Newby v. Dept. Gen. Services

Filed 8/2/07 Newby v. Dept. Gen. Services CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Plaintiffs Arthur Newby, Bill Newby, and Jeffrey Davis worked as stone masons on a project commissioned by the State of California. While working on a mastclimber platform outside the buildings third floor, plaintiffs heard a loud noise as the platform collapsed. They fell to the ground and were buried under rubble. The state contracted with defendant Clark/Gruen Design Build, Inc. (Clark/Gruen) to act as designer and builder for the project. Clark/Gruen contracted with The Clark Construction Group, Inc. (Clark Construction) as general contractor. Clark Construction contracted with Italian Marble and Tile Co., Inc. (IMT) to affix stone to the outside of the building. Plaintiffs worked for IMT.

Plaintiffs filed suit against Clark/Gruen and Clark Construction (collectively Clark) and the State Department of General Services, Real Estate Services Division (State) (Clark and State are referred to collectively as defendants) for negligence and on products liability theories. Clark moved for summary judgment, arguing it was not liable because it did not actively control the premises or the work performed by plaintiffs. The trial court granted the motion, finding that plaintiffs failed to raise a triable issue of material fact that Clark contributed to plaintiffs injuries by any affirmative conduct. Plaintiffs appeal, contending Clark retained control over safety conditions at the work site and this exercise of control affirmatively contributed to plaintiffs injuries. In addition, plaintiffs contend the court erred in disregarding evidence establishing affirmative conduct. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

State contracted with Clark/Gruen to construct buildings on state property. Clark/Gruen contracted with Clark Construction, designating Clark Construction as general contractor for the project.

Plaintiffs were employees of IMT. They worked on a mastclimber at the project site. A mastclimber is used, like scaffolding, to position construction workers at elevated locations in order to perform construction tasks.

On May 28, 2002, plaintiffs and Eric Dyer, operator of the mastclimber, raised the mastclimber to the third floor. While working on the building, plaintiffs heard a loud noise from the right side of the mastclimber platform. The mastclimber began to twist and fall with plaintiffs and the stone on it. Plaintiffs were buried under broken stone and pieces of the mastclimber platform. IMT leased the mastclimber from defendant Swing Scaffold Services, Inc. (Swing).

Arthur Newby and Bill Newby filed a complaint for personal injury against various defendants, including Clark. Davis also filed a personal injury complaint against Clark and a variety of defendants.

Defendants filed a motion for summary judgment. As relevant to this appeal, defendants argued they owed no duty of care to plaintiffs because they did not exercise retained control in a manner that affirmatively contributed to plaintiffs injuries. Nor did their exercise of general supervisory powers give rise to a duty of care under California law.

In support of the motion, defendants cited evidence that Clark Construction employed an on-site safety manager, Corey Ward, who was responsible for conducting daily safety inspections. Wards responsibilities included evaluating unsafe working conditions and practices. Ward also inspected the mastclimbers used at the project. Defendants argued that under California law, these types of activities are typical of those engaged in by contractors and do not give rise to a duty of care to a subcontractors injured employees.

Arthur Newby and Bill Newby opposed the motion; Davis filed a separate opposition. Plaintiffs argued that Clark retained control over specific safety measures on the project and then failed to fulfill the obligations it assumed.

In support of their motions, plaintiffs quoted extensively from the contract between the State and Clark, and the contract between Clark/Gruen and Clark Construction. These agreements, plaintiffs argue, placed responsibility for safety at the project squarely on Clark. Plaintiffs, citing deposition testimony by various Clark employees, argue that Corey Ward, the project safety manager, was charged with assuring that the mastclimber was a safe and properly operating piece of equipment. Wards failure to ensure the mastclimber was properly erected was a violation of Clarks safety policy.

Plaintiffs also cited deposition testimony that revealed Ward had no training in the inspection, maintenance, operation, or erection of mastclimbers when he arrived at the project site. Plaintiffs argued that summary judgment was inappropriate since Clark retained control over safety conditions on the job site, including specific programs relating to the mastclimber. According to plaintiffs, a triable issue of fact exists as to whether Clark affirmatively conducted the safety program in a negligent manner.

