Gonzalez v. Southern California Gas Co.

Filed 11/5/10 Gonzalez v. Southern California Gas Co. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DEBORAH GONZALEZ et al.,
Plaintiffs and Respondents,
v.
SOUTHERN CALIFORNIA GAS
COMPANY,
Defendant and Appellant.
D054677
(Super. Ct. No. L-01518)
APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B.
Jones, Judge. Reversed and remanded with directions.
Defendant Southern California Gas Company (SCG) appeals a judgment
following a jury verdict finding SCG liable to plaintiffs Peter and Deborah Gonzalez
(Plaintiffs) for the wrongful death of their daughter, Tiffany. She died after driving her
car off a street and striking an SCG gas meter assembly located 11 feet, 4 inches from the
curb. On appeal, SCG contends the trial court erred by denying its motions for judgment
notwithstanding the verdict (JNOV) and for new trial because: (1) it did not owe Tiffany

-- 1 of 22 --

2
a legal duty of care in the circumstances of this case; (2) its conduct was not the
proximate cause of her injuries; (3) the court erred in instructing the jury; and (4) the
court erred by excluding certain evidence showing Plaintiffs negligently entrusted
Tiffany with a vehicle.
FACTUAL AND PROCEDURAL BACKGROUND
In 1988, SCG, a natural gas distributor, installed a new gas main and service line
to provide gas service to the portion of Gio's Mobile Home Estates (Gio's) located south
of Lincoln Avenue in El Centro.1 Gio's and its engineers proposed plans for the location
of SCG's new meter assembly that were reviewed and approved by SCG. The meter
assembly was installed 11 feet, 4 inches from the southern curb of Lincoln Avenue, near
the outside of Gio's perimeter wall, and 13 feet from the driveway entrance to the
southern portion of Gio's. A riser gas line was connected to the above-ground meter
assembly that had a regulator reducing the pressure from 40 pounds per square inch to
five pounds per square inch. Individual customer lines were connected to the meter
assembly and installed underground to individual regulators at each of the approximately
50 mobile homes.
In 1989, SCG installed three concrete-filled, steel posts around the meter
assembly. Two were set in the concrete sidewalk and the third was set in dirt with a 12-
inch deep concrete footing. Each of the three posts was four-and-one-half inches in
diameter and rose three feet above the ground. SCG intended the posts to protect the
1 Another portion of Gio's is located north of Lincoln Avenue.

-- 2 of 22 --

3
meter assembly from damage from being hit by vehicles traveling at less than 10 miles
per hour. SCG engineers were capable of designing other barriers that would provide a
higher level of protection.
At about 5:00 p.m. on August 3, 2002, 17-year-old Tiffany was driving home from
work in her Ford Escort. She was traveling westbound on Lincoln Avenue at a speed of
about 25 miles per hour (the speed limit) when another vehicle apparently attempted to
pass her vehicle on its right side. Tiffany's vehicle drifted to the left into the eastbound
lane and jumped the southern curb without any apparent braking. Continuing at a speed
of about 25 miles per hour, her vehicle apparently rotated counter-clockwise and struck
and bounced off of Gio's perimeter block wall. With her vehicle continuing to rotate, its
passenger door then struck the eastern steel post of SCG's gas meter assembly, which was
set in dirt and guarded the meter assembly. The force of the collision knocked that post
onto the meter assembly, breaking the gas line on the high-pressure side of the assembly.
A spark ignited gas that escaped from the ruptured gas line, causing a fire that engulfed
Tiffany's vehicle. After a minute or two, Tiffany was able to escape the burning vehicle.
Tiffany's father, Peter, arrived while paramedics were assisting her. Tiffany told
him she had swerved to miss a gray car. She was transported by ambulance to a hospital
for emergency treatment of her severe burn injuries. In the hospital emergency room, she
told a police officer that she had turned to avoid a silver car. Two days later, Tiffany died
from burn injuries to 80 percent of her body's surface.
In July 2003, Plaintiffs filed the instant action against SCG and Gio's, alleging
wrongful death claims based on theories of general negligence, negligence per se, and

