HOLLENHORST, Acting P. J., Concurring and Dissenting. I concur with the majority opinion affirming the trial court’s grant of summary judgment in favor of Edison International (Edison), but disagree with the majority opinion reversing the grant of summary judgment in favor of Southern California Edison Company (SCE). As SCE so eloquently observed, “This is a case in search of a viable defendant.”1
[1280]I. FACTS AND PROCEDURAL BACKGROUND
On October 24, 2002, at approximately 2:00 p.m., Amanda Laabs (Plaintiff) suffered injuries resulting from a car accident on Ridgecrest Road where it intersects with Pebble Beach Drive. Ridgecrest Road is a four-lane north/south roadway.2 The southbound lanes are owned and controlled by the City of Victorville (City), while the northbound lanes are owned and controlled by the County of San Bernardino (County). Plaintiff was one of three passengers in a northbound car (1999 Porsche Carrera) driven by James Dimeo. Dimeo took the Porsche (his parents’ car) without permission to show his friends how fast the car could go. He reached a speed of 100 to 110 miles per hour.
The accident occurred when Dimeo’s car hit a westbound, left-turning car driven by Dorothy Specter. As a result of hitting Specter’s car, Dimeo’s car was forced across Ridgecrest Road’s southbound lanes, jumped the curb, slid along the sidewalk for some distance, and then hit a concrete light pole,3 causing the pole to break at the base. Dimeo was cited for driving under the influence of alcohol or drugs, unsafe speed, and failure to yield the right of way. Plaintiff lost both of her legs.4 The light pole was owned and maintained by SCE. Plaintiff sued SCE and Edison,5 among other parties,6 as a result of the injuries she incurred from the accident. Plaintiff alleged that her injuries were caused by the negligent installation and maintenance of the light pole close to the curb.
SCE and Edison moved for summary judgment on the ground that “they owed no duty of care to [Pjlaintiff.” They argued that “although SCE owns and maintains the subject electrolier, it was installed per the [City’s] engineering specifications and the decisions regarding placement [were] left solely to that body.” Edison “had nothing to do with the installation of the pole and has no ownership interests in it.”
In support of the motion, SCE and Edison offered the declaration of Robert Binns (Binns), a supervisor in SCE’s street and outdoor lighting department. [1281]Binns stated that “SCE provides electrical service to the streetlights in the area where the incident occurred pursuant to a Master Agreement for Service and Street Lighting as between SCE and [City].” He further stated: “Although SCE owned and maintained the Electrolier it was the City and/or the developer of the area which made the decision with regards to the: 1) location of installation; 2) type of equipment to use; 3) mounting height; 4) type of light fixture; and 5) wattage (light output) required. SCE does not make the final decision with regards to placement of Electroliers [or] the type of facilities to be used. Typically, the City or developer requesting new street light facilities hires its own engineers, including street lighting engineers, to design the type of system required for the project. Once the plans and permits are secured, SCE’s planning department is contacted to co-ordinate the installation of the desired lighting as consistent with the pre-designed plans.” Attached to the declaration of Binns was a copy of “Agreement for Service for Street Lighting” (Agreement). In relevant part, the Agreement provides: “All installations shall be made at locations as shown on Map No. R-121 on file in the office of the City Clerk, which said plan was filed on October 20, 1966, in proceedings for the establishment of said street lighting, pursuant to Resolution of Intention No. 77-26.” No Map No. R-121 was attached.
Additionally, SCE and Edison offered the declaration of Y. M. “Ed” Nahabedian (Nahabedian), an independent consulting civil and traffic engineer. Between 1970 and 1985, Nahabedian was an area traffic engineer who was “responsible for overseeing traffic operational and safety issues on numerous freeways, expressways, conventional highways and local streets in Los Angeles, Orange and Ventura Counties.” His responsibilities included supervising and initiating investigations for, inter alia, street and safety lighting. He was retained by SCE and Edison as an expert. In that capacity, he opined that “the location and the placement of the subject Luminaire was reasonable and was in conformity with the luminaire construction industry’s practice in California.” Nahabedian further opined that because the placement of the luminaire conformed “with the requirements set forth in the State’s Traffic Manual and AASHTO[7] Manual,” it “did not present a risk of injury to foreseeable motorists using due care, let alone a substantial risk.”
In formulating his opinion, Nahabedian reviewed many documents, including “sections of the Department of Transportation’s (CalTrans) Highway Design and Traffic Manuals and Standard Plans, AASHTO . . . 2004 Edition of ‘A Policy on Geometric Design of Highways and Streets’ and ‘Roadside Design Guide.’ ” Based on his review of the Department of Transportation (CalTrans) traffic manual, there was no horizontal setback placement of luminaire poles placed on paved sidewalks behind concrete curbs. Also, “review of AASHTO ‘A Policy on Geometric Design of Highways and [1282]Streets,’ 2004 edition . . . relative to placement of luminaire poles and utility poles states, ‘Where there are curbed sections, utilities should be located in the border areas between the curb and sidewalk at least 0.5 meters (1.5 feet) behind the face of the curb, and where practical, behind the sidewalk.’ ”
Nahabedian further stated: “During the time when I was employed by the Department of Transportation (CalTrans) in Traffic Operation Branch, I have designed and reviewed many intersection signal designs and safety lighting on State’s expressways and conventional highways. As a result of this experience I have become familiar with the operation and safety features of placement and location of signal standard poles, safety lighting poles and luminaire poles, [f] Statewide, the standard practice in California (both on State level and local jurisdictions) is to place luminaire poles along roadways with pedestrian sidewalks behind concrete curbs from 18 inches to 30 inches, depending upon the width of the paved sidewalk. In general, a set-back of 18-24 inches is common placement in paved sidewalks less than 7 feet in width and set-back of 24-30 inches on paved sidewalks 8 feet or wider.”