Following oral argument, the trial court granted Clarks motion. The court stated: The undisputed facts are that defendants[] exercise of retained control did not affirmatively contribute to the employees injuries. Plaintiffs facts in opposition to the motion are meant to show that defendants did not abide by their contractual duties to safely manage the project. In essence, plaintiffs seek to hold defendants liable for their acts of omission, rather than affirmative acts.

The court reviewed the evidence presented by plaintiffs and determined they failed to raise a triable issue of fact that defendants exercised control over the workers using the mastclimber, exercised control over the operation of the mastclimber, directed plaintiffs on how to use the mastclimber, supervised the method used to position the mastclimber, or contributed to plaintiffs injuries by any affirmative conduct. The court painstakingly reviewed the deposition testimony of Clark employees and found: There is no evidence, sufficient to create a triable issue, that defendants promised to undertake a particular safety measure regarding the mastclimber. Instead, the undisputed evidence is that, by contract, defendants undertook, in a general sense, to oversee safety over the entire project.

Following entry of judgment, plaintiffs filed timely notices of appeal.

DISCUSSION

I

A motion for summary judgment must be granted if the submitted papers show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A defendant meets the burden of showing a cause of action has no merit if he or she shows that an element of the cause of action cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff to show the existence of a triable issue of material fact. (Code Civ. Proc., 437c, subds. (c), (p)(2).)

We review the record and the determination of the trial court de novo. First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond. Second, we determine whether the moving partys showing has established facts negating the opponents claims and justifying a judgment in the moving partys favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable issue of material fact. (Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281, 290 (Barclay).)

II

Plaintiffs seek to hold defendants liable for the injuries they suffered when the mastclimber collapsed. Swing supplied and erected the mastclimber; IMT employed plaintiffs. Clark Construction served as general contractor on the project. In effect, plaintiffs, employees of independent contractor IMT, argue Clark Construction as general contractor breached its duty of care, resulting in the accident.

In Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 (Hooker), the Supreme Court explained the liability of a general contractor to the employees of an independent contractor: We conclude that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirers exercise of retained control affirmatively contributed to the employees injuries. The Hooker court traced the derivation of this liability to its earlier decision in Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and the Restatement Second of Torts (hereafter Restatement).

In Privette,the court held that an employee of a contractor may not sue the hirer of the contractor under either of the alternative versions of the peculiar risk doctrine set forth in Restatement sections 413 and 416. Under section 413, a person who hires an independent contractor to do inherently dangerous work, but who fails to provide in the contract or in some other manner that special precautions be taken to avert the peculiar risks of that work, can be liable if the contractors negligent performance of that work causes injury to others. Under section 416, even if the hirer has provided for special precautions in the contract or otherwise, the hirer can nevertheless be liable if the contractor fails to exercise reasonable care to take such precautions and the contractors performance of the work causes injury to others. (Hooker, supra, 27 Cal.4th at pp. 200-201.)

In Hooker, the court considered whether an employee of an independent contractor may sue the hirer of the contractor for the tort of negligent exercise of retained control as set forth in Restatement section 414. (Hooker, supra, 27 Cal.4th at pp. 200-201.) Section 414 provides: One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

The plaintiffs deceased husband in Hooker operated a crane for a subcontractor hired by the defendant California Department of Transportation to construct an overpass. The defendant permitted other vehicles to use the overpass where the decedent operated his crane, causing him to retract the cranes outriggers to allow traffic to pass. When the decedent attempted to swing the boom on the crane with the outriggers retracted, the weight of the boom caused the crane to tip over, killing him. The plaintiff sued, alleging the defendant negligently exercised the control it had retained over safety at the job site. (Hooker, supra, 27 Cal.4th at p. 202.) The trial court granted summary judgment for the department; the appellate court reversed. (Id. at p. 203.)

