Bacon v. Southern Cal. Edison Co.

Opinion

YEGAN, J.

Thirteen-year-old David D. Bacon appeals from the summary judgment granted to defendant Southern California Edison Company. The

[857]

trial court ruled that Edison was immune from liability pursuant to Civil Code section 846, and that Bacon failed to show an issue of fact as to whether Edison willfully or maliciously failed to maintain the electrical transmission tower or warn or guard against a dangerous condition of the tower where Bacon was injured.

We affirm. Edison refuted Bacon’s allegation of willful or malicious conduct by presenting evidence that it placed barbed wire and a warning sign at the tower and that the warning sign and barriers were extant at the time Bacon climbed the tower. Although Bacon argued that the warning sign and barriers were in a state of disrepair, his evidence showed, at most, that Edison’s conduct was negligent.

Facts

At the age of 13, Bacon sustained permanent injuries when he climbed to the top of an electrical transmission tower, received a shock and was knocked to the ground. Edison owned the tower and the real property under it. The tower is located in a residential neighborhood, near a park and a paved pathway.

Motion for Summary Judgment

Edison argued in its motion for summary judgment that Civil Code section 846 relieved it of any duty toward Bacon because Bacon entered and used Edison’s property for a recreational purpose. Civil Code section 846 provides: “An owner of any estate or any other interest, in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section. [¶ ... [¶ This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity . . . .”

Edison’s supporting evidence indicated that eight strands of barbed wire were strung around the base of the tower, and that a sign reading: “Danger High Voltage Wires Keep Off,” was attached to it. In addition, Edison asked the court to take judicial notice of the fact that electric shock is an inherent risk of climbing such a tower. Edison did not, however, expressly address the question of willful or malicious conduct.