In opposition to the motion for summary judgment of SCE and Edison, Plaintiff offered the declarations of John A. McGlade, the City’s engineer, Keith Friedman, an expert in reconstruction and occupant protection, Robert W. Crommelin, a professional traffic operations engineer, and Howard Anderson, a retired engineer. Plaintiff argued that “SCE was negligent in the placement of its light posts . . . .” According to Plaintiff, there was a conflict between the City and SCE with regards to “who placed the light post in a dangerous position . . . .” Plaintiff cited to the City’s claim that it “does not design, specify, suggest or approve any specification of a design, manufacture or process for the [luminaires] or the structures on which the [luminaires] are attached, installed or otherwise provided by [SCE].” However, this claim did not address the decision of where the luminaires are placed. The City did not claim that SCE was responsible for determining the location of the luminaires. Nonetheless, Plaintiff argued that SCE owed her a duty, which was breached, because “SCE should have known that placing light posts so close to the sidewalk could aggravate injuries resulting from car accidents on Ridgecrest. . . .”
In support of Plaintiff’s argument, McGlade noted the Agreement between SCE and the City and stated that the City “does not design, specify, suggest or approve any specification of a design, manufacture or process for the [luminaires] or the structures on which the [luminaires] are attached, installed or otherwise provided by [SCE].” However, McGlade did not claim that SCE [1283]was responsible for the location of the luminaires. Further, he did not deny that the City was responsible for the location of the luminaires.8
Anderson stated that “the installation of lighting and luminaires supports, such as the one struck by [Dimeo] . . . [is] in direct contravention of highway safety standards.” He declared that “California regulations for traffic highway safety and construction require that any such lights and their lumina[ires] supports must be constructed to present the least possible hazards to out of control vehicles.” Furthermore, without any reference to any authority, he claimed that “[w]here lights are installed, lumina[ires] supports are required to be placed as far as possible from the roadway.” Thus, Anderson opined, “the approval of the design and installation of light supports along the southbound travel lanes of Ridgecrest Road was unreasonable.” However, in his deposition, Anderson acknowledged that CalTrans standards requiring placement of luminaires as far back as possible are for California highways. Although he opined that the placement of the luminaires on Ridgecrest violated CalTrans standards, he admitted there was no criminal violation.
After considering the argument of counsel in light of the evidence offered, the trial court granted SCE and Edison’s motion for summary judgment and entered judgment in their favor. Plaintiff appealed.
H. MAJORITY’S FLAWED PREMISE
In reversing the summary judgment in favor of SCE, the majority concludes that “triable issues exist as to the foreseeability of the general character of the event” (of a vehicle leaving the roadway and striking a fixed, concrete light pole). (Maj. opn., ante, at p. 1273.) Implicit in such conclusion is the assumption that the public utility, in this case SCE, controlled the decision of the location of the light pole. However, there is no evidence in the record before this court that supports such assumption. Instead, both Plaintiff and the majority have misinterpreted the declaration of McGlade. McGlade declared that the light poles on Ridgecrest Road “are owned, installed, maintained, and controlled by [SCE].” He further stated that the City “does not design, specify, suggest or approve any specification of a design, manufacture or process for the [luminaires] or the structures on which the [luminaires] are attached, installed or otherwise provided by [SCE].” While McGlade’s declaration supports a finding that SCE owned, maintained, controlled, and installed the luminaire, it does not support any finding that SCE was responsible for determining the actual place where the luminaire would be located. Rather, the evidence offered in support of SCE’s motion clearly points out that SCE installed the luminaire per the map provided by the City.
[1284]Because no map was attached to the Agreement, the majority reasons that it is unclear as to whether the map prescribed a certain distance from the curb beyond which poles may be placed. (Maj. opn., ante, at p. 1277.) Moreover, the majority opines that “[ejven if the final decision for placement of the luminaire was made by the City of Victorville and/or developer, it does not put to rest the issue of SCE’s input into the decision or establish that SCE was precluded from installing luminaires at other, safer locations within or outside of the street right-of-way.” (Id. at p. 1277.)
I disagree.
To begin with, the record before this court dictates that placement of a light pole is not left to the discretion of a utility company. In order for a developer to develop land with homes, streets, etc., he/she/it must obtain the approval of and permits from the local governmental entity (city or county). As Binns stated, “[ajlthough SCE owned and maintained the Electrolier it was the City and/or the developer of the area which made the decision with regards to the . . . location of installation .... SCE does not make the final decision with regards to placement of Electroliers [or] the type of facilities to be used. Typically, the City or developer requesting new street light facilities hires its own engineers, including street lighting engineers, to design the type of system required for the project. Once the plans and permits are secured, SCE’s planning department is contacted to co-ordinate the installation of the desired lighting as consistent with the pre-designed plans.” For the majority to assume or speculate that SCE had any control on the placement of the light pole defies the record, common sense, and logic.