The Supreme Court reversed the Court of Appeal. The court found that although the plaintiff raised a triable issue as to whether the defendant retained control over safety conditions at the work site, the plaintiff failed to present a triable issue as to whether the defendants exercise of retained control affirmatively contributed to the employees death. (Hooker, supra, 27 Cal.4th at p. 215.)

The court reasoned that by merely permitting traffic to use the overpass, the defendant did not affirmatively contribute to the crane operators death: While the evidence suggests that the crane tipped over because the crane operator swung the boom while the outriggers were retracted, and that the crane operator had a practice of retracting the outriggers to permit construction traffic to pass the crane on the overpass, there was no evidence Caltranss exercise of retained control over safety conditions at the worksite affirmatively contributed to the adoption of that practice by the crane operator. There was, at most, evidence that Caltranss safety personnel were aware of an unsafe practice and failed to exercise the authority they retained to correct it. (Hooker, supra, 27 Cal.4th at p. 215.)

Defendants argue plaintiffs in the present case have also failed to raise a triable issue of material fact that their exercise of retained control affirmatively contributed to plaintiffs injuries. According to defendants, they did not direct [plaintiffs] how to use the mastclimber. [Citation.] At most, Clark only permitted [plaintiffs] to use the mastclimber, but merely permitting these activities to occur is not the equivalent of affirmatively contributing to the injury.

Plaintiffs disagree, arguing that defendants retained control over the safety conditions at the work site. Plaintiffs note that the court in Hooker stated: [A]ffirmative contribution need not always be in the form of actively directing a contractor or contractors employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirers negligent failure to do so should result in liability if such negligence leads to an employee injury. (Hooker, supra, 27 Cal.4th at p. 212, fn. 3.)

Davis argues, and Arthur Newby and Bill Newby concur: Respondents did not engage solely in conducting inspections or simply maintaining policies and procedures on the jobsite. They did not merely have the authority to act, they did act, and they did not limit their activities to simply cursory inspections. They undertook very specific obligations on the Project, albeit, incompetently. In support, plaintiffs rely on the declaration of their safety expert, Stephen Wexler.

Stephen Wexler, a licensed safety engineer and certified safety professional, reviewed the depositions of Clark Construction personnel and visited the job site. In Wexlers opinion, Clark Constructions conduct fell below the standard of care in the construction industry in that despite requiring inspections of equipment on the jobsite, they failed to conduct any meaningful inspections of the equipment. Wexler also opined that Clark Construction violated its own safety rules in failing to obtain a job hazard analysis from Swing regarding the mastclimber. Wexler cited Wards lack of experience with mastclimbers and Wards failure to conduct meaningful inspections of the mastclimber.

The trial court, in granting summary judgment, found no evidence that defendants promised to undertake a particular safety measure regarding the mastclimber. Instead, the court noted that defendants undertook, in the general sense, to oversee safety over the entire project. In so finding, the court referenced Wexlers declaration.

Arthur Newby and Bill Newby contend the trial court erroneously disregarded Wexlers declaration. We disagree. During oral argument, plaintiffs argued Clark specifically adopted a safety policy that it violated. The court responded: Well, obviously, there is no secret that the issue turns on whether or not there is affirmative conduct. And obviously Im not accepting your experts testimony that it is. In other words, the trial court did not disregard Wexlers declaration, it merely rejected Wexlers opinion that Clark Constructions conduct amounted to affirmative conduct.

The trial court concluded defendants adoption of safety measures on the job site did not amount to affirmative conduct contributing to plaintiffs injuries. In Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28 (Kinney), the court reached the same conclusion under a similar set of facts.

In Kinney, a subcontractors employee fell from a scaffold. The employee argued the general contractor retained the power to control safety procedures at the work site but failed to do so. The contractors site superintendent stated the contractor retained the right to order any safety measures it felt appropriate at the site. In addition, if the superintendent observed an unsafe condition, he had the authority to do whatever he believed appropriate. The contractor had the final authority on safety procedures. (Kinney, supra, 87 Cal.App.4th at p. 31.)

