California Court of Appeals, Second District, Fourth Division
APPEAL from a judgment of the Superior Court for Los Angeles County, No. YC065545 Stuart M. Rice, Judge.
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Patricia A. Cirucci, Brian A. Cardoza, Carla M. Blanc; Lim, Ruger & Kim, Christopher Kim, Sandra Sakamoto, Arnold Barba, Julie Kwun; Greines, Martin, Stein & Richland, Timothy T. Coates, Meehan Rasch and Robin Meadow for Defendant and Appellant.
Grassini, Wrinkle & Johnson and Roland Wrinkle for Plaintiff and Respondent.
Defendant Southern California Edison Company (Edison) appeals from a judgment following a jury trial in which the jury found in favor of plaintiff Simona Wilson on her claims for intentional infliction of emotional distress (IIED), negligence, and nuisance, and awarded her $1, 050, 000 in compensatory damages and $3 million in punitive damages. All of her claims are based upon her allegation that Edison failed to properly supervise, secure, operate, maintain, or control the electrical substation next door to plaintiff’s house (the Topaz substation), allowing uncontrolled stray electrical currents to enter the home. Stray current (or stray voltage) is the unavoidable byproduct of grounding an electrical system.
The gas company found stray voltage on Wilson’s gas meter the year after she moved into the house, and again two years later. Edison paid for certain measures taken by the gas company, which virtually eliminated the voltage on the meter. After Wilson remodeled her master bathroom (four years after she moved into the house), she began to feel low levels of electricity in her shower, because the shower had metal pipes and the drain was connected to the ground, which allowed the stray electricity to flow when someone touched the shower while in contact with the drain. Edison offered to replace all or a portion of the metal pipes with plastic, which would eliminate the voltage in her shower, but Wilson refused the offer and insisted that Edison eliminate all stray voltage on her property. She subsequently filed the instant lawsuit.
Edison contends that Wilson’s claims fall under the exclusive jurisdiction of the Public Utilities Commission (the commission or PUC), that no
substantial evidence supports her claims, that the damages award is excessive, and that punitive damages were unjustified. We conclude that the PUC has not exercised its authority to adopt a policy regarding the issues in this lawsuit, and therefore it does not have exclusive jurisdiction over Wilson’s claims. But we also conclude that Wilson failed to present sufficient evidence to support her IIED and negligence claims, or to support an award of punitive damages. Finally, we conclude the verdict on the nuisance claim cannot stand because the trial court refused to give Edison’s proffered instruction regarding causation of Wilson’s physical symptoms, and therefore the jury relied upon irrelevant evidence when determining that claim. Accordingly, we reverse the judgment, order judgment entered in favor of Edison on the IIED and negligence claims, and remand to the trial court for a retrial on the nuisance claim.
A. Fundamentals of Electrical Distribution Systems and Electricity
Analysis of the facts and issues in this case requires a basic understanding of electricity and electrical distribution systems.
Electricity is produced at a generating plant. Because it is not economical to send electricity over long distances at low voltages, the electricity produced at the plant is stepped up through transformers to a very high voltage before it is sent out over transmission lines. A substation, such as Edison’s Topaz substation at issue in this case, receives the high voltage electricity from the generating plant and steps it down through transformers to 4, 000 volts. It then sends the electricity over distribution lines out to the neighborhood power poles, where an additional transformer steps down the voltage to 240/120 volts before delivering the electricity to homes or businesses.
In order for electricity to flow, there must be a complete circuit. In other words, when electricity is sent out from a transformer to a “load” (i.e., something that is using electricity, such as a light or appliance), it must have a return path. Typically, electricity is sent over one conductor (wire), called the “hot, ” and returns on another conductor called the neutral. The flow of electricity is referred to as “current” and is measured in amperes (or amps); voltage is the pressure that drives the current. The amount of current depends in part upon the amount of resistance in the circuit; e.g., a 100-watt lightbulb
has less resistance than a 60-watt lightbulb, so there will be a larger current flowing through it (and therefore the bulb burns brighter).
For safety reasons, electrical systems usually are grounded. That means that at various points in the system, including at the substation, a connection is made from the neutral to the ground, i.e., the earth. Because the earth is conductive, it can provide a return path for the flow of electricity. Therefore, if, for example, an energized wire fell to the ground from the distribution lines, the earth would provide a path for the current to return to the substation, where a protective device would break the circuit. But the conductivity of the earth also can present a danger to someone who touches a source of electricity. If that person is in physical contact with the earth, electricity will flow from the electrical source, through his or her body, to the earth and on to the distribution system or substation, thus completing the circuit. The amount of current will depend on the resistance of the person’s body, the amount of contact area, and the amount of voltage present.
