Valenzuela v. City of San Diego

Filed 7/3/07 Valenzuela v. City of San Diego CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Joan L. Lewis, Judge. Affirmed.

Plaintiff Victor Valenzuela was a pipefitter employed by the general contractor for a project owned by defendant The City of San Diego (City). He was injured while working on the project and filed suit against City, alleging a claim for premises liability. City moved for summary judgment on Valenzuela's complaint, arguing Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and its progeny impose a general bar against personal injury actions by an independent contractor's employee against the property owner who hired the contractor to perform work on its property, and none of the exceptions to the Privette bar were applicable. Valenzuela opposed the motion, arguing there were triable issues of fact whether exceptions to the Privette bar were present, and therefore summary judgment was inappropriate. The trial court found the undisputed facts established there were no exceptions to the Privette bar, granted City's motion and entered judgment for City. Valenzuela timely appealed.

I

FACTUAL BACKGROUND

A. The Project

City owns the Alvarado Water Treatment Plant and contracted with Nelson Dillingham Builders, Inc. (NDBI) to act as general contractor for the plant's upgrade and expansion project.^[1] Under the contract between City and NDBI, City required NDBI to follow City's plans and specifications, which included a standard drawing for an air vacuum release mechanism assembly (the air-vac assembly).^[2]

B. The Accident

In March 2003 Valenzuela was an employee of NDBI assigned to work on an air-vac assembly installed earlier by NDBI.^[3] On March 7, 2003, Valenzuela examined the air-vac assembly, determined it had an air vacuum valve smaller than specified by the plans, and planned to replace the valve with one of the correct size. Before starting work on the assembly, he and his partner uncovered the below-ground horizontal pipe and the corporation stop. He then closed the corporation stop valve above the water main to prevent water and air pressure from releasing into the assembly above the corporation stop. The weakened coupling, which eventually exploded, was between the corporation stop and the water main, and remained below ground.

While Valenzuela was working on the assembly above the closed corporation stop, the coupling between the corporation stop and the water main fractured and separated into two pieces and water pressure from the water main propelled the assembly into Valenzuela. He was seriously injured by the accident.

C. The Cause of the Accident

A forensic examination of the coupling revealed there were mineral deposits along the fracture line, suggesting the threaded inner material of the coupling had the beginning of a stress fracture some time before Valenzuela worked on the assembly. Valenzuela's expert stated the mechanism for the failure of the coupling was that the six-to-eight-foot horizontal pipe (running from the 90 "ell" above the first corporation stop up to the air vacuum valve) served as a "moment arm."^[4] A moment arm acts as a lever that reduces the amount of force necessary to fracture a stress point. The expert stated that, based on the configuration of the installed assembly, it would have required only about 40 pounds of pressure on the end of the arm to fracture the stress point (here, the coupling), and the expert's tests produced a fracture on a test coupling very similar to the fracture on the coupling that failed.

II

PROCEDURAL BACKGROUND

After Valenzuela sought and received his workers' compensation award, he filed this action against City and the manufacturer of the coupling. At the time of the City's summary judgment motion, Valenzuela's sole remaining claim against City was a claim asserting premises liability.

City moved for summary judgment under Privette arguing that, subject to certain exceptions, a property owner who hires an independent contractor to perform work on the property is not liable to the independent contractor's employee injured while performing the contracted-for work. City argued neither of the exceptions to Privette's general bar--hidden dangerous conditions on the property or affirmative conduct by the property owner that causally contributes to the accident--was present here, and therefore summary judgment was proper. Valenzuela opposed the motion, asserting there were triable issues of fact whether City was liable based on a dangerous condition of the property or because City affirmatively contributed to the accident. The trial court ruled in favor of City, and Valenzuela timely appealed.

III

APPLICABLE SUMMARY JUDGMENT STANDARDS

The summary judgment procedure determines whether there is evidence requiring the fact-weighing procedure of a trial. " '[T]he trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.' [Citation.] The trial judge determines whether triable issues of fact exist by reviewing the affidavits and evidence before him or her and the reasonable inferences which may be drawn from those facts." (Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 131.) However, a material issue of fact may not be resolved based on inferences if contradicted by other inferences or evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.)

