February 12th, 2015

Court of Appeals Reverses $4 Million Jury Verdict Against Major Utility In Stray Electricity Case

On February 9, 2015, Division Four of the Second District California Court of Appeal reversed a $4 million jury verdict (including punitive damages) against Lim Ruger’s client, Southern California Edison, in the first case in California involving claims of personal injury and emotional distress allegedly caused by electricity or stray voltage migrating into a home.  In the published opinion in Simona Wilson v. Southern California Edison Company, the appellate court reversed the jury verdict on claims for intentional infliction of emotional distress and negligence, directing that judgment be entered in favor of the firm’s client, and ordered a new trial on the nuisance claim, which will now be more difficult for the plaintiff to establish in light of the court’s other rulings.  The decision eliminates any possibility of punitive damages in the case.

After remodeling her bathroom, the plaintiff alleged that she began to suffer ailments after feeling a “tingling sensation” when adjusting her showerhead.  Plaintiff argued that Edison had known for more than 20 years that there was dangerous stray voltage at the property she purchased in Redondo Beach in 2007.  She argued that the stray voltage caused her harm and “extreme emotional distress,” both because of her ailments and her fear of harm to herself and her family.  Evidence showed that Edison had eliminated prior shocks in the house by 2005, but that they resurfaced in 2011 when Wilson remodeled her shower, putting metal plumbing pipes into contact with the ground.  Edison offered to replace those pipes with plastic ones, but she refused, insisting that Edison had to eliminate the stray voltage on her property, according to the ruling.

In the decision, the Court of Appeal held that there was no evidence linking the plaintiff’s asserted symptoms to electricity.  The appellate court held that the trial court erred in refusing Edison’s proposed jury instruction that plaintiff had to establish with “reasonable medical probability” by competent expert testimony that defendant’s conduct caused plaintiff’s injuries as set forth in Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396.

Additionally, the Court found that Wilson failed to show that Edison owed a duty to her, that it breached that duty, and that the breach caused the harm she allegedly suffered.  Given that stray voltage is an “unavoidable byproduct” of grounding, and grounding is required by the California Public Utilities Commission (CPUC), “it cannot be the case that Edison breached a duty owed to Wilson by failing to eliminate all stray voltage at Wilson’s house, whether perceived or not,” the Court ruled.

The decision also provides an in-depth analysis of why the CACI jury instruction for nuisance (CACI No. 2021) is inadequate and possibly misleading, particularly focusing on the need to balance the gravity of harm against the social utility of Edison’s conduct.   On retrial of the nuisance claim, the Court ordered additional instructions to provide the jury with more appropriate guidance on the factors to determine the severity of harm and suggests that the CACI committee consider revising its instruction.

The Court also found that the CPUC did not have “exclusive” jurisdiction over the matter, despite its rules on grounding distribution facilities that inevitably result in stray voltage.

The Lim Ruger attorneys who worked on this matter are Chris Kim, Sandy Sakamoto, Arnold Barba and Julie Kwun.

 

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