Opinion
Rehearings Denied July 3, 1961.
Hearing Granted Aug. 2, 1961.
Opinion vacated 20 Cal.Rptr. 12, 369 P.2d 708.
William A. Sitton, Johnson, Davies & Greve, Sacramento, for appellant.
Desmond & Miller, Melvin & Desmond, Sacramento, for respondents.
VAN DYKE, Presiding Justice.
This is an appeal from a judgment of the Superior Court in Sacramento County awarding plaintiffs and respondents damages for the wrongful death of Otto Woolen, husband of Elsie Woolen, and father of three minor plaintiffs.
A short time prior to August 22, 1956, Aerojet General Corporation, hereinafter called 'Aerojet', had constructed two fuel storage tanks. The nature of the fuel to be stored required that the inner surface of the tanks be coated to protect the steel surface from corrosion. Aerojet determined that the inner surface of the tanks should be painted with 'Amercoat No. 23' and thereupon sent out to various industrial painting contractors, among whom was D. Zelinsky & Sons, hereinafter called 'Zelinsky', a purchase order form asking for bids to cover the preparatory sandblasting of the interior steel surface and the application of Amercoat. The specifications with respect to the work to be done were as follows: 'Furnish all Plant, labor, material equipment and supplies to apply interior protective coating of 'Amercoat Number 23' in Fuel Storage Tanks * * *. Both Tanks are to be sand-blasted to bare metal and a prime coat applied followed by 5 coats of Amercoat Number 23.'
Zelinsky was the low bidder and the contract was awarded to him. He moved equipment to the site of the work, completed the sandblasting and began the application of Amercoat. Zelinsky's crews started working in the larger tank. They entered through an opening in the side just above the ground level. The opening measured 27"' X 36"'. Through this opening the men entered and left the interior of the tank and through it they took with them such equipment as lights, light cords and air hoses. Included in the equipment brought to the site by Zelinsky was a generator to develop electric current for lighting the interior of the tank, a compressor to generate air pressure to operate spray guns and force air into the painters' helmets, hoses, ladders, brushes, mixing cans, etc. No material or equipment of any nature whatsoever was furnished by Aerojet. In short, Zelinsky was an independent contractor taking over the work site and furnishing men and equipment for the performance of his contract. As the work progressed no instructions or directions with respect to the work to be done were in fact given by Aerojet, directly or indirectly. There was nothing dangerous about the work site. But there was danger in the use of Amercoat in a confined space. Some warning of this was given by a red triangular label on each can containing the cautionary words 'Keep away from fire, heat and open flame lights.' Each container also bore a second label giving instructions for the use of Amercoat. The label had a paragraph reading as follows: 'Warning: The solvents in this coating are volatile and inflammable. Keep containers closed and keep away from open flames or sparks. During application all flames, welding, and smoking should be prohibited * * *. In closely confined areas, adequate continuous circulation of fresh air must be provided during application and drying, and operators should be equipped with fresh air masks; explosion-proof equipment should be used.' Although Zelinsky's workers, including decedent Woolen, while painting with Amercoat, wore helmets through which air was forced as they while painting with Amercoat, wore holmets worked, Zelinsky did not provide for continuous During the course of the trial the court denied Aerojet's motion for nonsuit at the close of plaintiffs' evidence, denied Aerojet's motion for a directed verdict at the close of all evidence, denied Aerojet's motion for judgment notwithstanding the verdict, and denied Aerojet's motion for a new trial. However, the court materially reduced the damages awarded and ordered that unless plaintiffs accepted the reduction a new trial would be granted. Plaintiffs accepted the reduction. Judgment for the reduced amount was entered and this appeal followed.
As we have said, the relationship existing between Aerojet and Zelinsky was that of owner and independent contractor. It was Zelinsky's obligation to do the work in accordance with the specifications furnished and to furnish all equipment, men and materials to achieve that result. Consequently, Aerojet relies upon the general rule that the relationship of owner and independent contractor insulates the owner from liability for the independent contractor's negligent acts in performing the details of the work contracted for. The rule is a familiar one and is stated and discussed in many decisions of California appellate courts, such as MacDonald v. Shell Oil Co., 44 Cal.2d 785, 285 P.2d 902; Deorosan v. Haslett Warehouse Company, 165 Cal.App.2d 599, 332 P.2d 422; Hard v. Hollywood Turf Club, 112 Cal.App.2d 263, 246 P.2d 716, and Bedford v. Bechtel Corporation, 172 Cal.App.2d 401, 342 P.2d 495.
