Nicholson v. Southern California Edison Co..

JASON NICHOLSON et al., Plaintiffs and Appellants, v. SOUTHERN CALIFORNIA EDISON CO., Defendant and Respondent.

B302287

California Court of Appeals, Second District, Seventh Division

June 22, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC655801 Ramona G. See, Judge. Reversed.

Parris Law Firm, Alexander R. Wheeler, Jonathan W. Douglass and Ellery S. Gordon for Plaintiffs and Appellants.

LimNexus, Irwin S. Evans, David D. Yang; Leon Bass, Jr. and Carla Margolis Blanc; Greines, Martin, Stein & Richland Robin Meadow, Cynthia E. Tobisman, and Eleanor S. Ruth for Defendant and Respondent.

SEGAL J.

INTRODUCTION

Southern California Edison Company (SCE) hired Hampton Tedder Electric Company to perform maintenance on an underground residential distribution switch, known as a BURD switch, owned by SCE. During the job there was an electrical arc flash that burned two Hampton Tedder employees, Jason Nicholson and Alim Hafiz. Nicholson and Hafiz sued SCE, asserting causes of action for negligence and for violation of a statute in the Public Utilities Code. The trial court granted SCE's motion for summary adjudication on each of Nicholson and Hafiz's causes of action and, therefore, summary judgment. The court ruled Nicholson and Hafiz failed to raise a triable issue of material fact on whether SCE caused the arc flash and therefore contributed to Nicholson's and Hafiz's injuries. Because SCE did not meet its initial burden to show it did not contribute to Nicholson's and Hafiz's injuries, and because (even if it had) Nicholson and Hafiz created triable issues of material fact, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. SCE Hires Hampton Tedder To Perform Maintenance on a BURD Switch

SCE hired Hampton Tedder to perform electrical line maintenance as needed. In a contract titled “Master Services Agreement, ” Hampton Tedder agreed to “assume[ ] all risks pertaining to performing [s]ervices” at jobsites and to assume all responsibility “for the safety and health of personnel and the prevention of [i]ndustrial accidents... arising out of the performance of the [s]ervices.”

Nicholson and Hafiz were journeyman linemen employed by Hampton Tedder.^[1] Hampton Tedder assigned a crew that consisted of Nicholson (the foreman), Hafiz, and a few others to remove a set of electrical cables that connected one SCE BURD switch to another switch. A BURD switch is a console that sends voltage to other components, such as a transformer or another BURD switch. It is placed underground in an enclosed space, like this:

(Image Omitted)

The job took several days. On the first day SCE de-energized the BURD switch to allow the Hampton Tedder crew to disconnect the cables from the switch. After disconnecting the cables, the crew grounded the cables to ensure they were not energized and installed dummy elbows-insulating caps-on the three exposed bushings on the BURD switch where the cables had been connected.^[2] The crew, however, did not remove the disconnected, de-energized cables from the enclosure. After the crew completed this work, SCE re-energized the BURD switch.

B. An Arc Flash Explosion Injures Nicholson and Hafiz

Nicholson and Hafiz returned a week later to remove the disconnected cables from the enclosure. When they arrived, Nicholson tested the cables and confirmed they were de-energized. At some point, while Hafiz was in the enclosure and Nicholson was standing a few feet away, the arc flash occurred.^[3] Hafiz later explained that, while he was standing on the pavement above the enclosure, he bent forward, reached into the enclosure, and began pulling on a cable to loosen it. He lost his balance, fell into the enclosure, and hit the BURD Switch with his feet. The arc flash occurred immediately.

The arc flash burned Hafiz's face and caused his pants, which were not fire resistant, to catch fire. Nicholson was wearing fire-resistant clothing, but the explosion burned his face and hands. Nicholson, seeing that Hafiz was on fire and running away from the enclosure, chased Hafiz, tackled him and smothered the flames.

Hampton Tedder investigated the incident and determined the arc flash occurred when two dummy elbows came off their respective bushings. Hafiz suspected he knocked them off with his feet when he fell into the enclosure.

