, residents complained to the City of Desert Hot Springs and to SCE that the streetlight in question did not work.
Plaintiffs also submitted the declaration of Weston Pringle, a traffic engineer, to support their assertion, set out as undisputed fact No. 18 in their separate statement, that, “Due to the configuration of the Intersection, including the presence of a bus stop on the far corner of the senior apartment complex, the absence of marked crosswalks, stop signs or pedestrian crossing traffic lights, as well as the lack of ambient lighting in the area, the streetlight is of special significance in terms of safety at the Intersection.” Plaintiffs asserted it was undisputed that, “The totality of the configuration at the intersection creates a special or peculiar condition rendering lighting necessary in order to make the intersection safe for pedestrians to cross.” As their purported undisputed fact No. 20, plaintiffs stated it was undisputed that “[m]any of the residents of the senior apartment complex adjacent to the intersection depended on public transportation and used the bus stop which required that they cross both streets utilizing the unmarked crosswalks at the intersection. The streetlight is the only illuminating device installed at the Intersection. Much of the area surrounding the Intersection is open, undeveloped desert, which includes not only the Intersection itself, but also the general area leading up to the Intersection from both directions on Hacienda Avenue. As a result, the streetlight at issue is the only source of illumination at the Intersection and there is much less ambient light at night than would be the case in a more developed area.” Finally plaintiffs asserted, “The subject streetlight was placed in its particular location at the Intersection as a safety measure. If there was no streetlight, more likely than not a different safety device would have been utilized in the design process surrounding the installation of the bus stop, such as marked crosswalks coupled with stop sign(s), or a pedestrian crossing traffic light.”
Despite plaintiffs’ purported factual assertions, the issue presented in this appeal is one of law, namely, whether SCE owes a duty to plaintiffs’ decedent, or to any member of the public, to maintain the streetlights in the City of Desert Hot Springs. The facts pertinent to that issue are undisputed-SCE had a contractual duty based on its agreement with Desert Hot Springs to install and maintain streetlights. Plaintiffs also claim that SCE had a statutory duty, based on a city ordinance, to maintain streetlights in the City of Desert Hot Springs. Plaintiffs contend in this appeal, as they did in the trial court, that SCE’s breach of that duty supports their action for damages based on the wrongful death of their mother. Alternatively, plaintiffs contend that SCE was required to maintain the streetlight in working condition in order to eliminate a dangerous condition.
The identical issues were addressed and rejected in White v. Southern Cal. Edison Co. (1994) 25 Cal.App.4th 442 (White), a personal injury case involving the collision of automobiles at an intersection where some of the streetlights were not working. We quote liberally from that opinion, and begin with the principle that, “‘Whether a “duty” exists in a particular case is a question of law. “Duty” is merely a conclusory expression used when the sum total of policy considerations lead a court to say that the particular plaintiff is entitled to protection.’ [Citation.]” (Id. at p. 447.) The White court concluded that “a public utility generally owes no duty to the motoring public for inoperable streetlights. There is no contractual relation between the utility and the injured party, and the injured party is not a third party beneficiary of the utility’s contract with the public entity. The public entity owes no general duty to the public to provide streetlights. The burden on the public utility in terms of costs and disruption of existing rate schedules far exceeds the slight benefit to the motoring public from the imposition of liability. As noted, vehicles at night are driven with headlights, it is unlikely that a single inoperable streetlight will be a substantial factor in causing a collision and automobile insurance is available to cover damages.” (Id. at p. 451.)
The White court observed that its conclusion “is consistent with the rules applicable to public entities which fail to maintain streetlights. ‘“In the absence of a statutory or charter provision to the contrary, it is generally held that a municipality is under no duty to light its streets even though it is given the power to do so, and hence, that its failure to light them is not actionable negligence, and will not render it liable in damages to a traveler who is injured solely by reason thereof. [] A duty to light, and the consequent liability for failure to do so, may, however, arise from some peculiar condition rendering lighting necessary in order to make the streets safe for travel. []”’ [Citations.]” (White, supra, 25 Cal.App.4th at p. 451, quoting Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 483 (Antenor).)
