Odom v. Horticulture Labor Services
Filed
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
SECOND APPELLATE DISTRICT
DIVISION SIX
DENNIS ODOM et al., Plaintiffs and Appellants, v. HORTICULTURE LABOR SERVICES, Defendant and Respondent. | 2d Civ. No. B185285 (Super. ( |
Appellant Dennis Odom was employed as an electrician by Jafroodi Interests, Inc. (Jafroodi). Jafroodi hired respondent Horticulture Labor Services, LLC (HLS) to install a motorized shade system in greenhouses owned by Jafroodi. Odom received an electrical shock while he was troubleshooting equipment installed by HLS.
Odom and his wife sued HLS and several other parties for personal injury and loss of consortium, alleging general negligence, premises liability, and products liability. The court granted summary judgment to HLS on the basis of the " firefighter's rule" or the " primary assumption of risk" doctrine, finding HLS had no duty to protect Odom from injury as a matter of law. We conclude that the primary assumption of risk doctrine does not apply and reverse.
FACTS AND PROCEDURAL HISTORY
In May 1999, Odom was hired by Jafroodi to do electrical installation work, including electrical maintenance, on greenhouse buildings Jafroodi leased to Clearwater Nursery. Odom's duties included estimating the wire count, setting up the layout of wires and conduits, installing the proper equipment, and connecting wires to the main power source. His job also included ensuring that the electrical systems in the greenhouses were in working order.
HLS was hired by Jafroodi to install motorized shading systems in the greenhouses. Odom ran the electrical wiring from the main power panel to the control boxes for the shading system and installed and programmed the computer system that controls the greenhouse environment.
An HLS employee, Mr. Lopez, installed the control box and motor for the shading system in one of the greenhouses. The motor and a control box were connected by wires carrying electrical current. Inside the control box were " start" and " stop" buttons that turned the electric current on and off. The control box was at eye level. The motor was above the control box and could only be reached by a ladder.
After installation, a second HLS employee, Mr. Juarez, discovered that the shading system was not functioning properly. The following day, Lopez inspected the motor, but could not fix it. He called HLS and was told to leave the motor as it was and HLS would send someone out the following Monday to inspect it.
Odom was at the job site that day to make sure the electrical systems were performing properly. He was told the motor was not working and that HLS would fix it. Despite this information, Odom went up the ladder to inspect the motor. He observed that the wiring was incorrect. He took a voltage reading and found that electrical current was going to the motor. He and Lopez went to another greenhouse on the premises to observe the wiring of a working motor. After looking at that motor, Odom and Lopez returned to the subject motor to inspect it again.
After returning to the nonworking motor, Lopez went up the ladder and changed the leads to the motor using a nut driver. After changing the leads, Lopez returned to the control box and pushed the " start" button. The system made a humming noise but still did not work. Lopez pressed the " stop" button and the humming stopped.
After checking to make sure the " stop" button was engaged, Odom went up the ladder a second time to inspect the motor. He did not take another voltage reading or turn the power off at the main circuit breaker. When he touched a lead with a nut driver, he suffered an electrical shock.
After Odom was injured, he, Lopez, and another Jafroodi employee conducted a voltage test and determined for the first time that electrical current was running to the motor even when the control switch was in the " off" position. HLS subsequently determined that the control switch was improperly wired and the wrong model control switch was installed. Odom contends the combination of the improperly wired system and the wrong control switch caused his injuries.
Odom and his wife filed a complaint for personal injuries against HLS; Ridder USA, distributor of the control box; and Clearwater Nursery, alleging negligence, premises liability and products liability. The complaint was amended to add Jafroodi,
The trial court granted Clearwater's motion for summary judgment. Odom subsequently settled or dismissed all other defendants except HLS. HLS filed a motion for summary judgment. The trial court granted the motion as to all three causes of action on the ground that HLS owed no duty to Odom under the doctrine of primary assumption of risk. The court found that electric shock is a danger inherent in the activity of working with electricity. Odom appeals only the dismissal of the negligence cause of action.
DISCUSSION
Standard of Review
To obtain summary judgment, a defendant must negate a necessary element of the plaintiff's case or establish a complete defense to the claim that eliminates the existence of all material issues of fact that requires a trial. We review an order granting summary judgment de novo, " '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.'" (Childs v.
" Primary" and " Secondary" Assumption of Risk
Persons generally have a duty to use care to avoid injuries to others and may be held liable for negligent conduct that causes injury. (Civ. Code, § 1714; Rowland v. Christian (1968) 69 Cal.2d 108.) " Any exception to the general rule [of duty] must be based on statute or clear public policy." (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 537.)
The doctrine of primary assumption of risk " acts as a limitation to this general rule, recognizing that in certain situations the nature of the activity at issue is such that the defendant does not owe a legal duty to the plaintiff to act with due care." (Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 529.) It is unaffected by the plaintiff's subjective appreciation of the risk and, if applicable, completely bars recovery. (Yancey v. Superior Court (1994) 28 Cal.App.4th 558, 562-563.) Because it presents an issue of legal duty, primary assumption of risk is a question of law to be determined by the court.
While primary assumption of risk eliminates any duty to protect against inherent risks, a defendant owes a duty not to increase the risks to the plaintiff beyond the inherent risk. (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1633.) A defendant who breaches this duty is liable for negligence, but the plaintiff's recovery will be reduced if he " 'knowingly encounters a risk of injury caused by the defendant's breach of that duty.'" (Cheong v. Antablin (1997)16 Cal.4th 1063, 1068.) Such cases involve " secondary assumption of risk," which is now merged into the comparative fault scheme. (Ibid.; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1366-1367.)
