APPEAL from the Superior Court of San Bernardino County. Kurt J. Lewin (retired judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Tom Garza, Judges. Affirmed in part and reversed in part. (Super.Ct.No. VCVVS032374)
The opinion of the court was delivered by: King J.
CERTIFIED FOR PUBLICATION
Plaintiff Amanda Laabs was a passenger in a car that collided with another car in an intersection and then struck a light pole installed and owned by defendant Southern California Edison Company (SCE). Laabs sued various parties, including SCE and Edison International (Edison), for damages. Relative to SCE and Edison, Laabs alleged that these defendants were negligent and proximately caused her injuries by placing and maintaining the light pole too close to the curb. SCE and Edison moved for summary judgment on the ground that they owed no duty of care to Laabs as a matter of law. The court granted the motion and entered judgment in their favor. Laabs appealed. Because Laabs presented no argument against summary judgment in favor of Edison, we affirm the judgment as to that party. For reasons explained below, we reverse the judgment in favor of SCE.
II. FACTUAL AND PROCEDURAL BACKGROUND
Laabs was a passenger in a car driven by James Dimeo. Dimeo was driving northbound on Ridgecrest Road, which has a posted speed limit of 55 miles per hour. He was driving at an excessive rate of speed. Dimeo's car was struck by another car at an intersection with Pebble Beach Drive. The impact caused Dimeo's car to travel across the two southbound lanes of Ridgecrest Road, jump the curb, slide along the sidewalk for some distance, and hit a concrete light pole erected 18 inches away from the curb. Laabs was injured. The light pole was owned and maintained by SCE. Laabs sued SCE and Edison on the theory that these defendants acted negligently by installing and maintaining the light pole so close to the curb.*fn1
SCE and Edison moved for summary judgment on the ground that ―they owed no duty of care‖ to Laabs. The facts recited above regarding the collision are essentially undisputed. Defendants also rely upon the following undisputed facts: SCE provides electrical service to the City of Victorville pursuant to a written agreement; SCE, not Edison, owned and maintained the subject light pole; the light poles are installed for the benefit of the city; the subject light pole was installed in 1993 and was made of concrete; the side of the light pole facing the street is 18 inches from the curb; at the light pole's location, the paved sidewalk is six feet two inches wide; Dimeo's car slid on the sidewalk ―and came to rest with its front end extended well beyond the paved sidewalk‖;*fn2 and the light pole was designed to provide light for traffic traveling southbound, not northbound, on Ridgecrest Road.
In support of the motion, SCE and Edison relied primarily upon the declarations of Robert Binns and Y.M. Nahabedian. Binns is a supervisor in SCE's Street and Outdoor Lighting Department. He authenticated a ―Master Agreement for Service and Street Lighting‖ entered into between SCE and the City of Victorville in 1977. Under this agreement, light poles are to be installed by SCE at locations shown on a map, which, according to the agreement, is on file with the city clerk. A copy of the map is also purportedly attached as an exhibit to the agreement. However, the copy of the agreement included in our record does not include the map exhibit, and a copy of the map is not otherwise included in our record.*fn3 The agreement further provides that ―[a]ll poles, wires, lights, and electrical apparatus installed by [SCE] . . . shall be so placed as to work the least possible public and private inconvenience, and [the City of Victorville] may at any time order the location of any part of the system changed by [SCE] at the expense of [the City of Victorville] to conform to the above requirements.‖
Binns further declared that light poles installed by SCE in the City of Victorville are for the benefit of the City. Binns explained that SCE ―defers to the appropriate governmental agency for all decisions related to street design and/or traffic engineering,‖ and that the decision regarding the location of the light pole was made by ―the City [of Victorville] and/or the developer of the area.‖ The subject concrete light pole was erected in 1993. Although the installation work order for the light pole was not available, Binns stated that he has ―seen no evidence to suggest that SCE deviated from its custom and practice with regards to street lighting design and installation with regards to the subject Electrolier.‖ He described such custom and practice as follows: ―Typically, the City or developer requesting new street light facilities hires its own engineers, including street lighting engineers, to design the type of system required for the project. Once the plans and permits are secured, SCE's planning department is contacted to co-ordinate the installation of the desired lighting as consistent with the pre-designed plans.‖
The other declarant in support of the motion, Nahabedian, is a retained civil and traffic engineering expert. According to Nahabedian, the center of the subject light pole was 22 inches from the top of the curb and the curbside edge of the light pole was 18 inches from the top of the curb. The paved sidewalk at the point where the light pole was installed is six feet two inches wide. Nahabedian opined that ―the location and the placement of the subject Luminaire was reasonable and was in conformity with the luminaire construction industry's practice in California.‖ Nahabedian relied, in part, upon ―‗A Policy on Geometric Design of Highways and Streets'‖ published by the American Association of State Highway and Transportation Officials. This document states: ―Where there are curbed sections, utilities should be located in the border areas between the curb and sidewalk, at least 0.5 [meters] [1.5 ft] behind the face of the curb, and where practical, behind the sidewalk.‖ The placement of the subject light pole, he states, conforms to these requirements. Nahabedian also relied upon his experience while employed with the California Department of Transportation. He stated that ―the standard practice in California . . . is to place luminaire poles along roadways with pedestrian sidewalks behind concrete curbs from 18 inches to 30 inches, depending upon the width of the paved sidewalk. In general, a set-back of 18-24 inches is common placement in paved sidewalks less than 7 feet in width and set-backs of 24-30 inches on paved sidewalks 8 feet or wider.‖ He concludes that the placement of the subject light pole was consistent with this practice.