To prevail on a motion for summary judgment, a defendant must show one or more elements of the plaintiff's cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., 437c, subd. (o).) The evidence of the moving party is strictly construed and that of the opponent liberally construed, and any doubts as to the propriety of granting the motion are to be resolved in favor of the party opposing the motion. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 189.) The trial court does not weigh the evidence and inferences, but merely determines whether a reasonable trier of fact could find in favor of the party opposing the motion, and must deny the motion when there is some evidence that, if believed, would support judgment in favor of the nonmoving party. (Alexander v. Codemasters Group, Ltd. (2002) 104 Cal.App.4th 129, 139.) Consequently, summary judgment should be granted only when a moving party is entitled to judgment as a matter of law. ( 437c, subd. (c).)

Because a motion for summary judgment raises only questions of law, we independently review the parties' supporting and opposing papers and apply the same standard as the trial court to determine whether there exists a triable issue of material fact. (City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 582; Southern Cal. Rapid Transit Dist. v. Superior Court (1994) 30 Cal.App.4th 713, 723.) In practical effect, we assume the role of a trial court and apply the same rules and standards that govern a trial court's determination of a motion for summary judgment. (Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1121-1122 (Lopez).) We liberally construe the evidence in support of the party opposing summary judgment (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142), and assess whether the evidence would, if credited, permit the trier of fact to find in favor of the party opposing summary judgment under the applicable legal standards. (Cf. Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)

IV

THE PRIVETTE DEFENSE AND EXCEPTIONS

A. The Common Law Rule

At common law a person who hired an independent contractor was not liable to third parties for injuries caused by the contractor's negligent performance of the work. (Privette, supra, 5 Cal.4th at p. 693.) There were numerous exceptions to this general rule, including one known as the peculiar risk doctrine. (Ibid.) Under this doctrine, the person who hired an independent contractor to perform inherently dangerous work could be held liable for tort damages when the contractor's negligent performance of the work caused injury to others. (Id. at p. 691.) The principal rationale for this exception to the general rule of nonliability was to ensure that an innocent bystander injured by a contractor's negligence would have a source of compensation even if the contractor was insolvent. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 204 (Hooker).) The peculiar risk doctrine was also based on the recognition that a hirer who was held vicariously liable to the injured claimant was entitled to seek equitable indemnity from the contractor whose negligence caused the injury, thus providing some assurance that the ultimate responsibility for the harm caused by the peculiar risk of the work would be borne by the person at fault for the injury. (Privette, supra, 5 Cal.4th at pp. 695 and fn. 2, 701.) Moreover, even if the contractor's insolvency frustrated the hirer's ability to obtain indemnity, the doctrine still had the beneficial effect of shifting the risk of loss "to the person who contracted for and thus primarily benefited from the contracted work." (Id. at p. 701.) The peculiar risk doctrine was eventually expanded to allow an employee of a subcontractor to recover from a nonnegligent hirer (usually, a general contractor or a property owner) for injuries caused by the subcontractor's negligence. (Privette, supra, 5 Cal.4th at pp. 696-698.)

B. Privette'sGeneral Rule of Nonliability

In Privette, the California Supreme Court reconsidered the applicability of the peculiar risk doctrine in cases involving injuries to employees of independent contractors and concluded an injured employee of a negligent subcontractor could not sue the nonnegligent hirer under the peculiar risk doctrine. It reasoned that California's previously "expansive view" of the peculiar risk doctrine gave the employee an undue windfall relative to other employees injured on the job, whose recoveries would be limited to those damages recoverable under the workers' compensation law, and created the anomalous result of imposing greater liability on a nonnegligent hirer than on the contractor whose negligence actually caused that injury. (Privette, supra, 5 Cal.4th at pp. 698, 702.) The court concluded the workers' compensation system was adequate to promote workplace safety and to protect the interests of the injured employee and no societal interest was advanced by an application of the peculiar risk doctrine to employees, explaining "because workplace injuries are covered by workers' compensation, liability under the doctrine of peculiar risk does not extend to the employees of an independent contractor hired to do dangerous work." (Id. at pp. 692, 698-702.)