The Kinney court affirmed summary judgment in favor of the contractor. The court reasoned: The mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff. (Kinney, supra, 87 Cal.App.4th at p. 39.) Similarly, in the present case, Ward testified he conducted safety inspections and retained the authority to correct any unsafe act or condition at the job site.

In Hooker, the plaintiff relied on the defendants own rules requiring supervisors to recognize and correct unsafe conditions. In addition, the plaintiff cited deposition testimony by the defendants senior representative on the project that he was aware of the retraction of the outriggers on the crane, recognized its hazards, and possessed the power to compel safety procedures. The Hooker court noted the similarities to Kinney but found such facts insufficient to defeat a motion for summary judgment. (Hooker, supra, 27 Cal.4th at pp. 202-203, 210-213.)

In both Kinney and Hooker, the plaintiffs asserted the general contractors failure to abide by their own safety rules breached their duty of care. Plaintiffs in the present case make the identical claim. Citing Clarks own safety requirements, they argue defendants retained control over safety on the project and failed to follow their own specific safety rules. However, under Hooker and Kinney,defendants actions do not amount to affirmative conduct sufficient to impose liability on the general contractor.^[1]

The authorities cited by plaintiffs in an attempt to overcome this hurdle prove unavailing. In Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334 (Browne), the evidence fell far short of establishing that the general contractor did not affirmatively contribute to the plaintiffs injuries. The Browne court concluded: It is undisputed that they undertook to arrange and supply the means and methods of work, including safety systems and devices, which they then withdrew before the work was completed, leaving plaintiff with no safe means of completing the work. (Id. at p. 1345.) Here, defendants neither furnished nor removed safety equipment.

In Barclay, supra, 129 Cal.App.4th 281, we found a general issue of material fact as to whether the defendant company affirmatively contributed to the plaintiff workers injuries. The company failed to provide fire extinguishers in locations required by the California Fire Code. Extinguishers so located could have more quickly put out the flames that engulfed the plaintiff. (Id. at pp. 298-300.) We reversed summary judgment in favor of the company based on the companys breach of its regulatory duty under the Fire Code to provide fire extinguishers. (Id. at p. 301.) Here, plaintiffs have not raised any possible breach of a regulatory duty by defendants.

Finally, in Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, the trial court granted a general contractors motion for summary judgment in a wrongful death suit brought after an employee was killed by falling construction materials. The employee stood in the roadway below a bridge under construction to block traffic going under the bridge. (Id. at p. 1124.) The appellate court reversed, finding the general contractor was required by common law and statute to protect the public from traffic hazards during construction. (Id. at pp. 1134-1136.) In addition, the general contractors contract with the subcontractor prohibited the subcontractor from erecting road barricades without the general contractors permission. The plaintiff argued these barriers were the precise safety precaution necessary to protect the public, including the worker, from the risk of falling debris. (Id. at pp. 1131-1133.) Plaintiffs in the present case point to no breach of any statute or common law duty by defendants. Nor is there any evidence Clark contractually prohibited IMT from implementing any safety procedures.

III

Plaintiffs also argue the contracts between the parties raise a duty of care, which Clark breached. Under the contract between State and Clark/Gruen, Clark/Gruen is solely responsible for initiating, maintaining, and supervising all safety precautions and programs . . . .

However, as defendants note, the court in Kinney found almost identical contract language did not give rise to such a duty. In Kinney, the contract specified the general contractor was solely and completely responsible for working conditions and the safety of all persons and property on the site. The contract also required the contractor to initiate, maintain, and comply with all safety and loss prevention precautions and programs . . . . (Kinney, supra, 87 Cal.App.4th at p. 30.) This contract language did not prevent the appellate court from concluding the general contractor did not affirmatively contribute to the plaintiffs injuries.