In a grounded electrical system, there will always be some current flowing back to the substation through the earth. This is referred to as neutral-to-earth voltage, or NEV, and it cannot be entirely eliminated. NEV is one cause of “stray voltage, ” which is voltage of 10 volts or less appearing on objects, that are not part of an electrical system, that can be simultaneously contacted by members of the general public. Metal objects, such as water pipes or gas lines, that are buried in or connected to the earth will conduct electricity, so if a person in a home touched a water pipe that was energized due to NEV while also touching the earth or another conductor at a different voltage, a circuit would be completed and current would run through that person’s body. This “touch potential” can be eliminated by replacing metal pipes with plastic pipes or installing isolators (such as a short section of plastic pipe) to stop the flow of electricity onto metal fixtures, or by connecting (or “bonding”) the two conductors to equalize the voltage between the two.
The physiological effects of current flowing through a person’s body depends upon the amount of the current. According to a leading reference, a woman who encounters a current of 0.3 milliamps (mA) would not feel anything. At 0.7mA, she would feel a slight tingling; that typically is the perception threshold. At 1.2mA, she would feel a shock, but it would not be painful and muscular control would not be lost. She would feel a painful shock at 6mA, but she would still have muscular control. The let-go threshold
is at 10.5mA, and at 15mA, she would feel a severe shock, have muscular contractions, and her breathing could be difficult. Administration of currents on patients often is used by physicians to determine whether they have nerve damage; they typically administer currents of 20 to 50mA, and can administer up to 120mA.
B. History of the Property
The house at issue in this case is located at 904 Knob Hill Drive in Redondo Beach, next door to Edison’s Topaz substation. Edison owned the house until 1999.
In 1995, Edison rented the house to the Pantucci family. Before renting the house to the Pantuccis, a corporate real estate agent from Edison asked Edison’s facilities manager to take a look at the electrical system because a previous tenant had complained that she got a shock in the kitchen from the sink or refrigerator.
Edison hired an electrical contractor, Precision Electric, to go through the electrical panels and the house to make sure everything was in order. Precision Electric took voltage readings by the sink to the ground, and found no voltage. The contractor replaced a ground clamp and went through the entire house, but did not find any electrical problems. The contractor was called back to the house after another Edison agent touched the dishwasher door while standing in water (the dishwasher had leaked) and felt a shock. When Precision Electric checked the dishwasher, the water was gone, and there was no voltage between the dishwasher and a tack strip on the floor. The contractor told Edison the shock could have been caused by the power feed to the dishwasher being in water when the dishwasher leaked.
Soon after the Pantuccis moved into the house, they began to experience shocks in the bathtub, at the washing machine, in a kiddie pool in the backyard, and at other places around the house. The shocks were mild, and
no one was hurt. The Pantuccis complained to Edison a couple of times, and Edison sent people several times to try to fix the problem, but it never got fixed.
In April 1997, Edison’s lease administrator, Tina Drebushenko (now Van Breukelen) e-mailed several Edison employees regarding some calls she recently received from Ms. Pantucci about shocks she received when touching faucets. Ms. Pantucci also told her that the family no longer used the bathtub. Drebushenko reported that “[t]his problem was supposed to have been corrected some time ago, but the tenants report that it never really was... they just put up with it and stopped calling.” She said that Ms. Pantucci told her that the shocks were getting stronger, so Precision Electric was sent to the house. The electrician who went there detected some stray voltage, and also believed there was faulty wiring somewhere in the electrical system. Precision Electric asked for an Edison troubleshooting team to meet it at the house the following week “to rule out any substation problems.” When Ms. Pantucci called the next day to report that the problem had gotten worse after Precision Electric left, Drebushenko contacted Precision Electric and the troubleshooting team to have them meet at the house that same day.
In her e-mail to her colleagues, Drebushenko emphasized that Edison needed to “get this matter resolved once and for all or determine if it can[‘]t be solved.” She stated that she had submitted the property to be released for sale, but that Edison might want it as a buffer. She said that if Edison could sell the property, it would first have to fix the problem, but if the problem cannot be fixed, Edison should consider demolishing the structure.
The Pantuccis moved out a few months later, in September or October of 1997.
In January 1998, Mark Raidy was preparing the house for possible sale. He met with several Edison employees at the house to try to determine the source of the shocks and find a solution to fix the problem. They opened the main circuit breaker (i.e., shut off power to the house) and took readings. They found two amps flowing in the service drop (i.e., wire) from the backyard pole to the house. They took readings on the water pipe into the house and out to the sprinklers in the backyard, and found no current. They agreed that the other likely path for the current was the sewer pipe, and determined they should replace the sewer pipe with plastic. Once the sewer pipe was replaced, they would meet again, and have a troubleman there to perform a test.
They also found stray voltage inside the house. They took a reading, and found over five volts from the damp carpet/tack strip between the kitchen and dining area and the ground on a kitchen outlet. They agreed to do more troubleshooting at their next meeting. In an e-mail to the meeting participants, Raidy told them: “If we can solve these problems and feel comfortable that they won’t recur, we will proceed to market the home. If constant maintenance is needed to prevent the re-occurrence of the problem, we should probably retain the property so we can control the maintenance. If we can’t solve the problem, we should not allow the property to be inhabited.”
