The opinion
Filed 11/2/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
JOANNE LICHTMAN et al., B265373
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC492694)
v.
SIEMENS INDUSTRY INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, 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.
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.
1 Notwithstanding deposition testimony by its own
personnel, defendant disputes that traffic signals and a battery
backup system are in place to promote public safety rather than
merely maintain traffic flow.
2
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
2 The other defendants were the seller of the battery backup
system and the entity that serviced and maintained the City’s
power grid. The City was not a party.
3
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
4
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
3 The “special-relationship-based duty” typically applies to
hold a defendant liable for the criminal acts of third persons.
(Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235
(Delgado).) It also applies in pure economic loss cases. (J’Aire
Corp. v. Gregory (1979) 24 Cal.3d 799, 804 (J’Aire).)
5
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
4 Biakanja involved economic losses only, but the evolution
in legal reasoning that allowed the Biakanja court to permit a
plaintiff with only economic losses to recover for negligent
performance of a contract where the plaintiff and defendant are
not in privity was based on case law that permitted a personal
injury plaintiff not in privity with the defendant to recover.
(Biakanja, supra, 49 Cal.2d at p. 649; see also Beacon Residential
Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59
Cal.4th 568, 574 [“the significance of privity has been greatly
eroded over the past century”].)
6
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
5 Section 324A provides, “One who undertakes, gratuitously
or for consideration, to render services to another which he
should recognize as necessary for the protection of a third person
or his things, is subject to liability to the third person for physical
harm resulting from his failure to exercise reasonable care to
protect his undertaking, if [¶] (a) his failure to exercise
reasonable care increases the risk of such harm, or [¶] (b) he has
undertaken to perform a duty owed by the other to the third
person, or [¶] (c) the harm is suffered because of reliance of the
other or the third person upon the undertaking.”
7
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
loss (State Ready Mix, Inc. v. Moffatt & Nichol (2015) 232
Cal.App.4th 1227, 1235). Our Supreme Court has described the
negligent undertaking and special relationship doctrines as
“related but separate.” (Delgado, supra, 36 Cal.4th at pp. 248-
249.)
A finding of liability to third persons under the negligent
undertaking theory “requires evidence that: (1) the actor
undertook, gratuitously or for consideration, to render services to
another; (2) the services rendered were of a kind the actor should
have recognized as necessary for the protection of third persons;
(3) the actor failed to exercise reasonable care in the performance
of the undertaking; (4) the actor’s failure to exercise reasonable
care resulted in physical harm to the third persons; and (5) either
(a) the actor’s carelessness increased the risk of such harm, or (b)
the actor undertook to perform a duty that the other owed to the
third persons, or (c) the harm was suffered because either the
other or the third persons relied on the actor’s undertaking.”
(Paz, supra, 22 Cal.4th at p. 559.) Unless all three predicate
alternatives in the fifth factor are negated, a defendant may be
found to owe a duty to third persons under the negligent
undertaking theory.
8
II. Analysis
A. Civil Code Section 1714
This case does not involve defendant’s management of its
own property. Accordingly, our inquiry does not involve a
determination as to whether public policy supports an exception
to the general duty rule. (Cabral, supra, 51 Cal.4th at p. 771;
Rowland, supra, 69 Cal.2d at p. 112.) Nonetheless, appellate
decisions analyzing the Cabral/Rowland factors are useful for
our purposes because of the considerable overlap with the
Biakanja factors. (Formet v. Lloyd Termite Control Co. (2010)
185 Cal.App.4th 595, 604.)
In this context, we briefly digress to examine White v.
Southern Cal. Edison Co. (1994) 25 Cal.App.4th 442 (White), a
decision relied upon by defendant and the trial court. In White,
the plaintiff’s moped collided at night with a left-turning van in
an intersection. The nearest streetlight, which was more than
130 feet away, was not functioning at the time of the accident and
the plaintiff contended the lack of illumination proximately
caused his injuries. The plaintiff sued the public utility that
owned and maintained the streetlight. The trial court granted
the public utility’s motion for summary judgment and this court
affirmed.
White was decided after Rowland. This Division
acknowledged Civil Code section 1714’s general duty rule applied
to public entities, which on occasion are found liable to injured
plaintiffs. (White, supra, 25 Cal.App.4th at pp. 447-448.) We also
recognized public policy considerations on occasion justify a
departure from the general duty rule and result in the conclusion
that a public utility owed no duty. (Id. at pp. 448-449.)