-- 3 of 22 --

4
premises liability.2 The complaint alleged SCG created a dangerous condition by placing
the gas meter assembly near a roadway without adequate protection. SCG filed a motion
for summary judgment, apparently arguing that it did not owe Tiffany any legal duty of
care.3 The trial court denied that motion.
In October 2005, the first trial in this matter was held, resulting in a mistrial after
the jury could not reach a verdict. In October 2008, the second trial in this matter was
held. Eleven of 12 jurors found SCG was negligent and that its negligence was a
substantial factor in causing Plaintiffs' damages. The jury found Plaintiffs' past and
future damages were $2 million. The jury apportioned 40 percent of the fault for the
accident to SCG, 50 percent to Tiffany, and 10 percent to Gio's. The trial court ordered
judgment entered against SCG in the amount of $800,000, plus costs.
SCG filed motions for JNOV and for new trial based on the absence of a legal
duty, instructional and evidentiary error, and excessive damages. The trial court denied
both motions. SCG timely filed a notice of appeal.
2 Gio's agreed to a settlement with Plaintiffs before trial.
3 The record on appeal does not contain a copy of SCG's motion for summary
judgment.

-- 4 of 22 --

5
DISCUSSION
I
Negligence and the Legal Duty of Care Generally
"The elements of a cause of action for negligence are: the 'defendant had a duty to
use due care, that he [or she] breached that duty, and that the breach was the proximate or
legal cause of the resulting injury. [Citation.]' " (Vasquez v. Residential Investments, Inc.
(2004) 118 Cal.App.4th 269, 278 (Vasquez).) "Under general negligence principles, . . . a
person ordinarily is obligated to exercise due care in his or her own actions so as not to
create an unreasonable risk of injury to others, and this legal duty generally is owed to the
class of persons who it is reasonably foreseeable may be injured as the result of the
actor's conduct." (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716.)
Civil Code section 1714, subdivision (a), provides: "Everyone is responsible . . . for an
injury occasioned to another by his or her want of ordinary care or skill in the
management of his or her property . . . , except so far as the latter has, . . . by want of
ordinary care, brought the injury upon himself or herself."
In Vasquez, we noted: "The existence of a legal duty to use reasonable care in a
particular factual situation is a question of law for the court to decide." (Vasquez, supra,
118 Cal.App.4th at p. 278.) An appellate court determines de novo the existence and
scope of a legal duty in a particular case. (Ann M. v. Pacific Plaza Shopping Center
(1993) 6 Cal.4th 666, 674, disapproved on another ground in Reid v. Google, Inc. (2005)
50 Cal.4th 512, 527, fn. 5.)

-- 5 of 22 --

6
The element of a legal duty of care generally acts to limit otherwise potentially
infinite liability that would follow from every negligent act. (Bily v. Arthur Young & Co.
(1992) 3 Cal.4th 370, 397.) "A public utility [like other persons or entities] has a general
duty to exercise reasonable care in the management of its personal and real property."
(White v. Southern Cal. Edison Co. (1994) 25 Cal.App.4th 442, 447.) For example, "[a]
public utility, which negligently places a power pole too close to the road, may be liable
to the occupants of a motor vehicle injured when their vehicle collides with the pole."
(Id. at pp. 447-448.) A property owner may owe vehicle occupants a legal duty of care if
it places a fixed object in a location where it is reasonably foreseeable that a vehicle
driven with reasonable care would deviate or veer from a roadway in the ordinary course
of travel. (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 517, fn. 3 (Scott).) In an
analogous situation involving premises liability, the Restatement Second of Torts
commented: "Distance from the highway is frequently decisive [whether an unreasonable
risk of harm to others exists], since those who deviate in any normal manner in the
ordinary course of travel cannot reasonably be expected to stray very far."4 (Rest.2d
Torts, § 368, com. h, p. 271.)
4 Section 368 of the Restatement Second of Torts states at page 268: "A possessor
of land who creates or permits to remain thereon an . . . artificial condition so near an
existing highway that he realizes or should realize that it involves an unreasonable risk to
others accidentally brought into contact with such condition while traveling with
reasonable care upon the highway, is subject to liability for physical harm thereby caused
to persons who [¶] (a) are traveling on the highway, or [¶] (b) foreseeably deviate from it
in the ordinary course of travel." Comment h to that section notes: "In determining
whether the condition is one which creates an unreasonable risk of harm to persons
lawfully travelling on the highway and deviating from it, the essential question is whether

