Zuniga v. Cherry Avenue Auction

Filed 3/16/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
ARACELI CASTELLANO ZUNIGA, F078402 & F078557
Plaintiff and Respondent, (Super. Ct. No. 15CECG02779)
v.
OPINION
CHERRY AVENUE AUCTION, INC., et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Fresno County. Donald S.
Black, Judge.
Horvitz & Levy, David M. Axelrad, Stephen E. Norris, Yen-Shyang Tseng;
Hollingshead & Associates, John W. Beebe; Law Office of Patrick J. Campbell and
Patrick J. Campbell for Defendants and Appellants.
The Homampour Law Firm, Arash Homampour; The Ehrlich Law Firm and
Jeffrey I. Ehrlich for Plaintiff and Respondent.
-ooOoo-
Defendants own and operate an outdoor swap meet in Fresno. In August 2013,
plaintiff and her husband rented two vendor spaces at the meet. When they were setting
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts III. and IV. of the Discussion.
up their booth in those spaces, a 28-foot metal pole holding their advertising banner
touched an overhead power line. Plaintiff and her husband were electrocuted, and he
died. A jury found defendants were 77.5 percent at fault and plaintiff’s damages totaled
$12.25 million. As a result, a judgment for approximately $9.5 million was entered
against defendants.
On appeal, defendants contend they owed no duty of care to plaintiff because the
danger presented by the overhead power line was open and obvious. We, like the trial
court, conclude the evidence presented in this case did not establish as a matter of law
that the danger was open and obvious. In particular, it was not obvious that the line was
uninsulated, that it was energized, or that the amount of electricity being transmitted was
lethal. Thus, a warning would not have been superfluous; it would have provided
information that was not obvious.
Defendants also contend the Privette doctrine should be extended to and protect
them from liability. (See Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette).)
Privette established the general rule that the hirer of an independent contractor is not
liable to the independent contractor’s employees who sustain work-related injuries. The
principal rationale for the Privette doctrine is that the hirer’s liability should not be
greater than the liability of a negligent independent contractor who is protected by
workers’ compensation insurance. Because no workers’ compensation insurance covered
the injuries to plaintiff and her husband, we conclude the Privette doctrine should not be
extended to the landlord-tenant relationship that existed in this case.
The unpublished portions of this opinion address damages and costs. Based on
our review of the special verdict form, the jury instructions, the jurors’ question about
damages, and closing arguments, we conclude the jury’s award to plaintiff of past and
future “Bystander Emotional Distress Damages” for being present and witnessing the
death of her husband did not duplicate the award of emotional distress damages resulting
from the electrocution of plaintiff herself. Accordingly, the damages awarded for those
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categories will be upheld. Also, plaintiff was the prevailing party and properly awarded
her costs.
We therefore affirm the judgment.
FACTS
Defendant Cherry Avenue Auction, Inc., a California corporation, has operated an
outdoor swap meet on the same site in Fresno for over 40 years. Defendant W.D. & M.S.
Mitchell Family Limited Partnership, an entity organized under Texas law, owns the land
on which the swap meet operates. Defendant Kinsman Enterprises, LLC manages that
property. In this opinion, we refer to these entities collectively as “Cherry Avenue.”
Two brothers, Neil and James Burson, own Cherry Avenue.
Cherry Avenue’s swap meets are held on Tuesdays and Saturdays from 6:30 a.m.
to 3:30 p.m. in an open-air market containing approximately 850 vendor spaces. Cherry
Avenue rents the spaces to vendors, who can reserve them by the month or, based on
availability, rent them by the day. The number of vendors on a particular day may reach
500 because some vendors occupy more than one space. The rent charged varies by
location and ranges from $25 to $100 per space. Most vendors set up a frame holding a
fabric canopy in the space they rent. Neil Burson estimated that about 30 percent of
vendor booths have poles with upright advertising banners or flags attached.
Plaintiff Araceli Zuniga and her husband Jose Flores were married in Los Angeles
in January 2009. That year, they began selling merchandise at swap meets in the Los
Angeles area. They owned a booth with a frame made of metal tubing and a fabric
canopy. The frame could be disassembled for transport and reassembled at the swap
meet. They attached two 28-foot metal poles holding advertising banners to the booth’s
frame. The purpose of the banners was to attract customers.
In August 2013, Zuniga and her husband rented spaces 38 and 39 from Cherry
Avenue. The previous times Zuniga and her husband had been at the swap meet, they
have been located in a different area. Spaces 38 and 39 are among approximately 20
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vendor spaces located under a power line that was 26 feet and six inches above the
ground. That power line was owned and maintained by Pacific Gas and Electric
Company and had been installed in the 1930’s.
When Zuniga and her husband arrived the morning of August 24, 2013, they
assembled their booth on its side and attached the poles with the banners. When they
tilted the booth upright, one of the 28-foot poles came in contact with the power line.
Zuniga testified their practice was to lift the frame on a count of three and “when we
counted to three, I felt like my whole body went cold.” She stated: “When I woke up, I
felt that my body was all cold, and I felt pain in my body. I could—I could smell a smell
of something burnt. And the taste of metal that I could taste in my mouth.” Zuniga saw
her husband lying on the ground, ran to him and said: “Calm down. Everything is going
to be all right. You need to be strong in order to get out of this. You can’t—you can’t
leave me. I need you here with me. You are the only person that I have here.” He
moved his lips and died. The parties stipulated his cause of death was electrocution. He
was 36 years old.
After the incident, Pacific Gas and Electric Company sent a compliance supervisor
to inspect the power lines. His inspection did not identify anything that needed attention.
Zuniga and her husband had used their booth and 28-foot advertising banners at
Cherry Avenue’s swap meet approximately eight times before the incident. Zuniga
produced a Cherry Avenue “Sellers Permit” for swap meets held on June 25th, July 16th
and July 23rd of 2013. The preprinted seller permits set forth certain seller
responsibilities, nine rules and regulations, and a notice about the consequences of selling
counterfeit or illegal goods. The preprinted permits contain blank lines for the row and
space being rented and a line for the initials of the person issuing the permit. Permits
must be kept by sellers at the space rented at all times and sellers without a permit at the
time of space verification are required to obtain one by paying the regular fee. The
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permits do not contain a warning about the power lines and place no restrictions on
advertising banners.