9
We framed the issue in White as follows: “Does an electric
utility company owe a duty to motorists injured in motor vehicle
collisions caused in part by an inoperative streetlight which the
utility [owns and] has contracted to maintain?” (White, supra, 25
Cal.App.4th at p. 447.) Our court then engaged in a Rowland
analysis and concluded an exception to the general rule of duty
was appropriate.
White is distinguishable from this case in two principal
respects. First, White involved the general duty rule in Civil
Code section 1714. Second, the defendant was a public utility.
Nothing in the White decision suggests a private entity like
defendant shares the same policy considerations as a public
utility.
B. Biakanja, supra, 49 Cal.2d 647
Biakanja guides us in cases involving contracts between a
defendant and a person other than the plaintiff. As already
mentioned, the absence of privity presents no hurdle. Rather, we
examine the Biakanja factors to determine whether defendant
established as a matter of law that it owed no duty to plaintiffs.
1. Biakanja Factors and Analysis
a. The Extent to Which the Transaction
Was Intended to Affect Plaintiffs
Whether one views a battery backup system as promoting
public safety or merely regulating traffic flow, the units help
drivers and pedestrians safely traverse traffic intersections
during power outages. The contract between defendant and the
City was clearly intended to, and does, affect plaintiffs. This
10
factor fails to support the conclusion that defendant owed no duty
as a matter of law.
b. Foreseeability of Harm
Drivers approaching a signalized intersection in the dark
when the traffic signals are not working are supposed to treat the
intersection as a four-way stop and proceed only when it is safe.
(Veh. Code, § 21800, subd. (d)(1).) As in many aspects of daily
life, however, “common experience shows they do not always do
so.” (Cabral, supra, 51 Cal.4th at p. 775.) It is foreseeable
motorists and pedestrians entering an intersection when the
traffic signals are not operating due to a power outage,
particularly at night, may become confused and suffer harm if the
battery backup unit is not operational. The foreseeability factor
does not support an absence of duty as a matter of law.
c. The Degree of Certainty that Plaintiffs
Suffered Injury
Unquestionably, these plaintiffs sustained injuries in the
intersection collision. Examining this factor from a broader
perspective, the likelihood of injury when vehicles collide in an
intersection normally controlled by traffic signals is not subject to
reasonable dispute. (See, e.g., Laabs, supra, 175 Cal.App.4th at
p. 1278.) This factor also does not support an absence of duty as
a matter of law.
d. The Closeness of the Connection Between
Defendant’s Conduct and the Injury
Although not in so many words and not in the context of a
Cabral/Rowland/Biakanja analysis, the trial court addressed
11
this factor and found a triable issue of material fact as to whether
defendant’s conduct was a proximate cause of plaintiffs’ injuries.
We agree. Defendant cannot rely on this factor to conclude there
is an absence of duty as a matter of law.
e. Moral Blame Attached to Defendant’s
Conduct
This factor traditionally requires little discussion.
“Negligence in the execution of contractual duties is generally
held to be morally blameworthy conduct.” (National Union,
supra, 171 Cal.App.4th at p. 47.) The National Union holding
vis-à-vis moral blame is noteworthy because that case involved
economic loss only. (See also J’Aire, supra, 24 Cal.3d at p. 805
[another case involving only economic loss, where our Supreme
Court noted defendant’s “lack of diligence . . . was particularly
blameworthy since it continued after the probability of damage
was drawn directly to [the defendant’s] attention”]; Mintz v. Blue
Cross of California (2009) 172 Cal.App.4th 1594, 1612 (Mintz)
[“‘moral blame’ from an erroneous decision to withhold a medical
treatment is equally apparent”; case involved personal injury and
emotional distress damages].) Again, this factor does not justify
concluding as a matter of law that defendant owed no duty to
plaintiffs.
f. Preventing Future Harm
Cabral, supra, 51 Cal.4th at pages 781-782, explained, “The
overall policy of preventing future harm is ordinarily served, in
tort law, by imposing the costs of negligent conduct upon those
responsible. The policy question is whether that consideration is
outweighed, for a category of negligent conduct, by laws or mores
12
indicating approval of the conduct or by the undesirable
consequences of allowing potential liability.”
In this case, the analysis is primarily one of common sense.
