Unpublished Disposition, 875 F.2d 318 (9th Cir. 1989)

MEMORANDUM^* 

This case involves the granting of summary judgment for the United States in an action brought under the Federal Tort Claims Act to recover damages for injuries sustained by Appellant, Paula Eastman. The undisputed facts are that Ms. Eastman was employed as a janitor in a building leased by the federal government; that the government required everyone who worked in its building, including Ms. Eastman, to wear an identification badge either by clipping it to their clothing or by wearing it around their necks on a metal chain; that when Ms. Eastman stooped down to unplug an electrical appliance the metal chain that she was wearing around her neck came into contact with the prongs of a plug that was still engaged in an outlet; and that as a result Ms. Eastman suffered serious injuries from an electric shock.

Ms. Eastman's theory below was that the government assumed a legal duty to use due care in providing metal chains upon which to hang the identification badges and further by requiring everyone, including janitorial staff, to wear the identification badges at all times. Following the logic of this theory, the government breached its legal duty by ignoring the foreseeable safety hazards that the metal chains presented and that this breach proximately caused Ms. Eastman's injury. Further, the theory goes that Ms. Eastman neither assumed the risk of electrocution by wearing the metal chain nor was she contributorily negligent by also ignoring the foreseeable safety hazards of the chain.

Ms. Eastman asserts on appeal that the district court erred in granting summary judgment in the government's favor because by doing so it implicitly decided the inherently factual question of foreseeability of the accident. We have jurisdiction to consider her argument pursuant to 28 U.S.C. § 1291 (1982). We review the district court's decision de novo to determine whether, viewing the evidence in the light most favorable to Ms. Eastman, there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986); see also Matter of McLinn, 739 F.2d 1395, 1398 (9th Cir. 1984) (en banc) (questions of substantive state law are likewise reviewed de novo).

The relevant substantive law governing Ms. Eastman's tort claim is that of California. See 28 U.S.C. § 2672 (1982). As elsewhere, actionable negligence in California requires that there be a "legal duty" to use due care, that there has been a "breach" of that legal duty, and that the breach has been the "proximate" or "legal cause" of the resulting injury. See 6 B. Witkin, Summary of California Law: Torts Sec. 732, at 60 (9th ed. 1988). This case concerns the first element: Did the government owe Ms. Eastman a legal duty of due care? "The determination of duty is basically a question of law." Musgrove v. Ambrose Properties, 87 Cal. App. 3d 44, 52, 150 Cal. Rptr. 722, 726 (1978). Of critical importance to establishing a duty is a determination of the foreseeability of the risk of injury. See Dillon v. Legg, 68 Cal. 2d 728, 239, 441 P.2d 912, 919, 69 Cal. Rptr. 72, 79 (1968). That determination is usually reserved for the finder of fact, unless " 'under the undisputed facts there is no room for a reasonable difference of opinion.' " Bigbee v. Pacific Tel. & Tel. Co., 34 Cal. 3d 49, 56, 665 P.2d 947, 950, 192 Cal. Rptr. 857, 860 (1983) (quoting Schrimsher v. Bryson, 58 Cal. App. 3d 660, 664, 130 Cal.Rptr 125, 127 (1976)).

We conclude on the facts before us that there can be no reasonable difference of opinion about the foreseeability of the risk that an employee such as Ms. Eastman would receive an electric shock because of a metal chain dangling around her neck. Like the district court, we cannot understand how one could have foreseen the risk of electrocution merely by requiring employees to wear identification badges and supplying metal chains upon which to hang them. Such an injury could only be the product of a "freak accident," as here. Even after studying the facts of this case we have found it difficult to picture precisely how Ms. Eastman received an electric shock from a metal chain coming into contact with the prong of an electrical plug at the exact moment it was extracted from an outlet and yet for Ms. Eastman to prevail, the government must have foreseen this precise hazard.

The government has convinced us of another reason for affirming the district court. The government relies on property owner cases for the proposition that it did not owe Ms. Eastman any duty of care to protect her from the "obvious" hazards of electrocution. See Beauchamp v. Los Gatos Golf Course, 273 Cal. App. 2d 20, 77 Cal. Rptr. 914 (1969); Decker v. S.H. Kress Co., 168 Cal. App. 2d 365, 335 P.2d 952 (1959). We readily agree that such dangers are obvious, for we all learn early in our childhoods the substantial risks that electrical outlets pose. We also have no difficulty in concluding that the foreseeability of an injury caused by such an obvious hazard is substantially less because one would not expect another person who appreciates that danger to expose herself to it. Here, even if it was within the government's imagination to foresee the risk of electrocution, which we doubt, it nevertheless would have been completely unforeseeable that Ms. Eastman would have increased that danger by allowing the metal chain to come into contact with a charged plug. Cf. id. at 368, 335 P.2d at 954 (to hold otherwise would require "appellant to exercise greater care for respondent's safety than respondent himself saw fit to use").

The judgment of the district court is AFFIRMED.