Applying Privette, the California Supreme Court has also held that a person who hires an independent subcontractor to do inherently dangerous work, but fails to contractually or otherwise require the subcontractor to take special precautions to avoid the peculiar risks involved in the work, cannot be held liable under the peculiar risk doctrine for injuries to the subcontractor's employee. (Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 267.) Toland stressed that its decision:

"is premised on policy: whether the peculiar risk liability of a general contractor, a landowner, or any other hirer of an independent contractor should, consistent with its common law origins, be limited to protecting third parties such as innocent bystanders or neighboring landowners against the possible insolvency of the hired contractor at fault, or whether such liability should extend to the independent contractor's employees as well. As we concluded in Privette, . . . it is illogical and unfair that a landowner or other person who hires an independent contractor should have greater liability for the independent contractor's negligence towards the contractor's employees than the independent contractor whose liability is limited to providing workers' compensation coverage." (Id. at p. 270.)

C. The Retained Control Exception

In Hooker, the Supreme Court considered whether the Privette/Toland doctrine insulated the hirer of an independent contractor from liability for injuries to the contractor's employee resulting from the contractor's negligence where the hirer retained control over the work but negligently exercised that control. (Hooker, supra, 27 Cal.4th at p. 198.) The Hooker court held 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 may be liable to such an employee if the hirer's exercise of retained control affirmatively contributes to the employee's injuries. (Id. at p. 213.) The court reasoned that imposing tort liability where the hirer's exercise of retained control affirmatively contributes to the injury was consistent with Privette/Toland "because the liability of the hirer in such a case is not ' "in essence 'vicarious' or 'derivative' in the sense that it derives from the 'act or omission' of the hired contractor." ' [Citations.] To the contrary, the liability of the hirer in such a case is direct in a much stronger sense of that term." (Hooker, at p. 212, original italics; see also McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 222-225 [hirer held liable to an employee of an independent contractor for providing defective equipment that affirmatively contributed to the employee's injury because hiring party's own negligence, not that of the contractor, rendered it liable].)

D. The Premises Liability Exception

A hirer has a duty to maintain its premises in a reasonably safe condition for the employees of its independent contractors. (Grahn v. Tosco Corp. (1997) 58 Cal.App.4th 1373, 1396, disapproved on other grounds in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1243-1245 and Hooker, supra, 27 Cal.4th at pp. 209-210, 214.) Thus, a number of cases had concluded a premises owner could be liable to an independent contractor's employee if the worker was injured by a dangerous condition on the land that the landowner created or knowingly failed to remedy. (See, e.g., Markley v. Beagle (1967) 66 Cal.2d 951, 955-956; Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 233; see also Lopez, supra, 54 Cal.App.4th at p. 1129, fn. 7; Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 726.)

However, "not every dangerous condition on the hirer's premises subjects the hirer to liability for physical harm to the independent contractor's employees." (Grahn v. Tosco Corp., supra, 58 Cal.App.4th at p. 1398.) Several California appellate opinions concluded that a hirer's liability for breaches of a nondelegable duty to maintain its property in a reasonably safe condition was subject to the limitations announced in Privette and its progeny. (Zamudio v. City and County of San Francisco (1999) 70 Cal.App.4th 445, 454-455; Sheeler v. Greystone Homes, Inc. (2003) 113 Cal.App.4th 908, 921-922; see also Park v. Burlington Northern Santa Fe Railway Co. (2003) 108 Cal.App.4th 595, 606- 610; Lopez, supra, 54 Cal.App.4th at p. 1129.)