Unlike primary assumption of risk, secondary assumption of risk is generally a question of fact to be determined by the jury. (Curties v. Hill Top Developers, Inc. (1993) 14 Cal.App.4th 1651, 1656.) It is not a complete defense to liability, but is considered when the trier of fact apportions fault. (Allan v. Snow Summit, Inc., supra, 51 Cal.App.4th at p. 1367.)
Application to Odom's Injury
The trial court determined as a matter of law that primary assumption of risk barred Odom's claim. The court reasoned: " The case at bar is analogous to the 'Firefighter's Rule.' Plaintiff, an electrician, was summoned by defendants to trouble shoot an electrical problem where electric shock or electrocution is an inherent risk of the activity and the electrician is in the best position to protect himself from harm."
In Knight v. Jewett (1992) 3 Cal.4th 296, 309-310, footnote 5, our Supreme Court explained the firefighter's rule as follows: " [T]he primary assumption of risk doctrine . . . comes into play in the category of cases often described as involving the 'firefighter's rule.' [Citation.] In its most classic form, the firefighter's rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire; the rule provides that the person who started the fire is not liable under such circumstances. [Citation.] . . . Because the defendant in such case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action . . . ."
Since the firefighter's rule was first applied in
In support of his contention that the primary assumption of risk doctrine or firefighter's rule does not apply here, Odom relies primarily on Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th 532. In that case, the Supreme Court refused to apply the firefighter's rule to privately employed industrial safety supervisors who were injured while fighting a fire. (Id. at pp. 541-546.) In so ruling, the court noted, " It is certainly not the case . . . that private employees assume all the foreseeable risks of their employment. . . . Knight . . .requires a closer analysis, focusing not on the foreseeability of the hazard or the plaintiff's subjective awareness of the risk, but on the defendant's duty of care and the relationship of the parties." (Id. at p. 545, fn. 4.)
In holding that the firefighter's rule was not to be applied to privately employed industrial safety supervisors and thus permitting recovery from one negligently causing the fire that injured them, the court noted: " The third party [i.e., the negligent defendant] . . . has not provided the services of the private safety employee. Nor has the third party paid in any way to be relieved of the duty of care toward such a private employee. Having no relationship with the employee, and not having contracted for his or her services, it would not be unfair to charge the third party with the usual duty of care towards the private safety employee." (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 543.)
Odom asserts that Neighbarger requires a direct contractual relationship between the plaintiff and defendant before the rule can be applied. We agree. In every case in which the courts have found primary assumption of risk to apply in a private setting, a direct or indirect contractual relationship existed between the parties. HLS has not cited, and we have not found, any case where a manufacturer has been relieved of liability for negligence as a matter of law when its purportedly malfunctioning product caused injury to a person.
As noted by the Supreme Court in Neighbarger, " We have never held that the doctrine of assumption of risk relieves all persons of a duty of care to workers engaged in a hazardous occupation." (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 538.) " [W]hen a private . . . employee seeks to recover against a third party for negligently inflicted injuries, the relationship between the parties and considerations of the public good that justify a relaxation of the general duty of care for public firefighters are simply lacking." (Id. at p. 544.) Applying the primary assumption of risk doctrine is error " when the defendant is a third party who has not secured the services of the plaintiff or otherwise entered into any relationship with the plaintiff." (Id. at p. 545; see also Davis v. Gaschler (1992) 11 Cal.App.4th 1392 [assumption of risk does not apply when defendant dog owner has not contracted for the services of the plaintiff]; Prays v. Perryman (1989) 213 Cal.App.3d 1133 [dog groomer who has not yet decided whether to accept animal for grooming does not assume risk of dog bite].) Accordingly, where the defendant manufacturer owes a duty of care to the plaintiff, " but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty," assumption of risk is merged in the comparative fault scheme so that a trier of fact may consider the relative responsibility of the parties in apportioning the loss and damage resulting from the injury. (Knight v. Jewett, supra,3 Cal.4th at p. 315.)
Moreover, " [w]hile it may be reasonable for the public to insure itself from tort suits alleging negligence by its members in the creation of a fire, it is not reasonable for the public to insure a product manufacturer . . . . [¶] [P]olicy considerations do not justify having the public serve as a partial insurer of a product manufacturer." (Stapper v. GMI Holdings, Inc. (1999) 73 Cal.App.4th 787, 793; see also Milwaukee Electric Tool Corp. v. Superior Court (1993) 15 Cal.App.4th 547, 559-560 [primary assumption of risk doctrine did not bar worker from suit against toolmaker for injuries caused by defective tool].)
HLS failed to establish that Odom's claim against it was barred as a matter of law under the primary assumption of risk doctrine. Therefore, the trial court erred in granting HLS's motion for summary judgment.
The judgment is reversed. Appellant is to recover costs.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
Roger T. Picquet, Judge
Superior Court County of San Luis Obispo
______________________________
Smith & Tardiff, Neil S. Tardiff for Plaintiffs and Appellants Dennis Odom and Vicky Odom.
Cooper & Hoppe, Theodore W. Hoppe, Leah Ann Alcazar for Defendant and Respondent Horticulture Labor Services, LLC.
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[1] The doctrine also has been applied to bar participants in sports activities from recovering for injuries sustained while participating in the activity on the basis that a participant in a sports activity assumes the inherent risk posed by the activity. (See, e.g., Knight v. Jewett, supra, 3 Cal.4th 296.)
