Opinion
H025149.
10-30-2003
MICHAEL ROW, Plaintiff and Appellant, v. D.P.R. CONSTRUCTION, INC., Defendant and Respondent.
Plaintiff Michael Row sued defendant D.P.R. Construction, Inc. for injuries suffered while he worked for defendants subcontractor on a construction site. The trial court granted defendants motion for summary judgment on the basis of (1) Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and its progeny (limiting a hirers peculiar-risk liability concerning employees of its independent contractors) and (2) a failure to raise a triable issue of fact as to negligent-exercise-of-retained-control liability. On appeal, plaintiff contends that (1) Privette does not bar his action because neighboring contractors, rather than his employer, caused his injury, and (2) he raised a triable issue of fact as to the retained-control theory. We disagree with plaintiff as to his first contention but agree with him as to his second contention. We therefore reverse the judgment and direct the trial court to enter an order granting defendants motion as to the peculiar-risk theory but denying the motion as to the retained-control theory.
legal background
"The general rule at common law is that the hirer of an independent contractor is not liable to third parties for physical injuries caused by the contractors negligence in performing the work. [Citations.] However, `[o]ver time, the courts have, for policy reasons, created so many exceptions to this general rule of nonliability that "`"the rule is now primarily important as a preamble to the catalog of its exceptions."" [Citations.] [Citation.]
"In Privette, the Supreme Court addressed the exception that allows liability to be extended to a hirer when the contracted work poses a `peculiar risk of injury to others. The peculiar risk exception evolved as a way `to ensure that innocent third parties injured by the negligence of an independent contractor hired by a landowner to do inherently dangerous work on the land would not have to depend on the contractors solvency in order to receive compensation for the injuries. [Citations.] [Citation.] California was one of the minority of jurisdictions that expanded this doctrine beyond third parties and allowed the contractors employees to seek recovery from the hirer for injuries caused by the contractors negligence. [Citations.] However, the Privette court determined this extension of peculiar risk liability to hirers did not `withstand scrutiny when considered in light of the workers compensation scheme. [Citation.] Whereas an innocent bystander might have no other source of compensation for injuries resulting from a contractors negligence, the workers compensation system guarantees the contractors employee a recovery for workplace injuries, regardless of the solvency of the contractor. [Citations.] And, while extension of liability to the hirer is generally justified by the hirers right to equitable indemnity from the contractor, such indemnity is not available for compensation paid to a contractors employees. `[T]he exclusivity provisions of the workers compensation scheme shield the negligent contractor from an action seeking equitable indemnity. ([Lab. Code,] § 3864.) [Citation.] Privette concluded: `When, as here, the injuries resulting from an independent contractors performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries. [Citation.]
"In Toland [v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 (Toland)], the court reaffirmed Privette and explained the scope of its holding. Insofar as it is relevant here, the doctrine of peculiar risk is described in sections 413 and 416 of the Restatement Second of Torts (hereafter Restatement). Under section 413, one who hires a contractor to do inherently dangerous work but fails to require `in the contract or `in some other manner that the contractor take special precautions can be held liable if the contractors negligence causes injuries to others. `Because section 413 rests the liability of the hiring person on his or her omission to provide for special precautions in the contract or in some other manner, it is sometimes described as a rule of "direct liability." [Citations.] [Citation.] Under section 416, a hirer who has provided for special precautions may nevertheless be held liable when the contractors failure to take such precautions causes injury to others. `Because the hiring persons liability under section 416 . . . flows from the independent contractors negligent failure to take special precautions in performing the inherently dangerous work, as required by "the contract or otherwise," the hiring persons liability is often referred to as "vicarious liability." [Citations.] [Citation.]
"The court in Toland rejected the plaintiffs attempt to limit the Privette holding to claims of `vicarious, versus `direct, liability: `[U]nder both sections 413 and 416, the hiring persons liability is cast in the form of the hiring persons breach of a duty to see to it that special precautions are taken to prevent injuries to others; in that sense, the liability is "direct." Yet, peculiar risk liability is not a traditional theory of direct liability for the risks created by ones own conduct: Liability under both sections is in essence "vicarious" or "derivative" in the sense that it derives from the "act or omission" of the hired contractor, because it is the hired contractor who has caused the injury by failing to use reasonable care in performing the work. [Citation.] Instead, the court returned to the policy rationale underlying Privette and concluded it applied equally whether the hirers liability was premised on section 413 or 416: `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 contractors negligence towards the contractors employees than the independent contractor whose liability is limited to providing workers compensation coverage. Imposing on the hiring person a liability greater than that incurred by the independent contractor (the party with the greatest and most direct fault) is equally unfair and illogical whether the hiring persons liability is premised on the theory of section 413 . . . or the theory of section 416 . . . . [Citation.]