James Burson, an owner of Cherry Avenue, testified that, before the incident, he
knew the power lines were dangerous, uninsulated and deadly. When asked if it occurred
to him before the incident that people had flags underneath the power lines and might be
electrocuted, he answered: “It didn’t occur to me, because nothing was ever near those
lines, no. So, it didn’t occur to me.” Neil Burson, the other owner, testified he did not
know what voltage the power lines carried and he “wouldn’t know the difference in
insulated or uninsulated high voltage. They all look the same to me.” When asked if he
knew that someone putting a 28-foot pole by the power lines could be electrocuted and
die, Neil Burson answered: “I’ve always known that they’re not to be gotten near. So, I
never considered somebody might throw a kite up there, because I know you stay away
from them.” During cross-examination, Zuniga’s attorney mentioned the idea that the
power line was obviously dangerous and said, “it wasn’t obviously dangerous to you, and
you’re the one that owns this business, correct?” Neil Burson answered, “Correct.”
Zuniga testified that, on the day of the incident, she did not notice the lines
overhead. She also testified she knew overhead electrical lines could be dangerous if you
touched them. Zuniga’s safety expert, Brad Avrit, testified that if someone goes to
spaces 38 and 39 and looks up, they will see the power lines and there was nothing
directly overhead to obscure the view of the lines. When asked if it is common
knowledge that electrical power lines are dangerous, he answered: “As a broad
generality, yes.” Avrit also was asked: “Does the average person need to know that an
overhead power line is energized in order to deduce whether or not it’s dangerous?” He
responded: “The average person needs to be reminded of that, particularly if they’re
working at ground level and you have power lines that are up above.” Avrit also testified
he did not find any fault with Zuniga and her husband under the reasonably prudent
person standard, stating:
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“I think they acted as you would expect somebody that’s erected this booth
many times before, never had an issue with it, and—and in this case, they
are concentrated on assembling it, they’re down at ground level, and going
to tilt it up. I don’t find what they did unreasonable under the
circumstances. They were -- they were being human. They had noticed
other people have big flags, they put up a big flag. That’s—that’s
reasonable and normal behavior.”
Avrit also described the “HIGH VOLTAGE” sign that he observed near the top of
the pole supporting the power lines, stating the letters were approximately three inches
tall. A photograph of the sign was introduced into evidence.
PROCEEDINGS
In August 2014, Zuniga filed a complaint for negligence against Cherry Avenue.
On August 22, 2018, prior to voir dire of prospective jurors, the panel heard counsel for
each side provide a brief overview of the lawsuit. They also heard the trial court read the
parties’ stipulation of facts and a first set of jury instructions.
Those jury instructions followed the Judicial Council of California Civil Jury
Instructions (CACI) addressing premises liability. After using CACI No. 1000 to define
the essential elements of a premises liability claim, the court addressed Cherry Avenue’s
basic duty of care as the landowner by stating:
“A person who owns, leases, or controls property is negligent if he or she
fails to use reasonable care to keep the property in a reasonably safe
condition. A person who owns, leases, or controls property must use
reasonable care to discover any unsafe conditions and to repair, replace, or
give adequate warning of anything that could reasonably expect it to harm
others.
“In deciding whether Cherry Avenue Auction used reasonable care, you
may consider, among other factors, the following: The location of the
property; the likelihood that someone would come on the property in the
same manner as Araceli Zuniga did; the likelihood of harm; the probable
seriousness of such harm; whether Cherry Avenue Auction knew or should
have known of the condition that created the risk of harm; the difficulty of
protecting against the risk of such harm; and the extent of Cherry Avenue
Auction’s control over the condition that created the risk of harm.” (See
CACI No. 1001, Basic Duty of Care.)
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Next, based on CACI Nos. 1003 and 1004, the court instructed the panel on unsafe
conditions and obviously unsafe conditions by stating:
“Cherry Avenue Auction was negligent in the use or maintenance of the
property if, one, a condition on the property created an unreasonable risk of
harm; two, Cherry Avenue Auction knew or through the exercise of
reasonable care should have known about it; and, three, Cherry Avenue
Auction failed to repair the condition, protect against harm from the
condition, or give adequate warning of the condition.
“If an unsafe condition of the property is so obvious that a person could
reasonably [be] expected to observe it, then the owner does not have to
warn others about the dangerous condition; however, the owner still must
use reasonable care to protect against the risk of harm if it is foreseeable
that the condition may cause injury to someone who, because of necessity,
encounters the condition.”
On August 23, 2018, a jury was empaneled, counsel made opening statements, and
the presentation of witnesses began. On August 29, 2018, the last witness testified, and
counsel presented their closing arguments. The arguments addressing damages are
discussed in part III.B.3. of this opinion. The next day, the trial court gave the jury its
final instructions. On the duty of care, a central issue in this appeal, the jury was
instructed:
“A person who owns, leases, or controls property is negligent if he or she
fails to use reasonable care to keep the property in a reasonably safe
condition. A person who owns, leases, or controls property must use
reasonable care to discover any unsafe conditions and to repair, replace, or
give adequate warning of anything that could reasonably be expected to
harm others.”
After informing the jury of the factors to consider in determining whether Cherry
Avenue used reasonable care, the trial court stated:
“The Defendants were negligent in the use or maintenance of the property
if, one, a condition on the property created an unreasonable risk of harm;
two, the Defendants knew or through the exercise of reasonable care should
have known about it; and three, the Defendants failed to repair the
condition, protect against harm from the condition, or give adequate
warning of the condition.
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“If an unsafe condition of the property is so obvious that a person could
reasonably be expected to observe it, then the owner, lessor, or person who
controls the property does not have to warn others about the dangerous
condition.”1
In addition, the trial court told the jury: “Landowners are required to maintain land
in their possession and control in a reasonably safe condition, and this duty is non-
delegable.” The court informed the jury of Cherry Avenue’s claim that the negligence of
Zuniga and her husband contributed to the harm and that, if the jury found one or both
negligent, the jury would have to determine the percentage of their responsibility.
On September 4, 2018, the jury reached its verdict. The jury found Cherry
Avenue, Zuniga, and her husband were negligent and held Cherry Avenue 77.5 percent
responsible, Zuniga 11.25 percent responsible and her husband 11.25 percent responsible.
The jury found the damages totaled $12.25 million. The special verdict form is described
in more detail in the unpublished portion part III.B.1. of this opinion.
Based on the jury’s findings that Cherry Avenue was 77.5 percent responsible and
damages totaled $12.25 million, the trial court entered judgment for plaintiff in the
amount of $9,493,750 on September 6, 2018. The court also awarded prejudgment
interest of $470,785.96 pursuant to Code of Civil Procedure section 998 and Civil Code
section 3291.
Cherry Avenue filed a notice of intent to move for new trial and a notice of motion
for judgment notwithstanding the verdict. In November 2018, the court denied both
motions. Later in November, Cherry Avenue filed a notice of appeal challenging the
judgment and the order denying its motion for judgment notwithstanding the verdict. The
appeal was assigned case No. F078402.
