Case Number: BC574305??? Hearing Date: October 14, 2016??? Dept: A
Marth v Southern California Edison
MOTION FOR SUMMARY JUDGMENT
Calendar: 2
Case No: BC574305
Date: 10/14/16
MP: Defendant, Southern California Edison
RP: Plaintiff, Dela Marth, as an individual and as the successor-in-interest to
Brandon Orozco
ALLEGATIONS IN FIRST AMENDED COMPLAINT (BC574305)(by Dela Marth):
Brandon Orozco was working as an apprentice lineman for CAM Contractor, Inc., which was an electrical contractor hired by the Defendants, Southern California Edison and PAR Electrical Contractors, Inc. While working inside an underground electrical fault, Brandon Orozco was fatally electrocuted when his hand came into contact with high voltage electrical equipment that the Defendants had negligently failed to de-energize. Further, the Defendants failed to pump water out of the vault and wait until the vault was dry before allowing access to the vault. In addition, the Defendants had failed to replace or repair corroded equipment, wiring, labels, and tags and had failed to cover the energized equipment with guards, barriers, or protective equipment. In addition, the Defendants negligently failed to supervise the area and failed to provide warnings of the dangerous conditions in the vault.
The Defendants knowingly and recklessly forced Brandon Orozco to work in the dangerous area without proper supervision, violated existing laws, regulations, and standards to get jobs done faster, and knowingly failed to warn Brandon Orozco of the dangers. The Plaintiff, Dela Marth, is the mother of Brandon Orozco and brings this action for wrongful death. Further, Dela Marth brings a survivor action on behalf of Brandon Orozco as his successor-in-interest.
CAUSES OF ACTION IN FIRST AMENDED COMPLAINT (BC574305)(by Dela Marth):
1) Negligence – Wrongful Death/Survival
ALLEGATIONS IN COMPLAINT (BC579513)(by Hector Orozco):
Brandon Orozco was working as an apprentice lineman for CAM Contractor, Inc., which was an electrical contractor hired by the Defendants, Southern California Edison and PAR Electrical Contractors, Inc. While working inside an underground electrical vault, Brandon Orozco was fatally electrocuted when his hand came into contact with high voltage electrical equipment that the Defendants had negligently failed to de-energize. Further, the Defendants failed to pump water out of the vault and wait until the vault was dry before allowing access to the vault. In addition, the Defendants had failed to replace or repair corroded equipment, wiring, labels, and tags and had failed to cover the energized equipment with guards, barriers, or protective equipment. In addition, the Defendants negligently failed to supervise the area and failed to provide warnings of the dangerous conditions in the vault.
The Defendants knowingly and recklessly forced Brandon Orozco to work in the dangerous area without proper supervision, violated existing laws, regulations, and standards to get jobs done faster, and knowingly failed to warn Brandon Orozco of the dangers.
The Plaintiff, Hector Orozco, is the father of Brandon Orozco and brings this action for wrongful death. Further, Hector Orozco brings a survivor action on behalf of Brandon Orozco as his successor-in-interest.
RELIEF REQUESTED:
Summary Judgment or summary adjudication of punitive damages
DISCUSSION:
This case was brought by the decedent?s mother, Dela Marth. The decedent?s father, Hector Orozco, filed a separate complaint for the wrongful death of Brandon Orozco in BC57951, and it was consolidated with the mother?s action. The mother?s action, BC574305, was made the lead case.
Trial is set for May 15, 2016.
This hearing concerns the motion for summary judgment of the Defendant, Southern California Edison. Under CCP section 437c, the Defendant has the burden of offering evidence to show that the Plaintiffs cannot establish an essential element of their causes of action or that an affirmative defense bars the claims. Although there are two complaints, they both plead a single cause of action for wrongful death based on the allegation that the Defendants negligently caused the death of Brandon Orozco.
The Defendant argues that the Plaintiffs? claims against it are barred by the Privette doctrine. In Privette v. Superior Court (1993) 5 Cal. 4th 689, the California Supreme Court held generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work. However, this general rule is subject to abundant exceptions. Id. at 693. One such exception is that the hirer is liable when the hirer causes the injuries through the hirer?s own negligence. Browne v. Turner Construction Co. (2005) 127 Cal. App. 4th 1334, 1345.