Second, the fact that SCE owned, controlled, or maintained the luminaire is irrelevant. As Plaintiff argued at the trial level and on appeal, it was not the luminaire itself that caused her injuries; rather, it was the location of the luminaire at close proximity to the street.
Finally, SCE’s expert, Nahabedian, opined that “the location and the placement of the subject Luminaire was reasonable and was in conformity with the luminaire construction industry’s practice in California.” He further opined that because the placement of the luminaire conformed “with the requirements set forth in the State’s Traffic Manual and AASHTO Manual,” it “did not present a risk of injury to foreseeable motorists using due care, let alone a substantial risk.” Nahabedian further declared that the CalTrans traffic manual does not establish a horizontal setback placement of luminaire poles placed on paved sidewalks behind concrete curbs. Furthermore, review of AASHTO’s “ A Policy on Geometric Design of Highways and Streets,’ 2004 edition . . .” showed that, as for placement of luminaire poles “ ‘[w]here there [1285]are curbed sections, utilities should be located in the border areas between the curb and sidewalk at least 0.5 meters (1.5 feet) behind the face of the curb, and where practical, behind the sidewalk.’ ” Regarding intersection signal designs and safety lighting, “the standard practice in California (both on State level and local jurisdictions) is to place luminaire poles along roadways with pedestrian sidewalks behind concrete curbs from 18 inches to 30 inches, depending upon the width of the paved sidewalk. In general, a set-back of 18-24 inches is common placement in paved sidewalks less than 7 feet in width and set-back of 24-30 inches on paved sidewalks 8 feet or wider.”
In contrast, Plaintiff’s expert, Anderson, offered no support for his conclusion that the approval of the installation of the light pole was unreasonable. He cited no manuals, guidelines, etc. Instead, he merely asserted that “lumina[iresj supports are required to be placed as far as possible from the roadway.” He further asserted that placement of the light poles 18 inches from the curb line and on pedestrian sidewalk are “in direct violation of the clear roadside policy.” However, unsupported assertions are not evidence. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 463, fn. 2 [63 Cal.Rptr.2d 291, 936 P.2d 70].)
Given the above, I disagree with the majority’s premise that the issue of SCE’s input into the decision of where to place the luminaire remains open. (Maj. opn., ante, at p. 1277.) Clearly, the developer and/or the local government, acting in accordance with the requirements set forth in the CalTrans traffic manual and AASHTO’s manuals, were responsible for such placement.9
IR. DUTY
From the majority’s flawed premise, it engages in a lengthy discussion of duty, concluding that “SCE has not established ... the absence of a duty of care to plaintiff as a matter of law.” (Maj. opn., ante, at p. 1279, fn. omitted.)
Under the facts in this case, I disagree. By failing to conclude that SCE owed no duty to Plaintiff as a matter of law, the majority leaves open the door for a finding that SCE’s legal duty to Plaintiff included a duty to [1286]disregard the direction of the City’s engineers, the CalTrans traffic manual or AASHTO’s manuals, when placing its light poles. Moreover, SCE may now be under a legal duty to provide a “safe landing” for an intoxicated, speeding driver who is not using the road in accordance with the purpose for which it was designed. The circumstances of this case do not warrant leaving such door open. Accordingly, I would affirm the trial court’s grant of summary judgment for SCE.
The majority cites case law which states that a public utility owes a general duty to motorists to use reasonable care when placing light poles adjacent to roadways, namely, Gerberich v. Southern Calif. Edison Co. (1935) 5 Cal.2d 46, 53 [53 P.2d 948] (Gerberich), Norton v. City of Pomona (1935) 5 Cal.2d 54, 60-61 [53 P.2d 952] (Norton), George v. City of Los Angeles (1938) 11 Cal.2d 303, 310-313 [79 P.2d 723] (George), and White v. Southern Cal. Edison Co. (1994) 25 Cal.App.4th 442, 447-448 [30 Cal.Rptr.2d 431] (White). (Maj opn., ante, at pp. 1269-1270.) None of these cases involves the same factual scenario presented in this case.10 More specifically, Gerberich, [1287]Norton, and George each involved a dangerous condition in the street.11 Nonetheless, the majority discredits the distinguishing factors as irrelevant to this court’s determination of whether SCE had a duty to take reasonable precautions to protect against the risk that vehicles traveling on adjacent roadways will collide with its light poles. (Maj. opn., ante, at pp. 1273, 1274-1275, fn. 6.) According to the majority, any distinguishing factors are relevant only to a fact finder’s decision, not ours, because this court is concerned only with the “general character of the event.” (Id. at p. 1273.)
I disagree.