In Plattner v. City of Riverside (1999) 69 Cal.App.4th 1441 (Plattner) (Fourth Dist., Div. Two), we relied on White and Antenor to hold that a municipality that locates a crosswalk under a streetlight does not have a duty to maintain the streetlight and therefore is not liable to a pedestrian who is struck by an automobile while walking in the crosswalk at night. Plaintiffs purport to distinguish the facts in this case from those in White, Antenor, and Plattner. According to plaintiffs, unlike the cited cases, the facts in this case include a contract between Desert Hot Springs and SCE pursuant to which SCE assumed a contractual duty to maintain the streetlights. Contrary to plaintiffs’ assertion the facts in White also include a contract between SCE and the County of Los Angeles pursuant to which SCE owned and agreed to maintain the streetlights. (White, supra, 25 Cal.App.4th at p. 446.) The White court held, as quoted above, that members of the public are not third party beneficiaries of that contract and therefore SCE did not owe a duty to the plaintiff to provide or maintain streetlights. (Id. at p. 451.) That same conclusion is equally applicable here.
Plaintiffs also assert, unlike the cited cases, that the facts here include SCE’s statutory duty to maintain streetlights in the City of Desert Hot Springs. That statute according to plaintiffs is Ordinance No. 42, which the City of Desert Hot Springs adopted in March 1965, pursuant to which the city granted SCE an exclusive franchise to distribute electricity within the city in return for a percentage of the gross annual receipts SCE collected from its sale of that electricity. The ordinance, which plaintiffs attached as Exhibit G in support of their statement of undisputed facts, does not mention streetlight maintenance, plaintiffs contrary claim notwithstanding. Contrary to plaintiffs’ assertion in their statement of undisputed facts, as quoted above, the obligation to maintain streetlights was not SCE’s quid pro quo for the exclusive right to provide electrical service in the City of Desert Hot Springs. The quid pro quo was money, specifically a percentage of the revenue SCE collected. In short, plaintiffs did not present any evidence in the trial court to show that SCE had either a contractual or statutory duty to maintain streetlights in Desert Hot Springs for the benefit of the general public.
Plaintiffs also contend that White, Antenor, and Plattner are distinguishable because they do not address the “impact of section 324A of the Restatement Second of Torts.” “[T]he negligent undertaking doctrine (also referred to as the Good Samaritan doctrine), which is contained in section 324A of the Restatement Second of Torts, ” states, “‘One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to [perform] his undertaking if [¶] (a) his failure to exercise reasonable care increases the risk of such harm, or [¶] (b) he has undertaken to perform a duty owed by the other to the third person, or [¶] (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.’ [Citation.]” (Dekens v. Underwriters Laboratories, Inc. (2003) 107 Cal.App.4th 1177, 1181-1182, fn. omitted.)
According to plaintiffs, “There is no rule of law that precludes application of Section 324A to utility companies such as SCE.” Plaintiffs are incorrect. The rule of law that precludes application of the Good Samaritan doctrine is set out clearly in White, supra, which states that “liability may not be imposed on a public utility... where (1) the installation of the streetlight is not necessary to obviate a dangerous condition, i.e., there is a duty to install the streetlight and a concomitant duty to maintain it; (2) the failure to maintain an installed streetlight does not create a risk greater than the risk created by the total absence of a streetlight; and (3) the injured party has not in some manner relied on the operation of the streetlight foregoing other protective actions, e.g., a pedestrian chooses a particular route home in reliance on the available streetlighting when the pedestrian would have chosen a different route or a different means of transportation in the absence of lighting. (Cf. Rest.2d Torts, § 324A.)” (White, supra, 25 Cal.App.4th at p. 451.)
The dissent also challenges White and its analysis of section 324A. In its discussion, the dissent makes arguments that are not new or novel and that were rejected by White. The dissent cites the subsequent Supreme Court case of Paz v. State of California (2000) 22 Cal.4th 550 (Paz). However, the court in that case applied section 324A of the Restatement Second in a different context than White and the present case. It is distinguishable.
Plaintiffs contend that White is contrary to public policy and existing authority. We disagree as evidenced by our decision in Plattner. Plaintiffs do not offer any reason for us to reevaluate either White or Plattner in this appeal.
