McPhail v. Mackey CA2/6 ( 2024 )

Filed 10/14/24 McPhail v. Mackey CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
BRADY McPHAIL, 2d Civ. No. B336575
(Super. Ct. No. 56-2021-
Plaintiff and Appellant, 00555128-CU-PO-VTA)
(Ventura County)
v.
THOMAS W. MACKEY,
Defendant and Respondent.
Brady McPhail appeals a judgment in favor of defendant
Thomas W. Mackey dba T.W. Mackey Electric Company (Mackey)
following the trial court’s order granting Mackey’s motion for
summary judgment. McPhail filed an action alleging Mackey, an
electrician, negligently performed electrical work that caused
McPhail to be shocked and suffer personal injuries. We conclude,
among other things, that there are triable issues of fact. We
reverse.
FACTS
McPhail was employed as a welder by the Simi Valley
Unified School District (school district). On July 22, 2019, he was
at his welding machine. He was “severely injured when his
welding machine became unexpectedly electrified.” He received
an electrical shock that caused him to fall “backwards onto the
ground.”
McPhail claimed his injuries were caused by Mackey, an
electrician, who performed electrical work for the school district.
McPhail filed an action for damages against Mackey, alleging his
negligent electrical work caused his injuries.
Mackey answered and then filed a motion for summary
judgment claiming: 1) he did not breach “any duty of care”; and 2)
under the “Completed and Accepted doctrine, a contractor whose
completed work has been accepted is not liable to third parties
injured as a result of the condition of the work.” The school
district owned the welding machine and decided to relocate it to a
“new welding shop.” It hired Mackey “to install a surface mount
50 amp 480v receptacle on the south wall of the new location for a
Lincoln TIG Welder.” Mackey completed the work and was paid.
The work was performed pursuant to the instructions and
accepted by Dave Damiani of the school district.
McPhail claimed the completed and accepted doctrine did
not apply because “[d]etection of Defendant’s negligence would
have required detailed knowledge of electrical wiring and was not
readily apparent to a non-expert like the school official who
accepted this work,” Glen Newell. Mackey was on notice that his
electrical work had to be compatible with the welding machine in
the shop. McPhail declared he had a “walk-through” with
Mackey when the welding machine was present, and he
“specifically informed” Mackey “where on the wall [he] would
need a receptacle for the TIG Welder.”
2.
McPhail’s expert, John Nicholas, declared Mackey breached
a duty of care because his wiring of the building created an
unsafe condition for welding machine users. Mackey failed to
inspect “the TIG Welder to see what type of phase the machine
was.” He should have known that connecting a “single-phase”
welding machine to a “three-phase receptacle” created a
dangerous condition which caused the electrical shock
experienced by McPhail. Mackey should have “installed the
wiring from the panel going into the building as single-phase,
and . . . installed a single-phase receptacle.” He installed a
“three-phase” for the “electrical panel” and “receptacle.” The
school district did not tell him what phase to use or know what
phase he was using.
Mackey’s expert, Dave Luxa, declared Mackey was “not at
fault.” “An electrician was not expected to know that the TIG
Welder was single phase . . . or three phase . . . .” “[T]he TIG
Welder had not yet been delivered to the current shop.” “Because
the TIG Welder had been improperly wired with a three-phase
(three ‘hots,’ and a ground) plug . . . , it was able to be plugged
into the installed receptacle.”
Mackey testified the electrical “receptacle” he was to install
was “going to be dedicated” for the use of the TIG welding
machine. He could not inspect that machine to determine if it
was a single-phase or three-phase because it was not in the shop
at that time. When later asked if the machine was there, he
testified, “I can’t remember.” He said the work he performed was
inspected by Damiani.
McPhail claimed there were triable issues of fact. He
disputed Mackey’s claim that the welding machine was not in the
shop and unavailable for his inspection. He declared the “TIG
3.
Welder was present in the welding room at that time.” Nicholas
declared that even if the machine was not in the shop, Mackey
had a duty to find out the machine’s phase because it is
“extremely dangerous to wire a receptacle for three-phase if it is
to be used on a machine which is single-phase.”
Mackey claimed installing a three-phase wall receptacle in
a shop with a single-phase welding machine was safe because
“there is no physical way a single-phase machine could plug into
a three-phase receptacle.”
Nicholas disagreed; he said single-phase welding machines
can be wired to fit a three-phase receptable. Welding machines
can be three phase or single phase and the plugs for the two are
similar. “It is reasonably foreseeable to an electrician that
someone might purchase the incorrect plug–especially when the
two types of plugs look very similar.” That is what occurred here.