"In Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235 (Camargo), the high court extended the Privette rationale to the tort of negligent hiring. ([Restatement Second of Torts] § 411 [subjecting hirer of contractor to liability for injuries suffered by `third persons due to contractors negligence].) Once again, the court stressed the irrelevance of a distinction between `direct versus `vicarious liability in these cases, stating, `the rationale of our decision in Privette extends to cases where the hirer is directly negligent in the sense of having failed to take precautions against the peculiar risks involved in the work entrusted to the contractor. [Citation.] Although a party sued for negligent hiring `is, in a sense, being taxed with his own negligence under a theory of direct liability [citation], under section 411 `the liability of the hirer is "in essence `vicarious or `derivative in the sense that it derives from the `act or omission of the hired contractor, because it is the hired contractor who caused the injury by failing to use reasonable care in performing the work." [Citation.] [Citation.] Thus, the court concluded, it would be just as unfair to impose liability on the hiring party in a negligent hiring case as in a peculiar risk case. [Citation.]
"In the recent case Hooker v. Department of Transportation (2002) 27 Cal.4th 198, (Hooker), the Supreme Court considered whether an independent contractors employee may sue the hirer for negligent exercise of retained control, as that tort is described in section 414 of the Restatement. The court emphasized again, `the conclusion that a hirers liability can be characterized as direct does not end the inquiry into whether the hirer should be held liable for injuries to a contractors employees . . . . [Citation.] Instead, the court returned to the fairness principles underlying Privette to cast a rule of limited liability: `[B]ecause the liability of the contractor, the person primarily responsible for the workers on-the-job injuries, is limited to providing workers compensation coverage, it would be unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over safety at the worksite. In fairness, . . . the imposition of tort liability on a hirer should depend on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractors employee. [Citation.] The requirement of an affirmative contribution makes imposing liability on the hirer consistent with Privette and its progeny, the court reasoned, `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. [Citation.]
"Finally, in McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219 (McKown), the Supreme Court extended the holding of Hooker to the tort of negligent provision of unsafe equipment. When a hirer negligently furnishes unsafe equipment to the contractor, and in doing so affirmatively contributes to injuries suffered by the contractors employee, the court held the hirer may be held liable `for the consequences of [its] own negligence. [Citation.]
"Thus, the Supreme Court has adhered to the policies outlined in Privette that limit a hirers vicarious or derivative liability to a contractors employee; however, the court has also made it clear that these policies are not violated when a hirer is held liable to such an employee based on the hirers own affirmative negligence." (Kinsman v. Unocal Corp. (2003) 110 Cal.App.4th 826, 832-835, fns. omitted (Kinsman).)
peculiar risk
The parties do not dispute the facts that are material to the peculiar risk theory. They simply dispute the legal significance of the material facts. Whether the Privette line of cases bars plaintiffs action is a question of law for the trial court to decide on summary judgment and the appellate court to decide independently. (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1278-1280.)
The essential facts are as follows: a landowner hired defendant to construct a manufacturing building; defendant hired numerous subcontractors; it hired plaintiffs employer to install plumbing, heating, ventilation, and the like; access to the roof was initially via exterior scaffolding; at some point, a subcontractor completed a stairway to the roof; plaintiff used the stairway to go up and work on the roof; when he attempted to go down the stairs, he slipped and injured himself because the stairway was dangerously installed.
Plaintiff urges that the Privette line of cases is distinguishable from this one because, in the Privette cases, the plaintiffs employers were at fault for the injuries whereas it is a third-party subcontractor who is at fault here. According to plaintiff, this distinction is significant because the anomaly of having the innocent hirer exposed to greater liability than the negligent employer does not exist; instead, in this case, the innocent hirers liability is coextensive with the subcontractors liability and the innocent hirer can sue the subcontractor for equitable indemnity. Plaintiff likens himself to an innocent bystander to whom a hirer would be liable under the peculiar risk doctrine.
Plaintiff, however, cites no authority for his proposition. And he initially ignored contrary on-point authority (Smith v. AcandS, Inc. (1994) 31 Cal.App.4th 77 (Smith), disapproved on another ground in Camargo, supra, 25 Cal.4th at p. 1245) and then, in his reply brief, merely dismisses Smith as "not well reasoned."