In her opposition separate statement, Laabs disputes the following conclusions of defendants' experts: the location of the light pole was within ―common industry practice and is consistent with industry standards for road construction of the type at issue‖; and, ―[f]rom a roadside design standpoint, it is unreasonable to require that the Electrolier on the west side of Ridgecrest Road (in the Direction of Southbound traffic) [be] designed to avoid contact by out of control vehicles traveling northbound in excess of 100 miles per hour, which cross four lanes of travel, enter on coming traffic, jump the curb on th[e] opposite side of the street and slide into it.‖
Laabs also asserted the following ―undisputed facts‖: the intersection of Ridgecrest Road and Pebble Beach Drive has been the site of numerous accidents; the intersection became more dangerous following the widening of Ridgecrest Road in 1996; the installation of the subject light pole was in direct contravention of highway safety standards; 12 feet of space is available for the installation of light poles along Ridgecrest Road; under Caltrans standards, the light poles should have been set back as far as practical from the roadway to prevent the least possible hazards to out-of-control vehicles; the location of the light pole ―constituted a dangerous condition‖; and the City of Victorville does not design, specify, suggest or approve any specification of a design, manufacture, or process of the light poles provided by SCE. Defendants objected to some of these additional facts as irrelevant and others as lacking foundation or constituting improper expert opinion evidence. The court overruled these objections.
In support of her opposition, Laabs relied primarily upon declarations by John McGlade and Howard Anderson. John McGlade is the City Engineer of the City of Victorville. McGlade declared that the light poles on Ridgecrest Road ―are owned, installed, maintained, and controlled by [SCE].‖ He further stated that the ―City of Victorville does not design, specify, suggest or approve any specification of a design, manufacture or process for the [luminaires] or the structures on which the [luminaires] are attached, installed or otherwise provided by [SCE].‖
Howard Anderson is an expert in the design and construction of safe highways and roadways. According to Anderson, the average speed of northbound traffic on Ridgecrest Road near the point of the collision was 56 miles per hour, and ―the 85th percentile of drivers . . . were traveling at 62 [miles per hour].‖ Anderson opined that the design of the Ridgecrest Road/Pebble Beach Drive intersection created a dangerous condition. Anderson also made the following statements: ―[M]y examination of the subject intersection revealed the installation of lighting and luminaires supports, such as the one struck by the Porsche in the subject accident, in direct contravention of highway safety standards‖; ―California regulations for traffic highway safety and construction require that any such lights and their luminaires supports must be constructed to present the least possible hazards to out of control vehicles‖; ―The subject luminaires supports have been installed along the southbound side of Ridgecrest Road leading up to and away from the subject intersection‖; ―Where lights are installed, lumina[ires] supports are required to be placed as far as possible from the roadway‖; ―The subject lumina[ires] supports have been placed approximately eighteen (18) inches from the curb line and actually on a pedestrian sidewalk in direct violation of the clear roadside policy‖; ―It is my expert opinion that the installation of light supports along the southbound travel lanes of Ridgecrest Road created a dangerous condition‖; and, ―It is my expert opinion that the approval of the design and installation of light supports along the southbound travel lanes of Ridgecrest Road was unreasonable.‖
At Anderson's deposition, he was asked to explain his statement that the installation of the light pole contravenes highway safety standards. He explained that ―it is the State of California's practice, and all other practices, that you get the objects as far back from the travel lane as possible.‖ At the area where the collision occurred, Anderson explained further, the light pole could have been placed as much as 12 feet away from the curb. Anderson also pointed to a statistic that 60 percent of the people in an accident that involves hitting a light pole die as a result; thus, ―anybody that is setting them out against the curb should have a real good reason to do it[,] and why not use the right-of-way that is available to lessen that chance of that severe accident.‖
When Anderson was asked whether the light pole would still be a hazard if it was placed three feet from the curb, he responded: ―It could, but it would be less likely, and four feet less likely and five feet and certainly nothing to prevent it from being installed at ten feet because that is still within the right-of-way . . . .‖ Later, he added: ―The closer any hazard gets to the road, the more hazardous it is, and if it was set back the ten feet, your chances of being hit are considerably less than they are if they're 18 inches.‖
Laabs also submitted the declarations of Keith Friedman and Robert Crommelin. Friedman is a retained accident reconstruction expert. He declared that, based upon his preliminary analysis, Dimeo was driving at approximately 74 miles per hour at the time of impact.
