Judge: Michael E. Whitaker, Case: 20STCV30531, Date: 2023-02-08 Tentative Ruling

Case Number: 20STCV30531    Hearing Date: February 8, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment, or in the alternative Summary Adjudication; Memorandum of Points and Authorities
2. Declaration of Hillary D. Patton in Support of Motion for Summary Judgment, or in the alternative Summary Adjudication
3. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment, or in the alternative Summary Adjudication
4. Compendium of Exhibits in Support of Motion for Summary Judgment, or in the alternative Summary Adjudication
5. Notice of Errata Re: Declaration of Hillary D. Patton in Support of Motion for Summary Judgment, or in the Alternative Summary Adjudication

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment, or in the alternative Summary Adjudication; Memorandum of Points and Authorities
2. Plaintiff’s Separate Statement of Undisputed and Disputed Material Facts, and/or Additional Material Facts in Opposition to Motion for Summary Judgment, or in the Alternative Summary Adjudication
3. Compendium of Exhibits in Opposition to Motion for Summary Judgment, or in the Alternative Summary Adjudication
4. Plaintiff’s Written Objections to Defendant’s Evidence in Opposition to Defendant’s Motion for Summary Judgment, or in the Alternative Summary Adjudication

REPLY PAPERS:

1. Reply to Opposition to Motion for Summary Judgment, or in the Alternative Summary Adjudication
2. Response to Plaintiff’s Statement of Additional Facts
3. Defendant’s Evidentiary Objections

BACKGROUND

Plaintiff Eleazar Carreto Lopez (“Plaintiff”) sued Defendant Thompson Adams (“Defendant”) for general negligence and premises liability.  Plaintiff alleges that Defendant tasked Plaintiff with the dangerous task of trimming the top branches of 25-35 feet trees on Defendant’s property with power lines running in and around the trees.  As a result, Plaintiff asserts he sustained injuries when he suffered an electrical shock from a live wire and fell about 25 feet while trimming the trees.  Plaintiff specifically pleads that Defendant failed to repair or protect others from the live wire creating a serious hazard to Plaintiff’s health and safety.  Plaintiff further alleges Defendant failed to warn Plaintiff of the live wires. 

Defendant moves for summary judgment, or in the alternative summary adjudication on Plaintiff’s Complaint.  Plaintiff opposes the motion.  Defendant replies.

LEGAL STANDARDS –SUMMARY JUDGMENT/SUMMARY ADJUDICATION

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.”  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed.  (See Code Civ. Proc., § 437c, subd. (f)(1).)  “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Ibid.)  A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action.  (See Code Civ. Proc., § 437c, subd. (n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.)  Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action.  (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 583.) 

EVIDENCE 

            The Court overrules Plaintiff’s evidentiary objection to Exhibit G of the Declaration of Hillary S. Patton.

            As to Defendant’s evidentiary objections, the Court rules as follows:

1. Sustained in part regarding:  “Darvin told the rest of the workers what Defendant Adams told him he wanted us to do.  This included trimming trees near the power lines.” 
2. Sustained
3. Sustained
4. Sustained
5. Overruled
6. Sustained
7. Overruled
8. Overruled
9. Overruled
10. Sustained
11. Sustained
12. Overruled
13. Overruled
14. Sustained
15. Sustained
16. Sustained
17. Sustained
18. Sustained
19. Sustained
20. Sustained
21. Sustained
22. Sustained
23. Sustained
24. Sustained
25. Sustained
26. Sustained
27. Sustained in part regarding:  “an Owner/Builder”
28. Overruled
29. Sustained
30. Sustained
31. Overruled
32. Sustained
33. Sustained
34. Overruled
35. Overruled
36. Sustained in part regarding: “and against regulations (such as OSHA, Public Utilities Commission General Order 95 (PUC 11 GO 95)), as well as industry standard practices of safe tree trimming practices. [Exhibits 12 ‘H’ & ‘I’]).”
37. Sustained
38. Sustained
39. Sustained
40. Overruled
41. Overruled
42. Overruled
43. Overruled
44. Overruled
45. Sustained
46. Sustained in part regarding:  “as required by OSHA regulations and industry standards. A licensed contractor would have had the requisite experience, qualifications and training to ensure safety relative to work at height in close proximity to power lines”
47. Overruled
48. Sustained
49. Sustained
50. Sustained
51. Sustained
52. Sustained
53. Sustained
54. Overruled
55. Sustained
56. Sustained
57. Sustained
58. Sustained
59. Sustained in part regarding: “that in the first place, should have 24 been directed to and/or performed by the electric utility company, in addition to being 25 performed by properly licensed and qualified contractors”
60. Overruled