In Smith, the plaintiff developed asbestosis and asbestos-related pleural disease after he worked as a pipe fitter at many jobsites, including two power plants built by Pacific Gas and Electric Company (PG & E). Much of the plaintiffs asbestos exposure resulted from his work in proximity to other trades, especially insulators. The plaintiff proceeded to trial on his personal injury claims, and the jury found PG & E negligent and negligent per se and held PG & E vicariously liable for hiring asbestos insulation contractors whose work created a peculiar risk of harm to others. Having determined that the Supreme Courts decision in Privette applied retroactively to the case, the Smith court considered whether Privette bars liability under the peculiar risk doctrine when the allegedly negligent party was not the plaintiffs employer, but a different contractor (or several different contractors). The court concluded that it did: "Privette marks a return to the `original form of the doctrine of peculiar risk: a landowner is liable to innocent bystanders and neighboring property owners injured by a hired contractors negligent performance of dangerous work on the land. [Citation.] A hired contractors employee is not a bystander, whether judged in relation to his own work or in relation to another contractors activities on a joint project." (Smith, supra, 31 Cal.App.4th at pp. 95-96.) The court explained further: "While the many facets of Privettes reasoning do not all apply with equal force to this situation of a hired contractors employee injured by another contractors negligence, a compelling consideration is common to both Privette and this case-workers compensation. Whether a contractors employee is injured on the job by the acts of his own employer or another contractor, the employee recovers workers compensation benefits. Landowners hiring contractors indirectly pay the cost of workers compensation coverage, and permitting tort recovery against landowners under the doctrine of peculiar risk would unfairly subject them to multiple costs for a single injury for which they are not personally at fault. [Citation.] Imposing vicarious liability for tort damages on a landowner who hires independent contractors for specialized work would penalize those who hire skilled experts to perform dangerous work rather than assigning such activity to their own inexperienced employees. [Citation.] Furthermore, permitting tort recovery in this situation would give contractors employees `an unwarranted windfall by exempting `a single class of employees, those who work for independent contractors, from the statutorily mandated limits of workers compensation. . . . [Citation.]" (Id. at p. 96.)
Kinsman, filed after the parties completed briefing in this case, agrees with Smith. There, the plaintiff suffered similar asbestos-related injuries while performing scaffolding work for the defendants independent contractor during periods of shutdown and repair at the defendants oil refinery. A jury rendered a verdict for the plaintiff against the defendant for negligent maintenance of its property. On appeal, the court held that the Privette line of cases barred the action given that the defendant did not have control over the condition and, in so controlling, affirmatively contribute to the plaintiffs injuries. The plaintiff argued that Privette did not apply because contractors other than his employer created the dangerous condition. He urged that he was akin to an injured bystander to whom the defendant owed a full duty of care notwithstanding Privette. The court rejected this argument as follows.
"Kinsmans argument reads a limitation into the Privette doctrine that is unsupported by case law and inconsistent with the policies the doctrine serves. According to Kinsman, a contractors employee is precluded from obtaining recovery from a premises owner for injuries he sustains on the property only if he was injured by a dangerous condition his own employer created in doing the contracted-for work. And, if the danger was created by other contractors working nearby, the premises owner can be held liable regardless of whether it actually had control over the other contractors activities. Kinsmans position illustrates the aspect of Grahn [v. Tosco Corp. (1997) 58 Cal.App.4th 1373, disapproved to the extent that it holds that a hirer may be liable even though it did not exercise control it had retained] that is inconsistent with Privette- namely, its focus on the activities of the contractor rather than the owner. Considering the fairness rationale underlying the Privette line of cases, it should not matter whether a dangerous condition was created by the plaintiffs employer or another contractor. If the hazard was not created by the property owner, or within the owners control, the owner should not bear liability for an injury that is compensable under the workers compensation system. [¶] Consistent with Privette and cases following it, we conclude a contractors employee such as Kinsman may not recover under [Restatement Second of Torts] section 343 from a landowner such as Unocal absent proof Unocal had control over the allegedly dangerous condition on its property and affirmatively contributed to the injury. Whether the dangerous condition was created primarily by Kinsmans employer or another contractor is irrelevant in this analysis; the appropriate focus is on Unocals relation to the condition." (Kinsman, supra, 110 Cal.App.4th at pp. 841-842.)
The court then cited and discussed Smith in support of its position and concluded as follows.