Robert Crommelin is a retained traffic engineering expert. Crommelin opined that the intersection of Ridgecrest Road and Pebble Beach Drive was in a dangerous condition based upon the ―negligent design‖ of the intersection. He based this opinion, in part, upon evidence of 12 crashes with similar patterns involving a northbound through vehicle and a westbound left-turning vehicle occurring in the 11 years preceding the subject collision.
A trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) ―The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]‖ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff's causes of action, or shows that one or more elements of each cause of action cannot be established. The defendant must support its motion with affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. (Code Civ. Proc., § 437c, subds. (b) & (o)(2); Aguilar, supra, 25 Cal.4th at p. 849.)
A moving party defendant bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to the responding party plaintiff to demonstrate the existence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) The plaintiff may not rely upon the mere allegations in its complaint, but must set forth ―specific facts‖ showing that a triable issue exists. (Code Civ. Proc., § 437c, subd. (p)(2).)
From commencement to conclusion, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at p. 850.) ―In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted . . . . [Citations.] The court must consider all evidence set forth in the parties' papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action, thereby entitling the moving party to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)‖ (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1261.)
―On appeal, we exercise ‗an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' [Citation.] ‗. . . Moreover, we construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.' [Citations.]‖ (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202.)
Summary judgment was granted in favor of SCE on the ground that it owed no duty of care to Laabs as a matter of law. As we explain, we will reverse. We note, however, that we do not hold that SCE owed Laabs a duty of care as a matter of law; rather, we hold that triable issues of fact exist as to the relevant considerations underlying duty in this case, and that SCE failed to establish that it was entitled to judgment as a matter of law. While we recognize that the issue of duty is a matter for the trial court, it is nonetheless a factually oriented inquiry. As stated in Burger v. Pond (1990) 224 Cal.App.3d 597, 603, ―‗Foreseeability' and ‗policy considerations' are not determined in a vacuum, but rather depend . . . upon the particular circumstances in which the purported wrongful conduct occurred.‖
B. General Duty of Public Utilities to Use Reasonable Care in the Placement of Light Poles
We begin by noting that the concept that a public utility may owe a general duty to motorists to use reasonable care when placing light poles adjacent to roadways is not novel. In Gerberich v. Southern Calif. Edison Co. (1935) 5 Cal.2d 46, our Supreme Court stated a ―general rule that where a pole is located in too close proximity to the traveled portion of the highway, . . . recovery [by a plaintiff injured in a collision with the pole] may be justified.‖ (Id. at p. 53; accord, Norton v. City of Pomona (1935) 5 Cal.2d 54, 60-61; George v. City of Los Angeles (1938) 11 Cal.2d 303, 310-313.) The Gerberich court explained that a public utility's light pole ―may by reason of its location or maintenance without warning signs, lights, guards or other precautions, constitute a danger to traffic; and if the danger is sufficiently great, and it can be avoided by the exercise of reasonable care, either in relocation or the placing of effective warning devices or guards, then the jury might find negligence in the failure to take such steps.‖ (Gerberich v. Southern Calif. Edison Co., supra, at pp. 51-52, italics added.) More recently, a Court of Appeal noted the continuing validity of these authorities in White v. Southern Cal. Edison Co. (1994) 25 Cal.App.4th 442, which stated that a ―public utility, which negligently places a power pole too close to the road, may be liable to the occupants of a motor vehicle injured when their vehicle collides with the pole.‖ (Id. at pp. 447-448 [dictum].)*fn4
Indeed, SCE acknowledges that as the owner of property it has a duty to exercise ordinary care in the management of such property in order to avoid exposing others to an unreasonable risk of harm. (See Rowland v. Christian (1968) 69 Cal.2d 108, 119; Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) Nevertheless, SCE argues that it did not owe a duty of care to Laabs under the circumstances presented here based upon the application of traditional factors used to find a duty of care.*fn5 We now turn to an examination of these factors.
C. Considerations in Evaluating the Issue of Duty
―The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. [Citations.]‖ (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) As a general rule, each person has a duty to use ordinary care and ―is liable for injuries caused by his failure to exercise reasonable care in the circumstances . . . .‖ (Rowland v. Christian, supra, 69 Cal.2d at p. 112; Civ. Code, § 1714.) This applies to public utilities, which have ―a general duty to exercise reasonable care in the management of [their] personal and real property.‖ (White v. Southern Cal. Edison Co., supra, 25 Cal.App.4th at p. 447.)
―‗Courts, however, have invoked the concept of duty to limit generally ―the otherwise potentially infinite liability which would follow from every negligent act . . . .‖' [Citations.]‖ (Bily v. Arthur Young & Co., supra, 3 Cal.4th at p. 397.) ―A judicial conclusion that a duty is present or absent is merely ‗―a shorthand statement . . . rather than an aid to analysis . . . . ‗[D]uty,' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.‖' [Citations.]‖ (Ibid.) ―Whether a given case falls within an exception to [the] general rule, or whether 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.' [Citation.]‖ (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.) This determination involves the balancing of various factors, including ―‗[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden ...