California Court of Appeals, Second District, Fifth Division
from a judgment of the Superior Court of Los Angeles County
No. BC492694, John P. Doyle, Judge. Reversed and remanded
Shernoff Bidart Echeverria Bentley, Gregory L. Bentley,
Steven Schuetze; Shernoff Bidart Echeverria, Michael J.
Bidart, Steven Schuetze; The Ehrlich Law Firm, Jeffrey I.
Ehrlich, for Plaintiffs and Appellants Joanne Lichtman,
Douglas Evans, and Samuel Evans.
Brown & Bonesteel, William O. Martin, Jr., Vangi M.
Johnson, Whitney L. Stefko, for Defendant and Respondent.
DUNNING, J. [*]
night of plaintiffs' accident, there were no batteries in
a traffic signal's battery backup unit. During a power
outage, plaintiffs' vehicle entered the dark intersection
and was struck by another car. Plaintiffs sued the entity
responsible for maintaining the battery backup system,
alleging its negligence proximately caused their injuries.
The trial court granted defendant's motion for summary
judgment on the basis defendant owed no duty of care to
plaintiffs as a matter of law. We reverse.
AND PROCEDURAL BACKGROUND
2004, the City of Glendale (the City) installed battery
backup units for traffic signals at various intersections to
promote community safety by providing power in the event of a
power outage. Four years later, the City contracted
with Siemens Industry Inc., doing business as Republic ITS
(defendant), to perform preventive and extraordinary
maintenance, service, and repairs on electrical
traffic-related devices at intersections in the City,
including the battery backup system.
to the City's traffic engineer, Khang Vu, the City
expected defendant to provide notification when there was a
problem with a traffic signal, including whether a backup
system battery required replacement at a particular location.
Defendant needed authorization from the City's traffic
engineer to replace a battery.
January 12, 2011, the battery backup unit for the traffic
signal at the Glendale Avenue/Broadway intersection indicated
“low voltage.” Batteries at this and other
locations were failing to hold their charges, and defendant
removed a number of units for testing. In August 2011, a unit
with new batteries and a new battery temperature sensor was
installed at one intersection to see if the problem had been
resolved. Defendant reinstalled a battery backup unit in the
Glendale Avenue/Broadway traffic signal at the same time, but
did not insert any batteries. The unit remained inoperable
until batteries were inserted 11 months later, in July 2012.
September 4, 2011, a power outage caused the traffic signal
at the Glendale Avenue/Broadway intersection to go dark.
Because there were no batteries in the backup unit for that
intersection, the traffic signal did not function in any
direction. At approximately 11:00 p.m., the vehicle driven by
Joanne Lichtman, with her spouse Douglas Evans and son Samuel
Evans (plaintiffs) as passengers, entered the intersection.
Plaintiffs' car was broadsided on the driver's side
by another vehicle, careened sideways, and hit a pole. All
plaintiffs were injured, Lichtman severely.
sued several entities to recover damages for their personal
injuries. Against defendant, plaintiffs asserted
three causes of action based on negligence theories. They
resolved their suit against all parties except defendant.
moved for summary judgment, contending it owed no duty of
care to plaintiffs and its actions were not a proximate cause
of plaintiffs' injuries. The trial court ruled as a
matter of law defendant did not owe plaintiffs a duty of
care, but also concluded plaintiffs raised a triable issue of
material fact as to proximate cause. The first ruling was
dispositive, however, and judgment was entered in
elements for negligence causes of action are the existence of
a duty of care, breach of that duty, and an injury
proximately caused by the breach. (Ladd v. County of San
Mateo (1996) 12 Cal.4th 913, 917.) The defendant in a
negligence action is entitled to summary judgment if it
demonstrates “one or more elements of the cause of
action, even if not separately pleaded, cannot be
established.” (Code Civ. Proc., § 437c, subd.
trial court found as a matter of law plaintiffs could not
establish a duty of care and granted summary judgment in
defendant's favor. That ruling presents a question of law
for our de novo review. (Cabral v. Ralphs Grocery
Co. (2011) 51 Cal.4th 764, 770-771 (Cabral).)
reasons that follow, we reverse. Because the trial court was
not presented with cross-motions for summary judgment, we do
not find defendant owed plaintiffs a duty of care as a matter
of law. Rather, we hold defendant failed to establish it was
entitled to judgment as a matter of law. (Laabs v.