1 This sentence is the first sentence of CACI No. 1004. The second sentence of
CACI No. 1004, which was added by a May 2018 revision and read to the prospective
jurors at the start of the case, was not included.
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Cherry Avenue also filed a motion to tax costs claimed by Zuniga in her
memorandum of costs. In December 2018, the trial court granted the motion in part,
taxing $2,055.25 of the costs claimed, while rejecting most of Cherry Avenue’s
challenges. Cherry Avenue also filed a notice of appeal challenging the order regarding
costs. That appeal was assigned case No. F078557. In January 2021, this court ordered
the two appeals consolidated.
DISCUSSION
Cherry Avenue contends the judgment and award of costs should be reversed and
a judgment entered in its favor because it owed no duty to Zuniga and her husband. First,
Cherry Avenue argues the Privette doctrine, as extended by Laico v. Chevron U.S.A., Inc.
(2004) 123 Cal.App.4th 649 (Laico), means a commercial lessor delegates to its tenants
the responsibility of ensuring they safely perform their work on the leased property.
Second, Cherry Avenue contends it owed no duty to warn about or remedy the power
lines’ dangers because those dangers were open and obvious. We reject both arguments.
I. PRIVETTE DOCTRINE
A. Overview
In Privette, supra, 5 Cal.4th 689, our Supreme Court adopted a principle of
nonliability, holding that a person who hires an independent contractor to do dangerous
work is not liable when an employee of the independent contractor suffers a work-related
injury. (Id. at p. 692.) In other words, “[g]enerally, when employees of independent
contractors are injured in the workplace, they cannot sue the party that hired the
contractor to do the work.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th
590, 594 (SeaBright).)
This specific rule of nonliability was adopted for two reasons. First, workers’
compensation insurance usually provides the exclusive remedy for employees who are
injured on the job. As a result, allowing the employee to recover from the contractor’s
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hirer, who did not cause the injury, would unfairly subject the hirer to greater liability
than that faced by the contractor whose negligence caused the injury. (Hooker v.
Department of Transportation (2002) 27 Cal.4th 198, 204 (Hooker).) Second, “[b]y
hiring an independent contractor, the hirer implicitly delegates to the contractor any tort
law duty it owes to the contractor’s employees to ensure the safety of the specific
workplace that is the subject of the contract.” (SeaBright, supra, 52 Cal.4th at p. 594,
italics omitted.) Such delegation includes any “duty the hirer owes to the contractor’s
employees to comply with applicable statutory or regulatory safety requirements,” such
as those mandated by Cal-OSHA. (Ibid.)
In light of Cherry Avenue’s arguments about the scope of the Privette doctrine, we
briefly describe Supreme Court decisions extending the doctrine. First, hirers are
protected “from liability to the independent contractor’s employee even when the basis
for liability was that the hirer failed to provide in the contract that the contractor must
take special precautions to avert the risks of the work. (Toland v. Sunland Housing
Group, Inc. (1998) 18 Cal.4th 253, 256–257.” (Johnson, supra, 33 Cal.App.5th at p.
628.) Second, Privette applies when the employee’s theory of liability is that the hirer
negligently hired the independent contractor. (Camargo v. Tjaarda Dairy (2001) 25
Cal.4th 1235, 1238; see Johnson, supra, at p. 628.) Third, “Privette applies when the
injured employee’s cause of action against the hirer of the independent contractor is
based on the hirer’s failure to comply with statutory or regulatory workplace safety
requirements.” (Johnson, supra, at p. 628, citing SeaBright, supra, 52 Cal.4th at p. 594.)
B. Scope of Privette Doctrine
Based on Privette and subsequent Supreme Court decisions, we conclude the
Privette doctrine applies to situations where there is a hirer (often a landowner), an
independent contractor hired to perform a task, and an employee of the independent
contractor who was injured on the jobsite. Here, Cherry Avenue formed a commercial
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landlord-tenant relationship with Zuniga and her husband when Cherry Avenue rented
them spaces at the swap meet. There was no hiring of an independent contractor and
there was no injury to an employee who was covered by workers’ compensation
insurance. Therefore, based on the plain language of our Supreme Court’s decisions, we
conclude the Privette doctrine does not apply to the landlord-tenant relationship between
Cherry Avenue and Zuniga.
C. Extending the Privette Doctrine
Next, we consider Cherry Avenue’s argument that Laico extended the Privette
doctrine beyond situations where a landowner hired an independent contractor. We reject
this argument because it misreads Laico. Furthermore, regardless of Laico, we conclude
it is not appropriate for this court to extend the Privette doctrine to the relationship
created by Cherry Avenue and Zuniga and her husband.
In Laico, the Sixth District’s discussion plainly shows it was not applying the
Privette doctrine to conclude the landowner owed no duty to Laico. First, the court stated
it found “sufficient similarity in the plaintiffs’ theory of the case that Privette, Toland,
and Hooker provide a useful analogy to the issues presented here.” (Laico, supra, 123
Cal.App.4th at p. 668, italics added.) This reference to Privette and other cases providing
a useful analogy cannot be reasonably interpreted to mean the Sixth District applied the
Privette doctrine to the landowner in that case.
Second, the Sixth District identified the legal principles it was applying by
referring to (1) Civil Code section 1714 as the source of a property owner’s general duty
of care towards others and (2) the analysis set forth in Rowland v. Christian (1968) 69
Cal.2d 108 for creating exceptions to the statutory duty to use ordinary care in the
management of one’s property. (Laico, supra, 123 Cal.App.4th at pp. 659–666.) In
short, the court was applying rules of law governing premises liability and was not
applying the Privette doctrine. The rules are readily apparent in the court’s summary of
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its decision, which stated: “[W]e cannot find a basis for finding premises liability on the
facts of this case. Plaintiffs have not shown the existence of a dangerous condition of
land owned by [Chevron U.S.A.] or under its control; instead, the danger consisted of
hazardous conduct by the occupant of that land through its employees. Plaintiffs further
failed to establish [Chevron U.S.A.’s] knowledge of the danger, the right to inspect, or
the ability to discover and remedy hazards of the workplace. [Chevron U.S.A.’s] duty of
care as a landowner did not encompass a duty to oversee the testing performed by the
premises occupant, [Laico’s employer].” (Id. at p. 670.)
In closing our discussion of the Privette doctrine, we conclude it is not appropriate
to extend that doctrine to landlord-tenant relationships. Doing so would overturn
established rules of premises liability that govern a land possessor’s duty to third parties
when a dangerous condition exists on the property. Such a fundamental shift in the law is
best done by the Legislature or our Supreme Court. Accordingly, we next consider how
the rules of premises liability apply to the facts of this case.