If an employee of an independent contractor can show that the hirer of the contractor affirmatively contributed to the employee’s injuries, then permitting the employee to sue the hirer for negligent exercise of retained control cannot be said to give the employee an unwarranted windfall. Hooker v. Department of Transportation (2002) 27 Cal. 4th 198, 214. The tort liability of the hirer is warranted by the hirer’s own affirmative conduct. Id. The rule of workers’ compensation exclusivity “does not preclude the employee from suing anyone else whose conduct was a proximate cause of the injury”, and when affirmative conduct by the hirer of a contractor is a proximate cause contributing to the injuries of an employee of a contractor, the employee should not be precluded from suing the hirer. Id.
Further, the Defendant is operating a public franchise, i.e., it is a public utility engaged in the creation, sale, and distribution of electricity to the public. When an activity involving possible danger to the public is carried on under public franchise or authority the one engaging in the activity may not delegate to an independent contractor the duties or liabilities imposed on the entity by the public authority. Snyder v. Southern California Edison Co. (1955) 44 Cal. 2d 793, 799. Public licenses generally require compliance with statutory or regulatory prerequisites, most often for the purpose of ensuring public safety. Vargas v. FMI, Inc. (2015) 233 Cal. App. 4th 638, 653. If the duties imposed on a public licensee could be delegated to a third party without any governmental oversight, a public licensing scheme would be meaningless because a licensee could avoid the responsibilities imposed by the license simply by engaging an independent contractor. Id. Accordingly, the Court reviews the pertinent statutes and regulations to determine whether they preclude the applicability of the Privette doctrine and prohibit delegation of the hirer’s tort law duty in the particular case. Id. at 654.
An example of this analysis is in Snyder v. Southern California Edison Co. (1955) 44 Cal. 2d 793, at pages 801 to 802. The Court found that utility companies, either electric, telephone or telegraph, are responsible for nearly all pole installations. The Court found that in the law relating to such utilities there is no express provision that such duties may be delegated. Further, the Court found that the construction and maintenance of lines, which includes poles, is a necessary part of the utility’s business. The Court found that the utility needs them to transmit electricity, the commodity in which it deals. The Court found that the placement of poles involves the safety of workmen and the public. The Court found that the statutes and rules of the Commission imposed a direct and positive duty on the operator of a utility, that the rules were promulgated for the safety of workmen as well as the public, and civil penalties are imposed on the utility for failure to comply with them and criminal penalties are imposed on the officers and employees of the utility. Id. at 801. Accordingly, the Court found that the duties with regards to the poles were non-delegable.
In the pending case, the Plaintiffs allege that the Defendant is liable for the wrongful death of Brandon Orozco because, when he was working as an electrical contractor in an underground vault containing electrical cables, he was fatally electrocuted when his hand came into contact with high voltage electrical equipment that the Defendants had negligently failed to de-energize. Further, the Plaintiffs allege that Defendants acted negligently and increased the risks by failing to pump water out of the vault, by failing to wait until the vault was dry before allowing access to the vault, by failing to replace or repair corroded equipment, wiring, labels, and tags, and by failing to cover the energized equipment with guards, barriers, or protective equipment. This shows that the Plaintiffs? theory is that Southern California Edison is liable for its own negligent conduct, i.e., it failed to de-energize the high voltage electrical equipment, it failed to pump water out of the vault, it failed to ensure that the vault was dry before allowing access, it failed to replace or repair corroded equipment, wiring, labels, and tags, and it failed to cover the energized equipment with guards, barriers, or protective equipment. The Plaintiffs? theory is that Southern California Edison?s negligent conduct caused the death of Brandon Orozco when he was in the underground vault owned by the Defendant, a vault that contained dangerous electrical cables.
The Defendant claims that it is not directly liable because it had delegated the duty to maintain and prepare the vault for the workers to a contract. However, as noted above, the Defendant is a public utility and the Court must reviews the pertinent statutes and regulations to determine whether they preclude the applicability of the Privette doctrine and prohibit delegation of the hirer’s tort law duty.