-- 6 of 22 --

7
A determination that a legal duty of care exists is a "shorthand expression of the
sum total of public policy considerations which lead the law to protect a particular
plaintiff from harm." (Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 504.) No
exception to the general rule of Civil Code section 1714 liability for negligence "should
be made unless clearly supported by public policy." (Rowland v. Christian (1968) 69
Cal.2d 108, 112 (Rowland).) Rowland stated:
"A departure from this fundamental principle involves the balancing
of a number of considerations; the major ones 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." (Rowland, at pp. 112-113.)
"The foreseeability of the harm, though not determinative, has become the chief factor in
duty analysis." (Scott, supra, 5 Cal.App.4th at p. 515.) In considering the foreseeability
of harm in a particular case for purposes of determining whether a legal duty of care
existed, "[t]he proper focus is on the foreseeability of a harmful event of the general type
that occurred. The relevant foreseeability is not the foreseeability of the particular and
possibly unique details of how and why a particular harmful event came to pass."
(Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1297 (Robison).)
it is so placed that travelers may be expected to come in contact with it in the course of a
deviation reasonably to be anticipated in the ordinary course of travel. Distance from the
highway is frequently decisive, since those who deviate in any normal manner in the
ordinary course of travel cannot reasonably be expected to stray very far. . . ." (Rest.2d
Torts, § 368, com. h, p. 271, italics added.)

-- 7 of 22 --

8
As we noted in Vasquez, "foreseeability depends not on whether a particular plaintiff's
injury was foreseeable as a result of a particular defendant's conduct, but instead on
whether the conduct at issue created a foreseeable risk of a ' "particular kind of harm." '
[Citations.]" (Vasquez, supra, 118 Cal.App.4th at p. 286.) Alternatively stated, it is the
general character of the event or harm, not its specific nature or manner of occurrence,
that must be reasonably foreseeable for a legal duty to exist. (Robison, at pp. 1298-1299;
Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57-58 (Bigbee).) In determining
the question of reasonable foreseeability, Bigbee stated:
"[I]t is well to remember that 'foreseeability is not to be measured by
what is more probable than not, but includes whatever is likely
enough in the setting of modern life that a reasonably thoughtful
[person] would take account of it in guiding practical conduct.'
[Citation.] One may be held accountable for creating even ' "the risk
of a slight possibility of injury if a reasonably prudent [person]
would not do so." ' [Citations.]" (Bigbee, at p. 57.)
"An act must be sufficiently likely before it may be foreseeable in the legal sense. That
does not mean simply imaginable or conceivable. Given enough imagination, everything
is foreseeable. To paraphrase Justice Eagleson, with apologies to Bernard Witkin, on a
clear judicial day, you can foresee forever. [Citation.] If the law imposed a duty to
protect against every conceivable harm, nothing could function." (Jefferson v. Qwik
Korner Market, Inc. (1994) 28 Cal.App.4th 990, 996.) Foreseeability and the extent of
burden to the defendant have become the primary Rowland factors to be considered on
the question of legal duty. (Vasquez, supra, 118 Cal.App.4th at p. 280, fn. 5.)

-- 8 of 22 --

9
II
Motion for JNOV
SCG contends the trial court erred by denying its motion for JNOV because it did
not owe Tiffany a legal duty of care in the circumstances of this case.
A
At the second trial the jury found SCG was negligent and that its negligence was a
substantial factor in causing Plaintiffs' damages. The jury found Plaintiffs' past and
future damages were $2 million. The jury apportioned 40 percent of the fault for the
accident to SCG, 50 percent to Tiffany, and 10 percent to Gio's. The trial court entered
judgment against SCG in the amount of $800,000, plus costs. SCG filed a motion for
JNOV based on the absence of a legal duty. The trial court denied the motion.
B
In determining independently, or de novo, the question of law whether SCG owed
Tiffany a legal duty of care in the circumstances of this case, we consider primarily
whether it was reasonably foreseeable that the general event or conduct in this case would
cause the general type of harm in this case. (Vasquez, supra, 118 Cal.App.4th at p. 286;
Robison, supra, 64 Cal.App.4th at p. 1297.) We also consider the extent of the burden on
SCG were a legal duty of care imposed on it, as well as the other Rowland factors
discussed above. (Rowland, supra, 69 Cal.2d at p. 113.)
In the general circumstances of this case, we conclude, as a matter of law, it was
not reasonably foreseeable that SCG's installation of the gas meter assembly 11 feet, 4
inches from a street with a 25-mile-per-hour speed limit would cause the general type of