“ ‘An action in negligence requires a showing that the defendant owed the plaintiff a legal duty . . . .’ [Citation.] ‘Whether a “duty” exists in a particular case is a question of law. “Duty” is merely a conclusory expression used when the sum total of policy considerations lead a court to say that the particular plaintiff is entitled to protection.’ [Citation.] Duty is an allocation of risk determined by balancing the foreseeability of harm, in light of all of the circumstances, against the burden to be imposed. [Citation.] In determining the existence of duty, ‘. . . the major [considerations] 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.’ [Citation.]” (White, supra, 25 Cal.App.4th at p. 447; see also Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, [128867]4 [25 Cal.Rptr.2d 137, 863 P.2d 207] (Ann M.); Rowland v. Christian (1968) 69 Cal.2d 108, 112-113 [70 Cal.Rptr. 97, 443 P.2d 561] (Rowland).)12
Recognizing that this state has found certain situations where a public utility owes a general duty to the public (specifically, as noted by the case law above, placing utility poles adjacent to roadways), I note that this state has also found exceptions to the general duty rule. This case is ripe for such exception. (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 518 [6 Cal.Rptr.2d 810] (Scott).)
In Scott, a drunk driver struck a guardrail, crossed the center median, and struck the plaintiffs’ car. (Scott, supra, 5 Cal.App.4th at p. 513.) The plaintiffs sued Chevron U.S.A., the owner of the property adjacent to the guardrail, because it had placed a piece of fixed electrical equipment on the property and the state later placed a guardrail between the shoulder of the road and the equipment. (Id. at p. 514.) The issue on appeal was whether Chevron had a “duty to exercise care in the location and maintenance of its [equipment] in order to avoid exposing persons on the adjacent highway to an unreasonable risk of harm.” (Id. at p. 515.)
Regarding duty, the Scott court stated: “Duty is not an immutable fact of nature; it is ‘only a shorthand expression of the sum total of public policy considerations which lead the law to protect a particular plaintiff from harm. [Citations.]’ [Citation.] In order to determine the boundaries of the duty to prevent injury to others in any given case, we consider several factors, including the foreseeability of the harm, the degree of certainty of 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 the consequences to the community of imposing a duty to exercise care with the resulting liability for breach, and the availability, cost, and prevalence of insurance. [Citations.]” (Scott, supra, 5 Cal.App.4th at p. 515.)
Recognizing that the foreseeability of harm has become the chief factor in duty analysis, the Scott court applied the Rowland factors and concluded that Chevron owed no duty to the plaintiffs as a matter of law. (Scott, supra, 5 Cal.App.4th at p. 518.) Acknowledging it is foreseeable that a vehicle might leave the road and strike a fixed object placed on adjacent property, the Scott court stated that “foreseeability is not commensurate with duty, and the mere placing of a fixed object next to a highway does not necessarily create an [1289]unreasonable risk of harm. [Citations.]” (Id. at p. 516.) The court went on to say that “other Rowland factors similarly weigh heavily in favor of finding no duty in this case.” (Ibid.) Specifically, the court noted that “there is nothing inherently wrong with placing a fixed object on one’s property. While future harm might be prevented by holding property owners responsible whenever a fixed object on their property contributes to injuries suffered on adjacent highways, we doubt that society is willing to so restrict property rights. Imposing liability in these circumstances would effectively require landowners to dedicate a portion of their property as a safety zone to protect errant drivers. [Citation.]” (Ibid.) Our colleagues in the First District, Division One, aptly noted that such decision should be left to the Legislature. (Ibid.)
Reading Scott in its entirety, the majority concludes “it is clear that the unique circumstances presented in that case called for an exception to the general rule that a property owner placing a fixed object near a roadway owes a duty of care to persons traveling on the roadway. The present case does not call for a similar exception.” (Maj. opn., ante, at pp. 1275-1276.)
I disagree.
As noted in a footnote in the majority opinion, numerous cases have discussed the issue of a utility company’s liability when a vehicle leaves the roadway and hits one of its utility poles. Of those cases cited, the following are most significant: Bernier v. Boston Edison Co. (1980) 380 Mass. 372 [403 N.E.2d 391] (Bernier); Oram v. New Jersey Bell Telephone Co. (1975) 132 N.J. Super. 491 [334 A.2d 343] (Oram); Coates v. Southern Md. Electric (1999) 354 Md. 499 [731 A.2d 931] (Coates); and Rothwell v. West Cent. Elec. Co-op, Inc. (Mo.Ct.App. 1992) 845 S.W.2d 42 (Rothwell).
In Bernier, supra, 403 N.E.2d 391, two pedestrians were injured when a car ran into a light pole, causing it to fall. (Id. at pp. 393-394.) In considering the utility company’s possible liability, the appellate court noted that the company was the primary designer of the utility pole, the company required that the pole be placed 12 inches from the curbing, and the company did not have the poles tested to determine impact resistance. (Id. at pp. 395-396.) Accordingly, the court concluded that a jury could find negligence of design and maintenance. (Id. at p. 398.) In contrast, here, SCE installed its light poles at the location determined by engineers employed by the City or developer in compliance with the CalTrans traffic manual and the AASHTO manuals.
