Lichtman v. Siemens Industry Inc.

         APPEAL from a judgment of the Superior Court of Los Angeles County No. BC492694, John P. Doyle, Judge. Reversed and remanded with directions.

          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.

          Haight Brown & Bonesteel, William O. Martin, Jr., Vangi M. Johnson, Whitney L. Stefko, for Defendant and Respondent.

          DUNNING, J. ^[*]

         INTRODUCTION

         On the 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 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.^[1] 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.

         According 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.

         On 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.

         On 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.

         Plaintiffs sued several entities to recover damages for their personal injuries.^[2] Against defendant, plaintiffs asserted three causes of action based on negligence theories. They resolved their suit against all parties except defendant.

         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 defendant's favor.

         DISCUSSION

         The 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. (p)(2).)

         The 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).)

         For the 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).)

         I. Duty - Overview

         The “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.”^[3] (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).)

         When 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.

         Unless 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.)

         A duty 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)^[4]; 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.

         In 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.)

         It is 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.)

         Not 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.^[5] (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 ...