-- 9 of 22 --

10
harm in this case (i.e., severe or fatal burn injuries from the conflagration caused by
natural gas escaping from a ruptured gas line damaged by an errantly driven vehicle). It
was not reasonably foreseeable that a vehicle driven with reasonable care would deviate
or veer from a street with a 25-mile-per-hour speed limit in the ordinary course of travel
and strike a gas meter assembly located over 11 feet from the curb. (Scott, supra, 5
Cal.App.4th at p. 517, fn. 3.) The Restatement Second of Torts commented: "Distance
from the highway is frequently decisive [whether an unreasonable risk of harm to others
exists], since those who deviate in any normal manner in the ordinary course of travel
cannot reasonably be expected to stray very far." (Rest.2d Torts, § 368, com. h, p. 271.)
In the general circumstances of this case, a vehicle driven with reasonable care on an
ordinary street with no apparent dangerous conditions (e.g., sharp curves, dips, descents,
or ascents) and a relatively low speed limit of 25 miles per hour could not reasonably be
expected to deviate from, or veer off, the street the substantial distance involved in this
case (i.e., 11 feet, 4 inches beyond the street's curb).5 Furthermore, it is not reasonably
foreseeable that a vehicle driven with reasonable care would deviate from, or veer off, the
type of street in this case in the ordinary course of travel more than 11 feet and strike a
gas meter assembly (much less any other fixed object), causing severe burn or other
5 The fact there had not been any previous collision with the gas meter assembly
during the 14-year period since its installation supports, rather than detracts from, our
conclusion regarding the absence of reasonable foreseeability. (Cf. Martinez v. Bank of
America (2000) 82 Cal.App.4th 883, 895 [the "requisite degree of foreseeability rarely, if
ever, can be proven in the absence of prior similar incidents"]; Ericson v. Federal
Express Corp. (2008) 162 Cal.App.4th 1291, 1306-1307.)

-- 10 of 22 --

11
injuries to an occupant of that vehicle. Applying the appropriate standard in determining
reasonable foreseeability, we conclude the general event in this case was not sufficiently
likely to occur in the setting of modern life that a reasonably thoughtful or prudent person
would take account of it in deciding where and how to install and maintain a gas meter
assembly. (Bigbee, supra, 34 Cal.3d at p. 57.) "[T]he mere placing of a fixed object next
to a highway does not necessarily create an unreasonable risk of harm."6 (Scott, supra, 5
Cal.App.4th at p. 516.) We conclude it was not reasonably foreseeable that SCG's
installation of the gas meter assembly 11 feet, 4 inches away from a street with a 25-mile-
per-hour speed limit would cause the general type of harm in this case.7
Furthermore, there presumably would be a significant burden imposed on SCG
were a legal duty of care imposed on it with resulting liability for breach in the general
circumstances of this case. (Rowland, supra, 69 Cal.2d at p. 113.) Although the record
does not contain any definitive evidence regarding the specific number of SCG gas meter
assemblies located a similar (or lesser) distance from streets or other roadways in
6 Based on our review of cases cited in one annotation, it appears an overwhelming
majority of cases in California and other states have not imposed negligence liability on
public utilities for placement of utility poles within three feet (much less 11 feet) of a
roadway when those poles are struck by vehicles. (Annotation, Placement, Maintenance,
or Design of Standing Utility Pole as Affecting Private Utility's Liability for Personal
Injury Resulting from Vehicle's Collision with Pole Within or Beside Highway (1987) 51
A.L.R.4th 602.) Nevertheless, we do not rely on that annotation, or its cited cases, in
reaching our conclusion regarding reasonable foreseeability in this case.
7 Although we do not rely on this testimony in determining the reasonable
foreseeability factor, Plaintiffs' own expert witness (Harry Krueper) testified at trial that
he "can't say it's reasonably foreseeable" that vehicles "would leave the roadway [i.e.,
Lincoln Avenue], travel off 11 feet or more, and do some damage."

