Published on:

California Swap Meet Owner Liable for Electrocution of Tenant

California-Swap-Meet-Accident-AttorneysProperty owners owe a duty of care to keep their premises reasonably safe for visitors and those who come to their properties for lawful business purposes. They also have a duty to warn people on their premises about dangers that are not open and obvious that could foreseeably cause harm. In Zuniga v. Cherry Avenue Auction, Inc., Cal. Ct. App. Case No. F074802 & F078557, the court considered whether a property owner was liable to a vendor who rented space at a swap meet who was electrocuted when the vendor’s flagpole came into contact with an overhead power line.[1]

Factual and procedural background

Araceli Zuniga and Jose Flores were a couple who married in 2009. Shortly after marrying, the couple began renting space to sell merchandise at the Cherry Avenue Auction, which is an outdoor swap meet in the Los Angeles area that holds events on Tuesdays and Saturdays from 6:30 a.m. to 5 p.m. Vendors pay fees ranging from $25 to $100 to rent space at the swap meets, and vendors erect booths with poles and fabric banners to attract customers.

Zuniga and Flores owned a booth made out of a metal tube frame and two long poles to attach their fabric banner. The booth was collapsible so that it could easily be transported in their vehicle and set up on-site when they arrived at swap meets.

Zuniga and Flores rented vendor spaces 38 and 39 in August 2013, which are two out of 20 vendor spaces located under a power line. Previously, they had rented spaces located elsewhere on the property. The power line was a little more than 26 feet above the ground and was operated by Pacific Gas and Energy Co. When Zuniga and Flores began setting up their booth on Aug. 24, 2013, they attached the long poles and then tilted their booth upright. When they did, one of the 28-foot poles contacted the power line, electrocuting both Zuniga and Flores. Zuniga was knocked unconscious. When she came to, she saw her husband lying on the ground. She saw his lips move, and then he died. Flores was 36 at the time of his death.

The seller permits that Zuniga and Flores had obtained warned against selling counterfeit goods. The permits did not contain any warnings about the height of advertising poles or the potential dangers of the power line.

Zuniga filed a lawsuit against Cherry Avenue, alleging wrongful death and negligence claims. One of the co-owners, James Burson, testified that he knew the line was powered, uninsulated, and dangerous. He said that it had never occurred to him that vendors with flag poles underneath the line might be electrocuted. The other co-owner, Burson’s brother, Neil Burson, testified he didn’t know whether the line was insulated or uninsulated because he couldn’t tell the difference. He also stated that he knew people shouldn’t erect flag poles near the power lines but that he did not believe the danger was open and obvious.

Zuniga testified that she did not see the power lines on the day of the incident. Zuniga called a safety expert, Brad Avrit, to testify. He said that you could see the lines from spaces 38 and 39 if you looked straight up. He also testified that the fact that power lines are dangerous is generally known. He testified that it would be important to inform people working beneath a power line whether it was powered or unpowered. There was a sign at the top of the power line’s pole that said “Warning – High Voltage” that was in lettering about three inches high, and a photo of that sign was introduced into evidence.

The case went to a jury trial on Aug. 22, 2018. The court instructed the jury about the duty of care and about the foreseeability of the type of harm suffered by the plaintiff and her husband. The court also instructed the jury about the landowner’s duty under premises liability and about how property owners are not liable for open and obvious dangers. Finally, the court instructed the jury that if it found that Zuniga or Flores were partially responsible for their accident and injuries, they would need to apportion fault.

The jury reached a verdict on Sept. 4, 2018. It found that Cherry Avenue was 77.5% at fault and Zuniga and her husband were each 11.25% at fault. The gross verdict award was $12.5 million, and the court reduced that amount by the percentages of fault assigned to Zuniga and Flores to a net verdict in their favor of $9,493,750. The court also awarded Zuniga prejudgment interest in the amount of $470,785.96 in prejudgment interest since the jury’s verdict exceeded any offer made by Cherry Avenue prior to trial under CCP § 998.[2]

Cherry Avenue filed a motion for a new trial and a motion for judgment notwithstanding the verdict. The trial court denied both motions. In Nov. 2018, Cherry Avenue filed an appeal of both the verdict and the court’s awarding of costs.