A battery backup system exists to keep traffic signals operational
for a period of time during a power outage. The City paid
defendant to maintain the battery backup system in working
condition. Under these circumstances, the public policy to
prevent future harm outweighs any perceived unfairness in
imposing liability should the trier of fact determine defendant
negligently performed its contractual obligation to maintain the
battery backup system. This factor, too, does not support the
absence of duty as a matter of law.
2. Biakanja Conclusion
Power outages in a particular geographical area typically
affect all illumination sources. A power outage late at night
plunges the entire area surrounding an intersection into
darkness. Even with headlights, vehicle and vehicle/pedestrian
accidents and injuries are foreseeable under those conditions.
Traffic signals that remain operational during a power outage
because they are backed up by a battery system have the
potential to prevent accidents and injuries. A public policy
analysis considering the Biakanja factors does not support the
conclusion that defendant established the absence of a duty of
care as a matter of law. (Burch v. Superior Court (2014) 223
Cal.App.4th 1411, 1419-1422 [writ issued after trial court
granted the defendant’s motion for summary adjudication of
issues on negligence theory]; Mintz, supra, 172 Cal.App.4th at pp.
1610-1613 [reversed judgment on negligence theories after
13
demurrer sustained without leave to amend, holding the
defendant owed a duty of care].)
C. Negligent Undertaking—Section 324A
The first four factors under section 324A do not require in-
depth analysis. Their role is to set the stage for consideration of
the fifth factor, which is the principal duty element. The
evidence relevant to the first four factors demonstrates
defendant, for consideration, undertook to render services to the
City. The services—to keep the battery backup system
operational—“were of a kind the actor should have recognized as
necessary for the protection of third persons.” (Artiglio, supra, 18
Cal.4th at p. 613.) Should a duty be found to exist, the trier of
fact will determine whether defendant failed to exercise ordinary
care and whether that failure proximately caused plaintiffs’
injuries.
To establish as a matter of law that defendant does not owe
plaintiffs a duty under a negligent undertaking theory, defendant
must negate all three alternative predicates of the fifth factor:
“(a) the actor’s carelessness increased the risk of such harm, or
(b) the actor undertook to perform a duty that the other owed to
the third persons, or (c) the harm was suffered because of the
reliance of the other or the third persons upon the undertaking.”
(Artiglio, supra, 18 Cal.4th at p. 614.)
The question for us, then, is whether defendant established
as a matter of law that none of the alternative predicates
identified as the fifth factor in section 324A could apply.
Defendant did not.
Defendant’s evidence in support of the motion for summary
judgment did not negate as a matter of law element (a), that “the
14
actor’s carelessness increased the risk of such harm.” The City
recognized the risk of harm increases when traffic signals are not
operational, particularly during a nighttime power outage, and
acted to reduce the risk by contracting with defendant to
maintain a battery backup system. If defendant negligently
failed to install the batteries, a trier of fact could reasonably
conclude defendant’s conduct increased the risk of harm to
plaintiffs.
Nor did defendant negate as a matter of law element (c),
that “the harm is suffered because of the reliance of the other [in
this case, the City] or the third persons upon the undertaking.” A
reasonable inference from the evidence is that the City relied on
the battery backup system to illuminate traffic signals when
portions of the electrical grid were dark as the result of a power
outage. The City was confronted with a known risk—power
outages will happen and traffic signals will stop operating. The
City’s response to ameliorate the harmful effects of that risk was
to install a battery backup system and enter into a contract with
defendant to maintain it. The City could reasonably expect
defendant would perform its contractual obligations in a non-
negligent manner.
The undisputed facts here present a classic scenario for
consideration of the negligent undertaking theory. This theory of
liability is typically applied where the defendant has
contractually agreed to provide services for the protection of
others, but has negligently done so. For example, the defendant
in Mukthar, supra, 139 Cal.App.4th 282 contracted with a
convenience store owner to provide armed, uniformed security
guards between 9:00 p.m. and 5:00 a.m. No guard was on duty
after 9:00 p.m. on the evening the store clerk was assaulted by
15
several customers. The injured clerk sued the security company,
and the trial court granted the defendant’s motion for summary
judgment.
The Court of Appeal reversed, noting, “the harm that befell
[the plaintiff] was precisely the kind of harm that [the defendant]
was there to prevent, i.e., an assault on a store employee.”
(Mukthar, supra, 139 Cal.App.4th at p. 291.) The Court of
Appeal then explained, “it is a reasonable inference that the
presence of an armed guard in close proximity to [the clerk]
would have prevented the assault. Whether the trier of fact will
actually draw that inference [is left for another day].” (Id. at p.