-- 11 of 22 --

12
California, a survey of all SCG gas meter assemblies would be required to determine
which ones are located within 11 feet, 4 inches of a street or other roadway, which
presumably would require substantial time and effort of SCG employees. Furthermore, if
a duty were imposed on SCG, it would then have to incur substantial design and
construction costs to provide sufficient protection against vehicles that deviate from, or
veer off, streets and other roadways. As SCG notes, that design and construction may
require additional effort and costs to protect against atypical vehicles (e.g., motorcycles,
large trucks, etc.) that may deviate from, or veer off, streets and other roadways. The
burden on SCG would be substantial if a legal duty of care were imposed on it in this
case, thereby weighing against the imposition of a legal duty on SCG. (Ibid.)
Likewise, none of the other Rowland factors weigh strongly, if at all, in favor of
imposing a legal duty of care on SCG in this case. Although it was certain Tiffany and
Plaintiffs suffered injuries or damages from the incident in this case, that factor alone
does not weigh strongly in favor of imposing a legal duty on SCG. (Rowland, supra, 69
Cal.2d at p. 113.) Similarly, although there is a causal connection between SCG's
conduct (i.e., installation and maintenance of the gas meter assembly with three posts) in
this case and Tiffany's injuries and Plaintiffs' damages, that connection in the
circumstances of this case is not sufficiently close to weigh strongly in favor of imposing
a legal duty on SCG. The factual series of events leading to Tiffany's injuries and
Plaintiffs' damages involved an extended sequence of multiple occurrences not
reasonably foreseeable generally and, even less so, in the particular circumstances of this
case. Apparently in response to a vehicle passing on her right side, Tiffany drove her

-- 12 of 22 --

13
westbound vehicle into the eastbound lane and over the southern curb without any
apparent braking. Her vehicle continued at a speed of about 25 miles per hour off the
roadway, apparently rotated counter-clockwise, and struck and bounced off of Gio's
perimeter block wall. With her vehicle continuing to rotate, its passenger door then
struck the eastern steel post guarding SCG's gas meter assembly. The force of the
collision knocked that post onto the gas meter assembly, breaking the gas line on the
high-pressure side of the assembly. A spark ignited gas that escaped from the ruptured
gas line, causing a fire that engulfed Tiffany's vehicle, burning her severely. We
conclude there was not a "close" connection between SCG's conduct, and Tiffany's
injuries and Plaintiffs' damages. (Ibid.)
Furthermore, we conclude there was no "moral blame" associated with SCG's
conduct than would otherwise be found in an ordinary negligence case. (Adams v. City of
Fremont (1998) 68 Cal.App.4th 243, 270 ["the moral blame that attends ordinary
negligence is generally not sufficient to tip the balance of the Rowland factors in favor of
liability"].) Although we presume, as Plaintiffs' assert, that had SCG taken additional
measures to protect the gas meter assembly (e.g., stronger posts, different location),
Tiffany's injuries and their damages could have been avoided, it was not SCG's moral
responsibility to undertake all possible measures to protect Tiffany from injury when her
injuries were not reasonably foreseeable in the circumstances of this case.8 (Cf. Scott,
8 Contrary to Plaintiffs' apparent assertion, the record does not show SCG had a
policy against protection of gas meter assemblies located more than three feet from a

