WILLHITE, J. —
Defendant Southern California Edison Company (Edison) appeals from a judgment following a jury trial in which the jury found in favor of plaintiff Simona Wilson on her claims for intentional infliction of emotional distress (IIED), negligence, and nuisance, and awarded her $1,050,000 in compensatory damages and $3 million in punitive damages. All of her claims are based upon her allegation that Edison failed to properly supervise, secure, operate, maintain, or control the electrical substation next door to plaintiff's house (the Topaz substation), allowing uncontrolled stray electrical currents to enter the home. Stray current (or stray voltage) is the unavoidable byproduct of grounding an electrical system.
The gas company found stray voltage on Wilson's gas meter the year after she moved into the house, and again two years later. Edison paid for certain measures taken by the gas company, which virtually eliminated the voltage on the meter. After Wilson remodeled her master bathroom (four years after she moved into the house), she began to feel low levels of electricity in her shower because the shower had metal pipes and the drain was connected to the ground, which allowed the stray electricity to flow when someone touched the shower while in contact with the drain. Edison offered to replace all or a portion of the metal pipes with plastic, which would eliminate the voltage in her shower, but Wilson refused the offer and insisted that Edison eliminate all stray voltage on her property. She subsequently filed the instant lawsuit.
Edison contends that Wilson's claims fall under the exclusive jurisdiction of the Public Utilities Commission (the commission or PUC), that no
Analysis of the facts and issues in this case requires a basic understanding of electricity and electrical distribution systems.
Electricity is produced at a generating plant. Because it is not economical to send electricity over long distances at low voltages, the electricity produced at the plant is stepped up through transformers to a very high voltage before it is sent out over transmission lines. A substation, such as Edison's Topaz substation at issue in this case, receives the high voltage electricity from the generating plant and steps it down through transformers to 4,000 volts. It then sends the electricity over distribution lines out to the neighborhood power poles, where an additional transformer steps down the voltage to 240/120 volts before delivering the electricity to homes or businesses.
In order for electricity to flow, there must be a complete circuit. In other words, when electricity is sent out from a transformer to a "load" (i.e., something that is using electricity, such as a light or appliance), it must have a return path. Typically, electricity is sent over one conductor (wire), called the "hot," and returns on another conductor called the neutral. The flow of electricity is referred to as "current" and is measured in amperes (or amps); voltage is the pressure that drives the current. The amount of current depends in part upon the amount of resistance in the circuit; e.g., a 100-watt lightbulb
For safety reasons, electrical systems usually are grounded. That means that at various points in the system, including at the substation, a connection is made from the neutral to the ground, i.e., the earth. Because the earth is conductive, it can provide a return path for the flow of electricity. Therefore, if, for example, an energized wire fell to the ground from the distribution lines, the earth would provide a path for the current to return to the substation, where a protective device would break the circuit. But the conductivity of the earth also can present a danger to someone who touches a source of electricity. If that person is in physical contact with the earth, electricity will flow from the electrical source, through his or her body, to the earth and on to the distribution system or substation, thus completing the circuit. The amount of current will depend on the resistance of the person's body, the amount of contact area, and the amount of voltage present.
In a grounded electrical system, there will always be some current flowing back to the substation through the earth. This is referred to as neutral-to-earth voltage, or "NEV," and it cannot be entirely eliminated. NEV is one cause of "stray voltage," which is voltage of 10 volts or less appearing on objects that are not part of an electrical system, that can be simultaneously contacted by members of the general public.
The physiological effects of current flowing through a person's body depends upon the amount of the current. According to a leading reference, a woman who encounters a current of 0.3 milliamps (mA) would not feel anything. At 0.7mA, she would feel a slight tingling; that typically is the perception threshold. At 1.2mA, she would feel a shock, but it would not be painful and muscular control would not be lost. She would feel a painful shock at 6mA, but she would still have muscular control. The let-go threshold
The house at issue in this case is located at 904 Knob Hill Drive in Redondo Beach, next door to Edison's Topaz substation. Edison owned the house until 1999.
In 1995, Edison rented the house to the Pantucci family. Before renting the house to the Pantuccis, a corporate real estate agent from Edison asked Edison's facilities manager to take a look at the electrical system because a previous tenant had complained that she got a shock in the kitchen from the sink or refrigerator.
Edison hired an electrical contractor, Precision Electric, to go through the electrical panels and the house to make sure everything was in order. Precision Electric took voltage readings by the sink to the ground, and found no voltage. The contractor replaced a ground clamp and went through the entire house, but did not find any electrical problems. The contractor was called back to the house after another Edison agent touched the dishwasher door while standing in water (the dishwasher had leaked) and felt a shock. When Precision Electric checked the dishwasher, the water was gone, and there was no voltage between the dishwasher and a tack strip on the floor. The contractor told Edison the shock could have been caused by the power feed to the dishwasher being in water when the dishwasher leaked.