DISCUSSION

1. STATUTORY EMPLOYER - HOMEOWNER

    

   A party is deemed a statutory employer where that party hired an unlicensed contractor to perform a function or activity for which a contractor’s license was required, such that any worker performing work for that unlicensed contractor is deemed to be employed by the ultimate hirer of the contractor. (Lab. Code, § 2750.5; Travelers Ins. Co. v. Workers’ Comp. Appeals Bd. (1983) 147 Cal.App.3d 1033.)

    

   Pursuant to Labor Code section 3352, subdivision (h), an employee is excluded from protection of Workers’ Compensation Act where he has worked less than 52 hours during 90 calendar days immediately preceding date of injury.  Based on the interaction of Section 3352 and Section 2750.5, Plaintiff is excluded as an “employee” for workers’ compensation purposes because he had not worked the minimum hours necessary for coverage of household employees, yet is deemed to be an employee for civil tort purposes and is potentially entitled to recovery pursuant to Section 2750.5.  (See Rosas v. Dishong (1998) 67 Cal.App.4th 815, 821.)

    

   Notwithstanding, a homeowner who hires an unlicensed contractor is the “employer” of the contractor for tort purposes, this may trigger direct liability to “employees” of the unlicensed contractor, or vicarious or respondeat superior liability for torts committed by such a contractor.  (Lab. Code, § 2750.5; see also Jones v. Sorenson (2018) 25 Cal. App.5th 933, 939, 941.) 

    

2. OCCUPATIONAL SAFETY AND HEALTH ACT

    

   The Occupational Safety and Health Act (OSHA) was enacted to ensure and safe and healthful working conditions for California workers.  (Lab. Code, § 6300 et seq.)  In Fernandez v. Lawson, the California Supreme Court addressed whether a homeowner who hires someone to trim a tree on the homeowner’s property is required to comply with OSHA.  (Fernandez v. Lawson (2003) 31 Cal.4th 31, 33.)  In particular, the Supreme Court stated:  “The issue here is whether, as a matter of law, a tree trimmer hired by a homeowner for a noncommercial purpose is engaged in household domestic service.”  (Id. at p. 36 [cleaned up])  The Supreme Court answered that question in the negative and reasoned in part as follows:

    

   [O]verwhelming public policy and practical considerations make it unlikely the Legislature intended the complex regulatory scheme that is OSHA to apply to a homeowner hiring a worker to perform tree trimming. It is doubtful the average homeowner realizes tree trimming can require a contractor's license, let alone expects that OSHA requirements would apply when they hire someone to trim a tree for their own personal benefit and not for a commercial purpose.  Moreover, homeowners are ill-equipped to understand or to comply with the specialized requirements of OSHA. Imputing OSHA liability to a homeowner under the circumstances of this case violates basic notions of fairness and notice.

    

   (Id. at p. 37 [cleaned up].)  In reaching its holding, the Supreme Court rejected the plaintiff’s argument that tree trimming cannot be considered a household domestic service because there are safety regulations associated with tree trimming and because a contractor’s license is required to trim trees above 15 feet in height.  (Id. at p. 38.)  Accordingly, the Court finds that OSHA is inapplicable.