-- 13 of 22 --

14
supra, 5 Cal.App.4th at p. 517 ["[n]o moral blame can be attached to [defendant's]
conduct, as there is nothing inherently wrong with placing a fixed object on one's
property"].)
The policy of preventing future harm also does not strongly weigh in favor of
imposing a legal duty on SCG. Although SCG presumably could take additional
preventive measures that would avoid or diminish future injuries like those suffered by
Tiffany in this case, the policy of preventing future harm should not be extended so far as
to unduly burden defendants by requiring them to take such preventive measures when
the general type of event, as in this case, is not reasonably foreseeable. Like Scott, we
"doubt that society is willing to so restrict property rights. Imposing liability in these
circumstances would effectively require" SCG and other real or personal property owners
to forego or limit certain property rights or incur substantial burdens. (Scott, supra, 5
Cal.App.4th at p. 517.) We believe the imposition of that burden in these circumstances
should be a legislative, not judicial, decision. (Ibid.)
The consequences to the community of imposing a duty of care in these
circumstances include the likelihood that there would be uncertainty regarding whether,
and in what circumstances, a duty would be imposed on all owners of real or personal
property within 11 feet, 4 inches of any street or roadway to protect the occupants of all
errantly driven vehicles from striking any fixed objects. Were a broad duty to be
imposed, the burden on owners of real and personal property adjacent to streets and other
roadway. Rather, its planners were allowed to require specially designed protection if
they believed vehicle impact was reasonably foreseeable.

-- 14 of 22 --

15
roadways presumably would require them to incur substantial demolition, design and/or
construction costs to prevent errantly driven vehicles from colliding with fixed objects
even though it is not reasonably foreseeable an errantly driven vehicle would do so. The
benefit, if any, to the community of imposing such a legal duty is uncertain. Weighing
the benefit to the community of imposing a legal duty against its substantial burden, we
conclude this factor does not support the imposition of a legal duty in this case.
(Rowland, supra, 69 Cal.2d at p. 113.)
To the extent insurance (e.g., whether from an insurance company or through self-
insurance) would be available were a duty of care to be imposed in these circumstances,
that cost presumably would effectively be borne by the customers of SCG, a public
utility, in the form of higher rates for natural gas. Although there is no information in the
record regarding what that cost might be, the availability of insurance does not weigh
heavily in favor of imposing a legal duty of care in the circumstances of this case.
(Rowland, supra, 69 Cal.2d at p. 113.)
Balancing all of the Rowland factors discussed above, we conclude a legal duty of
care should not be imposed on SCG in the circumstances of this case. The most
important factor is that it was not reasonably foreseeable SCG's installation of the gas
meter assembly 11 feet, 4 inches away from a street with a 25-mile-per-hour speed limit
would cause the general type of harm in this case. Furthermore, we believe the
imposition of a legal duty of care on SCG in the circumstances of this case would be an
unreasonable burden. (Jefferson v. Qwik Korner Market, Inc., supra, 28 Cal.App.4th at
p. 996.) The trial court erred by denying SCG's motion for JNOV based on the absence

-- 15 of 22 --

16
of a legal duty of care. (Code Civ. Proc., § 629 ["[t]he court . . . shall render judgment in
favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed
verdict for the aggrieved party should have been granted had a previous motion been
made"]; Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68 [A motion
for JNOV "may be granted only if it appears from the evidence, viewed in the light most
favorable to the party securing the verdict, that there is no substantial evidence in
support" of the verdict].)9
C
None of the cases cited by Plaintiffs persuade us to reach a contrary conclusion.
Bigbee was a summary judgment case involving a vehicle that veered off a six-lane major
thoroughfare (with a posted speed limit of 35 to 40 miles per hour) and struck an
occupied telephone booth, located 15 feet from that street in a parking lot and near a
driveway, which booth had been the site of a previous accident and was difficult for its
user to exit. (Bigbee, supra, 34 Cal.3d at pp. 52-55, 58.) The trial court granted the
defendants' motion for summary judgment and dismissed the negligence action by the
injured telephone booth user. (Id. at p. 55.) On appeal, the California Supreme Court
addressed the question of "whether foreseeability remains a triable issue in this case" that
would preclude summary judgment. (Id. at p. 56.) Alternatively, it phrased the question:
9 Code of Civil Procedure section 629 further provides that "[i]f the motion for
[JNOV] be denied and if a new trial be denied, the appellate court shall, when it appears
that the motion for [JNOV] should have been granted, order judgment to be so entered on
appeal from the judgment or from the order denying the motion for [JNOV]." (See also
Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1044.)