Nicholas and Luxa agreed that McPhail’s machine had a plug to
fit the three-phase receptacle. Nicholas claimed Mackey’s duty to
install the correct receptacle for McPhail’s machine required him
to inspect that machine, and he failed to do so. Had he done so,
he would have seen this “dangerous set-up” of a single-phase
machine with a plug to fit a three-phase receptacle; and he
should have known that, when plugged in, McPhail’s machine
would be “electrified” and McPhail shocked.
The trial court granted Mackey’s motion for summary
judgment.
DISCUSSION
“Summary judgment provides courts with ‘a mechanism to
cut through the parties’ pleading in order to determine whether,
despite their allegations, trial is in fact necessary to resolve their
dispute.’ ” (San Jose Neurospine v. Aetna Health of California,
4.
Inc. (2020) 45 Cal.App.5th 953, 957.) “A defendant may obtain
summary judgment by showing one or more elements of
plaintiff’s cause of action is missing or that there is a complete
defense to the cause of action.” (Ibid.)
“ ‘ “On appeal, the reviewing court makes ‘ “an independent
assessment of the correctness of the trial court’s ruling [regarding
summary judgment], 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.” ’ ” ’ ” (San Jose Neurospine v.
Aetna Health of California, Inc., supra, 45 Cal.App.5th at p. 958.)
“ ‘Our task is to determine whether a triable issue of material
fact exists.’ ” (Ibid.) “ ‘[A]ny doubts as to the propriety of
granting a summary judgment motion should be resolved in favor
of the party opposing the motion.’ ” (Ibid.)
The Completed and Accepted Doctrine
Mackey relied on the completed and accepted doctrine in
moving for summary judgment.
“ ‘[W]hen a contractor . . . completes work that is accepted
by the owner, the contractor is not liable to third parties injured
as a result of the condition of the work, even if the contractor was
negligent in performing the contract, unless the defect in the work
was latent or concealed.’ ” (Neiman v. Leo A. Daly Co. (2012) 210
Cal.App.4th 962, 969, fn. omitted, italics added.) “ ‘The rationale
for this doctrine is that an owner has a duty to inspect the work
and ascertain its safety, and thus the owner’s acceptance of the
work shifts liability for its safety to the owner, provided that a
reasonable inspection would disclose the defect.’ ” (Ibid., italics
added.)
5.
McPhail showed the defect was latent. His separate
statement of facts shows 1) Glen Newell, the school
representative who approved the payment to Mackey, did not
have any training or experience to determine “that Mackey had
committed negligence”; and 2) the “negligence of Mackey was a
latent defect that Newell and the school officials approving
payment and accepting the work should not have been expected
to catch.” (Italics added.)
When deposed, Newell was asked, “[I]f you look at the
receptacle you wouldn’t know whether the receptacle was done
correctly or not, would you?” Newell: “Correct.” “And if there
was a defect in the work, you certainly wouldn’t know it, correct?”
Newell: “Correct.” He was asked, “Whatever problem there
would be, if there was one, would be latent and, I’m sorry, would
be latent or hidden, something you wouldn’t know, right?”
Newell: “Correct.” (Italics added.)
Mackey claimed his work was inspected by Dave Damiani
of the school district. But Damiani’s deposition testimony does
not support that claim. When asked whether he attended any
meeting with Mackey, Damiani said, “I’m not really sure.” “If
you were at a meeting with Mackey, do you have any idea of what
was discussed?” Damiani: “No.” When asked if he had a “specific
memory” of telling Mackey to use “three-phase” or “single-phase,”
he said “No.” “Have you ever seen the Mackey invoice or work
order for their work?” (Italics added.) Damiani: “No.”
Mackey suggests McPhail did not prove the completed and
accepted doctrine did not apply. But this doctrine is an
affirmative defense. (Neiman v. Leo A. Daly Co., supra, 210
Cal.App.4th at p. 969.) Mackey had the burden to prove it.
6.
The Dangerous Condition Exception
There is an exception to the completed and accepted
doctrine where “the article causing injury” is “abnormally
dangerous” (Hale v. Depaoli (1948) 33 Cal.2d 228, 230); where the
work is “imminently dangerous to third persons” (Stewart v. Cox
(1961) 55 Cal.2d 857, 862); or is “so negligently defective as to be
imminently dangerous” (Johnston v. Long (1943) 56 Cal.App.2d
834, 837). The doctrine does not apply where the contractor
creates a dangerous condition that is latent or hidden. (Sanchez
v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1467-
1468.)