II. PREMISES LIABILITY
A. The Duty of Care and Exceptions
In 1968, the California Supreme Court discarded the common law approach and
determined that premises liability should be handled under ordinary negligence
principles. (Rowland, supra, 69 Cal.2d at p. 119; see Friedman et al., Cal. Practice
Guide: Landlord-Tenant (The Rutter Group 2020) ¶ 6:10, p. 6-9; 12 Witkin, Summary of
Cal. Law (11th ed. 2017), Real Property, § 665, p. 752 [liability under foreseeability
test].) The court identified the source of the landowner’s duty by referring to Civil Code
section 1714, the current version of which provides: “(a) Everyone is responsible, not
only for the result of his or her willful acts, but also for an injury occasioned to another
by his or her want of ordinary care or skill in the management of his or her property or
person, except so far as the latter has, willfully or by want of ordinary care, brought the
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injury upon himself or herself.” (Italics added.) The court stated that, under Civil Code
section 1714, the test for liability applicable to the possessor of land “is whether in the
management of his property he has acted as a reasonable man in view of the probability
of injury to others.” (Rowland, supra, at p. 119.) Thus, pursuant to the general rule in
Civil Code section 1714, a landlord owes a duty to its tenants to exercise ordinary care.
The general duty to exercise ordinary care in one’s activities is subject to
judicially created exceptions. Courts, however, create exceptions only where clearly
supported by public policy. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1143.)
The most important public policy “factors are ‘the 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.’ ” (Ibid., citing Rowland, supra, 69 Cal.2d at p. 113.)
Here, the parties agree that, in certain circumstances, a landlord has no duty to
remedy or warn of a dangerous condition that is open and obvious. The scope of the no-
duty rule for open and obvious dangers, however, is disputed.2 That dispute raises a
question of law that does not need to be decided to resolve this appeal. Instead, we
2 Cherry Avenue argues the only exception to the no-duty principle for open and
obvious dangers is narrow and arises where the practical necessity of encountering the
danger, when weighed against the apparent risk involved, is such that under the
circumstances, a person might choose to encounter the danger. (Kinsman, supra, 37
Cal.4th at p. 673.) Zuniga argues the exception is broader and cites Osborn v. Mission
Ready Mix (1990) 224 Cal.App.3d 104, which states that “a possessor of land may, under
certain circumstances, be liable for injuries caused by a failure to remedy an obvious or
observable danger if ‘harm was foreseeable despite the obvious nature of the danger.’ ”
(Id. at p. 121, fn. 12.) Osborn refers to necessity as an example of circumstances where it
is foreseeable that an open and obvious danger may cause injury. (Id. at p. 122.)
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assume Cherry Avenue’s argument about the exception’s scope is correct and address the
question of whether the overhead power lines were an open and obvious danger.
B. Open and Obvious Danger
1. Overview
Stated in general terms, the no-duty exception for open and obvious dangerous
conditions provides that “ ‘if a danger is so obvious that a person could reasonably be
expected to see it, the condition itself serves as a warning, and the landowner is under no
further duty to remedy or warn of the condition.’ ” (Jacobs v. Coldwell Banker
Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447.) Thus, the rationale for the
exception to the general duty of ordinary care is that the foreseeability of harm usually is
absent because third parties will perceive the obvious and take action to avoid the danger.
(Ibid.)
Immediately prior to its deliberations, the jury was instructed on open and obvious
dangerous conditions using the version of CACI No. 1004, Obviously Unsafe Conditions,
that was in effect prior to its revision in May 2018. The court told the jury: “If an unsafe
condition of the property is so obvious that a person could reasonably be expected to
observe it, then the owner, lessor, or person who controls the property does not have to
warn others about the dangerous condition.”
2. Contentions and Trial Court’s Determinations
Cherry Avenue’s motion for judgment notwithstanding the verdict argued (1)
whether it owed any duty to Zuniga was a question of law for the court and (2) it owed no
duty to warn or remedy the open and obvious power lines that Zuniga and her husband
did not need to encounter. Cherry Avenue asserted the evidence showed the power lines
had been in place for over 80 years, the lines were readily visible and discernible from
the ground below, and there were no impediments such as trees or buildings to obscure
the view of the lines.
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The trial court’s order denying the motion for judgment notwithstanding the
verdict stated Cherry Avenue’s argument that it had no duty to warn or remedy the
hazard created by the power lines hinged on Cherry Avenue’s claims that the power lines
were open and obvious and, thus, foreseeability of injury was absent. The court rejected
this argument, stating: “The problem with this position is that the premise is faulty, i.e.,
there was abundant evidence the danger posed by the power lines is not open and
obvious.” The court also stated: “[T]here was abundant evidence that [Cherry Avenue]
created the dangerous condition by establishing vendor spaces under the power lines all
the while knowing that people would set up booths under the power lines and raise
banners to draw attention to their booths.” In addition, the court found it “foreseeable
that persons would not see, or more likely, appreciate the danger posed by [the] high
voltage power lines. There was abundant evidence to this effect during the trial.”
3. Evidence About the Danger
Avrit, Zuniga’s safety expert, testified that Cherry Avenue created a hazard for its
vendors by creating vendor spaces directly below the power lines and then renting those
spaces to vendors. Avrit testified “that studies show that people do not clearly recognize
the difference between insulated and uninsulated lines” and, therefore, “most people
aren’t going to know … whether or not the lines that they may be looking at have or do
not have insulation on them and can protect them from electrical shock.” Avrit also
testified most people have little or no understanding of the amount of electricity flowing
through the lines and, because lines usually are silent,3 they cannot tell by looking at
them whether the lines are active or inactive. In addition, Avrit testified that most people
do not understand that electricity can arc to a metal object even if the object does not
come into contact with the line and, furthermore, they would not be able to tell what a
3 Avrit stated that, on a clear day, there is no noise or sound caused by the power
running through the line and that on a foggy day the lines will “crackle a little bit.”
15.
safe distance is by looking at the line. The distance depends on the amount of voltage,
and the higher the voltage, the greater the distance for a potential arc. Avrit also testified
that some people might look at the poles used for the line and think of them as telephone
poles, which might make them uncertain whether the lines were power lines or telephone
lines.
Cherry Avenue’s safety expert John Tyson was asked during cross-examination:
“And it is very common for the public not to know power lines are energized and
uninsulated, correct?” Tyson answered, “Well, I think so, yes. I can’t give you any
numbers though.”
Cherry Avenue’s expert Ralph Crawford, a forensic electrical engineer, was asked
during cross-examination: “The fact is that you agree energized lines can cause electric
shock or electrocution, which is death, and is not obvious to the average person, correct?”