292.)
Mukthar provides a good analytical contrast to the facts in
Dekens v. Underwriters Laboratories Inc. (2003) 107 Cal.App.4th
1177 (Dekens). The plaintiffs’ decedent in Dekens repaired small
appliances. He died of mesothelioma, contracted as a result of
exposure to asbestos, which was then a not-uncommon
component in small electrical appliances. His heirs sued
Underwriters Laboratories (U.L.) on a negligent undertaking
theory, contending the defendant undertook a certification
process to safeguard the health of consumers, including those
individuals who repaired U.L.-certified appliances. (Id. at p.
1179.)
The defendant successfully moved for summary judgment,
and the Court of Appeal affirmed. The appellate panel posed two
threshold questions: “Did U.L. undertake to provide services [to
the decedent] and, if so, what was the scope of that undertaking?”
(Dekens, supra, 107 Cal.App.4th at p. 1182.) The Court of Appeal
agreed U.L. tested and certified appliances for safety based on
electrical shock, heat, and fire, but found the undertaking did not
16
include a “guarantee [of] safety from cancer-causing asbestos.”
(Id. at p. 1187.) The appellate panel explained, “U.L. met its
burden on summary judgment by showing through admissible
evidence that it never undertook to test small appliances for
medical safety or to certify the appliances would not cause
cancer. Plaintiffs failed to show a triable issue of material fact
regarding the existence and scope of any such undertaking by
U.L. The trial court properly granted summary judgment.” (Id.
at p. 1180.)
Unlike the Dekens circumstances, defendant here did not
meet its burden on summary judgment to show it never
undertook to maintain the City’s battery backup system.
Mukthar is instructive on this point. Plaintiffs’ injuries were
caused by a nighttime intersection collision during a power
outage. Defendant was not responsible for the power outage, but
by contract it undertook to maintain the battery backup unit at
the intersection to prevent—or at least mitigate—the foreseeable
and increased risk of intersection collisions when an entire area
is dark as the result of a power grid failure. A reasonable
inference from the evidence before the trial court is that an
operational battery backup unit would have prevented the
collision. (Mukthar, supra, 139 Cal.App.4th at p. 292.) Under a
section 324A analysis, the evidence did not support the trial
court’s conclusion that no duty existed as a matter of law.
In this regard, defendant’s reliance on Paz, supra, 22
Cal.4th 550 is misplaced. The plaintiff in Paz was injured in a
traffic accident in an intersection all parties agreed was in a
dangerous condition. Sometime before the accident, a developer
sought approval for a residential project near the intersection.
The City of Los Angeles conditioned permit approvals for the
17
housing project on the developer’s agreement to signalize the
intersection and improve lane striping. (Id. at pp. 554-555.) The
developer agreed to those terms, but the accident occurred before
the developer obtained all the necessary permits for the signal
and street work.
The plaintiff sued the developer and its contractors
(collectively, nongovernmental defendants) under negligence
theories, asserting they negligently delayed installing the traffic
signals. The trial court granted summary judgment for the
nongovernmental defendants and the Court of Appeal majority
reversed, basing its decision on a Biakanja analysis. (Paz, supra,
22 Cal.4th at pp. 553-554, 557.)
The Supreme Court reversed the decision of the Court of
Appeal and directed that judgment be entered in favor of the
nongovernmental defendants. The Supreme Court majority
opinion framed and analyzed the duty issue as follows: “This
case concerns the duty private contractors owe the general public
when they undertake work that might affect an allegedly
dangerous condition of public property. Consequently, we
consider the negligent undertaking theory of liability articulated
in Restatement Second of Torts, section 324A (section 324A), and
its application in this context.” (Paz, supra, 22 Cal.4th at p. 553.)
The Paz majority assumed the first four section 324A
elements were satisfied. (Paz, supra, 22 Cal.4th at p. 559.)
Turning its attention to the alternate predicates in the fifth
element, a majority of the justices concluded none of the three
alternative predicates for the application of section 324A was
met. Insofar as alternative (a) was concerned, no evidence
supported an inference the nongovernmental defendants’ conduct
increased the risk of physical harm to plaintiff beyond that which
18
already existed in the dangerous intersection. (Paz, supra, 22
Cal.4th at p. 560.) The nongovernmental defendants did not
undertake to perform a duty the city owed to the plaintiff,
eliminating alternative (b). (Id. at p. 561.) And there was no
evidence the plaintiff or the city relied on the nongovernmental
defendants to install the traffic signals by any particular date,
negating application of alternative (c). (Ibid.)