In Oram, supra, 334 A.2d 343, passengers were injured when their car collided with a telephone pole located two feet from the travelled portion of a [1290]road. (Id. at p. 344.) The car was on a four-lane highway when another vehicle forced it off the road. The plaintiffs claimed the utility company was negligent in placing its pole two feet from the traveled portion of the road where there was no shoulder or curb. (Ibid.) The trial court disagreed and the appellate court affirmed. The court concluded that the placement of the pole was not the proximate cause of the injury. (Id. at p. 345.) Furthermore, the court stated that “[n]o telegraph or telephone company may erect utility poles upon, along, over or under any public road, . . . without first obtaining permission . . . from the governing body of the municipality in which it is to be located. [Citation].” (Ibid.) Thus, the court concluded that a utility company is not a “free agent in the placement of its . . . poles . . . but must conform to the dictates of a local governing body . . . .” (Ibid.) Such is the case before this court. SCE is not a free agent in placement of its light pole. The location of light poles along roadways is an important decision which, according to the record before this court, is determined by engineers employed by the City or developer in compliance with the accepted guidelines such as CalTrans’s Highway Design and Traffic Manuals and Standard Plans, and AASHTO manuals, including the 2004 edition of “A Policy on Geometric Design of Highways and Streets” and the “Roadside Design Guide.” According to expert testimony, the light pole in question here conformed with the requirements stated in these manuals.
In Coates, supra, 731 A.2d 931, the plaintiffs were injured when their vehicle slid out of control and hit a utility pole. (Id. at p. 933.) Reviewing Maryland’s case law regarding the issue of a utility company’s liability when a pole is hit, the court noted that liability was found “only when (1) the utility chose the location of the pole, free from governmental direction, and (2) the pole created a danger to persons while on the traveled portion of the road.” (Id. at p. 938.) As for outside of Maryland, the court observed: “Although some of the cases take somewhat doctrinaire positions, either as to foreseeability, proximate cause, or, as in New York and New Jersey, on strict public policy grounds, most of the courts, in their recent decisions, have adopted a more flexible approach.” (Id. at p. 943.) The court agreed with that approach, concluding (1) a utility company has a duty not to endanger those traveling on the roadway set aside for lawful travel; (2) if a governmental body approved the placement of a utility pole, the company has complied with any duty owed to those on the road; (3) a utility company may anticipate that those using the road will do so in a lawful and reasonable manner; and (4) a utility company has no duty to make any massive engineering inspection of all of its existing poles. (Id. at pp. 944-945.) Thus, summary judgment was affirmed in favor of the utility company on the ground that the company “had no duty to anticipate that a vehicle traveling in a posted 35 mile per hour zone would go so out of control as to spin across the oncoming lane and [1291]strike a pole that was at least 14 feet from the edge of the lane in which the vehicle was traveling.” (Id. at p. 945.)
In Rothwell, supra, 845 S.W.2d 42, a driver was killed after he lost control of his car, crossed to the other side of the road, hit an electrical pole, and a fallen line electrocuted him. (Id. at pp. 42-43.) Summary judgment for the utility company was affirmed on the grounds that it was “not reasonably foreseeable that someone would veer across the center lane, into an embankment and then hit a pole some 8 to 11 feet away from the other side of the road.” (Id. at p. 44.)
Moreover, in Armand v. Louisiana Power & Light Co. (La.Ct.App. 1986) 482 So.2d 802 (Armand), a driver was rendered a quadriplegic after her car went into a spin and hit a utility pole. The driver had a blood-alcohol content of 0.30 percent. (Id. at p. 803.) Judgment against the utility company was reversed with the appellate court holding that the “location and design of defendant’s transmission pole was not the cause-in-fact of the accident.” (Id. at p. 804.) The court found that the utility company had “no obligation to guard against rare exigencies such as an out of control vehicle leaving a traveled roadway.” {Ibid.) The same reasoning used in Coates, Rothwell, and Armand applies to the facts of this case.
Again, I note “[t]he existence and scope of a defendant’s duty is a question of law for the court’s resolution. [Citations.]” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 412 [82 Cal.Rptr.3d 735].) Foreseeability is a significant factor in determining the existence of a legal duty, as well as its scope. (Id. at p. 415.) “[T]he scope of the duty is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed. [Citation.] ‘ “[I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. [Citation.] On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required.” [Citation.]’ [Citation.]” (Ann M., supra, 6 Cal.4th at pp. 678-679.)
Did SCE owe Plaintiff a duty to take advance precautions to protect her from the harm she suffered as a result of the car accident caused by Dimeo? The answer is “no,” because the accident could not have been reasonably foreseen.
As the above cases demonstrate, car accidents involving utility poles located along roadways are a possibility. However, this fact does not create a “duty” on the part of a defendant to ensure a “safe landing.” If it did, the defendant would be required to eliminate all possibilities of risk. This is [1292]simply not possible. “All possibilities of risk even if ‘foreseeable’ in the abstract as possibilities cannot be eliminated.” (Whitton v. State of California (1979) 98 Cal.App.3d 235, 244 [159 Cal.Rptr. 405] (Whitton).) All that a defendant is required to do is to protect a plaintiff from all reasonably foreseeable risks. (Bryant v. Glastetter (1995) 32 Cal.App.4th 770, 778 [38 Cal.Rptr.2d 291] [“ ‘In order to limit the otherwise potentially infinite liability which would follow every negligent act, the law of torts holds defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable.’ ”].) To expect that most people will drive properly is not negligence. Thus, the chance that an unusual accident will occur is not the test of foreseeability.