Crawford responded, “To the extent that I know anything about the average person, I
would agree that could be the case.” Similarly, during a videotaped deposition that was
presented to the jury, Crawford answered “Yes” when asked: “The fact that these
energized lines could cause electrical shock or electrocution is not obvious to your
average person? [¶] Do you agree?” As described earlier, Neil Burson testified the
power line was not obviously dangerous to him.
The foregoing testimony adequately supports the trial court’s determination that
the evidence presented was adequate to show “the danger posed by the power lines is not
open and obvious.” As a result, we cannot determine as a matter of law that the power
line was an open and obvious danger. (See Stark v. Lehigh Foundries, Inc. (1957) 388
Pa. 1, 8 [“ ‘presence of the power lines in and of itself did not indicate obvious
danger’ ”].)4
4 Cherry Avenue’s opening brief contains a footnote stating courts in Pennsylvania
along with Alabama, Arizona, Georgia and Kansas hold the dangers of visible power
lines are not open and obvious and another footnote citing cases from 19 state courts that
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The finding that the danger was not open and obvious can be restated in terms of
whether a warning to Zuniga and her husband would have been superfluous. A warning
that the overhead lines were uninsulated and energized with enough electricity to cause
death would have provided useful information to Zuniga and her husband—information
that was not available simply by looking at the power lines. Thus, the warning would not
have been superfluous. (Rest.3d Torts, supra, § 51, com. k, p. 252 [“Risks that are
known, open, or obvious already provide notice to those who might be exposed to the
risk, making a warning superfluous”].)
4. Contributory Negligence
Prior to our Supreme Court’s adoption of principles of comparative fault in Li v.
Yellow Cab Co. (1975) 13 Cal.3d 804, a plaintiff’s contributory negligence barred
recovery against a defendant whose negligent conduct would otherwise have made the
defendant liable to the plaintiff for the harm sustained. (Id. at pp. 809–810.) The
application of California’s now-abandoned doctrine of contributory negligence to power
lines was described in Mark v. Pacific Gas & Electric Co. (1972) 7 Cal.3d 170:
“[O]ur courts have often held that one who knowingly touches a high
voltage power line or wire may be held contributorily negligent as a matter
of law, since the danger of electrical shock from such high voltage lines is
‘presumed to be familiar to men of average intelligence.’ (Andrews v.
Valley Ice Co., 167 Cal. 11, 20 [138 P. 699] [power lines: decedent was a
construction worker who ‘must have known the danger of getting near
highly charged wires’]; see Shade v. Bay Counties Power Co., 152 Cal. 10,
12 [92 P. 62] [hanging power lines: decedent was warned not to touch lines
and “knew the danger of live wires”]; cf. Mosley v. Arden Farms Co., 26
Cal.2d 213, 217 [157 P.2d 372, 158 A.L.R. 872] [all men are charged with
knowledge of ‘the qualities, characteristics, and capacities of things and
forces in so far as they are matters of common knowledge at the time and in
the community ...’]; Rest.2d Torts, supra, § 290, and illus. 1 [one who
grabs high voltage power line is negligent notwithstanding ignorance of
Cherry Avenue contends recognize the open and obvious nature of the danger created by
power lines.
17.
danger if danger is matter of common knowledge in community].)” (Mark
v. Pacific Gas & Electric Co., supra, 7 Cal.3d at pp. 180–181.)
This application of the doctrine of contributory negligence is similar in effect to a
rule of law stating possessors of land have no duty of care to protect third parties from
injuries caused by power lines. In this appeal, we will not interpret cases decided before
Li v. Yellow Cab in 1975 as supporting a blanket rule of law that power lines are always
an open and obvious danger for which landlords never have a duty of care. In other
words, we decline to resurrect the doctrine of contributory negligence by recasting it as
the absence of a duty of care.
Thirty years ago, the Illinois’s Supreme Court commented on “[t]he manifest trend
of the courts in this country … away from the traditional rule absolving, ipso facto,
owners and occupiers of land from liability for injuries resulting from known or obvious
conditions, and toward the standard expressed in section 343A(1) of the Restatement
(Second) of Torts (1965).” (Ward v. K Mart Corp. (Ill. 1990) 554 N.E.2d 223, 231.)
Cherry Avenue’s argument for a blanket rule of law that the danger created by power line
imposes no duty on landlords is contrary to this nation-wide trend as well as the approach
California courts have taken to open and obvious dangers. (See Martinez v. Chippewa
Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184; Rest.3d Torts, supra, § 51 [general
duty of land possessors].)
III. DAMAGES*
A. Contentions
Cherry Avenue contends the award of bystander emotional distress damages
should be reversed on two independent grounds. First, Cherry Avenue argues the direct
injury emotional distress damages award already includes bystander emotional distress
damages. Second, Cherry Avenues asserts that Zuniga had no contemporaneous
awareness of the electrocution or that it caused her husband’s injury.
* See footnote, ante, page 1.
18.
Zuniga responds by contending there was no duplicative recovery because the
jury’s award of damages for direct injury emotional distress explicitly did not include
damages for bystander emotional distress. Zuniga also contends substantial evidence
supports the award of bystander emotional distress damages and Cherry Avenue cannot
show any prejudice because Zuniga was entitled to recover all the emotional distress
damages awarded as a direct victim.
B. Background
1. The Special Verdict Form
The first question in the special verdict form asked if Cherry Avenue was
negligent in the maintenance or use of the property. The second question asked if Cherry
Avenue’s negligence was a substantial factor in causing harm to plaintiff. In a nine-to-
three vote, the jury answered “Yes” to both questions.
The special verdict form’s question No. 3 stated: “What are the wrongful death
damages for Araceli Zuniga’s loss of Jose Flores’ love, companionship, comfort, care,
assistance, protection, affection society, moral support, and loss of training and
guidance.” In a ten-to-two vote, the jury found “[p]ast wrongful death damages” were $1
million and “[f]uture wrongful death damages” were $2.25 million.
The special verdict form’s question No. 4 stated: “What are the emotional distress
damages of Araceli Zuniga? Do not reduce the damages based on the fault, if any, of
others.” Immediately after the question, the special verdict form broke these damages
down into four separate categories. The categories drew distinctions between (1) past
and future distress and (2) direct and bystander emotional distress. The jury unanimously
found (1) “Past Direct Injury Emotional Distress Damages” of $1 million; (2) “Future
Direct Injury Emotional Distress Damages” of $2 million; (3) “Past Bystander Emotional
Distress Damages” of $2 million; and (4) “Future Bystander Emotional Distress
Damages” of $4 million.
19.
The damages found totaled $12.25 million. Based on the jury’s finding that
Cherry Avenue was 77.5 percent responsible, the judgment held Cherry Avenue liable for
$9,493,750 in damages.