-- 16 of 22 --

17
"Is there room for a reasonable difference of opinion as to whether the risk that a car
might crash into the phone booth and injure an individual inside was reasonably
foreseeable under the circumstances [in this case]?" (Id. at p. 57.) Bigbee answered that
question as follows:
"Under these circumstances, this court cannot conclude as a matter
of law that it was unforeseeable that the booth might be struck by a
car and cause serious injury to a person trapped within. A jury could
reasonably conclude that this risk was foreseeable. [Citation.] This
is particularly true where, as here, there is evidence that a booth at
this same location had previously been struck." (Bigbee, at p. 58.)
The court concluded: "Since the foreseeability of harm to plaintiff remains a triable issue
of fact, the judgment is reversed and the case is remanded to the trial court for further
proceedings consistent with the views expressed in this opinion." (Bigbee, supra, 34
Cal.3d at p. 60.) Some courts have interpreted Bigbee as addressing the issue of
foreseeability in terms of whether it is a triable issue for the jury (i.e., whether defendants
breached a duty of care) and not in the context of whether a legal duty of care exists.
(See, e.g., Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 157, fn. 19; Bryant v.
Glastetter (1995) 32 Cal.App.4th 770, 780.) Based on our reading of the somewhat brief
opinion in Bigbee, those courts appear to be correct. In any event, Bigbee did not
substantively address the issue of the existence of a legal duty of care by expressly
discussing the Rowland factors or otherwise. Accordingly, its reasoning is not
sufficiently persuasive to compel us to reach a contrary result in this case (i.e., that SCG

-- 17 of 22 --

18
owed Tiffany a legal duty of care), especially because the facts in this case are inapposite
to those in Bigbee.10
Robison does not persuade us to reach a contrary conclusion. In Robison, the
defendant installed a picnic table in a grassy area directly in line with the parking lot's
flow of traffic without any protective measures. (Robison, supra, 64 Cal.App.4th at
p. 1299, fn. 1.) The court stated: "[F]or a car to crash into a picnic table, the picnic table
must first be placed in harm's way. If traffic and picnic tables are placed in a
configuration in which the cars can hit the tables, the resulting danger can be identified
by simple observation." (Id. at p. 1301.) Because of that observable danger, Robison
concluded a legal duty of care existed even though there had not been a previous accident
involving the picnic table. (Id. at pp. 1301, 1305.) The court reversed the summary
judgment for the defendant and remanded for further factual development and analysis
regarding the extent of the defendant's duty of care. (Id. at p. 1305.) Because SCG did
not install the gas meter assembly in the direct line of traffic on Lincoln Avenue, Robison
is factually different from this case and does not support Plaintiffs' assertion that SCG
owed Tiffany a legal duty of care.
Likewise, Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260
(Laabs) does not persuade us to reach a contrary conclusion. In Laabs, the plaintiff was a
10 For instance, in Bigbee, unlike in this case, there had been a previous collision
with the telephone booth 20 months before the instant collision and the major
thoroughfare had a posted speed limit of 35 to 40 miles per hour. (Bigbee, supra, at
pp. 54-55.)

-- 18 of 22 --

19
passenger in a car that collided with another car and struck defendant's light pole, located
18 inches from the curb of a street where vehicle speeds commonly reached 62 miles per
hour. (Id. at pp. 1263-1264, 1273.) Laabs cited a general rule that a public utility could
be found liable in negligence for injuries sustained from a collision with a pole located
too close to a highway. (Id. at pp. 1269-1270.) In the circumstances of that case, Laabs
concluded "it is reasonably foreseeable (for purposes of the analysis of duty) that a
vehicle involved in a collision with another car would 'deviate from the highway' and
collide with a light pole placed 18 inches from the curb." (Id. at p. 1276.) After
weighing all of the Rowland factors, Laabs reversed the summary judgment for the
defendant, holding the evidence submitted in support of and in opposition to the motion
for summary judgment did not establish the absence of a legal duty of care.11 (Laabs,
supra, 175 Cal.App.4th at p. 1279.) Nevertheless, Laabs did not conclude defendant
owed plaintiff a duty of care as a matter of law. (Ibid.) Rather, it concluded additional
evidence on the issue of duty may be presented at trial, effectively allowing the trial court
to consider that issue anew at trial. (Ibid.) Because Laabs addressed the question of
whether a duty of care existed regarding location of a pole situated 18 inches from a curb
of a street involving vehicle speeds of more than 60 miles per hour, we conclude it is
factually different from the instant case that involves a gas meter assembly located 11
feet, 4 inches from a curb of a street with a 25-mile-per-hour speed limit. Furthermore,
11 In discussing the moral blame factor under Rowland, Laabs noted the defendant
could have placed the light pole up to 12 feet away from the roadway. (Laabs, supra,
175 Cal.App.4th at p. 1278.)