In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman), the California Supreme Court considered whether a property owner's liability for injuries to an independent contractor's employee arising from a hazardous condition on the premises was limited by the principles of Privette. The court noted that, under general common law principles, a landowner is subject to liability for physical harm caused to his invitees by a condition on the land if the owner knows or by the exercise of reasonable care would discover a condition posing an unreasonable risk of harm to his invitees, and should expect that they will not discover or realize the danger or fail to protect themselves against it, and fails to exercise reasonable care to protect them against the danger by warning them of the condition or remedying the condition. (Kinsman, at p. 673.) Kinsman, addressing the "question [of] how these general principles apply when a landowner hires an independent contractor whose employee is injured by a hazardous condition on the premises," first concluded that "when there is a known safety hazard on a hirer's premises that can be addressed through reasonable safety precautions on the part of the independent contractor, a corollary of Privette and its progeny is that the hirer generally delegates the responsibility to take such precautions to the contractor, and is not liable to the contractor's employee if the contractor fails to do so. We see no persuasive reason why this principle should not apply when the safety hazard is causedby a preexisting condition on the property, rather than by the method by which the work is conducted." (Kinsman, at pp. 673-674.) However, Kinsman then addressed the issue of a concealed hazard on the premises, and concluded:

"if the hazard is concealed from the contractor, but known to the landowner, the rule must be different. A landowner cannot effectively delegate to the contractor responsibility for the safety of its employees if it fails to disclose critical information needed to fulfill that responsibility, and therefore the landowner would be liable to the contractor's employee if the employee's injury is attributable to an undisclosed hazard. Nothing in the Privette line of cases suggests the contrary. As in Hooker and McKown, the hirer's liability in such circumstances would be derived from the hirer's rather than the contractor's negligence. [] In view of the above, the usual rules about landowner liability must be modified, after Privette, as they apply to a hirer's duty to the employees of independent contractors. . . . [W]hen the landowner knows or should know of a concealed hazard on its premises, then under ordinary premises liability principles, the landowner may be liable for a resultant injury to those employees. [] We therefore disagree with the Court of Appeal in the present case inasmuch as it held that a landowner/hirer can be liable to a contractor's employee only when it has retained supervisory control and affirmatively contributes to the employee's injury in the exercise of that control. Rather, consistent with the above discussion, the hirer as landowner may be independently liable to the contractor's employee, even if it does not retain control over the work, if: (1) it knows or reasonably should know of a concealed, preexisting hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor." (Id. at pp. 674-675, fn. omitted.)

Importantly, Kinsman (citing Zamudio with approval) took care to "emphasize that [this] holding would not apply to a hazard created by the independent contractor itself, of which that contractor necessarily is or should be aware." (Kinsman, supra, 37 Cal.4th at p. 675, fn. 3.)

V

ANALYSIS

A. Privette Bars Valenzuela's Action Against City Absent an Applicable Exception

The undisputed facts show Valenzuela was employed by an independent contractor to perform work on City property, and was injured while performing that work. Accordingly, Privette bars Valenzuela's action against City absent a triable issue of fact as to whether an exception applies that would permit Valenzuela to recover against City.

B. The Premises Liability Exception Is Inapplicable

Privette Applies

Valenzuela appears to argue that a claim under Government Code section 835 (section 835) for injuries caused by a dangerous condition of public property makes Privette and its progeny inapplicable. He asserts the only issues are whether there was a dangerous condition on public property (1) negligently created by the public entity or (2) of which the entity had actual or constructive notice in sufficient time to take measures to protect against the danger. However, Privette applies to claims asserting liability based on the alleged dangerous condition of premises, and section 835 appears merely to codify when a common law premises liability claim may be asserted against a governmental entity. (See, generally, Boothby v. Town of Yreka City (1931) 117 Cal.App. 643, 648-652.) Valenzuela cites no law suggesting section 835's provisions impose a liability distinct from the premises liability claim considered in Kinsman. Indeed, when Kinsman emphasized that the exception to PrivetteKinsman was then adopting would not apply to a hazard created by the independent contractor, Kinsman specifically cited Zamudio with approval. (Kinsman, supra, 37 Cal.4th at p. 675, fn. 3.) The Zamudio court held the Privette/Toland doctrine applied to the same type of claim Valenzuela now asserts, e.g., a claim by an injured employee of an independent contractor asserting he was injured by a dangerous condition of public property under Government Code section 830 et seq. (Zamudio v. City and County of San Francisco, supra, 70 Cal.App.4th at pp. 454-455.) We conclude an injured employee of an independent contractor who asserts a claim under section 835 is subject to Privette and the claim is barred absent evidence that either the retained control exception or the Kinsman exception applies.^[5]

No Evidence Kinsman Exception Applies

Under Kinsman, City could be liable notwithstanding the Privette/Toland doctrine were there evidence showing (1) City knew or reasonably should have known the air-vac assembly was a concealed hazardous condition; (2) the contractor did not know or could not reasonably ascertain the air-vac assembly was a concealed hazardous condition; and (3) City failed to warn the contractor. (Kinsman, supra, 37 Cal.4th at pp. 674-675.) On appeal, Valenzuela does not suggest there was evidence to support a finding on each of the three elements necessary to application of the Kinsman exception.