As their final claim, plaintiffs contend they presented evidence in the trial court to create a triable issue of material fact with respect to whether the so-called “peculiar condition” exception applies in this case. That evidence according to plaintiffs is the declaration of their expert witness, Weston Pringle, “a California Registered Professional Engineer (Civil and Traffic Engineering), ” who states in pertinent part as follows:
“10. The configuration of the Intersection [sic], including the presence of a bus stop on the far corner from a senior apartment complex, the absence of marked crosswalks, stop sign(s) or pedestrian crossing traffic light(s), and the lack of significant ambient lighting, all result in the Streetlight [sic] being of special significance in terms of safety at this particular location. Based on these factors, it is my opinion that the Streetlight was placed in its particular location as a safety measure. If there was [sic] no Streetlight, more likely than not a different safety device would have been utilized in the design process surrounding the installation of the bus stop, such as marked crosswalks coupled with stop sign(s), or a pedestrian crossing traffic light.
“11. The totality of the configuration at the Intersection, as described above, creates a special or peculiar condition rendering lighting necessary in order to make the Intersection safe for pedestrians to cross.”
There are numerous ways in which Mr. Pringle’s declaration fails to create a triable issue of material fact. First, in order for the streetlight to be a safety measure intended to ameliorate a dangerous condition, the evidence must show the dangerous condition existed before the streetlight was installed. Pringle’s declaration shows only that several circumstances, or conditions, converged, but it does not show that a dangerous condition existed before the streetlight was installed. It is just as likely according to Pringle’s declaration that the streetlight was in place before the senior housing complex and bus stop were constructed, in which case the streetlight could not have been installed to ameliorate a dangerous condition. In addition, Pringle’s statement that a different safety measure would have been taken if the streetlight were not there is pure speculation.
More significantly, it is not enough to show a dangerous condition or peculiar condition existed. Under White, quoted above, plaintiffs must also show that failure to maintain an installed streetlight creates a risk greater than the risk created by the total absence of a streetlight and that the injured party in some manner relied on the operation of the streetlight foregoing other protective actions. (White, supra, 25 Cal.App.4th at p. 451.) Plaintiffs did not address these additional considerations in the trial court and therefore did not create triable issues of material fact with respect to these two additional requirements.
In summary we note here as we did in Plattner that darkness following sunset “is a naturally occurring condition that [a municipality] is under no duty to eliminate.” (Plattner, supra, 69 Cal.App.4th at p. 1445.) Because SCE’s duty is no greater than that of the municipality with which it contracts, SCE likewise has no duty to eliminate darkness, either by installing streetlights or maintaining them. Because plaintiffs did not present facts that create a triable issue on the question of whether the limited exception to the rule of nonliability applies, the trial court correctly granted summary judgment in favor of SCE.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
I concur: Richli J.
King, J., Dissenting.
The majority simply ignores the applicability of section 324A of the Restatement Second of Torts. By judicial fiat, the majority, in citing White v. Southern Cal. Edison Co. (1994) 25 Cal.App.4th 442 (White), states: “The rule of law... precludes application of the Good Samaritan doctrine....” (Maj. opn., ante, at p. 10.) As will be discussed, section 324A applies to the present facts, and there is absolutely nothing in White or in the rule of law that prevents its application to the present facts.
All further references to section 324A is to the Restatement Second of Torts.
A. Section 324A Applies to the Present Matter
Before us is the question of whether a triable issue of fact exists as to whether Sourthern California Edison Company (SCE) has a duty to maintain its street light at an unmarked crosswalk. “‘[W]hether a duty of care exists in a given circumstance, “is a question of law to be determined [by the court] on a case-by-case basis.”’” (Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1272 [Fourth Dist., Div. Two].) The relevant considerations of duty “are not determined in a vacuum, but rather depend... upon the particular circumstances in which the purported wrongful conduct occurred.” (Burger v. Pond (1990) 224 Cal.App.3d 597, 603 [Fourth Dist., Div. Two].) And, as to the theory of negligent undertaking pursuant to section 324A: “[T]here may be fact questions ‘about precisely what it was that the defendant undertook to do.’ That is, while ‘[t]he “precise nature and extent” of [an alleged section 324A] duty “is a question of law... ‘it depends on the nature and extent of the act undertaken, a question of fact.’”’” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 615.)