    

3. NEGLIGENCE AND PREMISES LIABLITY CLAIMS

    

               Plaintiff’s asserts two causes of action against Defendant: (1) general negligence and (2) premises liability.  Defendant moves for summary judgment, or summary adjudication, on both causes of action.  The crux of Defendant’s argument is that he did not owe a duty of care to Plaintiff because the purported dangerous condition, the power lines, was open and obvious. 

    

   The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)  The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) 

    

   To prevail on the claims, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm.  (See Rowland v. Christian (1968) 69 Cal.2d 108.)

    

   Liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril  (Cody F. v. Falleti (2001) 92 Cal.App.4th  1232, 1242.)  But a defendant is “no[t] liable for injury resulting from an obvious danger or one that could have been observed had [Plaintiff] exercised ordinary care . . . .” (Mula v. Meyer (1955) 132 Cal.App.2d 279, 287.)

    

   To establish negligence, a plaintiff must prove duty, breach of duty, causation and damages. Whether a duty should be imposed on a defendant depends on a variety of policy considerations, known as the Rowland factors. These factors include, inter alia, the foreseeability of harm to the plaintiff, the burden to the defendant and the consequences to the community of imposing the duty. The court's task in determining whether a duty exists is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party. Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.

    

   (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446 [cleaned up].) “Foreseeability of harm is typically absent when a dangerous condition is open and obvious. Generally, 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. In that situation, owners and possessors of land are entitled to assume others will perceive the obvious and take action to avoid the dangerous condition.” (Id. at p. 447 [cleaned up].) Similarly, in Krongos, the Court of Appeal held “Generally, 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.” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.)

    

   “However, this is not true in all cases. It is foreseeable that even an obvious danger may cause injury, if 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. The foreseeability of injury, in turn, when considered along with various other policy considerations such as the extent of the burden to the defendant and consequences to the community of imposing a duty to remedy such danger may lead to the legal conclusion that the defendant owed a duty of due care to the person injured.”  (Krongos, supra, 7 Cal.App.4th at p.  393 [cleaned up].)  Stated differently, “[T]he obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it.”¿ (Martinez v. Chippewa Enterprises, Inc.¿(2004) 121 Cal.App.4th 1179, 1184.)¿ The obviousness of a danger “may obviate the duty to¿warn¿of its existence,” but if “if it is¿foreseeable¿that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to¿remedy¿the danger, and the breach of that duty may in turn form the basis for liability . . . .”¿ (Osborn v. Mission Ready Mix¿(1990) 224 Cal.App.3d 104, 122.)

    

   1. Defendant’s Evidence

       

      Defendant advances the following Undisputed Material Facts (UMF) and evidence in support of the proposition that there are no triable issue of material fact because the purportedly dangerous condition was open and obvious to Plaintiff. 

       

• Chochon and Plaintiff used the trimmers to trim the hedges and tree, while Ramirez and Gomez cleaned up the trimmings.

• There are power/utility lines which pass through Adams’ backyard in the area where Chochon and the others, including Plaintiff, were trimming the hedges and tree.

• Prior to starting work that day, Chochon discussed with Plaintiff that they needed to be careful around the wires and to stay away from them.

• There are power/utility lines which pass through the middle of the particular tree Plaintiff was trimming when the Subject Incident occurred.

• These power/utility lines running through the tree are clearly visible.

• Plaintiff had trimmed the same tree on at least two prior occasions and Chochon had trimmed it at least four times.

• After working on this tree for about two hours, at approximately 2:00 p.m., Plaintiff completely cut an approximate three-foot branch from the tree, which then fell on top of a wire.

• Although Plaintiff alleges the live wire was concealed, Plaintiff admits he saw the wires before he started to cut the branch and when he was cutting the branch.

   

  (UMFs 21-26, 28, 31, 54-59, 61, 64, 86-91, 93, 96.)  

