Zuniga v. Cherry Avenue Auction, Inc. (March 16, 2021, F078402, F078557)
Plaintiff and her husband were professional vendors who sold goods at swap meets. They rented space from the defendant swap meet owner and, as part of their sales area, raised 28-foot metal poles that came in contact with overhead electrical lines. Plaintiff was injured, and her husband died.
Plaintiff sued the swap meet owner, claiming the owner had a duty to protect her and her husband from the hazards of the power lines. The swap meet owner argued that (a) under the Privette doctrine and Laico v. Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649, it was not liable for injuries to plaintiff or her husband because it had delegated to them as commercial tenants the duty to take precautions necessary to safely operate their swap meet business and (b) even if the Privette doctrine did not apply, it had no duty to protect its commercial tenants from the open and obvious danger of overhead power lines. A jury returned a verdict for the plaintiff and the swap meet owner appealed.
The Court of Appeal affirmed the judgment, holding that (a) the Privette doctrine applies only where a landowner has hired an independent contractor to do work and should not be extended to the landlord/commercial tenant context, and (b) the dangers of overhead power lines are not so open and obvious as to relieve the swap meet owner of the duty to take precautions to protect its tenants from harm.
Note: Horvitz & Levy LLP represented the defendant swap meet owner on appeal.