2. Jury Instructions
Ordinarily, one would expect an appellant to quote, or at least summarize, the jury
instructions defining the categories of damages the appellant claims are duplicative. In
theory, the instructions would have informed the jury of the difference between direct
emotional distress and bystander emotional distress and, if needed, the distinction
between past and future damages. Also, one might expect an appellant to refer to the
arguments in counsels’ closing statements about applying the categories of damages set
forth in the special verdict form. In this appeal, however, Cherry Avenue’s briefing has
not mentioned the instructions or counsels’ closing statements.
Cherry Avenue’s decision not to describe the jury instructions implies it regards
the instructions as immaterial to its claim of reversible error. Despite Cherry Avenue’s
implied position, we view the instructions as useful in determining whether the damages
labeled “direct” and the damages labeled “bystander” were, in fact, duplicative.
First, to provide a complete picture of the four categories of damages, we address
the past-future distinction. Our independent review of the jury instructions located no
explicit explanation of the difference between past and future damages. This absence
suggests the parties and the trial court regarded the terms “past” and “future” as clear in
meaning and determined the jury could apply those terms as a matter of common sense.
The jury instructions did address one distinct requirement for awarding future damages,
stating at least three times that Zuniga “must prove that she is reasonably certain to suffer
that harm.” (See CACI Nos. 3905A [physical pain, mental suffering, and emotional
distress], 3920 [loss of consortium].)
20.
Second, we consider the instructions defining Zuniga’s claims for direct and
bystander damages. On the general negligence theory, the jury was instructed that
Zuniga claimed she was harmed because of the way Cherry Avenue managed its property
and that, to establish this claim, she had to prove (1) Cherry Avenue was negligent in the
use or maintenance of the property, (2) she was harmed, and (3) Cherry Avenue’s
negligence was a substantial factor in causing her harm. In addition, the jury was
instructed that Zuniga claimed she suffered serious emotional distress as a result of
perceiving the fatal injury to her husband and that, to establish this claim, she had to
prove (1) Cherry Avenue negligently caused an injury to her husband; (2) when the
electrocution occurred, she was present at the scene; (3) she was then aware that the
electrocution was causing injury to her husband; (4) she suffered serious emotional
distress; and (5) Cherry Avenue’s conduct was a substantial factor in causing her serious
emotional distress. (See CACI No. 1621 [bystander recovery of damages for emotional
distress].) The jury was told Zuniga “need not have been aware that [Cherry Avenue]
had caused the electrocution.” “Emotional distress” was defined as including “suffering,
anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame.
Serious emotional distress exists if an ordinary reasonable person would be unable to
cope with it.” (See CACI No. 1621.) The jury instructions also stated the damages
Zuniga claimed were: “Past and future physical pain, mental suffering, loss of enjoyment
of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation,
and emotional distress.”
The jury instruction’s listing of the types of damages Zuniga claimed, together
with the special verdict form’s use of the phrases “Direct Injury Emotional Distress
Damages” and “Bystander Emotional Distress Damages”, caused the jury to ask a
question about awarding physical damage. After receiving input from counsel, the court
told the jury it had placed a mark on one of the instructions it was about to mention in
answering the jury’s question and then stated:
21.
“Plaintiff claims [that] you can award damages for past and future physical
pain, physical impairment, and all other damages detailed in the jury
instruction I marked. These past and future physical pain and physical
impairment damages would be awarded in response to question number
four, past direct injury emotional distress damages, and future direct injury
emotional distress damages if you decide to award such damages.”
As a result of this instruction, the labels “Past Direct Injury Emotional Distress
Damages” and “Future Direct Injury Emotional Distress Damages” for the first two
categories of damages addressed in question No. 4 of the special verdict form were
underinclusive because those categories were to include damages for injuries other than
emotional distress. In comparison, the last two categories addressing past and future
“Bystander Emotional Distress Damages” were limited to emotional distress.
The jury was instructed that in determining Zuniga’s noneconomic damages for
her wrongful death claim, they were not to consider (1) her “grief, sorrow, or mental
anguish”; (2) her husband’s pain and suffering; or (3) the poverty or wealth of Zuniga. It
appears this instruction is why Cherry Avenue does not contend the wrongful death
damages awarded in response to question No. 3 were duplicative of the bystander
emotional distress damages.
3. Closing Arguments
Zuniga’s counsel told the jury it was “going to decide what is the reasonable value
for the lifetime of loss for three different harms she suffered: Her direct injury, which
she was electrocuted and suffered those injuries she talked about and was hospitalized.
The second injury is that horrifically witnessing the death of her husband and
experiencing it right before her eyes. The law recognizes that as its own claim. It’s
called a bystander claim. And the third loss is the loss of her husband’s love.”
Summarizing the point, counsel stated “three different types of harm were caused by
[Cherry Avenue’s] negligence.”
Addressing the wrongful death damages, counsel told the jury the judge would
define this component using the words “companionship, comfort, care, assistance,
22.
affection, society, moral support, protection guidance, [and] sex” and those were the
words the jury should use to evaluate what was taken from Zuniga. Counsel argued the
value of these items and love was “about a million dollars a year” and noted Zuniga’s life
expectancy was 43 years. Counsel stated five years had passed since the incident and
said, “you are going to have a question that says past and future, I wrote five million past,
45 million future.”
Counsel addressed the first two categories of damages listed in question No. 4 of
the special verdict form by stating: “[W]e have past, direct emotional distress, two
million dollars that’s for her physical and mental injuries for being electrocuted herself.
We then have future for the personal injuries she suffered, that’s two million.”
Addressing the final two categories of damages listed in question No. 4, counsel stated:
“Then the bystander is separate emotional distress, and that is just literally being present
when her husband is electrocuted right in front of her. That in and of itself for the last
five years is worth ten million. And then for the rest of her life living with that
experience and memory is worth 15 million.”
The closing argument of counsel for Cherry Avenue focused entirely on issues
related to liability. He stated “that this is a simple case. We are talking about overhead
power lines.” He argued that “from [a] young age, we are taught if we encounter a[n]
electrical line outside, stay away.” He asserted that one did not need to assess whether
the lines were energized to properly and prudently look out for one’s own safety. Cherry
Avenue’s counsel argued the evidence soundly established that the negligence of Zuniga
and her husband were a substantial factor in causing his death. Referring to CACI No.
1004, he stated that a landowner must use reasonable care to protect against the risk of
harm from an unsafe condition on property if it is foreseeable that the condition may
cause injury to someone who, because of necessity, encounters the condition. Cherry
Avenue’s counsel argued there was no necessity for Zuniga and her husband to hoist a
23.
28-foot tall flag as part of their stand, but they choose to do so, and Cherry Avenue
should not be blamed for that choice.