Direct contact with electrical power line current is
dangerous and potentially deadly. (Austin v. Riverside Portland
Cement Co. (1955) 44 Cal.2d 225, 231; Krongos v. Pacific Gas &
Electric Co. (1992) 7 Cal.App.4th 387, 394; Bartuluci v. San
Joaquin Light & Power Corp. (1937) 21 Cal.App.2d 376, 385
[“ ‘any line carrying electricity for power is dangerous’ ”].) If
“ ‘the nature of a thing is such that it is reasonably certain to
place life and limb in peril when negligently made, it is then a
thing of danger’ ” and outside the doctrine. (Freeman v. Mazzera
(1957) 150 Cal.App.2d 61, 64.) A reasonable trier of fact could
infer from John Nicholas’s declaration that this dangerous
exception to the doctrine applies. Consequently, there are triable
issues of fact as to whether the completed and accepted doctrine
applies.
Duty of Care
Mackey claimed he did not owe a duty of care to McPhail.
But his work involved installing a conduit for electrical power at
a place where people work. “One who supplies electricity is
under a legal duty to use due care in the construction and
7.
installation of the necessary electrical facilities.” (Monroe v. San
Joaquin Light & Power Corp. (1941) 42 Cal.App.2d 641, 647.)
“This legal duty is necessarily extended to any person who might
with reasonable anticipation be endangered by faulty or improper
electrical equipment or installation.” (Ibid., italics added.) The
duty is imposed to protect people from “the inherent risk of
injury” caused by electrical current. (Austin v. Riverside
Portland Cement Co., supra, 44 Cal.2d at p. 231.)
Mackey testified he knew that the electrical receptacle that
he was to install was “going to be dedicated” for the use of the
TIG welding machine. The scope and extent of what duty he
owed to McPhail is “ ‘a factually oriented inquiry.’ ” (Jolley v.
Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 906.)
From McPhail’s evidence, a trier of fact could reasonably infer: 1)
Mackey’s electrical work was for McPhail’s work place; 2) Mackey
had a walk-through with McPhail; 3) Mackey was on notice that
his electrical work had to be compatible with McPhail’s welding
machine; 4) to perform that duty, Mackey had to inspect the
machine to be able to select a wall receptacle that was proper for
the machine and safe for its user; and 5) because Mackey was an
electrician connecting electric power, he had a special duty to
safely perform his electrical work for the protection of the
welding shop employees and consequently McPhail fell within the
scope of Mackey’s duty of care. (Monroe v. San Joaquin Light &
Power Corp., supra, 42 Cal.App.2d at p. 647.)
Facts Showing All the Elements of a Negligence Cause of Action
McPhail filed a separate statement of material facts
entitled “Plaintiff’s Additional Evidence in Opposition to the
Motion for Summary Judgment.” It contained additional facts
8.
Nos. 49 to 72. Mackey did not file a separate statement of facts
to respond to those additional facts.
McPhail contends the trial court correctly ruled that his
additional facts (Nos. 49-72) were uncontradicted. He claims
those facts support all the elements of a negligence cause of
action.
A separate statement of facts identifies facts that are
contested or uncontested. (Whitehead v. Habig (2008) 163
Cal.App.4th 896, 902.) It is “an indispensable part of the
summary judgment or adjudication process.” (Ibid.) Such
statements “ ‘afford due process to opposing parties’ ” and
“ ‘permit trial courts to expeditiously review complex motions for
. . . summary judgment to determine quickly and efficiently
whether material facts are disputed.’ ” (Ibid.) “The separate
statement is required . . . on the part of each party . . . .” (Ibid.)
Where a party presents additional evidence and the adverse
party does not respond, the court may treat that evidence as
uncontradicted or “true.” (Keniston v. American Nat. Ins. Co.
(1973) 31 Cal.App.3d 803, 813.)
“ ‘ “To establish a cause of action for negligence, the
plaintiff must show that the ‘defendant had a duty to use due
care, that [he] breached that duty, and that the breach was the
proximate or legal cause of the resulting injury.’ ” ’ ” (Doe v.
Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113,
125.)
Facts 49 to 72 show Mackey breached a duty to McPhail by
not inspecting the “TIG Welder to see what type of phase the
machine was.” (Fact No. 63.) The machine’s “markings” and
“owner’s manual” show it was a single-phase machine. (Fact No.
63.) Mackey should “have installed the wiring . . . going into the
9.
building as a single-phase” and should “have installed a single-
phase receptacle.” (Fact No. 63.) He improperly “wired the
building as three-phase.” (Fact No. 71.) “It is dangerous to
connect a single-phase machine to a three-phase receptacle.”