              Foremost, the Court notes that Plaintiff does not dispute UMFs 21-24, 26, 28, 31, 54-57, 59, 61, 64, 86-89, 91, 93 and 96.  Thus, the Court finds that Defendant has met his burdens of production and persuasion to show the dangerous condition of the power lines in and around the subject trees was open and obvious that a person could reasonably be expected to see condition, and the condition itself served as a warning such that Defendant was under no duty to remedy or warn of the condition.  Accordingly, the burden of production shifts to Plaintiff to create a triable issue of fact as to whether the power lines in and around the subject trees were open and obvious, negating Defendant’s duty of care, whether Defendant breached a duty of care or whether Defendant’s breach of a duty of care caused or contributed to Plaintiff’s harm.

   

1. Plaintiff’s Evidence

    

               Plaintiff advances the Declaration of Brad P. Avrit (“Avrit”) who is a  licensed civil engineer, and is experienced with safety engineering, civil engineering and accident reconstruction.  (Declaration of Brad P. Avrit, ¶¶ 2-3.)  Avrit inspected the subject property of Defendant, and reviewed the following in order to craft his declaration and form his opinions:  (i) Defendant’s Motion for Summary Judgment; (ii) Plaintiff’s deposition testimony; (iii) Darvin Chochon’s deposition testimony; (iv) Plaintiff’s complaint; (v) photographs of the subject hedge; (vi) photographs of the subject ladder; (vii) a video of the subject ladder; and (viii) standards and codes.  (Declaration of Brad P. Avrit, ¶¶ 6-7.)  Based upon that data, Avrit opines in part as follows:

    

• The Subject Tree Trimming Work was Required to Be Performed by a Licensed Tree Trimming Contractor.
• Mr. Lopez was Unlicensed and Unqualified to Work at Height Trimming Trees in Close Proximity to High Voltage Lines, and Therefore was Put at Risk Relative to the Work Task as Requested by Dr. Adams.
• Mr. Lopez was Subjected to a Hazardous Operation, Relative to the Hazardous Work Environment Involving the Tree Trimming Task.
• The Defendant Directed Mr. Lopez to Perform a Hazardous Work Operation, Which Directly Resulted in Mr. Lopez’s Incident and Injuries.
• In Conclusion, the Defendant was Required to, But Failed to Contact the Utility Company to Perform the Tree Trimming Work Near Power Lines, Thus Directly Putting the Plaintiff at Risk.
• Accordingly, Dr. Adams fell below the standards of care and directly subjected the Plaintiff to a dangerous work condition (including work near overhead power lines, work at height, and hazardous use of ladder) . . . .  Dr. Adams’ conduct in directing the Plaintiff to perform the tree trimming work near power lines, and failure to ensure adequate safety measures and oversight, was a substantial cause of the subject incident which injured Mr. Lopez.

(Declaration of Brad P. Avrit, ¶¶ 6, 22 (in part).)  Avrit also states that his opinions include the following factors and considerations:

• The Plaintiff testified that he had been working for Darvin Chochon for 6-10 years.
• The Plaintiff’s duties around the time of the incident were cleaning and trimming trees.
• Mr. Lopez had trimmed trees on Dr. Adams’ property prior to the incident date.
• According to Mr. Lopez’s account of the incident, Mr. Lopez was cutting branches, a branch fell on top of the wire and the Plaintiff touched the branch. As a result of this sequence of events, the Plaintiff suffered an electrical shock and fell approximately 26 feet to the ground (Deposition of 2 Plaintiff, Pages 29, 45, 49-51).
• The Plaintiff and Mr. Chochon, both did not have an appropriate California contractor’s license to perform tree trimming.