Soon after the Pantuccis moved into the house, they began to experience shocks in the bathtub, at the washing machine, in a kiddie pool in the backyard, and at other places around the house. The shocks were mild, and
In April 1997, Edison's lease administrator, Tina Drebushenko (now Van Breukelen) e-mailed several Edison employees regarding some calls she recently received from Ms. Pantucci about shocks she received when touching faucets. Ms. Pantucci also told her that the family no longer used the bathtub. Drebushenko reported that "[t]his problem was supposed to have been corrected some time ago, but the tenants report that it never really was ... they just put up with it and stopped calling." She said that Ms. Pantucci told her that the shocks were getting stronger, so Precision Electric was sent to the house. The electrician who went there detected some stray voltage, and also believed there was faulty wiring somewhere in the electrical system. Precision Electric asked for an Edison troubleshooting team to meet it at the house the following week "to rule out any substation problems." When Ms. Pantucci called the next day to report that the problem had gotten worse after Precision Electric left, Drebushenko contacted Precision Electric and the troubleshooting team to have them meet at the house that same day.
In her e-mail to her colleagues, Drebushenko emphasized that Edison needed to "get this matter resolved once and for all or determine if it can[`]t be solved." She stated that she had submitted the property to be released for sale, but that Edison might want it as a buffer. She said that if Edison could sell the property, it would first have to fix the problem, but if the problem cannot be fixed, Edison should consider demolishing the structure.
The Pantuccis moved out a few months later, in September or October of 1997.
In January 1998, Mark Raidy was preparing the house for possible sale. He met with several Edison employees at the house to try to determine the source of the shocks and find a solution to fix the problem. They opened the main circuit breaker (i.e., shut off power to the house) and took readings. They found two amps flowing in the service drop (i.e., wire) from the backyard pole to the house. They took readings on the water pipe into the house and out to the sprinklers in the backyard, and found no current. They agreed that the other likely path for the current was the sewer pipe, and determined they should replace the sewer pipe with plastic. Once the sewer pipe was replaced, they would meet again, and have a troubleman there to perform a test.
Sometime later, Edison found there was a problem on a distribution pole up the street from the house. When the problem was fixed, the stray voltage at the house stopped.
In June 1998, Raidy made a site visit at the house with Edison's sales and leasing manager, Charles Kraushaar. Raidy told Kraushaar about the reports by prior tenants of shocks at the property. He said that Edison had determined that the source of the shocks was a faulty transformer on a distribution pole up the street; the transformer was replaced, which eliminated the problem. Kraushaar touched the faucet and showerheads that previously had produced shocks to verify there were no more shocks. Kraushaar had no concern about stray voltage at the site, and authorized the release of the property for sale.
Edison sold the house to the Ozerans in 1999. Edison did not receive any reports of shocks at the house for the next five years. In 2004, the Ozerans complained to Edison that the tenants of the house were getting shocked in the laundry room in the garage, in the yard at the hose bibs, and in one of the bathrooms. Edison employee Matthew Norwalk was asked to investigate as part of a team that included people from Edison's substation, field engineering, and power quality departments. Norwalk performed voltage measurements, and found voltages ranging from 11 to 15 volts inside and outside the house.
Thousands of man-hours were spent by members of the team and others, trying to determine the source of the problem. They deenergized and inspected each circuit at Topaz to see if there were issues with any of the circuits. Ultimately, they found and replaced some corroded connectors, and
The common neutral plan was implemented in February 2005. Afterwards, the Edison team performed voltage measurements at the house, and found the voltage had dropped to approximately 3.5 volts (without a resistor). Using a 1,000 ohm resistor to replicate the internal resistance of a human body, the Edison team determined that a voltage of 3.5 volts would not produce any harmful level of current (the level of current would be approximately 3.5mA). Norwalk spoke with the tenants of the house, and they were satisfied with the results. Edison received no more complaints of shocks or stray voltage until 2008.
Wilson bought the property in March 2007 and moved in with her husband, Ryan Fisher, and son.
When Fisher came home from work on August 22, 2008, he found tags from the gas company saying that it had found a dangerous condition; there was electricity (measured at 7 volts) detected at the gas meter.
The gas company notified Wilson again in April 2010 that it had detected electricity on the gas meter, although it did not turn off the gas at that time. The gas company also found voltage on the gas lines of other homes and facilities in the area. Representatives from the gas company had several meetings with representatives from Edison to try to find a way to address the problem. Ultimately, it was determined that the best way to eliminate voltages on the gas lines and meters was to install isolators on the gas service lines to the customers' homes. Edison paid several thousand dollars for the installation of isolators, which was completed in 2012 and reduced the voltage on the gas meters to less than one volt.
In the meantime, in March 2011, Wilson remodeled her master bathroom. The construction was done to code by Wilson's father, who was a contractor. As part of the remodel, Wilson replaced an elevated bathtub with a shower that had a metal drain in the concrete on the floor, so it had contact with the earth.