Briefly stated, the present facts are that a pedestrian was crossing a roadway in an unmarked crosswalk during the nighttime. The street light at the intersection was not working. As the pedestrian crossed the roadway, she was struck by a vehicle. On one side of the roadway was a bus stop and on the other side senior citizen housing. The driver stated she did not see the pedestrian until a split second before impact.
The City of Desert Hot Springs (the City) had a franchise agreement with SCE relative to the distribution of electricity. Also in existence was a second agreement where SCE, as owner of the street lights, contracted with the Desert Hot Springs Lighting and Maintenance District to operate and maintain the street lights.
Further facts, not referenced by the majority opinion, are that the specific light had not been working for some time and that at least two individuals had called the City relative to it being inoperative. The individuals were told that the light had been installed by SCE and that SCE was responsible for its maintenance. The same individuals were further informed that the City had notified SCE of the inoperative light. Lastly, Judy Price, an employee of the City, testified at her deposition that the responsibility to maintain the street lights fell upon SCE and that when citizens called relative to a street light being out, she gave them SCE’s toll free telephone number.
“Section 324A reads: ‘One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to [perform] his undertaking, if [¶] (a) his failure to exercise reasonable care increases the risk of such harm, or [¶] (b) he has undertaken to perform a duty owed by the other to the third person, or [¶] (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.’” (Paz v. State of California (2000) 22 Cal.4th 550, 558, fn. omitted (Paz).)
In applying these elements to our present facts, triable issues exist. Specifically:
1. “‘“One who undertakes, gratuitously or for consideration, to render services to another ....”’” (Paz, supra, 22 Cal.4th at p. 558, fn. omitted, italics added.) Here, SCE undertook for consideration the service of maintaining the street light. The evidence shows that two separate contracts were entered into. The first was a franchise agreement wherein SCE agreed to distribute electricity. The second agreement, and the one that is relevant to our inquiry, was entered into between SCE and Desert Hot Springs Lighting and Maintenance District, wherein it is provided that SCE owns and operates the streetlights and agrees to maintain them.
On appeal, SCE does not dispute and, in fact, conceded at oral argument that it has undertaken for consideration the duty to maintain the street light. Its only position is that the contract is with the City and that the citizens have no rights under the contract-an argument with which I agree, and which will be discussed later.
2. “‘“[W]hich he should recognize as necessary for the protection of a third person or his things....”’” (Paz, supra, 22 Cal.4th at p. 558, fn. omitted, italics added.) SCE should recognize that the maintenance of street lights in an operable condition is necessary for the protection of third persons or their things. Whether it be to prevent crime, trip and falls on sidewalks, or so to illuminate objects or people in or near an intersection, street lights are present for purposes of safety. “[S]treetlights, we believe, are necessary to operate streets and sidewalks. Streetlights make streets and sidewalks safer....” “To the extent that it turns on the functions streetlights perform, those ‘facts’ cannot reasonably be the subject of dispute, and the trial court was required to take judicial notice of them.” (Howard Jarvis Taxpayers Assn. v. City of Riverside (1999) 73 Cal.App.4th 679, 685-686 & fn. 4 [Fourth Dist., Div. Two].)
3. “‘“[I]s subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to [perform] his undertaking, if....”’” (Paz, supra, 22 Cal.4th at p. 558, fn. omitted, italics added.) The following three alternatives are in the disjunctive:
“‘“(a) his failure to exercise reasonable care increases the risk of such harm....”’” (Paz, supra, 22 Cal.4th at p. 558, italics added.) Given the purpose of streetlights, I think it goes without saying that the risk of injury to a pedestrian in an unmarked crosswalk is greater with the light not working as opposed to the light working. However, accepting White’s construction of this element (that being that the intersection is no more dangerous with a streetlight not working than it is with no streetlight present), no triable issue was presented.