In his concluding argument, Zuniga’s counsel went through the special verdict
form’s questions. In addressing damages, he reiterated that he had asked for five million
for past wrongful death damages and 45 million for future wrongful death damages and
then said, “It’s up to you.” Next, counsel stated: “Two million for past direct injury
damages. Two million for future direct injury damages. Ten million for bystander, what
happened at the time of the incident: she felt, tasted, touched, heard it. And then 15
million for living with that distress and pain of having experienced the most horrific
event we can all imagine.”
4. Rule Against Duplicative Damages
In Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590 (Plotnik), a dispute arose
between neighbors and they entered into a settlement agreement. The antagonism
continued and plaintiffs, a husband and wife, sued the neighbor and his two adult sons,
alleging breach of the settlement agreement, assault, trespass to personal property (their
15-pound dog), negligence, conversion, intentional infliction of emotional distress, and
negligent infliction of emotional distress. (Id. at pp. 1598–1599.) First, the jury found
the neighbor had breached the settlement agreement and awarded emotional distress
damages of $35,000 to the husband and $70,000 to the wife. (Id. at p. 1598.) Second,
the jury found the neighbor had committed a trespass against the dog and awarded
husband $2,600 in economic damages and $20,000 in emotional distress and awarded
wife $209.53 in economic damages and $30,000 in emotional distress. (Id. at p. 1599.)
Third, the jury found the neighbor negligently interacted with the dog and awarded
husband emotional distress damages of $16,150 and wife emotional distress damages of
$30,000. (Ibid.) Fourth, on the claim for intentional infliction of emotional distress, the
jury awarded husband emotional distress damages of $30,000 and wife emotional distress
24.
damages of $75,000. (Ibid.) Fifth, on the claim for negligent infliction of emotional
distress, the jury awarded husband emotional distress damages of $30,000 and wife
emotional distress damages of $50,000. (Ibid.) After post-trial motions and plaintiffs’
acceptance of remittitur, the trial court entered an amended judgment that could be
interpreted as eliminating the recovery of either the intentional or the negligent infliction
of emotional distress claim. (Id. at p. 1600.)
On appeal, the neighbor argued the damages needed to be reduced further because
they were duplicative. (Plotnik, supra, 208 Cal.App.4th at p. 1600.) Specifically, the
neighbor argued the jury’s special verdict awarding plaintiffs emotional distress damages
under several different legal theories constituted duplicate damages for the same
transactional event and, thus, violated the rule against double recovery. (Id. at p. 1612.)
To address this argument, the appellate court set forth the following legal principles:
“ ‘The primary right theory ... provides that a “cause of action” is
comprised of a “primary right” of the plaintiff, a corresponding “primary
duty” of the defendant, and a wrongful act by the defendant constituting a
breach of that duty. [Citation.] The most salient characteristic of a primary
right is that it is indivisible: the violation of a single primary right gives rise
to but a single cause of action. [Citation.] ... [¶] As far as its content is
concerned, the primary right is simply the plaintiff’s right to be free from
the particular injury suffered. [Citation.] It must therefore be distinguished
from the legal theory on which liability for that injury is premised: “Even
where there are multiple legal theories upon which recovery might be
predicated, one injury gives rise to only one claim for relief.” [Citation.]’
(Crowley v. Katleman (1994) 8 Cal.4th 666, 681–682 [34 Cal.Rptr.2d 386,
881 P.2d 1083]; see also Boeken v. Philip Morris USA, Inc. (2010) 48
Cal.4th 788, 798 [108 Cal.Rptr.3d 806, 230 P.3d 342].)
“Thus, where a party ‘ha[s] alleged the existence of but one primary right,
and but one violation of that right,’ the ‘complaint states but one cause of
action, even though two or more theories of recovery are alleged.
[Citation.]’ [Citation.] ‘Regardless of the nature or number of legal
theories advanced by the plaintiff, he is not entitled to more than a single
recovery for each distinct item of compensable damage supported by the
evidence. [Citation.] Double or duplicative recovery for the same items of
25.
damage amounts to overcompensation and is therefore prohibited.
[Citation.]’ [Citations.]” (Plotnik, supra, 208 Cal.App.4th at p. 1612.)
Applying these principles to the special verdicts, the appellate court determined a
duplicative recovery had occurred. The court stated: “The special verdicts allowed
recovery of emotional distress damages for [the neighbor’s] injuring [the dog] under
theories of negligence and trespass to personal property, plus potentially as part of the
damages awarded for both intentional and negligent infliction of emotional distress.”
(Plotnik, supra, 208 Cal.App.4th at p. 1612.)
Ultimately, the appellate court upheld the plaintiffs’ recovery of emotional distress
damages under the breach of contract claim ($35,000 for husband and $70,000 for wife)
and the trespass to personal property claim ($20,000 for husband and $30,000 for wife)
and overturned the other awards of emotional distress. (Plotnik, supra, 208 Cal.App.4th
at pp. 1603, 1608.) The court concluded the plaintiffs’ recovery of emotional distress
damages on both their claim for negligent interaction with the dog and their claim for
negligent infliction of emotional distress was legally erroneous because those damages
were already recovered under the breach of contract claim and the trespass to personal
property claim. (Id. at p. 1613.) To summarize, Plotnik illustrates a duplicative award of
emotional distress damages under multiple, overlapping legal theories.
C. Bystander Emotional Distress
Based on the principles set forth in Plotnik and the cases cited therein, we
conclude Zuniga “is not entitled to more than a single recovery for each distinct item of
compensable damage supported by the evidence.” (Tavaglione v. Billings (1993) 4
Cal.4th 1150, 1158.) In other words, “duplicative recovery for the same items of damage
amounts to overcompensation and is therefore prohibited.” (Id. at p. 1159.) However,
“where separate items of compensable damage are shown by distinct and independent
evidence, the plaintiff is entitled to recover the entire amount of [her] damages, whether
26.
that amount is expressed by the jury in a single verdict or multiple verdicts referring to
different claims or legal theories.” (Ibid.)
Based on these legal principles, we conclude the issue presented in this appeal is
whether the damages awarded as past and future “Direct Injury Emotional Distress
Damages” are separate, distinct items of compensable damage when compared to the past
and future “Bystander Emotional Distress Damages.” As explained below, we conclude
the quoted phrases signify—at least for purposes of this case—different items of damage
attributable to different injuries. As a result, the jury did not award duplicative damages.