As SCE points out, “[t]he general scenarios in which an errant northbound vehicle could leave Ridgecrest Road, cross all opposing lanes of travel and strike a stationary object on the other side of the road are virtually endless. It would be impossible to guard against all such eventualities. Consider the random speeds, trajectories and chain of events (including ricocheting off of other vehicles and structures) that would make planning against these situations impossible. It is enough that in planning the streetlights on the south side of Ridgecrest to be safe for adjacent southbound travelers the designers considered that relation of the poles to southbound traffic. In this regard, the planners (City of Victorville) apparently did a good job as there is no evidence that placement of the Streetlight caused any injuries to southbound traffic at any time since its installation in 1993.” Clearly, there are some risks that are not reasonably foreseeable. Thus, there is no duty. Such is the case before this court.
Nonetheless, the majority maintains that a “vehicle leaving a roadway where vehicle speeds commonly reach 62 miles per hour or more and striking a fixed concrete light pole placed 18 inches away from the curb” is “easily foreseeable for purposes of an analysis of duty ...” (Maj. opn., ante, at p. 1273.) However, “[t]his is not the foreseeability upon which the law of negligence is based. The conduct of [SCE] was not the cause-in-fact or the substantial factor in law in bringing about the harm to the plaintiff. When the law says a person substantially contributes to the injury, the law is dealing with responsibility based on reasonable expectations and a commonsense approach to fault not physics. [Citations.] Therefore, even if the likelihood of [a speeding car losing control and hitting a light pole] . . . can be calculated in terms of mathematical probabilities, such mathematic computation is immaterial.” (Whitton, supra, 98 Cal.App.3d at p. 243.)
More importantly, the facts of this case do not warrant treating it as simply a “vehicle leaving a roadway . . . and striking a fixed concrete light pole placed 18 inches away from the curb.” (Maj. opn., ante, at p. 1273.) Dimeo’s [1293]conduct was criminal. He was under the influence of drugs or alcohol and he was driving in excess of 100 miles per hour. He was using the road as a racetrack to test the speed of his parents’ Porsche. When he hit another car, the Porsche was forced across three 12-foot-wide lanes (36 feet) and over the eight-inch-high curb, where the car continued to skid along the curb until it hit the light pole. Although Dimeo was driving northbound, his vehicle hit a light pole located on the southbound side of the road. Such conduct was not a natural or typical consequence of the placement of a light pole on the side of the road nor was the foreseeability of the likelihood of that conduct one of the factors contributing to the negligent character of SCE’s conduct.13
Although Plaintiff’s expert claimed the light pole should have been placed as far away from the road as possible (in this case, 12 feet), the evidence shows that Dimeo was traveling at approximately 74 miles per hour at the point of impact. Even if the light pole had been placed 11 feet further away from the road, as suggested by Plaintiff’s expert, given the speed of Dimeo’s car the added distance would have only delayed the inevitable crash by less than one second. Moreover, Dimeo’s car traveled across all lanes of traffic before hitting a light pole on the west side of the road. As SCE posits, “How do we then account for southbound driver[s] who become involved in similar accidents which veer off the roadway, jump the west curb and travel the same distance as the Plaintiff? Wouldn’t the so-called twelve-foot safe distance now be unsafe given the fact a southbound traveler, traveling the same distance as the Plaintiff, would have struck the very pole Plaintiff’s expert now opines was a safe distance?”
To impose the duty on SCE, or any other entity, to ensure a “safe landing” for all, would create a heavy burden. While the majority finds the evidence “insufficient to establish any meaningful additional burden to SCE of installing safer light poles” (maj. opn., ante, at p. 1278), I find the testimony of Plaintiff’s expert, Anderson, sufficient evidence of such burden. Anderson testified that the light pole should have been placed as far back (here, 12 feet) as possible. Furthermore, he testified that the arm of the light pole in this case looked to be about eight to 10 feet. If the pole is placed farther back, Anderson testified that the arm would need to be 12 feet plus the additional width of the lane, or “20, 25-20 feet mainly is common.” Common sense dictates that if the arm must be 12 feet longer than it currently is, the cost will increase. Furthermore, SCE will not have to relocate just this light pole, it will have to relocate all of the light poles. Such task would be quite burdensome when considering the number of light poles in [1294]the City, the County, and throughout the state. (Coates, supra, 731 A.2d 931, 944 [“To make liability in every accident a jury question would, we expect (1) quickly remove the availability of affordable liability insurance for utilities, and (2) effectively force them to move hundreds, if not thousands, of poles, at enormous cost and inconvenience to them and to their customers and, even then, without absolute assurance of safety.”].)
What the majority is proposing is a nightmare. SCE is not in the business of researching and studying the best placement of utility poles. Such business is left to the proper governmental agencies. However, according to the majority opinion, no longer will a utility company be able to rely on city and county engineers working on behalf of the governmental agencies, in compliance with government sanctioned highway and safety engineering studies and manuals, to direct the location of utility poles. Rather, the utility company will have to hire its own engineers. However, even if the company bears the burden and expense of hiring its own engineers, there is no assurance that it will avoid liability, because clearly the use of the accepted standards (CalTrans Highway Design and Traffic Manuals and Standard Plans, and AASHTO manuals, including the 2004 edition of “A Policy on Geometric Design of Highways and Streets” and the “Roadside Design Guide”) fail to provide a “safe landing” for all!14
IV. PUBLIC POLICY
Foreseeability is not the only test in our determination of whether SCE owed a duty to Plaintiff. We also employ public policy considerations. If, as the majority proposes, we cannot state that SCE had no duty, as a matter of law, “to . . . install[] safer light poles” (maj. opn., ante, at p. 1278), and if it is a question of fact for the jury to decide, then we must consider the implications of such proposition. Should there be a “safe landing” on the side of every road? If so, what will it cost?