In Michael v. Denbeste Transportation, Inc. (2006) 137 Cal.App.4th 1082, the contract required the general contractor to assume sole responsibility for providing employees and the subcontractors employees with a safe place to work and safe equipment. The general contractor also assumed responsibility for preparing and implementing a safety plan. (Id. at p. 1087.) A subcontractors employee fell from a truck and sued on a retained control theory. The appellate court rejected the employees claim, noting the employee confuses the contractual right of control with the actual exercise of such control. (Id. at p. 1096.) The court found the employee might have raised a triable issue of material fact as to whether the contractor retained control over safety conditions, but failed to raise a triable issue as to whether the contractor actually exercised the retained control so as to affirmatively contribute to the employees injuries. (Id. at pp. 1096-1097.)

The same analysis applies in this case. The contractual language may raise a triable issue of fact concerning defendants retention of control over safety conditions at the project site. However, plaintiffs must raise a triable issue of fact as to whether defendants actually exercised control in a manner that affirmatively contributed to their injuries. This plaintiffs have failed to do.

Plaintiffs, in passing, argue Clark Constructions daily safety inspections gave rise to a duty of care. Plaintiffs contend it was below the standard of care for Clark to have failed to ensure that the mastclimber was erected properly and safely and that the loads were in conformity to the operation manual.

However, several courts have rejected an employees claim that safety inspections of a work site give rise to a duty of care. In Zamudio v. City and County of San Francisco (1999) 70 Cal.App.4th 445, an employee fell from a plank suspended between two portable structures and sued the city and county, the owner of the project. The city and countys inspectors were on the site daily and had the right to inspect the work for quality control purposes. The inspectors inspected the portable structures from which the employee fell. (Id. at pp. 447-448.) The court affirmed summary judgment in favor of the city and county, stating the city and countys right to inspect the concrete work for purposes of quality control does not demonstrate the exercise of sufficient control over the subcontracted work and thereby raise an issue precluding summary judgment. (Id. at p. 453.)

In a similar case, the widow of an employee who was electrocuted while working on a power line sued the contract administrator acting as the agent of the power company. (Ruiz v. Herman Weissker, Inc. (2005) 130 Cal.App.4th 52, 55-59.) The administrator was responsible for monitoring the work for safety and contract compliance. The administrator also specifically approved the use of an insulated ladder. The deceased, an employee of the subcontractor, was electrocuted while using the ladder. (Id. at pp. 56-57.) The appellate court affirmed summary judgment for the administrator. The court reasoned that although the administrator was hired to monitor safety conditions, its failure to exercise control in the face of the subcontractors unsafe working conditions was not actionable. (Id. at p. 66.)

Here, Clark Construction performed daily inspections of work site equipment, including the subject mastclimber. However, its inspections did not give rise to a duty of care.

Finally, Davis claims a triable issue of fact exists as to whether Clark is liable for negligent hiring. As defendants point out, the Supreme Court in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1245, fn. 2 (Camargo) concluded that the rationale of Privette, which involved tort liability under the peculiar risk doctrine, also applies to the tort of negligent hiring. The court reasoned that it is unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for the workers injuries, is limited to providing workers compensation coverage. (Id. at pp. 1244-1245.) Davis fails to mention or distinguish Camargo.

Since no issue of triable fact exists as to whether defendants exercised retained control in a manner that affirmatively contributed to plaintiffs injuries, the trial court properly granted defendants motion for summary judgment.

DISPOSITION

The judgment is affirmed. Defendants shall recover costs on appeal.

RAYE , J.

We concur:

BLEASE , Acting P.J.

DAVIS , J.

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^[1] At oral argument, counsel sought to distinguish the present case from Kinney and Hooker based on the scope of the contractual requirements. According to counsel, the contract in the present case incorporated two documents setting forth a Construction Safety Program and Safety Standards that contain detailed inspection requirements pertaining to the mastclimber, unlike the generic safety provisions in the Kinney and Hooker contracts. On close inspection, the documents are not of such a nature and, in any event, do not provide a basis for distinguishing this case from Kinney and Hooker.