Prince

I concur in the majority opinion. I write separately to address what I perceive to be a general misperception about the nature of implied contractual indemnity and to express my belief that irrespective of its nature, the doctrine no longer exists in California.

As the majority observes, implied contractual indemnity and equitable indemnity developed as related exceptions to the rule of noncontribution existing in this state before American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 [ 146 Cal.Rptr. 182 , 578 P.2d 899 ]. (Maj. opn., ante, at pp. 1163-1164.) Equitable indemnity rests on the concept that “ ‘one person is unjustly enriched at the expense of another when the other discharges liability that it should be his responsibility to pay.’ ” (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 108 [ 32 Cal.Rptr.2d 263 , 876 P.2d 1062 ].) For that reason, as the majority rightly states, as to equitable indemnity “ ‘ “there can be no indemnity without liability.” ’ ” (Maj. opn., ante, at p. 1159.) Implied contractual indemnity, on *1170 the other hand, historically arose from the concept that a party who breaches a contract is…

Joshua Jackson suffered serious injuries when he attempted to dislodge a kite from a power line maintained by Pacific Gas & Electric Company (PG&E) on the property of Eve Prince. The parties do not dispute that PG&E is immune from direct liability to Jackson under Civil Code 1 section 846, which provides with certain exceptions that a property owner “owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose.” The question here is whether Prince, who might be liable to Jackson under one of the statutory exceptions, may recover on her cross-complaint alleging PG&E is liable for implied contractual indemnity based on its breach of a contractual duty owed to her to maintain its power line easement in repair.

We conclude that, even assuming a claim for implied contractual indemnity may be predicated on an alleged breach of an easement duty, PG&E’s immunity from liability to Jackson under section 846 nonetheless bars Prince from recovering indemnification as a matter of law. We therefore reverse the judgment of the Court of Appeal and remand the matter to that court with directions to enter judgment in favor of PG&E.

Factual and…