Here, as in Paz, the first four section 324A factors tend to
support the conclusion that defendant owed a duty of care to
plaintiffs, but these factors are not determinative of the duty
issue. Unlike the situation in Paz, the evidence in this case
raises inferences that defendant increased the risk of harm
during a power outage and the City relied on the battery backup
system to promote public safety. No more is needed to defeat
summary judgment on the duty issue.
III. Statutory Immunity Not Applicable
In presenting the motion for summary judgment, defendant
did not engage in analyses under Cabral, Rowland, Biakanja or
section 324A. Instead, defendant asserted the absence of duty
was established by a statutory presumption applicable to public
entities (Gov. Code, § 830.4), the holding in Chowdhury v. City of
Los Angeles (1995) 38 Cal.App.4th 1187 (Chowdhury), and the
results in White, supra, 25 Cal.App.4th 442 and Paz, supra, 22
Cal.4th 550.
For the reasons we have already discussed, White and Paz
are distinguishable. Defendant’s reliance on Government Code
section 830.4 to provide the statutory exception to the general
duty rule in Civil Code section 1714 is also unavailing.
19
Government Code section 830.4 provides in part, “A
condition is not a dangerous condition within the meaning of this
chapter merely because of the failure to provide regulatory traffic
control signals . . . .” This provision is part of the Government
Claims Act (Gov. Code, § 810 et seq.) and provides immunity to
government entities under certain circumstances. It does not
provide a blanket immunity to government entities under all
circumstances, however. (De La Rosa v. City of San Bernardino
(1971) 16 Cal.App.3d 739, 746 [“although a public entity is not
liable for failure to install traffic signs or signals . . . , when it
undertakes to do so and invites public reliance upon them, it may
be held liable for creating a dangerous condition in so doing”].)
Moreover, defendant did not cite, nor have we located, any
authority to extend this statutory immunity to a private entity
alleged to have been negligent. To the contrary, a defendant that
“is not a ‘public entity’ . . . is not entitled to claim the immunity
set forth in the Tort Claims Act.” (Lawson v. Superior Court
(2010) 180 Cal.App.4th 1372, 1397 (Lawson).)
Defendant’s reliance on Chowdhury, supra, 38 Cal.App.4th
1187 is similarly flawed. Chowdhury involved a vehicle collision
that occurred in an intersection when traffic signals were not
functioning due to a power outage. The plaintiffs successfully
sued the city on the theory it failed to correct a dangerous
condition of public property. The Court of Appeal reversed.
The sole defendant in Chowdhury was a public entity. The
appellate panel first found the public property was not, by
statute, in a dangerous condition (Gov. Code, § 830) and then
applied the city’s statutory immunity under the Government
Claims Act to reverse the judgment in the plaintiffs’ favor.
(Chowdhury, supra, 38 Cal.App.4th at p. 1195.)
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Chowdhury provides no assistance to defendant. As noted,
the statutory immunities available to public entities do not
extend to private entities that contract with them. (Lawson,
supra, 180 Cal.App.4th at p. 1397.) More to the point, however,
Chowdhury was resolved on the basis of statutory immunity, not
the legal question of duty. As our Supreme Court held in
Davidson v. City of Westminster (1982) 32 Cal.3d 197, “the
question of the applicability of a statutory immunity does not
even arise until it is determined that a defendant otherwise owes
a duty of care to the plaintiff and thus would be liable in the
absence of such immunity.” (Id. at pp. 201-222.)
IV. Conclusion
“The existence of a duty of care is a question of law decided
on a case-by-case basis.” (M.W. v. Panama Buena Vista Union
School Dist. (2003) 110 Cal.App.4th 508, 516.) Here, whether the
duty question is analyzed under either Biakanja or section 324A
criteria, defendant failed to establish as a matter of law the
absence of a duty to plaintiffs. Defendant was not entitled to
summary judgment.
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DISPOSITION
The judgment is reversed with directions to vacate the
judgment in favor of defendant and enter a new order denying
defendant’s motion for summary judgment. Plaintiffs are
awarded their costs on appeal.
CERTIFIED FOR PUBLICATION
DUNNING, J.
We concur:
KRIEGLER, Acting P. J.
BAKER, J.
Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
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