Beginning with the instant case, was the fact that the light pole was placed in the exact pathway of Dimeo’s car the cause-in-fact of the accident? Considering the distance Dimeo’s vehicle had already traveled before hitting the light pole, there is no evidence to suggest that placing the light pole [1295]farther back would have made a difference.15 What if there had been a tree in the same place as the light pole? What about a parked car, or a brick mailbox, or a fire hydrant? “Carried to its logical conclusion, [the majority’s proposition] would require a landowner to remove every tree, fence, post, mailbox or name sign located on his property in the vicinity of the highway, or permit them to remain, subject to possible liability. ...[][] Moreover, such a rule would result in limiting the owner’s use of that portion of his property which abuts the road, and would be equivalent to a taking of private property for a public use without just compensation, in violation of our State Constitution (art. I, § 7, subd. [a]).” (Hayes v. Malkan (1970) 26 N.Y.2d 295, 299 [310 N.Y.S.2d 281, 258 N.E.2d 695, 696].)
What would it cost to relocate every light pole, utility pole, or stop light pole to as far away from the road as possible? Who should bear this cost? Are accidents like the one before this court so common that the benefit of imposing a duty to protect motorists involved in such accidents outweighs the burden of relocating all fixed objects along the road? More importantly, at what point should we prohibit the placement of any fixed object on the side of the road?
Again, recognizing that accidents involving fixed objects on the sides of roads are a possibility, we must consider what common sense dictates. Ideally, if a road is designed to attain optimal roadside safety, it would look like the landing strip at an airport. However, this is not practical. Our roads are, and must be, designed to accommodate the needs of the community (including motorists) while considering the rights of adjacent landowners. As such, guidelines have been established (AASHTO Roadside Design Guide, etc.) so that necessary fixed objects (lights, warning signs, etc.) can be placed in close proximity to the traveled portion of the road without hindering motorists who are using the road. Nonetheless, even with the use of these guidelines, there is no way to ensure a “safe landing” for all. Therefore, it is unreasonable for a motorist to expect that upon the loss of control over his or her vehicle, whatever lies on the other side of the curb will provide a safe landing.
For the above reasons, I conclude the trial court properly granted summary judgment in favor of SCE. Dimeo’s conduct (test driving his parents’ Porsche at a speed in excess of 100 miles per hour, hitting another vehicle, losing control, crossing over three 12-foot-wide lanes of traffic, jumping the eight-inch concrete curb, skidding down the sidewalk, .and hitting a light pole several feet from the lane in which the motorist was traveling) was not a [1296]natural or typical consequence of the placement of a light pole on the side of the road. Nor was the foreseeability of the likelihood of his conduct one of the factors contributing to the negligent character of SCE’s conduct.16 Accordingly, I would hold that, as a matter of law, SCE owed no duty to Plaintiff.
V. CONCLUSION
Here, I do not begin with the assumption that SCE controlled the decision on where to place the light pole. More importantly, I conclude there is no duty to provide a “safe landing” for all motorists. It is unreasonable to expect SCE to anticipate and guard against the accident that occurred in this case. Accordingly, I would affirm the judgment in its entirety.
For the above reasons, I concur only with the majority opinion affirming the trial court’s grant of summary judgment in favor of Edison.
Respondents’ petition for review by the Supreme Court was denied October 28, 2009, S175969. Baxter, J., was of the opinion that the petition should be granted.
Clearly, the combination of plaintiff’s catastrophic injury and the depth of defendant’s pocket warrants the continued search.
Five lanes at the intersection.
Herein sometimes referred to as an “electrolier” or “luminaire.”
Dimeo suffered cuts and abrasions to his face and hands, one passenger suffered cuts and abrasions to his hands and complained of back pain, and the other passenger lost his life.
On September 19, 2005, Plaintiff identified SCE and Edison as two Doe defendants in her second amended complaint.
Plaintiff also sued the City and the County. Summary judgments in their favor were affirmed by this court in previous appeals (Laabs v. County of San Bernardino (May 11, 2007, E039694) [nonpub. opn.]; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242 [78 Cal.Rptr.3d 372]).
American Association of State Highway and Transportation Officials (AASHTO).
This point was noted at the trial court level.
The majority discounts my emphasis on the AASHTO manuals and the declaration of Nahabedian, arguing that it is irrelevant to the issue of “duty.” (Maj. opn., ante, at p. 1277, fn. 8.) According to my colleagues, while “the issue of duty is a matter for the trial court, it is nonetheless a factually oriented inquiry.” (Id. at p. 1269.) Quoting Burger v. Pond (1990) 224 Cal.App.3d 597, 603 [273 Cal.Rptr. 709], the majority notes that “ ‘ “Foreseeability” and “policy considerations” are not determined in a vacuum, but rather depend . . . upon the particular circumstances in which the purported wrongful conduct occurred.’ ” (Maj. opn., ante, at p. 1269.) In this case, I find that all of the particular circumstances affecting the decision of where to install the light pole are relevant given Plaintiff’s claims against SCE.