“‘“(b) he has undertaken to perform a duty owed by the other to the third person....”’” (Paz, supra, 22 Cal.4th at p. 558, italics added.) Accepting for the moment the correctness of Plattner v. City of Riverside (1999) 69 Cal.App.4th 1441 [Fourth Dist., Div. Two] (that being that a city does not have a duty to maintain its street lights), I would agree that this alternative cannot serve as the basis for imposing a duty on the part of SCE.
“‘“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”’” (Paz, supra, 22 Cal.4th at p. 558, italics added.) Here, there is no evidence that the pedestrian (the third person) relied on SCE’s undertaking. Therefore, no duty was created under this alternative.
However, there is evidence that the harm was suffered because of reliance by the City on SCE’s undertaking. As indicated earlier, at least two individuals called the City relative to the inoperative street light. These individuals were told that the light was installed and maintained by SCE and that the City had informed SCE of the problem. Further, Ms. Price testified in her deposition that the City does not maintain the streetlights and that the duty falls to SCE, and when citizens call relative to a streetlight being out she gives them SCE’s toll free telephone number.
On these facts there is a triable issue as to whether SCE had a duty. It admittedly undertook the service of maintaining the street lights. SCE should realize that streetlights are for the safety of people who are in the vicinity of the streetlight, and there is evidence that the harm was suffered because the City relied on SCE’s undertaking to maintain the lights. A straight-up application of section 324A demonstrates its probable applicability.
B. Nothing in White or the Rule of Law Precludes the Application of Section 324A
In holding that, as a matter of law, SCE does not have a duty to maintain its street lights, the majority relies exclusively on White. First, the facts in White are clearly different. In White, as here, the accident occurred in the nighttime. Rather than involving a pedestrian crossing the street, the accident in White involved a left-turning vehicle failing to yield the right-of-way to through traffic. The street light that was allegedly the culprit was 132 feet (approximately one-half of a football field) east of the intersection, rather than at the intersection itself. More importantly, and unlike here, there were no facts in White to support a contention that the City of Carson and/or County of Los Angeles relied on SCE’s undertaking relative to maintaining the street lights. There was no evidence of complaints to the city and/or county and no evidence that any complaints were referred to SCE or that the city and/or county in any way forewent repair of the streetlight because of SCE’s undertaking.
While the majority also cites Plattner, the Plattner court found White to be the “dispositive” case, holding that a municipality does not have a duty to maintain its streetlights.
While the difference in these facts is not vital to the analysis, it is of some significance as to the “risk of injury, ” which is generally relevant to the issue of duty.
While the White court did discuss section 324A, its facts did not lend themselves to consider the “duty” alternative that is relevant to our matter. And, while the present majority, in relying on White, states that “[t]he rule of law... precludes application of the Good Samaritan doctrine, ” White simply does not stand for that proposition. White did not deal with the issue of the city’s reliance on SCE’s undertaking and, as a result, cannot be cited for the proposition that its holding in some fashion precludes our fact-specific application of section 324A. “‘“Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered.”’ [Citations.]” (Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1029.)
Furthermore, in arriving at its conclusion, White relied heavily on Ukiah v. Ukiah Water and Imp. Co. (1904) 142 Cal. 173 and Niehaus Bros. Co. v Contra Costa etc. Co. (1911) 159 Cal. 305. Both cases dealt with lawsuits against local water companies for their failure to supply sufficient water to extinguish fires. The cases stand for the proposition that a utility will not be held liable for its failure to supply and/or distribute water when there is no direct contractual obligation between the utility and the citizen. While I have no dispute with the basic rationale of both cases, it is not applicable to the present facts.
Just as a water company’s business is to distribute water to end users, SCE’s business as a public utility is to distribute and/or supply electricity. “Edison is [a]... utility engaged in the business of generating, transmitting and distributing electrical energy in portions of Southern and Central California....” (Automatic Sprinkler Corp. v. Southern Cal. Edison Co. (1989) 216 Cal.App.3d 627, 632.) Here, unlike in Ukiah and Niehaus (cases in which the utility was distributing water), liability is not sought to be fastened on SCE for its public utility purpose of transmitting and distributing electricity; rather, it is sought on a totally separate contract with the Desert Hot Springs Lighting and Maintenance District in which SCE agreed to maintain street lights that it owned and installed-an obligation separate and apart from the generation, transmission, or distribution of electricity.