(Declaration of Brad P. Avrit, ¶ 7.)   Furthermore, Avrit opines in part as follows:

• As an overall premise, the subject tree trimming work was required to be performed by a licensed contractor, experienced, qualified and equipped to work at height and with proper equipment relative to trimming trees. Based on my inspection of the premises on August 18, 2021 and my review of documents, it is my assessment that the portions of trees that Mr. Lopez was tasked by Dr. Adams to trim, was above 20’ in height.  According to the California Business and Professions Code, Section 7026.1, “the term  contractor does not include a gardener who in the normal course of routine work  performs incidental pruning of trees measuring less than 15 feet in height after planting.” . . .  Accordingly, where the tree trimming at the time of Mr. Lopez’s incident was greater than 15’, the tree trimming work requested by Dr. Adams, was required to be performed by a California licensed D-49, Tree Service Contractor as defined by the California State License Board (CSLB).
• The hiring of a licensed contractor/worker is for purposes of ensuring that qualified and trained workers would be performing the work, and thereby effectively reduce the overall risk of harm.
• As an overall premise, not only was Dr. Adams . . . statutory employer of both Mr. Chochon and Mr. Lopez, but Dr. Adams also affirmatively provided direction for the work that put Mr. Lopez at risk with not only working in close proximity with the overhead power lines, but also at put at risk with unsafely working at height on a ladder in order to perform the work as directed by Dr. Adams. According to Mr. Chochon, prior to starting work on trimming the trees, Dr. Adams directed trimming the trees “2 feet, 3 feet down…” (Deposition of Darvin Chochon, Pg. 51).
• Mr. Chochon testified that the Plaintiff was utilizing an ~20’ extension ladder, that when fully extended was about 40’ (Deposition of Darvin Chochon, Page 27).  . . .   Mr. Lopez utilized a tree trimmer to cut the branches. Therefore, while Mr. Lopez was  climbing up and utilizing the ladder, his ability to maintain the 3 points of contact was  compromised. While climbing up or down the ladder, working alone, Mr. Lopez was  caused to hold onto the trimmer. While trimming the trees with the trimmer, both of his  hands were occupied, thereby preventing Mr. Lopez from maintaining the necessary 3 points of contact with the ladder. Accordingly, Mr. Lopez risked losing balance while  utilizing the ladder, when holding onto and using the trimmer in both climbing up and down the ladder, and while trimming the trees. Therefore, Mr. Lopez, was undeniably deprived of the ability to consistently maintain (3) points of contact with the ladder in order to prevent a fall.
• Most importantly, however, was Dr. Adams’ direction to trim the trees where the power lines were running through the trees and in foreseeable close proximity to where Mr. Lopez was to perform work. In overview, working in close proximity to live electrical power lines, is hazardous. Mr. Chochon testified that while the Plaintiff was on the 20’ ladder, the Plaintiff was only 3’ away from the power lines right before the incident  occurred (Deposition of Darvin Chochon, Page 34).

(Declaration of Brad P. Avrit, ¶¶ 8 (in part), 10 (in part), 11 (in part), 12 (in part), 13 (in part).)  In addition, as part of Avrit’s declaration, Plaintiff advances  Exhibits B, J and K, and Avrit further declares: 

• From a visual perspective standpoint, the subject overhead power lines would have been difficult for unlicensed and untrained workers (in working near power lines) like Plaintiff to perceive on October 19, 2019. Dr. Robert J. Cunitz’s and Dr. Lorna Middendorf’s ‘Problems in the Perception of Overhead Power Lines’ article states that “People whose activities bring them near power lines with tools or devices which are long enough to close the protective air gap have essentially three tasks to accomplish. First, they must detect the presence of the power line hazard, i.e., they must see it. Second, they must accurately assess the risk, i.e., does the possibility exist that they or something they are working with will come into contact with the power line? Third, they must understand that contact with a power line is dangerous, i.e., the magnitude of the threat to their welfare by working near the lines.” [Exhibit ‘J’]. Worksite employees/contractors using equipment and tools usually do not notice nearby obstacles like overhead power lines because they are concentrating on a given task (Lorna Middendorf’s ‘Judging Clearance Distances Near Overhead Power Lines’ [Exhibit ‘K’].
• Further, I am of the opinion that an unqualified/unlicensed worker (such as Mr. Lopez) was tasked to perform work at height in close proximity to power lines and was therefore subjected to potentially hazardous work operations and work conditions, particularly where Mr. Lopez did not have proper training, oversight and proper safeguards . . . .
• To the extent that Mr. Lopez did not have any required proper equipment, training, experience, qualifications and licenses to trim trees, Mr. Lopez was put in harm’s way by Dr. Adams’ request to perform tree trimming at height in close proximity to electrical lines (greater than 15’).
• Most importantly, based on my knowledge and experience with tree trimming and landscaping incidents involving overhead power lines, Dr. Adams should  have contacted the electrical utility company for his property to trim trees near high voltage lines, in order to safeguard unlicensed individuals such Mr. Lopez from being unduly subjected to a risk that the electrical utility company is trained and responsible for performing.