Wilson's father and the electrician came to the house on April 20 and took voltage readings. They found voltage on the pipe leading to the showerhead. They started looking for the cause, eventually turning off all the power to the house, and found there still was voltage. The electrician and Stelle called Edison.
An Edison field technician came to the house a few days later and took voltage readings in the shower and other areas of the house. The technician told Stelle that there had been a history of problems with the house, and that there was not much he could do other than check to make sure it was not something that could be immediately fixed. He did not explain what the problems were. Another Edison representative came by later that day and did a similar walk-through and took voltage readings.
About a week later, Norwalk came to the house and met with Stelle. At Stelle's request, Norwalk took voltage measurements at the master shower and at the gas meter. The voltage at the shower was 2.2 volts with a 500 ohm resistor and 2.4 volts without the resistor; the readings at the gas meter were 0.5 volts with the resistor and 1.7 without. Norwalk tried to explain the cause of the voltage; as Stelle understood Norwalk's explanation, the substation was causing a voltage potential across the property that was within Edison's standards, and Edison did not have plans to do anything about it. Stelle asked Norwalk to come back to the house on May 6 to meet with Wilson and explain it to her.
On May 6, Norwalk and two other Edison representatives (including Bill Stone, a claims representative) met at the house with Wilson, Stelle, Wilson's father, and her electrician. Norwalk measured the voltage on the shower, and showed the group that it measured 2.4 volts without the resistor and 2.2 volts with the resistor. They then went to the gas meter, where Wilson's electrician said he had measured 11 volts.
The group returned to the kitchen, where Norwalk showed Wilson the data from the voltage monitor that had been placed on her gas meter. He showed her that the voltage was lower in the morning and higher at night, in direct relationship to the substation, and explained the same is probably true in her shower. He estimated that the voltage in the shower in the evening would be around 3 volts. He noted there was missing data from December 2010 to April 2011 because the data card on the monitor had filled up, but explained that the voltages recorded before the monitor stopped recording were almost exactly the same as those recorded after the data card was replaced.
What happened next is in dispute.
According to Wilson, Norwalk advised her to shower during offpeak hours when the stray voltage was lower and to modify her house to make it less conductive. He did not make any specific recommendations as to how to modify the house, nor did he offer to have Edison do any work on her house during that meeting.
According to Norwalk, he explained to Wilson at the meeting that the voltage in the shower could be mitigated through bonding, or by replacing a portion of the copper plumbing in the shower with a short piece of plastic piping. He told her that she could have her contractor perform the work, if that made her more comfortable, and she could submit the bill to Edison.
Wilson moved out of the house in September 2011, after an inspector she hired told her she should get out. The inspector was a building biologist whose expertise was in electromagnetic fields. She sold the home in January 2013.
After Wilson started feeling the electricity in the shower, she started throwing up all the time, and her body felt extremely weak. She started to have muscle fatigue and muscle spasms, and her hands were shaky. She could not hold a cup of coffee or type, and had constant numbness, pain, and tingling in her hands and feet.
She went to a neurologist, Dr. Rederich, in May 2011. Dr. Rederich performed some simple tests on her, and diagnosed her with nerve damage. He prescribed pain medication, and told her the nerves would regenerate over time. When her symptoms got worse, Wilson returned to Dr. Rederich. He told her that he thought she might be developing secondary erythromelalgia, a rare condition for which there was no cure, and referred her to a specialist, Dr. Beydoun. Dr. Beydoun concluded she did not have secondary erythromelalgia or nerve damage, but he could not rule out the possibility that she had primary erythromelalgia, which is an inherited condition.
On September 11, 2011, Wilson, on her own behalf and as guardian ad litem for her children, filed a complaint for damages against Edison, the Boekers (who sold the house to her), and the Boekers' real estate agents. We need not discuss in detail the proceedings below. Suffice to say that the case was tried before a jury on Wilson's claims for IIED, negligence, and nuisance as alleged in the first amended complaint. All of those claims alleged, in essence, stray voltage generated by the Topaz substation entered into Wilson's home, causing shocks to Wilson, and that Edison knew of the stray
After an eight-day trial, the jury found in favor of Wilson on all three claims. The jury awarded Wilson $375,000 in past noneconomic damages and $175,000 in future noneconomic damages on her IIED and negligence claims, and $500,000 on her nuisance claim, and found Edison liable for punitive damages. Following a punitive damages phase, the jury awarded Wilson $3 million in punitive damages.
The trial court entered judgment, and Edison timely filed motions for judgment notwithstanding the verdict and a new trial. In the motion for judgment notwithstanding the verdict, Edison argued for the first time that all of Wilson's claims were barred by Public Utilities Code
Edison contends that Wilson's claims fall under the exclusive jurisdiction of the PUC, that no substantial evidence supports her claims, that the damages award is excessive, and that punitive damages were unjustified. We find that the PUC does not have exclusive jurisdiction over Wilson's claims, but we agree there was insufficient evidence to support her IIED and negligence claims and that the punitive damages award was unjustified. Although we reject Edison's contention that there was insufficient evidence to support the nuisance claim, we find the jury may have relied upon irrelevant evidence in considering that claim, and therefore the nuisance claim must be retried.