First, a simple examination of the amounts awarded in each category undermines
Cherry Avenue’s contention that the direct injury emotional distress damages included
the bystander emotional distress damages. Both the past and future bystander emotional
distress damages—$2 million and $4 million, respectively—were larger than the awards
for past and future “Direct Injury Emotional Distress Damages,” which were $1 million
and $2 million, respectively. It is basic arithmetic that a smaller number does not include
a larger number. Thus, Cherry Avenue’s claim that the $6 million past and future
bystander damages were included in the $3 million past and future direct damages does
not correspond with the size of the awards.
Second, the manner in which the case was presented to the jury created damages
for three distinct types of injury. As described earlier, Zuniga’s counsel told the jury
during closing arguments it was “going to decide what is the reasonable value for the
lifetime of loss for three different harms she suffered.”
The first harm addressed in the special verdict form was the wrongful death of
Zuniga’s husband. The jury instructions defining the wrongful death damages excluded
the emotional distress damages caused by the loss of her husband and Cherry Avenue
does not contend otherwise. (See pt. III.B.2., ante.)
The second type of harm addressed in the special verdict was that experienced
directly by Zuniga as a result of being electrocuted. Her counsel described this type of
27.
harm, stating: “Her direct injury, which she was electrocuted and suffered those injuries
she talked about and was hospitalized.” As made clear by the trial court’s answer to the
jury’s question of physical damages, the “direct injury” category included Zuniga’s
physical injuries and the emotional distress that she experienced as a result of her being
electrocuted. Zuniga would have experienced these injuries and the attendant damages if
her husband had not been present—that is, if she alone had been electrocuted. For
instance, if her husband had not been there that day, Zuniga still would have spent two
days in the hospital for her burns and the burns still would have taken seven months to
heal. Zuniga testified that from the date of the incident “until the present date, I feel pain
in my feet, I feel pain in my hands. And when it’s cold, I feel pain when my – my skin
get dry, it hurts.” She also stated (1) it bothers her to step on a cold floor; (2) when she
sticks her feet in water, it hurts; and (3) when she walks barefoot, she feels pain and
itching in her feet. When asked if she experienced the pain “pretty much every single
day,” Zuniga answered, “Yes.” This and Zuniga’s other testimony supports the jury’s
award of damages for past and future direct injuries.
The third type of harm addressed in the special verdict was the bystander
emotional distress damages. Zuniga’s counsel described this harm in his closing
statement as the injury from “horrifically witnessing the death of her husband and
experiencing it right before her eyes.” The damages for this type of harm were limited to
the emotional distress, past and future, resulting from Zuniga being present when her
husband was electrocuted and died. Zuniga would have been entitled to recover for this
distinct item of compensable damage even if she had not been electrocuted but had
simply been present to witness her husband’s electrocution. (CACI No. 1621 [essential
elements for recovery of emotional distress damages by a bystander with no direct
injury].)
We recognize that Zuniga, as a direct victim of Cherry Avenue’s negligence, was
entitled to recover for all her emotional distress, regardless of whether it was caused by
28.
her own electrocution or by perceiving the injury and death of her husband. We conclude
the fact that distinct categories of emotional distress were presented to the jury does not
automatically mean that there was a duplicate recovery. In the circumstances of this case,
the direct injury emotional distress and the bystander emotional distress constituted a
“distinct item of compensable damage supported by the evidence.” (Tavaglione v.
Billings, supra, 4 Cal.4th 1150, 1158.) Consequently, we reject Cherry Avenue’s
contention that the jury awarded duplicative damages. As a result, we do not reach
Zuniga’s argument that Cherry Avenue forfeited this contention by failing to raise
objections in the trial court at a time when the purported error could have been corrected.
D. Contemporaneous Awareness
In Thing v. La Chusa (1989) 48 Cal.3d 644, the California Supreme Court held
“that a plaintiff may recover damages for emotional distress caused by observing the
negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely
related to the injury victim; (2) is present at the scene of the injury-producing event at the
time it occurs and is then aware that it is causing injury to the victim; and (3) as a result
suffers serious emotional distress .…” (Id. at pp. 667–668.) The court referred to “the
traumatic emotional effect on the plaintiff who contemporaneously observes both the
event or conduct that causes serious injury to a close relative and the injury itself.” (Id. at
p. 667.)
Cherry Avenue contends Zuniga was unconscious and had no understanding of the
injury-causing event or of her husband’s injury and death until after the incident. Cherry
Avenue argues Zuniga presented no evidence that she contemporaneously observed the
electrocution or understood it caused her husband’s injury. (See Ewald v. Nationstar
Mortgage, LLC (2017) 13 Cal.App.5th 947, 948 [arguments should be tailored to the
applicable standard of review].) We reject this argument.
29.
First, we interpret the Supreme Court’s reference to a plaintiff “who
contemporaneously observes” the event and the injury itself to mean the plaintiff
perceives the event. (CACI No. 1621.) The Directions for Use to CACI No. 1621
explicitly recognizes “[t]here is some uncertainty as to how the ‘event’ should be defined
… and then just exactly what the plaintiff must perceive” to satisfy the instruction’s
element addressing the plaintiff’s awareness that the event was causing the victim’s death
or injury. Under the facts of this case, plaintiff clearly perceived the event that caused
her husband’s death through her sense of touch when she was electrocuted and felt cold.
Furthermore, the jury could reasonably find that she was aware the event that knocked
her momentarily unconscious was causing the death of her husband. When she awoke,
she saw her husband lying on the ground and ran to him. A jury could reasonably infer
Zuniga determined whatever had happened to her also happened to her husband. Thus,
we conclude the evidence is sufficient to uphold the jury’s finding that she perceived the
event that caused her husband’s death.
Next, we consider whether she “was then aware [the event wa]s causing injury to
the victim.” (Thing v. La Chusa, supra, 48 Cal.3d at p. 668.) Zuniga testified that after
she reached her husband she spoke to him, urging him to be strong and begging him not
to leave her. When asked if her husband said anything back to her, Zuniga replied, “No,
he just moved his lips, and that was it.” Zuniga’s testimony adequately supports a
finding of fact that Zuniga was aware the event that injured her was injuring her husband.
His experience of those injuries was not limited to the time Zuniga was unconscious.
Instead, he was still experiencing them when she reached him, and she saw him die (his
final injury) while trying to speak to her. Therefore, Cherry Avenue has not shown the
jury’s findings are not supported by any evidence.
30.
IV. COSTS*
Cherry Avenue’s appellate briefing states “this court should reverse the cost award
for the same reasons that it should reverse the judgment and Cherry Avenue does not
otherwise independently challenge the cost award.” Based on this statement and our
affirmance of the judgment, we also affirm the award of costs.
DISPOSITION
The judgment is affirmed. Respondent shall recover her costs on appeal.
FRANSON, Acting P.J.
WE CONCUR:
SMITH, J.
SNAUFFER, J.
* See footnote, ante, page 1.
31.