Sometime later, Edison found there was a problem on a distribution pole up the street from the house. When the problem was fixed, the stray voltage at the house stopped.
In June 1998, Raidy made a site visit at the house with Edison’s sales and leasing manager, Charles Kraushaar. Raidy told Kraushaar about the reports by prior tenants of shocks at the property. He said that Edison had determined that the source of the shocks was a faulty transformer on a distribution pole up the street; the transformer was replaced, which eliminated the problem. Kraushaar touched the faucet and showerheads that previously had produced shocks to verify there were no more shocks. Kraushaar had no concern about stray voltage at the site, and authorized the release of the property for sale.
3. 1999 to 2008
Edison sold the house to the Ozerans in 1999. Edison did not receive any reports of shocks at the house for the next five years. In 2004, the Ozerans complained to Edison that the tenants of the house were getting shocked in the laundry room in the garage, in the yard at the hose bibs, and in one of the bathrooms. Edison employee Matthew Norwalk was asked to investigate as part of a team that included people from Edison’s substation, field engineering, and power quality departments. Norwalk performed voltage measurements, and found voltages ranging from 11 to 15 volts inside and outside the house. The team investigated the design and integrity of all connections on the distribution system, wiring within the home, and connections and design of the substation, and performed modeling of substation grounding.
Thousands of man-hours were spent by members of the team and others, trying to determine the source of the problem. They deenergized and inspected each circuit at Topaz to see if there were issues with any of the circuits. Ultimately, they found and replaced some corroded connectors, and
determined after a ground study that the grounding of the system could be improved. They concluded, based on modeling, that the voltage around the substation could be equalized to bring down the difference in voltage between the house’s ground and the waterlines on the property by adding a common neutral.
The common neutral plan was implemented in February 2005. Afterwards, the Edison team performed voltage measurements at the house, and found the voltage had dropped to approximately 3.5 volts (without a resistor). Using a 1,000 ohm resistor to replicate the internal resistance of a human body, the Edison team determined that a voltage of 3.5 volts would not produce any harmful level of current (the level of current would be approximately 3.5mA). Norwalk spoke with the tenants of the house, and they were satisfied with the results. Edison received no more complaints of shocks or stray voltage until 2008.
C. Events Leading Up To Present Lawsuit
Wilson bought the property in March 2007 and moved in with her husband, Ryan Fisher, and son. She asked the previous owner whether there were any safety hazards in the home with respect to the substation next door, and was told there had been no problems. Neither she nor Fisher was aware of any voltage problem with the house until August 2008.
1. Voltage on the Gas Meter
When Fisher came home from work on August 22, 2008, he found tags from the gas company saying that it had found a dangerous condition; there was electricity (measured at 7 volts) detected at the gas meter. The tags indicated that the gas had been turned off, and Fisher was advised to call the electric company.
In response to Fisher’s call, Norwalk came to the house and took a voltage measurement on the gas pipe entering the property. He measured 1.8 volts without a resistor. Norwalk told the gas company that the source of the voltage appeared to be NEV, and that Edison would investigate to see if it could be further reduced. Edison tested the effect of removing the common neutral, and discovered that the voltage on the meter went down when they disconnected it but the voltage from the hose bib to the ground went up to 8 volts, so they restored the common neutral. Generally, when the source of voltage at a gas meter is NEV, the gas company will accept that voltage level. To verify that the source of the voltage was NEV, Edison placed a device on the gas meter to record the voltage to see if the voltage trended the load on the substation. Upon learning that Edison was monitoring the voltage, the gas company restored service to the house. Edison ultimately determined that the voltage changed in direct relationship to the loading of the substation, which confirmed that the source of the voltage was NEV.
The gas company notified Wilson again in April 2010 that it had detected electricity on the gas meter, although it did not turn off the gas at that time. The gas company also found voltage on the gas lines of other homes and facilities in the area. Representatives from the gas company had several meetings with representatives from Edison to try to find a way to address the problem. Ultimately, it was determined that the best way to eliminate voltages on the gas lines and meters was to install isolators on the gas service lines to the customers’ homes. Edison paid several thousand dollars for the installation of isolators, which was completed in 2012 and reduced the voltage on the gas meters to less than one volt.
2. Voltage in the Shower
In the meantime, in March 2011, Wilson remodeled her master bathroom. The construction was done to code by Wilson’s father, who was a contractor. As part of the remodel, Wilson replaced an elevated bathtub with a shower that had a metal drain in the concrete on the floor, so it had contact with the earth. After the remodel, Wilson began feeling a “tingling sensation” while she was showering, but she thought it was a pinched nerve. On the evening of April 19, Wilson told her boyfriend, Jason Stelle, that she was “feeling some kind of tingling” while showering. Stelle got in the shower to adjust the showerhead and “started feeling a tingling sensation as well.” After touching the showerhead a few more times, he realized that the sensation was not from
his body, but was from the fixture. He touched it numerous times that evening and the next day to confirm there was a ...