Section 1759, subdivision (a) provides: "No court of this state, except the Supreme Court and the court of appeal, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties, as provided by law and the rules of court." On appeal, Edison argues that Wilson's claims are barred under section 1759 by the PUC's exclusive jurisdiction over the design, siting, operation, and safety of Edison's electrical distribution system. Wilson contends Edison waived this issue by failing to plead it as an affirmative defense in the answer or raise it by demurrer, and that, in any event, section 1759 does not apply in this case. We conclude that the issue is one of subject matter jurisdiction that cannot be waived, but that section 1759 does not bar the trial court from litigating Wilson's claims.
As noted, Edison did not argue that all of Wilson's claims were barred by the PUC's exclusive jurisdiction until it filed its posttrial motion for judgment notwithstanding the verdict. Wilson contends that Edison cannot raise exclusive jurisdiction on appeal because "[e]xclusivity is an affirmative defense ... [that] must be pled in the defendant's Answer — or it is waived." (Citing Doney v. Tambouratgis (1979) 23 Cal.3d 91 [151 Cal.Rptr. 347, 587 P.2d 1160] (Doney).) Her reliance upon Doney is misplaced.
Doney, supra, 23 Cal.3d 91, and all but one of the other cases Wilson relies upon involve the exclusive remedy provision of the Workers' Compensation Act (Lab. Code, § 3600 et seq.).
As the Supreme Court explained in Doney, "a defendant in a civil action who claims to be one of that class of persons protected from an action at law by the provisions of the Workers' Compensation Act bears the burden of pleading and proving, as an affirmative defense to the action, the existence of the conditions of compensation set forth in the statute which are necessary to its application. [Citations.] `The employee is pursuing a common law remedy which existed before the enactment of the statute and which continues to exist in cases not covered by the statute. It is incumbent upon the employer to prove that the Workmen's Compensation Act is a bar to the employee's ordinary remedy.' [Citation.]" (Doney, supra, 23 Cal.3d at pp. 96-97, fn. omitted.)
The Supreme Court observed that finding a defendant waived the protection of the exclusive remedy provision by failing to raise it as an affirmative defense does not "result[] in the improper `conferral' of subject matter jurisdiction by means of consent, waiver, or estoppel [citations] ... [because] plaintiff was `pursuing a common law remedy which existed before the enactment of the statute and which continues to exist in cases not covered by the statute.' [Citation.] The trial court clearly had subject matter jurisdiction over such an action unless and until it was properly demonstrated that the case was one `covered by the statute' due to the presence therein of the conditions of compensation set forth in section 3600 of the Labor Code.... When, as in this case, no such demonstration has been made ..., the court properly proceeds to exercise its existing jurisdiction to enforce the common law remedy." (Doney, supra, 23 Cal.3d at pp. 98-99.)
Having concluded that section 1759 raises an issue of subject matter jurisdiction that is not waived by a party's failure to raise it in its answer or a demurrer, we must determine whether that statute bars Wilson's claims. For that we turn to Covalt, supra, 13 Cal.4th 893, in which the Supreme Court developed a three-part test to determine whether section 1759 applies.
In Covalt, supra, 13 Cal.4th 893, the Supreme Court was required to reconcile section 1759 with another provision of the Public Utilities Act, section 2106, that allowed private actions for damages against public utilities in certain circumstances. Section 2106 provides in relevant part that "[a]ny public utility which does, causes to be done, or permits any act, matter, or thing prohibited or declared unlawful, or which omits to do any act, matter, or thing required to be done, either by the Constitution, any law of this State, or any order or decision of the commission, shall be liable to the persons or corporations affected thereby for all loss, damages, or injury caused thereby or resulting therefrom."
The Covalt court observed that "[t]he Waters rule may be further understood by considering examples of how it has been applied by our Courts of
The court then turned to the case before it, in which the plaintiffs filed an action for damages and injunctive relief against a utility that alleged the utility's power lines that ran on land adjacent to the plaintiffs' residence emitted "`high and unreasonably dangerous levels of electromagnetic radiation onto plaintiffs' property.'" (Covalt, supra, 13 Cal.4th at p. 911.) The court applied the Waters rule by answering three questions: "The first question is whether the commission has the authority to adopt a policy on (1) whether electric and magnetic fields arising from the powerlines of regulated utilities are a public health risk and (2) what action, if any, the utilities should take to minimize that risk" (id. at p. 923); "The next question is whether the commission has exercised the foregoing authority to adopt a policy on powerline electric and magnetic fields" (id. at p. 926); "The final question is whether the present superior court action would hinder or interfere with that policy within the meaning of Waters ... and its progeny" (id. at p. 935).