(Declaration of Brad P. Avrit, ¶¶ 15, 17 ( in part), 18 (in part), 21 (in part). 

            Further, Plaintiff advances his declaration in which he states in part as follows: 

• I have been to Defendant’s home several times before the incident, mostly to perform regular gardening tasks. On some of those occasions Defendant Adams has addressed me. He also has instructed the workers on how to do the work.
• On the day of the incident, I did not talk to Defendant Adams, but Darvin Chochon did.
• At no time was I provided with any safety equipment by Defendant Adams. I was also not provided with any specialized training before I was tasked with trimming trees within feet of live power lines.
• Defendant did not provide me or any of the other workers with safe work platforms such as mobile scaffold, scissor lift, boom lift or other mobile work platform.
• At no time while I was working at Defendant’s home was the utility company present. I was also never informed that the utility company would be coming to inspect the power lines.
• At no time did Adams nor Chochon tell me about the concealed live wire.

(Declaration of Eleazar Carreto Lopez, ¶¶ 3, 4 (in part), 6, 7, 9, 11.) 

            Further, Plaintiff proffers the deposition testimony of Darvin Chochon who testified that Defendant supervised and directed the tree trimming work, and Defendant explained the work that needed to be accomplished.  (Plaintiff’s Compendium of Evidence, Exhibit C, 67:16-68:24; see also Defendant’s Compendium of Exhibits, Exhibit E, 59:11-13; 68:21-69:2.)   Plaintiff also proffers the deposition testimony of Defendant who testified that he determines when the trees are to be trimmed and asks Chochon to complete the task.  (Defendant’s Compendium of Exhibits, Exhibit C, 15:8-17.) 

CONCLUSION AND ORDER

Plaintiff’s evidence is sufficient to meet his burden of production to show that triable issues of material fact exist as to whether Defendant had a duty of due care, whether Defendant breached that duty of due care, and whether Defendant’s breach of the duty of due care caused or contributed to Plaintiff’s harm. 

Hence, in considering the competent evidence proffered by Plaintiff and Defendant, and viewing said evidence most favorable to Plaintiff, the Court finds that there are triable issues of material fact including Defendant’s Undisputed Materials Facts Nos. 25, 58 and 90, and regarding Plaintiff’s Additional Material Facts Nos. 4, 7, 13, 14, 17, 18, 20, 22, 23. 28 and 29. 

Stated differently, the Court cannot determine as a matter of law that the alleged dangerous condition (power lines) was open and obvious to absolve Defendant of liability for Plaintiff’s claimed injuries.  In particular, there are questions whether the power lines were “open and obvious” as observing the power lines may be only one facet in deciding whether a purported dangerous condition is actually “open and obvious” to either Plaintiff or a reasonable person after considering all facets necessary to making that determination.    

In addition, the Court cannot determine as a matter of law that Defendant did not breach a duty of care to Plaintiff or that Defendant’s breach of a duty of care did not cause, or contribute to, Plaintiff’s injuries because if it is¿foreseeable¿that the danger (power lines) may cause injury despite the fact that it is obvious, there may be a duty to¿remedy¿the danger, and the breach of that duty may in turn form the basis for liability.

Therefore, the Court denies Defendant’s motion for summary judgment, or in the alternative motion for summary adjudication.  The Clerk of the Court shall provide notice of the Court’s ruling.