Southern California Edison Co. (2009) 175 Cal.App.4th
1260, 1269 (Laabs).)
“fundamental element” for every negligence cause
of action is “the existence of a legal duty of care
running from the defendant to the plaintiff.”
(Taylor v. Elliott Turbomachinery Co., Inc. (2009)
171 Cal.App.4th 564, 593.) “A duty may arise through
statute, contract, or the relationship of the
parties.” (National Union Fire Ins. Co. of
Pittsburgh, PA v. Cambridge Integrated Services Group,
Inc. (2009) 171 Cal.App.4th 35, 45 (National
Union); see also J'Aire Corp., supra, 24
Cal.3d at p. 803.) California also recognizes a common law
duty in certain circumstances based on the theory of
negligent undertaking. (Artiglio v. Corning, Inc.
(1998) 18 Cal.4th 604, 612 (Artiglio); Rest.2d
Torts, § 324A (section 324A).)
the duty question concerns “the management of [a
defendant's] person or property, ” courts look to
Civil Code section 1714. (See Cabral, supra, 51
Cal.4th at p. 768.) Per Civil Code section 1714, everyone
owes everyone else a duty to exercise ordinary care “in
the management of his or her person or property.”
Accordingly, the existence of a duty is the rule.
there is a statutory exception to the general rule of duty,
courts fashion one only “where ‘clearly supported
by public policy.'” (Cabral, supra, 51
Cal.4th at p. 771.) Almost 50 years ago, in Rowland v.
Christian (1968) 69 Cal.2d 108 (Rowland), our
Supreme Court identified the public policy considerations
that may result in a court's conclusion that no duty
exists: “[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 to the defendant and
consequences to the community of imposing a duty to exercise
care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk
involved.” (Id. at p. 113.)
running from a defendant to a plaintiff may arise from
contract, even though the plaintiff and the defendant are not
in privity. (Biakanja v. Irving (1958) 49
Cal.2d 647 (Biakanja); Bily v. Arthur Young
& Co. (1992) 3 Cal.4th 370.) Under these
circumstances, the existence of a duty is not the general
rule, but may be found based on public policy considerations.
Biakanja, decided a decade before Rowland,
our Supreme Court identified the factors that may result in a
court's conclusion a duty exists: “The
determination whether in a specific case the defendant will
be held liable to a third person not in privity is a matter
of policy and involves the balancing of various factors,
among which are the extent to which the transaction was
intended to affect the plaintiff, the foreseeability of harm
to him, 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, and the policy
of preventing future harm.” (Biakanja, supra,
49 Cal.2d at p. 650.)
no coincidence many of the factors courts consider to
recognize an exception to the general duty rule in Civil Code
section 1714 mimic those courts consider to impose a duty to
a third person when the issue is the negligent breach of
contractual obligations. Also, in the Biakanja
context, the consideration concerning “the extent to
which the transaction was intended to affect the
plaintiff” serves as a bridge between the absence of
privity and liability, particularly in situations where the
only claimed losses are economic. (Biakanja, supra,
49 Cal.2d at p. 650.)
surprisingly, when one turns to common law, the
considerations are again similar. Section 324A articulates
what is typically referred to as the Good Samaritan rule or
the negligent undertaking theory of liability. (Paz v.
State of California (2000) 22 Cal.4th 550, 559
(Paz).) Section 324A is applied to determine the
“duty element” in a negligence action where the
defendant has “‘specifically... undertaken to
perform the task that he is charged with having performed
negligently, for without the actual assumption of the
undertaking there can be no correlative duty to perform that
undertaking carefully.'” (Artiglio, supra,
18 Cal.4th at pp. 614-615.) The negligent undertaking theory
of liability applies to personal injury and property damage
claims (Mukthar v. Latin American Security Service
(2006) 139 Cal.App.4th 284, 290 (Mukthar); FNS
Mortgage Service Corp. v. Pacific General Group, Inc.
(1994) 24 Cal.App.4th 1564, 1572), but not to claims seeking
only economic ...