As to the next question, the court noted that the Legislature initiated an inquiry into the potential health effects of electromagnetic fields (EMF)
As to the final question, the court concluded that most of the plaintiffs' claims failed to allege facts sufficient to state a cause of action, and the remaining claim, for nuisance, was barred by section 1759 because it would hinder or interfere with the commission's policy. Addressing the nuisance claim, the court noted that to award damages for nuisance under a theory that EMF impaired the use and enjoyment of the property because the plaintiffs feared that EMF would cause them physical harm, the trier of fact would be required to find that a reasonable person viewing the matter objectively would experience a substantial fear that EMF cause physical harm and would deem the invasion so serious that it outweighs the social utility of the utility's conduct. The court found that those findings would be inconsistent with the commission's conclusion that the available evidence does not support a reasonable belief that the EMF in question present a substantial risk of
In applying the Covalt test to this case, Edison argues that (1) the PUC has broad authority "to regulate the design, siting, operation, and safety of electrical distribution systems"; (2) the PUC has exercised that authority by issuing regulations that "include detailed design, construction, operating, and safety specifications for every possible aspect of electric distribution systems (e.g., G.O. 95 [(construction of overhead systems)]; G.O. 128 [(construction of underground systems)]; G.O. 165 [(inspection requirements)]; G.O. 131-D [(planning and construction of electric generation, transmission and distribution facilities)]; G.O. 174 [(substations)] ...)"; and (3) the jury award obstructs and interferes with the PUC's regulations and policy by "imposing liability on Edison for stray voltage that results from Edison's compliance with those regulations" and "effectively finding that Edison was required to do something — `completely eliminate[]' stray voltage — that the PUC does not require."
The PUC itself offered a similar analysis in an amicus curiae brief filed at the request of the trial court in two consolidated cases filed by Wilson's neighbors against Edison based on allegations of stray voltage in the areas surrounding the Topaz substation.
In contrast to Edison's and the PUC's analysis, Wilson in her respondent's brief focuses only on the second question, and appears to argue that section 1759 applies only if "the PUC exercised its authority to specifically regulate the specific conduct for which the plaintiff sought civil damages." She contends that because there is no regulation on stray voltage, Edison fails the Covalt test.
We disagree with Wilson's assertion that section 1759 applies in this case only if the PUC has issued a specific regulation on stray voltage. In Covalt, the court observed that under the Waters rule, section 1759 barred an action for damages "not only when an award of damages would directly contravene a specific order or decision of the commission, ... but also when an award of damages would simply have the effect of undermining a general supervisory or regulatory policy of the commission, i.e., when it would `hinder' or `frustrate' or `interfere with' or `obstruct' that policy." (Covalt, supra, 13 Cal.4th at p. 918, italics added.) But we also disagree with Edison's (and the PUC's) assertion that the commission's adoption of various policies governing the design, construction, maintenance, operation, and safety of electrical distribution facilities is sufficient to establish the PUC's exclusive jurisdiction over the claims in this case.
Edison, however, does not solely rely upon the general safety and design regulations issued by the PUC. As Edison explains, those regulations specifically address grounding, including grounding requirements for common neutral systems like the Topaz system. (G.O. 95, rules 21.4, 33.3, 58.2, 59.4.) Those regulations require that grounding be "effective" (G.O. 95, rule 21.4) and set forth detailed minimum requirements for ground conductors (G.O. 95, rules 33.3, 59.4). Because the PUC expressly requires that electrical distribution systems be grounded, and because (as even Wilson's expert witness testified at trial) stray voltage is an inevitable byproduct of grounding, Edison argues that Wilson's lawsuit — which imposes liability on Edison for damages resulting from this byproduct — contravenes the PUC's grounding regulations because Edison cannot comply with those regulations while also satisfying Wilson's demand that it completely eliminate stray voltage on her property.
Our review of the general orders Edison cites and the cases in which PUC exclusive jurisdiction was found lead us to conclude, however, that the Covalt test is not satisfied here.