Even were we to extend the rationale of Ukiah and Niehaus in a blanket manner to the present activities of SCE, triable issues still exist. In Lowenschuss v. Southern Cal. Gas Co. (1992) 11 Cal.App.4th 496, the utility company was sued by various homeowners for its failure to shut off the supply of gas to a neighborhood threatened by a fast approaching fire. In affirming the trial court’s sustaining of a demurrer without leave to amend, the court affirmed the basic rationale of Ukiah and Niehaus, that there was no duty to the populace as a whole, to stop the supply of gas through its lines. The court went on, however, stating: “We differentiate this case from one in which a utility company has been notified of a specific defect or damage involving one of its lines. ‘Where the company knows the customer’s line is defective-has leaks-it must take precautions according to [those] circumstances. [Citations.]’ [Citations.]” (Lowenschuss v. Southern Cal. Gas Co., supra, at pp. 500-501.) Here, there is evidence that SCE was placed on notice of the specific defect, thus giving rise to its duty. And, as specifically noted in White, as to its facts, there was no evidence that “SCE had received a report that the streetlight was inoperative prior to the collision.” (White, supra, , 25 Cal.App.4th at p. 446.)
Accepting the majority’s view, which is contrary to the dictates of Lowenschuss, SCE could be on notice of the inoperative street light and numerous deaths at the subject intersection yet still have no duty to maintain its street light because of no contractual relationship between the utility and the users of the roadway.
Lastly, the majority, in support of its holding, indicates: “Because SCE’s duty is no greater than that of the municipality with which it contracts, SCE likewise has no duty to eliminate darkness, either by installing streetlights or maintaining them.” (Maj. opn., ante, at p. 12.) In making this assertion, the majority relies on Plattner. The assertion is incorrect in two respects: (1) contrary to Plattner, the law does recognize a duty on behalf of a governmental entity to maintain its lighting; i.e., property may be viewed as dangerous, because of the lack of lighting, and (2) even if one were to accept that the City has no duty to maintain its lighting, SCE nonetheless has an independent duty under section 324A.
Plattner, in reliance on White, in essence holds that a public entity cannot be liable for its failure to maintain a street light. To support this conclusion, the Plattner court indicated that because there was nothing dangerous about the crosswalk in the abstract, the city could not be found liable for failing to illuminate the crosswalk because “darkness is a naturally occurring condition that the city is under no duty to eliminate. Thus, the fortuity of locating the streetlight at a spot where it illuminates the crosswalk does not render the crosswalk dangerous without the light.” (Plattner, supra, 69 Cal.App.4th at p. 1445.) Initially, I doubt that the placement of the street light at a spot where it illuminated the crosswalk was fortuitous. Most probably its placement was for safety. More to the point, however, is that liability may be fastened on a governmental entity if the absence of lighting “creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a); see Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484, cited with approval in Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 718; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1135; see also Constance B. v. State of California (1986) 178 Cal.App.3d 200, 210-211.) Under the law, an absence of lighting is treated no different than any other alleged dangerous condition. Certainly, under some circumstances an inoperative street light might not create a substantial risk of injury; the governmental entity may not be on notice of the inoperative light or the dangerousness of the condition; or there may be no causal relationship between the inoperative light and the injury. However, it cannot be said, as the court does in Plattner and as the present majority does, that as a matter of law a city has no legal duty to maintain its street lights. The Plattner court is simply wrong.
My second reason for disagreeing with the majority’s premise that “[b]ecause SCE’s duty is no greater than that of the municipality with which it contracts, SCE likewise has no duty to eliminate darkness, either by installing streetlights or maintaining them” (maj. opn., ante, at p. 12), is that even were we to assume that the City does not have a duty to maintain the street light under section 324A, SCE may nonetheless have a duty.