-- 19 of 22 --

20
Laabs did not conclude the defendant owed the plaintiff a legal duty of care in those
circumstances. Laabs does not persuade us to reach a contrary conclusion.
D
Although Plaintiffs argue a legal duty of care is imposed on SCG by a federal
regulation (i.e., 49 C.F.R. § 192.353(a)) requiring gas meters and service regulators to be
protected from damage, they do not cite any case holding that regulation independently
establishes a negligence duty of care or supplants the common law Rowland factor test in
determining whether a defendant owes a plaintiff a legal duty of care in the circumstances
of a particular case.12 To the contrary, as SCG notes, "a negligence duty cannot be
derived from an administrative regulation." (Desert Healthcare Dist. v. PacifiCare FHP,
Inc. (2001) 94 Cal.App.4th 781, 793; see also California Service Station etc. Assn. v.
American Home Assurance Co., supra, 62 Cal.App.4th at p. 1175.) We conclude the
regulation cited by Plaintiffs does not impose a legal duty of care on SCG in the
12 Plaintiffs do not cite any specific statutory language that purportedly would
impose a legal duty of care on SCG in the circumstances of this case. Their reference to
general federal statutes regarding the regulation of natural gas pipelines (i.e., 49 U.S.C.
§ 60101 et seq.) is insufficient to show a legislative intent by the United States Congress
to impose a legal duty of care for purposes of negligence causes of action. Although we
presume a legislative body may create a negligence duty of care, a regulatory or
administrative agency cannot impose a duty of care absent delegation to it of that
authority by the Legislature. (California Service Station etc. Assn. v. American Home
Assurance Co. (1998) 62 Cal.App.4th 1166, 1175-1176.) Plaintiffs do not cite any
language in any federal statute (or otherwise) showing any such legislative intent
regarding the federal regulation on which they base their argument (i.e., 49 C.F.R.
§ 192.353(a)).

-- 20 of 22 --

21
circumstances of this case.13 At most, that regulation would be relevant in determining
the standard of care were a legal duty of care first determined to exist.14 (Rosales v. City
of Los Angeles (2000) 82 Cal.App.4th 419, 430 ["[t]he presumption of negligence created
by Evidence Code section 669 concerns the standard of care, rather than the duty of
care"].) Furthermore, Plaintiffs do not, and presumably could not, assert a private right
of action (independent of their negligence claim) exists based on their cited federal
regulation. (California Service Station etc. Assn. v. American Home Assurance Co.,
supra, 62 Cal.App.4th at pp. 1178-1179.) Regardless of any federal (or state)
regulations, the question of whether SCG owed Tiffany a legal duty of care in the
circumstances of this case remained a question of law for determination, by the trial court
initially and on appeal by this court de novo, by application of the Rowland factors.
(Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6.)
III
Remaining Contentions
Because we dispose of this appeal based on the absence of a legal duty of care
owed by SCG to Tiffany and resultant trial court error in denying SCG's motion for
JNOV, we need not address the other contentions made by SCG on appeal.
13 SCG has not conceded federal statutes and regulations impose a legal duty of care
on it in the circumstances of this case.
14 Similarly, the actions taken by SCG to comply with federal and state regulations
did not create a legal duty of care if one did not exist as a matter of law by application of
the Rowland factors. (Cf. Rice v. Center Point, Inc. (2007) 154 Cal.App.4th 949, 958-
959; Minch v. Department of California Highway Patrol (2006) 140 Cal.App.4th 895,
907-908.)

-- 21 of 22 --

22
DISPOSITION
The judgment against SCG is reversed and the matter is remanded with directions
that the trial court vacate its order denying SCG's motion for JNOV, issue a new order
granting that motion, and enter judgment for SCG. SCG shall be awarded its costs on
appeal.
McDONALD, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.

-- 22 of 22 --