First, although there is no doubt that the general orders require grounding of substations, it may be that Edison could comply with the regulations and still mitigate the stray voltage that results from grounding. Although that is an issue that is more appropriately submitted to the PUC under the primary jurisdiction doctrine (see Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 390 [6 Cal.Rptr.2d 487, 826 P.2d 730] [when a claim is
Second, when the PUC adopted G.O. 174, entitled "Rules for Electric Utility Substations," the commission explained why it was needed: "The Commission's current General Orders 95, 128, and 165 are already designed to promote safe operation of electric utility and communications infrastructure facilities, and provide minimum safety requirements which the utilities are to supplement with additional safety precautions when local conditions warrant. However, these General Orders do not give guidance as to how utilities operate and maintain their substations, and there are no specific regulations governing substation operation." (Order Instituting Rulemaking to Implement Com. Regulations Relating to the Safety of Electric Utility Substations (Oct. 25, 2012) Cal. P.U.C. Dec. No. 12-10-029 [2012 Cal.P.U.C. Lexis 470, p. *2], italics added.) G.O. 174 does not, however, contain any such regulations. Instead, the general order requires each electric utility to establish and update an inspection program for its substations, maintain records of its inspections, and submit annual inspection program summaries and reports summarizing completed inspections to the Utilities Safety and Reliability Branch of the PUC. (G.O. 174, rules 30, 31, 32, 33, 40.) And although the PUC ordered the utilities to meet annually to share their newly developed practices and review their own practices in light of other utilities' practices, with the expectation that "a `best practice' will evolve that shows how to most effectively operate and safely control the electric systems in California ... even as these practices continue to reflect the unique elements of each system" (Cal. P.U.C. Dec. No. 12-10-029, supra, 2012 Cal. P.U.C. Lexis 470 at p. *10), it is unclear whether this "best practice" will address stray voltage issues. Therefore, we cannot say with any certainty that litigation of Wilson's claims would hinder or interfere with the PUC's regulatory policy.
Finally, the purported exercise of authority that Edison relies upon is of a vastly different character than the kinds of exercise of authority found in cases in which courts applied the Waters rule and found that section 1759 bars the plaintiff's action. In most of those cases, the PUC conducted (or was in the process of conducting) investigations into or adopted regulations on the specific issue alleged in the plaintiffs' lawsuit. (See, e.g., Covalt, supra, 13 Cal.4th 893 [plaintiffs alleged damages due to defendant's power lines emitting EMF radiation on plaintiffs' property; PUC conducted research projects on and investigations into the potential health effects of EMF]; Sarale v. Pacific Gas & Electric Co. (2010) 189 Cal.App.4th 225 [117 Cal.Rptr.3d 24]
In its appellant's opening brief, Edison argued there was insufficient evidence to support Wilson's claims, focusing on specific elements in each cause of action that Edison asserted Wilson failed to prove. Wilson did not respond directly to Edison's arguments in her respondent's brief, and did not address at all the elements of her claims. Instead she asserted that Edison ignored the evidence of Edison's conduct before Wilson purchased her home, and gave too little weight to the experiences of previous tenants and the evidence of Wilson's emotional distress. We have examined the evidence presented at trial and conclude that Wilson failed to present sufficient relevant evidence to establish the elements of her IIED and negligence claims. We cannot conclude there was insufficient evidence to support Wilson's nuisance claim, since it requires the jury to balance the gravity of the harm from the interference with Wilson's use and enjoyment of her property against the social utility of Edison's conduct. Nevertheless, we hold that judgment with respect to that claim must be reversed and remanded for retrial because the jury considered evidence of Wilson's physical injuries (which should not
Edison contends there was no substantial evidence that it engaged in any extreme or outrageous conduct directed at Wilson, and therefore Wilson could not recover on her IIED claim. We agree.
Wilson's theory at trial was that Edison had known for more than 20 years that there was stray voltage at the property Wilson purchased in 2007, that the level of stray voltage was dangerous, as evidenced by the physical injuries Wilson suffered, and that Edison's decision to put the property on the market, its failure to eliminate the stray voltage, and its failure to warn Wilson caused Wilson extreme emotional distress due to her physical injuries and her fear of harm to herself and her children.
To be sure, Wilson presented evidence of various physical ailments she suffered, as well as evidence that she did not begin to suffer those ailments until after she remodeled her master bathroom and began to feel electricity in the shower. Wilson did not, however, present any competent evidence showing that those physical ailments were caused by her exposure to the stray electricity at her house.
Although Wilson testified that a neurologist she went to in May 2011, Dr. Rederich, told her she had severed her nerve endings and that she might
To the extent Wilson contends the evidence she presented regarding stray voltage at her gas meter — i.e., evidence that the gas company tagged her meter and turned off her gas service for a weekend in August 2008, and tagged her meter again in April 2010 — establishes that the level of stray voltage on her property was dangerous, that evidence is insufficient to establish outrageous conduct by Edison. First, the fact that the gas company restored service when Edison explained that the source of the voltage probably was NEV tends to show that any danger from the voltage on Wilson's gas meter was not significant. Moreover, the evidence showed that Edison worked with the gas company to determine the best way to minimize the stray voltage at the gas meter, and ultimately paid to have the gas company install isolators throughout the neighborhood, which reduced the voltage on Wilson's meter to nearly zero. Thus, a finding of outrageous conduct by Edison cannot be based upon Wilson's allegation that Edison allowed dangerous levels of stray voltage onto Wilson's property.