The Defendant, as the moving party, has the burden of proof and persuasion on its motion. As discussed above, the allegations in this case concern the condition of the underground vault, e.g., water intrusion and corroded equipment. These are not conditions created by the contractor; instead, they concern the condition of the Defendant?s property, i.e., the underground vault and the condition of the equipment in the vault.
In its papers, the Defendant did not discuss the statutes or regulations that create duties regarding the underground vault in which Brandon Orozco died and then demonstrate that they were able to delegate the duties imposed under the statutes or regulations. Nor does the Defendant identify any statutes or regulations that show that it can delegate its duties with regards to the underground vault. This is insufficient to meet its burden to show that Privette applies to the Plaintiff?s claims.
The California Public Utilities Commission (?Commission?) issues general orders with which the Defendant is required to comply under Public Utilities Code section 702 (every public utility shall obey and comply with every order, decision, direction, or rule made or prescribed by the commission relating to its business as a public utility and shall do everything necessary or proper to secure compliance). The Commission has issued General Order 128, which identifies the requirements for underground electrical systems to secure safety to all persons engaged in the construction, maintenance, operation or use of underground systems and to the public in general. Further, the Commission has issued General Order 165, which identifies the frequency of inspections for electrical facilities, including underground electrical facilities.
General order 165 states in section II, ?Applicability?, that its requirements for inspection are in addition to the requirements imposed upon utilities under General Order 128 to maintain a safe and reliable electric system. Table 1 to rule 165 states that annual inspections shall occur every year in urban areas and that detailed inspections shall occur every three years. General order 165 states in section IV, Standards for Inspection, Record-keeping, and Reporting, that each utility subject to this General Order shall submit an annual report detailing its compliance with this General Order under penalty of perjury. This shows that the Commission has issued General Orders to identify the requirements for the underground electrical systems to secure the safety for persons engaged in maintenance and that require inspections of the underground facilities. Since the Commission requests annual reports showing compliance under penalty of perjury, the Commission?s ongoing involvement in this regulation is grounds to find that it creates non-delegable duties.
The Defendant does not identify any express provision that it may delegate its duties with regards to the underground vault, e.g., the duty to inspect. Further, the construction of the underground vault and maintenance of the electrical cables in the vault are a necessary part of the Defendant?s business and the Defendant needs the vault and cables to transmit electricity, the commodity in which it deals. As noted above, the Commission has issued order 128 to identify the requirements for the underground electrical systems to secure safety to all persons, including those engaged in the maintenance, operation, or use of the underground system. The Commission has promulgated order 128 and order 165 to impose a direct and positive duty on the Defendant to secure the safety of persons maintaining the electrical cables in the vault. Accordingly, the duties with regards to the underground vault are non-delegable.
Further, this case involves a claim that the underground vault contained four inches of water and had substantial corrosion on the equipment as a result of the water. Under Public Utility Code section 8055, no person shall build or rebuild or maintain any subway, manhole, chamber, or underground room used, or to be used, to contain, encase, cover, or conduct any wire, cable, or appliance to conduct or handle electricity, unless such subway, manhole, chamber, or underground room is kept at all times in a sanitary condition and free from stagnant water, seepage, or other drainage, or any offensive matter dangerous to health, either by sewer connection or otherwise. This section does not apply to any subway, manhole, chamber, or underground room within which it is not intended or required that any human being perform work or labor, or be employed. This statute imposes duties on the Defendant with regards to keeping the underground vault free from stagnant water, seepage, or other drainage.
Section 8056 states that the Public Utility Commission may inspect and shall enforce the provisions of the article that includes section 8055. Further, section 8057 states that any violation of any provision of this article is a misdemeanor. Since the Commission enforces this article and the violation is a misdemeanor, there are grounds to find that the Defendant cannot delegate the duty to keep the underground vault free from stagnant water.
Accordingly, the Defendant has not met its burden of demonstrating that it cannot be directly liable for the death of Brandon Orozco. On the contrary, the Commission has promulgated rules regarding the condition and inspection of the underground vault that impose non-delegable duties on the Defendant.