C. Nicholson and Hafiz Sue SCE, and SCE Moves for Summary Judgment

Nicholson, Hafiz, and their spouses sued SCE for negligence (in three causes of action based on different theories: breach of a nondelegable duty, retained control, and failure to warn), violation of Public Utilities Code section 2106, ^[4] and loss of consortium. Nicholson and Hafiz alleged, among other things, SCE “negligently and carelessly supplied dangerous and faulty equipment” and failed to make sure “the energized parts” of the BURD switch “were covered with suitable protective equipment” and “had adequate protective devices.”

SCE moved for summary judgment or in the alternative for summary adjudication on all of the causes of action in the complaint. With respect to the three negligence causes of action, SCE contended Nicholson and Hafiz could not show SCE caused or contributed to their injuries because it was undisputed that “[n]one of [SCE's] electrical distribution equipment malfunctioned or failed in any way to cause or contribute to the arc flash....” SCE relied on a declaration submitted by its expert, John Loud, who reached this conclusion after reviewing Hafiz's testimony and other evidence. SCE also argued Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) barred the negligence causes of action. SCE contended that, as a matter of law, it could delegate all of its duties to maintain safe working conditions to Nicholson's and Hafiz's employer, Hampton Tedder. SCE also argued it did not retain control over the safety conditions at the job site because it was undisputed Hampton Tedder “provided [Nicholson and Hafiz] with all safety equipment to be used” for the job. And SCE contended it did not have a duty to warn Nicholson and Hafiz of any dangers associated with working on the BURD switch because it was undisputed Nicholson and Hafiz were “sophisticated electrician journeyman, ” each with “over 15 years of experience as electricians.” With respect to the cause of action for violation of Public Utilities Code section 2106, SCE contended the regulatory violations Nicholson and Hafiz relied on were allegedly violations of duties SCE owed to its employees, not to employees of independent contractors like Nicholson and Hafiz.

In opposition to the motion Nicholson and Hafiz disputed SCE's assertion that none of its equipment malfunctioned. Nicholson and Hafiz submitted the deposition testimony of Byron Redd, a superintendent of line construction for Hampton Tedder who investigated the incident, and Gary Leatherwood, a project supervisor for SCE who oversaw independent contractors and whom SCE designated as its person most qualified to testify about the equipment involved in the accident. Both Redd and Leatherwood testified that SCE supplies equipment like dummy elbows to Hampton Tedder for use on its systems and that the purpose of a dummy elbow is to cover a high voltage bushing so the bushing is not exposed. Leatherwood also stated a functioning dummy elbow is difficult to remove and should not dislodge if a person bumps into it.

Nicholson and Hafiz also argued, in opposition to SCE's motion for summary adjudication on both the causes of action for negligence and the cause of action for violation of Public Utilities Code section 2106, that certain regulations and Public Utilities Commission orders precluded SCE from delegating its duties to Hampton Tedder. They argued SCE's failure to comply with those rules and orders caused the arc flash and contributed to their injuries. Nicholson and Hafiz also argued SCE retained control over the project and negligently exercised that control by, among other things, furnishing them with defective dummy elbows.^[5]

D. The Trial Court Grants the Motion

The trial court ruled SCE met its initial burden on summary judgment because Loud's testimony showed “SCE did not cause or contribute to the arc flash.” The court ruled that the opinions of Redd, Hafiz, and Nicholson regarding the arc flash were “speculative” and “conclusory” and that they did not “establish their expertise and qualifications to competently opine as experts as to the issue of legal causation.” Therefore, the court ruled, Nicholson and Hafiz “failed to present any competent expert evidence to controvert[ ]” Loud's testimony and failed to create a triable issue of fact regarding “whether SCE affirmatively contributed to [Nicholson's and Hafiz's] injuries” or whether “SCE's equipment failed or malfunctioned in any manner.” The court granted SCE's motion for summary adjudication on the cause of action for violation of Public Utilities Code section 2106, apparently on the same ground, even though SCE did not argue it was entitled to summary adjudication on that cause of action on the ground SCE did not cause the arc flash.

The court declined to rule on whether SCE had any nondelegable duties. The court did state-without explanation and without discussing whether SCE had met its initial burden-Nicholson and Hafiz failed to create a triable issue of fact regarding “whether SCE negligently retained control of the premises.” Finally, the court ruled there was no triable issue of fact regarding the cause of action for loss of consortium because it was based on the other causes of action. Nicholson and Hafiz timely appealed from the ensuing judgment.

DISCUSSION

A. Standard of Review

A court may grant a motion for summary judgment or summary...