Moreover, our independent review of the record convinces us Valenzuela's claim is not within the Kinsman exception. There is no evidence City actually knew the coupling had been weakened before Valenzuela arrived at the job on March 7, 2003. Valenzuela did argue, in support of his section 835 claim, there was evidence that could support a finding City "reasonably should have known" the air-vac assembly was potentially a concealed hazardous condition because the evidence showed City inspected the assembly prior to March 7 and therefore City "reasonably should have known" the air-vac assembly was susceptible to having been weakened. However, the same evidence (e.g. a visual inspection of the assembly put the inspector on notice the air-vac assembly was susceptible to having been weakened) is fatal to the second element required by Kinsman, i.e., that the contractor could not "reasonably ascertain" the air-vac assembly was potentially a concealed hazardous condition. Indeed, the evidence showed the reason the air-vac assembly was potentially a concealed hazardous condition was because the leverage provided by the moment arm subjected the coupling to stress fracturing. However, that moment arm was installed by Valenzuela's employer, and therefore constituted "a hazard created by the independent contractor itself, of which that contractor necessarily is or should be aware" (Kinsman, supra, at p. 675, fn. 3), which falls outside the Kinsman exception to the Privette bar.

C. The Retained Control Exception Is Not Applicable

Valenzuela asserts the Hooker exception to the Privette/Toland doctrine is present because City retained control of the work but negligently exercised that control. However, Hooker specifically cautioned 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 instead will be liable only if the hirer's exercise of retained control affirmatively contributed to the employee's injuries. (Hooker, supra, 27 Cal.4th at p. 213.) Accordingly, we must assess whether there is evidence from which a trier of fact could reasonably infer that an act or omission by City affirmatively contributed to the fracturing of the coupling and Valenzuela's injury.

Valenzuela appears to argue that City exercised sufficient control under Hooker to hold City liable as a direct contributor to the injury because City required NDBI (the independent contractor) to adhere to a set of plans and specifications, and those plans and design for a mechanism (the moment arm) presumably led to the fracturing of the coupling.^[6] However, even assuming Valenzuela could overcome other potentially applicable defenses,^[7]we are unconvinced that an owner who merely requires the independent contractor to follow a set of plans, but who does not exercise any affirmative control over the construction practices employed by the contractor to accomplish the job, is liable under the Hooker exception for an injury caused by the construction practices employed by the contractor to accomplish the work. Hooker concluded a hirer owes no duty of care to an employee of the independent contractor " 'to prevent or correct unsafe procedures or practices to which the [hirer] did not contribute by direction, induced reliance, or other affirmative conduct. The mere failure to exercise a power to compel the [independent contractor] to adopt safer procedures does not, without more, violate any duty owed to the plaintiff.' " (Hooker, supra, 27 Cal.4th at p. 209 [quoting Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28, 39].) Instead, under Hooker, the hirer is only liable if it affirmatively contributes to the employment of the unsafe method or procedure that produced the injury. (Hooker, at p. 209.)

The evidence submitted below was that the fracturing was produced only if a vertical load of at least 40 pounds was applied to the terminal end of the moment arm after NDBI installed the full assembly onto the failed coupling. There was no evidence City affirmatively directed NDBI's personnel to employ an "unsafe procedure or practice" when installing the moment arm that resulted in the requisite pressure being applied during the installation process, or that City controlled the construction methods employed by NDBI to stabilize and secure the final assembly (after NDBI's personnel attached the air-vac assembly to the coupling) to guard against the requisite pressure being applied to the completed unit. Accordingly, we conclude there is no evidence raising a triable issue of fact on whether the Hooker exception to Privette is present.