In its effort to meet its burden of proof and show that it is not directly liable, the Defendant, Southern California Edison, provides the following evidence in its Separate Statement of Facts (?SSF?):
1) the Defendant entered into a contract with PAR Electrical Contractors, Inc. to provide supervision, labor, tools, and equipment to perform work on the Defendant?s electrical distribution system (SSF 4);
2) PAR Electrical Contractors, Inc. entered into a subcontract with CAM Construction, Inc., to obtain electrical workers and crews to prepare sections of cable to be tested (SSF 12);
3) the decedent, Brandon Orozco, was employed by CAM as a member of an electrical crew to prepare the Defendant?s underground cables (SSF 15);
4) PAR Electrical Contractors, Inc. submitted a request to de-energize a portion of the underground cables so that the cables could be prepared by the CAM crews (SSF 16);
5) the Defendant?s employees de-energized the cables (SSF 20);
6) the Defendant?s employee, Lori Patino, issued a clearance to the foreman of the CAM crew to work on the de-energized lines (SSF 22); and
7) the decedent, Brandon Orozco, sustained fatal injuries while in the underground vault containing the lines (SSF 24).
In addition, the Defendant provides evidence that it did not re-energize any portion of the circuit while Brandon Orozco was working in the underground vault (SSF 28), that it did not fail to pump water from the vault (SSF 29), the equipment and switches were correctly labeled and tagged (SSF 31), the switch, cables, and tags were not corroded (SSF 32), and there was no exposed energized equipment or conductors in the vault (SSF 33).
The Defendant?s evidence shows that the Plaintiffs cannot establish their claim that the Defendant is directly liable for the wrongful death of Brandon Orozco because it did not negligently fail to de-energize the lines, it did not fail to pump water out of the vault, it did not faile to replace or repair corroded equipment, wiring, labels, and tabs, and it did not fail to cover the energized equipment. Under CCP section 437c, the burden is shifted to the Plaintiffs to offer evidence that creates a dispute of fact.
The Plaintiffs provide evidence that creates a question of fact about whether the Defendant re-energized the lines with evidence in the declaration of Duncan Glover, who is a professional electrical engineer (Chang decl., exhibit 2). Mr. Glover states in paragraph 43 that the circuit map was not accurate with respect to the cables in the vault at issue and that after the Defendant?s employees de-energized the lines in the vault at issue by opening line 4 in Vault 5103812, they then re-energized the ?R? cables in the vault at issue when they closed line 3 in vault 5102740. Mr. Glover states in paragraph 44 that this re-energized ?R? cable in the vault exposed the employees to approximately 12,000 volts of electricity. As discussed below, Mr. Glover states in paragraph 40 it would be very difficult for a worker to identify the cables because the cables either lacked labels or the labels were confusing. This creates a question of fact whether the Defendant re-energized cables that were dangerous because they were not properly labeled.
The Plaintiff also provides evidence that creates a question of fact about whether the Defendant had pumped the water out of the vault with Mr. Glover?s declaration. Dr. Glover states that the vault was wet and muddy and was reported to contain four inches of water. This is based on the deposition of Jose Ramon, who testified that the water was four inches deep in the vault (Chang decl., exhibit 6, pages 100 and 101). It is reasonable to draw an inference from the fact that there was four inches of water in the vault, that the Defendant had not pumped the water out of the vault in which the decedent was expected to work on electrical lines. This creates a question of fact whether the Defendant had pumped the water out of the vault.
The Plaintiff also provides evidence that creates a question of fact about whether the the equipment was corroded. This is based on the testimony of Patrick Lavin, who testified that when he reviewed the equipment at issue, the permanent labels were so encrusted with corrosion and ?years of crap, for lack of better words? that they were not discernable (Chang decl., exhibit 8, page 37). Mr. Lavin testified that it took him 15 minutes with a screwdriver and a wire brush before he could make sense of them (page 37). Mr. Lavin also testified that the test points on the cables were corroded and that the tags were corroded and that he had to scrape off the corrosion with a screwdriver and brush to read them (pages 38, 92, and 93). Mr. Glover states that in paragraph 36 of his declaration that the signs of rust and corrosion indicates that the vault had been full of saltwater for extended periods of time and that this would have caused a deterioration in the electrical equipment. This creates a question of fact whether the corroded equipment increased the danger to workers in the vault.