Even if it could be found that a decision to put a property on the market when the levels of stray voltage were enough to perceive but were not dangerous constituted outrageous conduct, the evidence presented at trial was insufficient to hold Edison liable for IIED. Before Edison authorized the release of the property for sale in 1998, it investigated the source of shocks and found a problem on a nearby distribution pole; when that problem was fixed, the stray voltage at the house stopped. Edison's sales and leasing manager went to the house and touched the areas that previously had produced shocks to verify there were no more shocks. After the property was sold in 1999, there were no reports of shocks for the next five years. Thus, the evidence showed that Edison reasonably believed at the time of the sale that it had eliminated the potential for shocks. And when Edison received a report of shocks in 2004, it thoroughly investigated the situation, conducted simulations, and implemented a plan to install a common neutral system. After the system was installed, Edison confirmed with the tenants that they were satisfied with the results, and Edison received no more complaints of shocks or stray voltage until Wilson's gas meter was tagged in 2008.
In short, the evidence presented at trial showed that Edison believed it had eliminated the potential for shocks when it put the house on the market in 1998 to 1999. When it received a report of shocks five or six years later, it responded by installing a common neutral system, which appeared to fix the problem. When it received reports of electricity at Wilson's gas meter several years later, it responded by working with the gas company to find a solution and paying for the installation of isolators on all of the gas service lines in the
Wilson attempted to establish a breach of a duty by Edison through the testimony of her expert witness, electrical engineer Douglas Bennett. Bennett testified that Edison violated standards in the electrical distribution industry in the way it designed its distribution system at the Topaz substation, but he did not know what was wrong with the design. He also stated that Edison violated standards by allowing dangerous levels of electricity to be present at Wilson's home, although he could not state what constitutes a dangerous level. When asked why he believed Edison had not complied with its duties and responsibilities as a distributor of electricity, he said, "[b]ecause the voltage still exists at the property. And that's not right.... [¶] [Wilson is] being subjected to these voltages. They are totally out of her control. They can only be addressed by the Edison Company to reduce the voltage present at her house."
Even if we assume that exposure to low voltage shocks could threaten physical injury (despite the absence of evidence that the physical injuries Wilson suffered were caused by that exposure, and the testimony of Edison's expert that such exposure does not cause physical injury), there is no evidence that Edison breached any duty of care in this case. As noted, the evidence showed that Edison had eliminated the touch potential in the house in 2005, inasmuch as there were no reports of shocks from that time until Wilson remodeled her bathroom in 2011. That remodel created touch potential in her shower because the water pipes she installed were metal and the drain was connected to the ground. Once she reported the problem to Edison, Edison owed her a duty to eliminate the touch potential. The evidence shows that Edison explained to Wilson (and her boyfriend) what needed to be done to eliminate the touch potential, and offered to pay for the installation of plastic isolators. Wilson, however, refused Edison's offer, insisting that Edison had to eliminate all stray voltage on her property. In light of this evidence, we conclude that Wilson failed to present sufficient evidence to
Edison contends the judgment on Wilson's nuisance claim must be reversed because the claim is precluded under Civil Code section 3482, which provides that "[n]othing which is done or maintained under the express authority of a statute can be deemed a nuisance." According to Edison, because the undisputed evidence establishes that the stray voltage Wilson experienced is an unavoidable byproduct of grounding, and the substation's grounding is both required by and fully compliant with PUC regulations, Civil Code section 3482 applies.
In making this argument, Edison relies upon Farmers Ins. Exchange v. State of California (1985) 175 Cal.App.3d 494 [221 Cal.Rptr. 225] (Farmers). In that case, the plaintiff insurance companies sought damages for automobile paint corrosion caused by the state's pesticide spraying for medfly eradication. Rejecting the plaintiffs' argument that Civil Code section 3482 did not apply because the law at issue "did not `expressly authorize' the state to damage automobile paint finishes," the appellate court stated: "This misses the point. The authorizing statute need not predict the precise nature of the damages. It need only authorize the governmental action." (175 Cal.App.3d at p. 503.) Edison argues that in this case, "the PUC need not have `expressly authorized' stray voltage to exist on properties around a utility's electrical distribution infrastructure, ... [i]t need only — as it did — impose the design, siting, operation, and safety requirements for Edison's electrical distribution system, including grounding, with which Edison complied."
Edison's reliance on Farmers, supra, 175 Cal.App.3d 494 is misplaced. As the Supreme Court explained in Varjabedian v. City of Madera (1977) 20 Cal.3d 285 [142 Cal.Rptr. 429, 572 P.2d 43] (Varjabedian), "`"[a] statutory sanction cannot be pleaded in justification of acts which by the general rules of law constitute a nuisance, unless the acts complained of are authorized by the express terms of the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the Legislature contemplated the doing of the very act which occasions the injury."' ... A requirement of `express' authorization embodied in the statute itself insures that an unequivocal legislative intent to sanction a nuisance will be effectuated, while avoiding the uncertainty that would result were every generally worded statute a source of undetermined immunity from nuisance liability." (Id. at p. 291.) Applying this standard in the case before it, which involved a nuisance claim based upon odors emitted from the defendant city's operation
The appellate court in Farmers distinguished the Supreme Court's decision in Varjabedian on the grounds that the nuisance complained of in Farmers, "the release of a chemically destructive spray into the atmosphere, was precisely what was authorized by the various statutes [at issue]." (Farmers, supra, 175 Cal.App.3d at p. 503.) The same cannot be said in this case. Rather, the nuisance complained of here is similar to the nuisance complained of in Varjabedian, i.e., a byproduct of a facility constructed in accordance with statutes or regulations authorizing such facilities. Therefore, we find that Civil Code section 3482 does not preclude Wilson's nuisance claim.