(Fact No. 62.) A school district employee improperly put “a three-
phase plug onto the end of the cord of the single-phase welding
machine.” (Fact No. 64.) Because Mackey did not install single-
phase wiring, when plugged into the receptacle, the “welding
machine became electrified.” (Fact No. 65.) When McPhail made
contact with it, “he received an electrical injury” (Fact No. 66),
“caused by” Mackey’s “negligent electrical wiring.” (Fact No. 70.)
McPhail was “severely injured.” (Fact No. 69.)
Mackey filed a brief in response. But because he did not
file a separate statement of facts to respond to McPhail’s separate
statement of additional evidence, the trial court ruled, “Plaintiffs’
Additional Material Facts . . . Nos. 49 through 72 are . . .
undisputed.” (Keniston v. American Nat. Ins. Co., supra, 31
Cal.App.3d at p. 813.)
McPhail’s additional facts support the elements of his
negligence cause of action by showing breach of duty, causation,
and damages. (Doe v. Lawndale Elementary School Dist., supra,
72 Cal.App.5th at p. 125; see also Anderson v. City of Thousand
Oaks (1976) 65 Cal.App.3d 82, 87; Monroe v. San Joaquin Light
& Power Corp., supra, 42 Cal.App.2d at p. 647.) Nicholas showed
that had Mackey not failed to comply with his duty to inspect the
machine, he would have seen the “dangerous set-up” of a single-
phase machine with a three-phase plug and he could have taken
action to comply with his duty to prevent McPhail’s reasonably
foreseeable injuries. (Monroe, at p. 647.)
10.
Objections to Nicholas’s Declaration
The trial court overruled Mackey’s objections to Nicholas’s
declaration. Mackey has not shown an abuse of discretion.
(Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) The
objections involved whether Nicholas could opine about whether
Newell would be able to understand Mackey’s electrical work.
The trial court could reasonably infer that because Nicholas was
an expert he could determine that Newell, who was not an
electrician, would not be able to determine whether Mackey’s
electrical work met the required standard. (Poggetto v. Owen
(1960) 187 Cal.App.2d 128, 136.) Moreover, Newell admitted that
any defects in Mackey’s work would be latent. We have reviewed
Mackey’s other objections to McPhail’s evidence and we conclude
the trial court did not abuse its discretion in overruling them.
Additional Contested Facts as Triable Issues
Experts Luxa and Nicholas disagreed about what Mackey
should have known when he was performing his work, the scope
of his work, the extent of his duties, and whether he was
negligent. But the “ ‘trial court’s gatekeeping role does not
involve choosing between competing expert opinions.’ ” (Garner
v. BNSF Railway Co. (2024) 98 Cal.App.5th 660, 675-676.) The
issue of whether the standard of care was breached “is one of
fact.” (Hernandez v. KWPH Enterprises (2004) 116 Cal.App.4th
170, 175.) Summary judgment is not appropriate where there are
“dueling expert opinions” creating a factual dispute. (Id. at
p. 176.) Disputes regarding the facts experts rely on and expert
credibility “are matters for the trier of fact to resolve at trial.”
(Brancati v. Cachuma Village, LLC (2023) 96 Cal.App.5th 499,
514.)
11.
There is conflicting evidence about when the welding
machine was in the shop, whether it was available to be
inspected by Mackey, and whether Mackey had a duty to find out
the machine’s “phase” even if it was not in the shop. Mackey
claimed his “work was performed pursuant to the instructions of
Damiani” who monitored his work. But when deposed, he could
not remember what Damiani told him, and Damiani’s testimony
does not support Mackey’s claim. There is contested evidence
about who approved Mackey’s work. There are contested
evidentiary issues involving the weighing of Mackey’s alleged
negligence with the negligence of the school employee who put a
three-phase plug on the single-phase machine. (Hoyem v.
Manhattan Beach City School Dist. (1978) 22 Cal.3d 508, 520;
Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187 [if a
defendant’s negligence “was a substantial factor in causing the
plaintiff’s harm,” the defendant “cannot avoid responsibility just
because some other person” was also a substantial factor in
causing the plaintiff’s harm].)
It is improper to resolve these contested evidentiary issues
in deciding a summary judgment motion. (Anderson v. City of
Thousand Oaks, supra, 65 Cal.App.3d at p. 87.) Because there
are triable issues of fact, the trial court erred by granting
summary judgment.
12.
DISPOSITION
The judgment following the order granting a summary
judgment motion is reversed. Costs on appeal are awarded in
favor of appellant.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
CODY, J.
13.
Randy Rhodes, Judge
Superior Court County of Ventura
______________________________
The Medler Law Firm APC and John F. Medler, Jr. for
Plaintiff and Appellant.
Veatch Carlson, LLP, Arnold S. Levine and Robert T.
Mackey for Defendant and Respondent.