In Norton, the public utility was held liable for damages the Nortons sustained when their automobile, by reason of a dangerous condition in the street, ran upon and over the curb and crashed into a utility pole (maintained by the public utility) within die curb line but flush with the curb along the street. (Norton, supra, 5 Cal.2d at pp. 57-58, 59.) The intersection in question was described as a rounded comer with no sidewalk that contained a space between the curb and the property line that was used by the public when turning the comer. (Id. at p. 59.) This space was not part of the roadway; however, at night it appeared to be a turn lane because the surface was “ ‘level with the curb and street pavement and in wet weather and darkness would present the appearance of a used highway.’ ” (Id. at p. 59.) Unlike the situation in Norton, here the luminaire was not in a location that was commonly used by motorists, and it was visible during the day or night.
In Gerberich, the plaintiffs’ daughter was killed when the car she was riding in hit a junction pole (support wires) erected and maintained by the public utility. (Gerberich, supra, 5 Cal.2d at pp. 48-49.) The street consisted of concrete pavement 24 feet wide, bordered on each side by a two-foot strip of macadam and unpaved the balance of the width of the highway. (Ibid.) The pole was 1.3 feet in diameter with its center placed six feet from the edge of the concrete, or four feet from the edge of the macadam shoulder. It was black, unmarked and bore no light. (Id. at p. 49.) According to the record, the dirt portion of the road was frequently traversed on both sides of the pole when traffic was congested. The driver of the car swerved to avoid hitting another car, ran onto the dirt shoulder, and continued until he hit the pole. {Ibid.) In contrast, in this case the luminaire was visible, there was no evidence that cars traveled around it, and there were a curb and sidewalk to alert motorists to keep away from the area.
In George, the plaintiff was injured when a dip or depression in the street caused his vehicle to swerve into the curbing and hit a pole. (George, supra, 11 Cal.2d at pp. 305-306.) The court noted that the defective condition was part of the traveled section of the street itself. (Id. at p. 309.)
In White, the plaintiff was injured in a motor vehicle accident that occurred in the evening at an intersection near an inoperative streetlight owned and maintained by SCE. (White, supra, 25 Cal.App.4th at p. 445.) Reference to Gerberich, George, and Norton was made in passing.
The majority notes these authorities were followed in Schauf v. Southern Cal. Edison Co. (1966) 243 Cal.App.2d 450 [52 Cal.Rptr. 518], (Maj. opn., ante, at p. 1276.) In Schauf, the plaintiffs were injured when the driver of their car ran a stop sign and collided with another vehicle. (Schauf, supra, at p. 453.) SCE and the county were sued on the theory that they “negligently maintained a hazardous condition at the intersection in that the visibility of the stop sign (installed by the county in 1940) controlling west-bound traffic ... was obstructed by an [SCE] power pole (installed by [SCE] in 1937 under a county franchise).” (Ibid.) As to SCE, the plaintiffs claimed that it was liable because its power pole obscured the stop sign creating a traffic hazard of which SCE had constructive knowledge but which SCE negligently failed to remedy. (Id. at p. 458.) The jury agreed. On appeal, this court noted the issue was not whether “the pole by itself, either because of its location or condition, constituted a hazard to motorists. The dangerous condition, if one existed, consisted of the relationship of the stop sign to the pole. The question [was] whether that relationship was created or maintained by [SCE], either independently or jointly with the county.” (Id. at p. 460.) We concluded that SCE did not create or maintain the unsafe condition; however, we found a question as to whether, “by having constructive knowledge of the dangerous condition and the power to correct it by relocating its pole, [SCE] had a duty to take steps to guard motorists against the danger.” (Id. at p. 461.) Here, Plaintiff contends it is the location of the pole that constituted the hazard to motorists. However, there is no evidence that the light pole in this case is positioned any differently than other light poles located on similar streets.
The majority notes our state Supreme Court’s discussion of foreseeability in Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 52-54, 57-58 [192 Cal.Rptr. 857, 665 P.2d 947], (Maj. opn., ante, at p. 1272.) I note that Bigbee analyzed foreseeability as a jury question (Bigbee, supra, at p. 56), not the legal question presented by the duty analysis in our case. (Ann M., supra, 6 Cal.4th at p. 674.)
Again, I would note there is no evidence in the record that SCE had any control over the decision as to where the light pole would be located. Instead, that decision was made by the engineers hired by the government entities, in compliance with the accepted guidelines and standards.
The majority faults my emphasis on the AASHTO manuals and the declaration of Nahabedian to further support my finding of no duty on SCE’s part. The majority opines that “[wjhether design criteria was complied with, goes to the standard in the community and the issue of ‘breach of duty.’ ” (Maj. opn., ante, at p. 1277, fn. 8.) I disagree. I view the evidence as a factor in the circumstances that must be considered in determining the existence of duty.
As noted earlier, given the speed of Dimeo’s car, if the light pole had been placed 11 feet farther back, as Plaintiff’s expert suggested, it would have delayed the inevitable crash only by less than a second in time.
See footnote 13, ante.