Although we reject Edison's argument that Civil Code section 3482 precludes Wilson's nuisance claim, we cannot affirm the judgment on that claim.
As we have explained, Wilson presented substantial evidence of various physical injuries she suffered, but failed to show that any of those injuries were caused by her exposure to stray voltage. In fact, the undisputed expert evidence established that exposure to that level of electricity would not cause injury. While we do not doubt that Wilson suffered from the symptoms she described, they were irrelevant to her claims in the absence of any showing of a causal connection between the symptoms and her exposure to stray voltage.
There is no doubt that the jury considered this irrelevant evidence in deciding the nuisance claim. The jury was instructed to determine whether Wilson was harmed by Edison's conduct and whether the seriousness of the harm outweighed the public benefit of Edison's conduct.
Nevertheless, the jury's verdict on the claim cannot stand because under Wilson's theory of the case, those physical injuries were an integral part of the harm she purportedly suffered. For example, when explaining to the jury that it needed to determine how to compensate Wilson for her damages in the lawsuit, counsel for Wilson told the jury: "[Y]ou have to identify what are the harms and losses that were caused by Edison.... Ms. Wilson discovered on April 20th that there was electricity on her line. That date started an absolute
Because the nuisance claim must be retried, we must address an issue regarding the jury instruction for that claim. As noted, the jury was instructed that to find in favor of Wilson, it had to find that "the seriousness of the harm [suffered by Wilson] outweighed the public benefit of Southern California Edison Company's conduct." No instructions were given as to what factors the jury should consider in making this determination. We conclude that additional instructions are required because without any guidance on the factors to consider, the jury cannot properly assess the seriousness of the harm or the public benefit.
Section 826 of the Restatement Second of Torts provides that an invasion is unreasonable if "(a) the gravity of the harm outweighs the utility of the actor's conduct, or [¶] (b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible." (Rest.2d Torts, § 826.)
Section 827 of the Restatement Second of Torts lists the factors to be considered in determining the gravity of the harm from an intentional invasion of another's interest in the use and enjoyment of land: "(a) The extent of the harm involved; [¶] (b) the character of the harm involved; [¶] (c) the social value that the law attaches to the type of use or enjoyment invaded; [¶] (d) the suitability of the particular use or enjoyment invaded to the character of the locality; and [¶] (e) the burden on the person harmed of avoiding the harm." (Rest.2d Torts, § 827.)
The CACI instruction given to the jury in this case (CACI No. 2021) did not address any of these factors or alternate tests. The absence of any instruction on these factors or tests not only left the jury without any guidance as to the proper focus of their deliberations,
In determining whether the seriousness of the harm Wilson suffered outweighed the public benefit of Edison's conduct you should consider the following factors.
To determine the seriousness of the harm Wilson suffered, you should weigh:
To determine the social utility of Edison's conduct, you should weigh:
Edison contends the punitive damages award must be reversed because there is no substantial evidence that an Edison managing agent authorized or ratified any alleged malicious, oppressive, or fraudulent conduct. We agree.
In this case, Edison notes that Wilson's assertion that an officer or managing agent of Edison authorized or knowingly ratified alleged despicable
But as Edison observes, even if this testimony establishes that managing agents ratified or authorized something, the conduct they ratified was far from despicable. While these managing agents no doubt were aware that stray voltage was present on Wilson's property (although Wilson did not own the property at the time of Drebushenko's e-mail), they were made aware of that in the context of Edison attempting to mitigate it to ensure the level of voltage did not present any danger to the occupants of the property. This certainly does not constitute oppression, fraud, or malice. Therefore, the punitive damages award must be reversed. Because Wilson failed to present sufficient evidence to support an award of punitive damages, she is not entitled to seek punitive damages on retrial of her nuisance claim.
The judgment is reversed. On remand, the trial court is directed to enter judgment in favor of Edison on Wilson's IIED and negligence claims, and hold a retrial of her nuisance claim. On retrial, the trial court must instruct the jury on the factors it should consider in determining whether the gravity of the harm Wilson suffered outweighed the public benefit of Edison's conduct that caused the interference. Wilson is not entitled to seek punitive damages on retrial. The parties shall bear their own costs on appeal.
Epstein, P. J., and Collins, J., concurred.
