Ramirez v. Nelson 4/18/06 CA2/6

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B179275

Case Date: 07/20/2006

Preview:Filed 4/18/06

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

MARIA DOLORES RAMIREZ et al., Plaintiffs and Appellants, v. THOMAS NELSON et al., Defendants and Respondents.

2d Civil No. B179275 (Super. Ct. No. CIV217462) (Ventura County)

In this wrongful death case, a worker trimming trees was electrocuted. His parents sued the homeowners in whose trees their son was working. The jury found the homeowners were negligent, but that their negligence was not a substantial factor in the worker's death. We conclude the trial court erred in refusing a jury instruction based on Penal Code section 385.1 Section 385 makes it a misdemeanor for any person, either personally or through an employee, to move any tool or equipment within six feet of a high voltage overhead line. We reverse.

1 All statutory references are to the Penal Code unless otherwise stated.

FACTS Maria Dolores Ramirez and Martin Flores ("the Floreses") are the parents of the decedent, Luis Flores. Thomas and Vivian Nelson are homeowners. Their backyard has a number of trees, including a eucalyptus tree. Every two or three years, Southern California Edison has the eucalyptus tree trimmed so that its branches do not reach the high-voltage electrical lines that run above the tree. The electrical lines are visible to everyone. On January 15, 2002, Southern California Edison's tree trimmers gave the Nelsons notice they would trim the eucalyptus tree the next day, but they did not do so. About three weeks later, the Nelsons orally contracted with Julian Rodriguez to trim trees in their backyard, including the eucalyptus tree. The Nelsons had used Rodriguez four or five times in the past to trim trees. Their neighbor had used him for years. The Nelsons believed Rodriguez did exceptional work trimming trees. Rodriguez arrived at the Nelsons' home on February 14, 2002. He had a crew of four men, including Flores. Flores worked on the eucalyptus tree while other crew members worked on other trees in the Nelsons' backyard. The Nelsons neither supervised the trimming, nor did they provide the tools. The eucalyptus tree is more than 15 feet in height. Vivian Nelson could see Flores working about half-way up in the eucalyptus tree from her kitchen window. He was working above his shoulders with a pole. She could not tell from her kitchen window from what material the pole was made. Around noon, Vivian Nelson heard men shouting in Spanish. She looked out the kitchen window, and saw men running to the eucalyptus tree. She went out onto her deck, and saw Flores hanging in the eucalyptus tree from his safety harness. She called her husband, who called 911.

2

Flores had been killed by electrocution. No one saw the accident happen. After the accident, Vivian Nelson noticed that the pole Flores had been using was made of aluminum and wood. The Nelsons did not know that Rodriguez was not licensed and had no workers compensation insurance. The Floreses' safety expert admitted, however, that the license required for tree trimming did not require the applicant to take an examination. The expert acknowledged that to obtain a license, Rodriguez "wouldn't have been required to demonstrate knowledge of any particular subject matter pertaining to tree trimmers, whether it be techniques, tools, [or] anything[]."

DISCUSSION I The Floreses contend the trial court erred in refusing to instruct the jury that a violation of section 385 is negligence per se. A statutory violation is presumed negligence per se. (Evid. Code,

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