In Paz, the plaintiff was injured in an intersection collision. The plaintiff alleged that signalization of the intersection would have prevented the accident. Existent at the time of the accident was an ongoing development in which the developer, as part of the conditions of approval, was obligated to signalize the intersection. Completion of the development had been delayed and, at the time of the accident, there were no traffic signals in place. The plaintiff sued the developer, alleging under section 324A that by way of the conditions of approval, the developer had assumed a duty to install signals at the intersection and that the city had relied on this undertaking. While the Supreme Court did hold that under the facts the developer did not have a duty, the court nonetheless recognized that to impose a duty on the developer it was not necessary to find that the governmental entity had a duty to install the signals. The court clearly stated that the governmental entity had no duty to signalize the intersection based on Government Code section 830.4. (Paz, supra, 22 Cal.4th at p. 561.)
With recognition of the fact that the governmental entity had no duty, Chief Justice George stated in his dissent: “Although there is no evidence in this case that plaintiff was aware of, or relied upon, the developer’s commitment to install a traffic signal, under section 324A the relevant reliance may be either by the injured person or by the entity for which the developer undertakes to render the service, here, the city. The comment to section 324A states in this regard that ‘[w]here the reliance of the [city]... has induced [it] to forgo other remedies or precautions against such a risk, the harm results from the negligence as fully as if the actor had created the risk.’” (Paz, supra, 22 Cal.4th at p. 565, fn. 1 (dis. opn. of George, C.J.).) And, the majority, in denying liability under section 324A, simply indicated that there was no agreement to have the signal lights installed by any particular time and that the developer could have abandoned the project at any time with the condition of approval thereby having no effect. As a result, the “condition of development did not give the City a basis for relying on the installation’s being completed at any time before the condominium project’s completion.” (Paz, supra, at p. 561.)
Thus, contrary to the majority’s view, the rule of law does not preclude the imposition of a duty. Both White, supra, 25 Cal.App.4th at pages 447 and 448 and Laabs v. Southern California Edison Co., supra, 175 Cal.App.4th at pages 1269 through 1271, recognize a multitude of cases placing a “duty” upon SCE to maintain installations. SCE’s potential liability for failure to maintain its street light should be no different than any other private entity. “Edison is an investor-owned public utility....” While it is subject to control by the Legislature, it is a “for-profit public utility.” (Automatic Sprinkler Corp. v. Southern Cal. Edison Co., supra, 216 Cal.App.3d at p. 632.) The paternalistic approach adopted by the majority is simply not consistent with the law.
See Mancuso v. Southern Cal. Edison Co. (1991) 232 Cal.App.3d 88, wherein SCE argued that it should not be subject to strict products liability since a publicly held utility was not. In rebuffing this argument, the court stated: “The potential disparate treatment of which Edison complains is in reality no greater a burden than is faced by any private concern engaged in an activity also carried on by a public entity (e.g., the delivery of medical services, hospital care, pharmaceuticals, etc.). The liability of public entities has always been more limited and circumscribed than that of private entities or individuals. That such a circumstance is present here cannot justify the insulation of Edison from the consequences of culpable conduct.” (Id. at pp. 99-100, fn. 14.) See also cases dealing with the imposition of strict products liability upon SCE and other utilities relative to their distribution of electricity. (Stein v. Southern Cal. Edison Co. (1992) 7 Cal.App.4th 565; Pierce v Pacific Gas & Electric Co. (1985) 166 Cal.App.3d 68.)
In conclusion, triable issues exist as to whether SCE owes a duty under our facts. I believe the court in White overstated the law in finding that SCE had no duty in that case. Furthermore, its facts are clearly distinguishable from the present facts in significant respects. The Plattner decision improperly extends White to all government entities. And here, the present majority inappropriately builds on these errors to hold that, as a matter of law, neither a utility nor governmental entity has a duty to maintain street lights.
The court there found that contractors who are hired for a public project did not have a general duty of care to third persons if the application of section 324A was not otherwise satisfied. (Paz, supra, 22 Cal.4th at p. 554.) The court in Paz did not even discuss White let alone criticize or disapprove of it because, like the present case, White did not involve any dangerous condition of property whose risk of harm was increased due to a street light that was not functioning. Paz discussed section 324A in the context of a dangerous condition of property and rejected plaintiff’s allegation that the defendant there increased the risk of harm due to the defendant’s alleged interference with sight lines. (Paz, at p. 560.)