Further, the Plaintiff provides evidence that the labeling was incorrect. Mr. Glover states in paragraph 39 that when he inspected the switch and other equipment that had been removed from the vault at issue, he observed that there were no labels on three of the cables and that the labels on two other cables were confusing. Mr. Glover states in paragraph 40 that the lack of labeling and the confusing labels would create a condition in which a worker would find it very difficult to identify the cables. This creates a question of fact whether the lack of proper labels increased the danger to workers in the vault.
Accordingly, the Plaintiffs have met their burden by providing evidence that shows that there is a question of fact whether the Defendant is liable for its own negligent conduct with evidence that the Defendant failed to de-energize all the high voltage electrical equipment in the vault, that the Defendant failed to pump the water out of the vault, that the Defendant failed to ensure that the vault was dry before allowing access, and that the Defendant failed to replace or repair corroded equipment, wiring, labels, and tags.
Therefore, the Defendant is not entitled to summary judgment on the Complaints filed by the decedent?s mother, Dela Marth, and by the decedent?s father, Hector Orozco, because there are questions of fact whether the Defendant?s conduct negligently caused the death of Brandon Orozco.
In the alternative, the Defendant seeks summary adjudication of the Plaintiffs? claim for punitive damages. Under CCP section 437c(f), a party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. The Legislative intent of CCP section 437c(f) was to stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or a defense. Lilienthal & Fowler v. Superior Court (1993) 12 Cal. App. 4th 1848, 1854.
Civil Code section 3294 authorizes a plaintiff to obtain an award of punitive damages when there is clear and convincing evidence that the defendant engaged in malice, oppression, or fraud. Section 3294(c) defines the terms in the following manner:
1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
The Plaintiffs do not allege that the Defendant intended to cause the death of Brandon Orozco. Since the Plaintiffs are not alleging that the Defendant intended to cause the damages, the Plaintiffs? burden at trial will be to show that the Defendant?s conduct was despicable conduct carried on by the Defendant with a willful and conscious disregard of the rights or safety of others.
The Defendant argues that the Plaintiffs cannot establish that it engaged in despicable conduct with a willful and conscious disregard of the rights and safety of others because it had de-energized the cables in the vault, the equipment was correctly labeled and tagged, the switches, cables, and tags were not corroded, and there were no exposed energized equipment. The Defendant also provides evidence that it followed an inspection policy that complied with California Public Utilities Commission regulations and that there is no evidence that the Defendant failed to comply with these requirements.
As discussed above, there are questions of fact about whether the Defendant had de-energized all the cables, whether there were proper labels for the cables, and whether there was substantial corrosion and water in the vault. Further, the Plaintiff has provided evidence that three of the cables had no labels and that the signs of rust and corrosion indicated that the vault had been full of saltwater for extended periods of time and that this would have caused a deterioration in the electrical equipment. It is reasonable to draw an inference from the facts showing that the cables lacked labels and that there was substantial corrosion in the vault that the Defendant had not, in fact, inspected the vault. This creates a question of fact whether the Defendant had ever inspected the vault or had followed any inspection policy.
The Defendant also argues that the claim for punitive damages is barred because it had followed an inspection program approved by the California Public Utilities Commission in General Order 165. However, as noted above, the evidence of a substantial amount of corrosion that was caused by submersion in saltwater for extended periods of time by extensive and the lack of proper labels on the cables creates a question of fact whether the Defendant had made any of the inspections required by the Commission.
It would be despicable conduct carried on with a conscious disregard of safety to send workers to work on electrical cables in an underground vault that was not inspected. Since there are questions of fact whether the Defendant engaged in despicable conduct with a willful and conscious disregard of the rights or safety of others by failing to inspect or maintain the underground vault at issue such that it allowed water to cause substantial corrosion and it did not ensure that the cables carrying the electricity contained proper labels, the Defendant is not entitled to summary adjudication of the claim for punitive damages.
Therefore, the Court will deny the Defendant?s motion on both bases.
RULING:
Deny motion for summary judgment.
Deny motion for summary adjudication