"We recognize that all the policy arguments discussed in Privette do not apply with equal force when an employees injury is caused by acts of a neighboring contractor, rather than his own employer. Such a situation does not present the striking unfairness that results when the hirer of a contractor bears a full burden of liability but the liability of the party who is primarily responsible for causing the injury (the plaintiffs employer) is limited to providing workers compensation. In Privette, the Supreme Court discussed this fairness concern and further observed that the exclusivity provisions of the workers compensation statutes prohibit the hirer from obtaining indemnification from the plaintiffs employer, even though the employer was responsible for causing the injury. [Citation.] Where a workers injury is caused by a neighboring contractor and not his employer, the workers compensation statutes do not prevent the premises owner from seeking equitable indemnity from the contractor responsible for creating the hazard. [¶] However, we believe it is equally unfair to impose liability on the hirer when a contractors employee is injured from a dangerous condition created by his own employer or by a neighboring contractor notwithstanding the availability of equitable indemnity. In addition, limiting a hirers liability for injuries caused by neighboring contractors is consistent with other policies discussed in Privette and its progeny. As the Smith court observed, workers compensation benefits are available to an employee injured on the job regardless of whether the injury results from acts of his own employer or of another contractor. [Citation.] Landowners who hire contractors indirectly pay the cost of workers compensation coverage; therefore, imposing liability on landowners for injuries caused by any of the contractors they employ `would unfairly subject them to multiple costs for a single injury for which they are not personally at fault. [Citation.] (Smith, supra, at p. 96; see also Camargo, supra, 25 Cal.4th at pp. 1244-1245 [hirer who has indirectly paid the cost of workers compensation coverage should also enjoy the benefit of exclusivity provisions].) And, as is the case when a plaintiffs own employer causes the injury, permitting recovery from a landowner for injuries caused by other contractors `would give contractors employees "an unwarranted windfall" by exempting "a single class of employees, those who work for independent contractors, from the statutorily mandated limits of workers compensation. . . ." [Citation.] (Smith, supra, at p. 96; see also Camargo, supra, at p. 1245.)" (Kinsman, supra, 110 Cal.App.4th at pp. 842-843.)
We agree with Smith and Kinsman. Privette bars plaintiffs action under the peculiar-risk exception to the general rule.
retained-control
"Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In reviewing an order granting summary judgment, we must assume the role of the trial court and redetermine the merits of the motion. In doing so, we must strictly scrutinize the moving partys papers. [Citation.] The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact. [Citation.] All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. [Citation.] [¶] While the appellate court must review a summary judgment motion by the same standards as the trial court, it must independently determine as a matter of law the construction and effect of the facts presented." (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)
A defendant moving for summary judgment meets his burden of persuasion showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2).) Once the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or to a defense to the cause of action. In doing so, the plaintiff cannot rely on the mere allegations or denial of his pleadings, "but, instead, shall set forth the specific facts showing that a triable issue of material fact exists . . . ." (Code Civ. Proc., § 437c, subd. (p)(1); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)
As we have mentioned, Hooker instructs that, under the retained-control theory, "the imposition of tort liability on a hirer should depend on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractors employee." (Hooker, supra, 27 Cal.4th at p. 210.)
Defendants papers generally support that defendant did not supervise or instruct its subcontractors. As to the pivotal issue, defendant acknowledges and argues as follows: "Although [defendant] permitted [plaintiff] to use the roof access stairwell, [defendant] did not order or require [plaintiff] to do so. It was ultimately [plaintiffs] decision to use the stairwell . . . ." (Original italics and underscoring.)
Plaintiffs deposition testimony does not directly contradict defendants showing. Plaintiff generally testified that defendant took the scaffolding down after the stairway was completed and announced at a safety meeting that the stairways were safe to use. He acknowledged that a second scaffolding remained but asserted that it was for the use of the siding crew only. Plaintiff, however, also submitted a declaration in opposition to defendants motion that was more specific than his testimony. In the declaration, plaintiff states the following: "On the day of the accident we were working on the roof installing plenums. On previous occasions we had worked on the roof and access had been provided to us by scaffolding stairs on the exterior of the building. As part of the construction there were stairways in the building, only one of which went all the way up to the roof. However, previously we had been instructed not to use this stairway because it was not finished. We were told to only use the outside scaffolding stairs. About one week before my accident we were told by [defendants] representative . . . conducting the weekly safety meeting that the stairway in the building was complete and safe, and we were to use it for access to the roof. At about the same time the outside scaffolding stairs that had been provided were removed. There were other scaffolding on the exterior of the building but these were used by workers installing the sidings and were not made available for access to other trades."
Liberally construed, plaintiffs declaration suggests that defendant retained some control over construction safety matters and, after pronouncing the stairway safe and removing the alternative-access scaffolding, instructed plaintiff to use the stairway that ultimately injured plaintiff. We are compelled to conclude that this interpretation of the evidence raises a triable issue whether defendant exercised control that was retained in a manner that affirmatively contributed to plaintiffs injury.
disposition
The judgment is reversed. The trial court is directed to enter an order granting defendants motion as to the peculiar-risk theory but denying the motion as to the retained-control theory. Each party will bear his and its own costs on appeal.
I CONCUR: Bamattre-Manoukian, J.
RUSHING, P.J., Concurring.
I concur in the judgment but I would not have extended the reasoning in Privette v. Superior Court (1993) 5 Cal.4th 689 to these facts.