Valenzuela relies on a pre-Privette case, Widman v. Rosmoor Sanitation, Inc. (1971) 19 Cal.App.3d 734, to argue an owner can be liable for negligently exercising control merely because the owner provided plans requiring something be done that is inherently dangerous or wrong and required the contractor to carry out those plans. Valenzuela argues that because City's plans required a moment arm that was inherently dangerous be installed, City can be held liable under Widman. However, the court in Lopez, supra, 54 Cal.App.4th 1117 extensively analyzed Widman to determine whether it survived Privette. The Lopez court explained the hirer in Widman was held liable under two theories: (1) the contracted-for work involved an inherently dangerous activity creating a peculiar risk of harm, and (2) the hirer retained actual control over the independent contractor's work. As to the former theory, which appears to be the aspect of Widman relied on by Valenzuela,^[8]the Lopez court explained "Widman does not help [the injured employee] because its pre-Privette application of the peculiar risk doctrine is now precluded by Privette. . . . [] . . . To hold [the hirer] liable for [the employee's] injuries on the theory [the hirer] owed [the employee] a nondelegable duty to exercise due care for his safety merely because he was engaged in an ultrahazardous or inherently dangerous activity would be to impose liability under the doctrine of peculiar risk contrary to the holding in Privette." (Lopez, supra, 54 Cal.App.4th at pp. 1128-1129, fn. omitted.) We agree with the Lopez court that the aspect of Widman relied on by Valenzuela has been overruled sub silencio by Privette.

D. Valenzuela's Due Process Argument

Valenzuela correctly notes an order granting summary judgment violates due process when the trial court grants the motion on a dispositive ground not tendered by the moving party and the opposing party is not granted the opportunity to respond to the dispositive issue before the court grants the motion. (Cordova v. 21st Century Ins. Co. (2005) 129 Cal.App.4th 89, 109.) Valenzuela argues the order below must be reversed because the court concluded there was no evidence City created a dangerous condition on public property but this assertion was not mentioned in City's summary judgment motion.

However, this aspect of the court's ruling was in response to Valenzuela's argument, raised in his opposition to the motion for summary judgment, that even if City lacked notice of the condition, Valenzuela's section 835 claim remained tenable had City created the dangerous condition through negligent exercise of City's retained control over the project. City's motion did assert it had not negligently exercised any retained control over the project in a manner that produced the dangerous condition that affirmatively contributed to Valenzuela's injury. Accordingly, Valenzuela was not denied due process by the court's evaluation of an issue tendered by City and disputed by Valenzuela's brief in opposition to City's motion for summary judgment.

DISPOSITION

The judgment is affirmed. City is entitled to costs on appeal.

McDONALD, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.

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^[1] City also retained CH2MHill to serve as construction manager for the project.

^[2] The drawings for the air-vac assembly show that an insulated bushing was to be installed by attaching it to the horizontal water main, and above the bushing was a small section (rising vertically) that houses the first "corporation stop." Above and attached to the corporation stop is a 90 "ell" pipe, and proceeding horizontally from the "ell" is copper tubing of undescribed length. At the end of the copper tubing is a 90 "sweat ell" turning upward, and installed above the "sweat ell" is a second "corporation stop" and, above that, the air vacuum valve is installed.

^[3] The original drawings specified that an insulated bushing be used to join the water main to a valve known as a "corporation stop." However, when an air vacuum valve was initially installed by NDBI in 2001, the NDBI foreman elected to use an insulated coupling rather than an insulated bushing. This coupling failed and caused the injury. However, City did not contend the use of a coupling rather than a bushing had any causative nexus to the accident, and the evidence filed by Valenzuela suggested the accident would have occurred using either method. We therefore need not further focus on the allegedly defective specification for a bushing rather than a coupling.