Issues: 1) Whether the judgment in Zuniga’s favor was precluded by the Privette doctrine? 2) Whether Cherry Avenue owed a duty to Zuniga and her husband?

On appeal, Cherry Avenue argued that the court should have granted its motion for a judgment notwithstanding the verdict under the Privette doctrine. It argued the Privette doctrine means that a property owner that leases property to tenants delegates its duty to the tenants to safely perform work on the premises, meaning that Cherry Avenue should not be liable for Zuniga and Flores erecting metal flag poles close to a power line unsafely. It also argued that it did not owe Zuniga and Flores a duty to warn them of the danger because the hazard presented by the power line was open and obvious.

Rules: 1) People who hire independent contractors to perform work are not liable for injuries caused to the employees of the independent contractors when they are injured on the premises unless the property owner retains control over the safety conditions of the property. 2) Plaintiffs may generally not be able to recover damages when they are injured by open and obvious dangers, and property owners do not have a duty to warn about open and obvious dangers.

In Privette v. Superior Court, 854 P.2d 721 (1993), the California Supreme Court held that a person or company that hires an independent contractor to perform work on their property is not liable for any injuries that might be suffered by the employees of the independent contractor.[3] Cherry Avenue argued that this rule extends to situations like this when a landlord leases premises to a vendor-tenant so that Cherry Avenue would not have a duty of care to keep the premises safe for vendors performing work. It also argued that it did not owe Zuniga and Flores a duty to warn about the dangers of the power line since the hazard was open and obvious.


The court began by examining the Privette doctrine. In that holding, the Supreme Court issued a principle of the nonliability of a property owner who hires an independent contractor to perform work on the owner’s premises.[4] Employees of the independent contractor who are subsequently injured while performing work for the independent contractor are generally not allowed to sue the person or company that hired the independent contractor to perform the work. Under the Privette doctrine, the hirer of an independent contractor is not liable because the workers can pursue workers’ comp claims against their employers, and the hirer delegates its duty to maintain the premises in a safe condition to the independent contractor that is performing the work.

In reviewing the Privette doctrine’s scope, the court distinguished the relationship between Cherry Avenue and Zuniga and Flores from those covered by the doctrine. Instead of hiring Zuniga and Flores to perform a specific task on the property, Cherry Avenue instead entered into a commercial lease with them, establishing a landlord-tenant relationship. The court held that the Privette doctrine did not extend to landlord-tenant situations to insulate landlords from liability when their premises are unreasonably unsafe.

The court then considered whether the danger was so open and obvious that Zuniga and Flores should have recognized it and taken steps to avoid the danger. Avrit, the safety expert, testified that Cherry Avenue should not have leased spaces to vendors under the power lines.[5] He also testified that most people do not recognize the difference between insulated and uninsulated lines.

The court found that the evidence presented through the testimony of experts for both the plaintiff and defendant was sufficient to show that the danger was not open and obvious. It also found that Cherry Avenue had a duty to warn Zuniga and Flores that was not obviated by the small warning sign at the very top of the pole supporting the power line. Finally, the court found that the trial court did not err when it taxed costs.


The Court of Appeal affirmed the ruling of the trial court and awarded Zuniga her costs on appeal.

Talk to a Los Angeles personal injury attorney

If you were injured by a dangerous condition while visiting or working on the property of someone else, you should talk to an experienced Los Angeles personal injury attorney to learn about the merits of your potential claim. Call an experienced attorney at the Steven M. Sweat Personal Injury Lawyers at 866.966.5240 to schedule a free consultation.







Contact Information