^[4] When the coupling was originally installed, the moment arm was not part of the installation. Instead, the air vacuum valve was installed in a temporary location directly above the water main and first corporation stop. Although Valenzuela appears to assert on appeal that the temporary location had left the valve in an "unprotected position [that] exposed it to incidental contact which would exert sufficient force" to fracture the coupling, Valenzuela cites no evidence to support his implied assertion that the temporary positioning of the air vacuum valve before the moment arm was attached had any connection to the failure of the coupling. Moreover, the only evidence in the record suggests the moment arm assembly did not remained exposed after the pipe was attached, because Valenzuela testified he had to dig away the dirt, reaching an approximate depth of 18 inches, to unearth the horizontal pipe.

^[5] Valenzuela appears to assert that Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120 permits him to maintain a section 835 claim merely by showing the elements necessary to a section 835 claim are present, and that if a section 835 claim may be maintained, it frees the injured employee from the strictures of demonstrating either that the retained control exception or the Kinsman exception to Privette applies. However, Ray upheld the injured employee's ability to maintain his claim by reasoning that the hirer retained control over the safety measures necessary to prevent the accident (e.g. to block traffic from entering the hazard zone) and affirmatively barred the independent contractor from implementing those safety measures. (Ray, at p. 1132.) Ray concluded such conduct fell with Hooker's recognition that Privette does not bar a claim when the hirer exercises its retained control in a manner that affirmatively contributes to the accident. (Ray, at pp. 1128-1129.) Thus, Ray does not hold that an injured employee can obviate Privette and its progeny by pleading a section 835 claim, but instead analyzed whether the claim there fell within the retained control exception to Privette.

^[6] Valenzuela also suggests on appeal that the design was defective because the plans originally specified a bushing (rather than a coupling) to join the lower corporation stop to the water main, and an inconsistency with other specifications required NDBI's field personnel to substitute the coupling for the bushing. However, there was no evidence NDBI's field decision to substitute a coupling for the bushing had any causative nexus to the accident (see fn. 3), and therefore Valenzuela lacks any evidence that this aspect of City alleged "negligent exercise of retained control" affirmatively contributed to the accident within the ambit of Hooker. Valenzuela also appears to suggest that City's insistence on temporarily placing an air vacuum valve on the water main in an unprotected configuration qualified as negligent exercise of retained control that affirmatively contributed to the accident because, as articulated by Valenzuela on appeal, its unprotected location left it "open to the kind of incidental contact which would put the moment arm into operation to break the coupling." However, there is no evidence the temporary positioning of the air vacuum valve had any connection to the failure of the coupling, because Valenzuela's expert averred the only mechanism that would allow sufficient human force to be applied to fracture the coupling was the moment arm, i.e., the ell and the eight-foot pipe extending above and away from the fractured coupling.) However, the person who installed the air vacuum valve in the temporary and exposed location also testified that he did not install the ell and horizontal pipe at that time. There was no evidence that, when the moment arm assembly was installed, it remained in an exposed location rather than being buried underground.

^[7] To the extent Valenzuela's argument is grounded in the assertion there was some inherent defect in the design of the air-vac assembly, Valenzuela would have to overcome an additional hurdle under this proposed theory, e.g., whether City was barred from relying on design immunity (see Gov. Code,  830.6) in connection with the project.

^[8] Although Lopez also held Widman's second theory (e.g. the hirer's retained control over the independent contractor's work permitted liability) was factually inapplicable to the facts presented in Lopez (Lopez, supra, 54 Cal.App.4th at p. 1129), Lopez's evaluation of the continued vitality of Widman's second theory was made without the benefit of Hooker. Widman's second theory held the hirer's liability was properly premised under section 413 of the Restatement Second of Torts because the hirer's engineering firm had employees on site with the authority to correct any dangerous condition and to demand that all work conform to safety requirements, and they approved the method of excavation and shoring before the work started. Widman concluded this measure of reserved control over the job gave rise to the duty to provide a safe place of employment, and the failure to enforce the safety orders was sufficient to impose liability on the hirer. (Widman v. Rosmoor Sanitation, Inc., supra, 19 Cal.App.3d at p. 748.) However, after Hooker, the " 'mere failure to exercise a power to compel the [independent contractor] to adopt safer procedures does not, without more, violate any duty owed to the plaintiff' " (Hooker, supra, 27 Cal.4th at p. 209), which further undermines the continued vitality of Widman.