It appears from the record that Woolen met death because Zelinsky negligently failed to furnish him a safe place to work by failing to adopt means to prevent the formation in the tank of an explosive combination of air and the gases exuding from the paint. The evidence shows without conflict that Amercoat cannot be safely applied in a confined area, such as was the interior of Aerojet's tank, unless this special precaution is taken. The tank, of course, was safe before the work of painting started, but the instant that work got underway dangerous conditions began to arise necessitating the immediate and constant use of means to prevent a condition of great danger. The application of Amercoat, the paint specified by the contract, under the circumstances obtaining here, was shown to be work which will in the ordinary course of events, occasion injury to others if certain precautions are omitted, but which may, as a general rule, be executed with safety if those precautions are adopted. See, Besner v. Central Trust Co., 230 N.Y. 357, 130 N.E. 577, 23 A.L.R. 1081, at page 1085. The circumstances of this case make applicable an established exception to the general rule of non-liability of an owner who has employed an independent contractor. The exception is stated in Courtell v. McEachen, 51 Cal.2d 448, 456, 334 P.2d 870, 874, as follows:
'* * * The rule that an employer is not liable for an independent contractor's negligence is subject to numerous exceptions, including the ones set forth in sections 413 and 416 of the Restatement of Torts. (Potter v. Empress Theatre Co., 91 Cal.App.2d 4, 10-11, 204 P.2d 120; see, Snyder v. Southern Cal. Edison Co., 44 Cal.2d 793, 797, 285 P.2d 912; Knell v. Morris, 39 Cal.2d 450, 456, 247 P.2d 352. Those sections relate to a situation where an independent contractor is employed to do work which the employer should recognize as necessarily creating a condition involving an unreasonable risk of bodily harm to others unless special precautions are taken. They impose liability upon the employer Section 413 of Restatement of Torts states:
'One who employs an independent contractor to do work which the employer should recognize as necessarily creating, during its progress, conditions containing an unreasonable risk of bodily harm to others unless special precautions are taken, is subject to liability for bodily harm caused to them by the absence of such precautions, if the employer (a) fails to provide in the contract that the contractor shall take such precautions (as to which see sec. 416), or (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.'
Section 416 of Restatement provides:
'One who employs an independent contractor to do work, which the employer should recognize as necessarily requiring the creation during its progress of a condition involving a peculiar risk of bodily harm to others unless special precautions are taken, is subject to liability for bodily harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions.'
The evidence was ample to support an inference by the jury that Aerojet well knew the danger to be met in the application of Amercoat and the special precautions that ought to be taken if that work was to be safely carried out in Aerojet's tanks. It was shown that Aerojet, about two weeks prior to the accident that took the life of Woolen, had applied Amercoat to one of its tanks under conditions similar to those to be met by the performance of Zelinsky's contract, and had brought blowers to the work site for the purpose of preventing the dangerous accumulation of exuded gases. Specific precautions had also been taken to prevent ignition. Notwithstanding this complete knowledge of the peculiarly dangerous properties of Amercoat and of the danger to be met in applying it in a confined space, and of the special precautions that must be taken if danger was to be avoided, Aerojet did nothing. There was evidence that employees of Zelinsky who had to do directly with the performance of the work at the work site knew nothing of these dangers. One of the journeymen painters, who worked just before Woolen, testified that he did not suppose explosion was possible during the application of Amercoat.
The proof that the performance of Zelinsky's contract would necessarily create a condition involving an unreasonable risk of bodily harm to the workmen was very strong The tank in which the accident happened was 30 feet in diameter and 24 feet from base to top. It had a floating roof, which was designed to float up and down as the fuel in the tank was increased or decreased. In order to coat the higher surface of the interior, the roof was lowered, thus exposing the surface to be worked on. In order to work on the lower surface, the roof was raised and supported by some sort of stanchions at an elevation of about seven feet. Thus when working in the lower area the painters were in a dark, confined compartment. Under these conditions the danger was apparent that heavier than air inflammable gases exuding from the drying paint would pocket and concentrate in the lower part of the tank, unless Aerojet contends that there were errors in the giving of instructions and we find this contention to be correct.
The court informed the jury: 'If there were hidden dangers * * * involved in the use of Amercoat No. 23 paint of which defendant Aero-Jet General Corporation had knowledge * * * then it was the duty of defendant Aero-Jet General Corporation to use ordinary care to give warning of such danger to decedent Otto Woolen.' This instruction misstated the law. It told that jury that Aerojet could comply with the applicable standard of care only by giving warning to Woolen. That is not so. The standard of care applicable to Aerojet under the circumstances of this case could be met in a number of ways other than giving warning to each and all of the employees of Zelinsky who worked in the tank applying Amercoat paint. The duty of Aerojet was to exercise ordinary care that bodily harm should not be suffered by others during the performance of Zelinsky's contract arising from the peculiar danger that would be met in the use of Amercoat paint in the tank. Restatement, section 413, states that this duty could be fulfilled by a contract provision or by any other reasonable means.
The trial court told the jury that since Aerojet was the owner of the tank and invited, induced or permitted Woolen to enter for the purpose of performing work and services mutually beneficial to both Aerojet and Woolen, Aerojet had the specific duty to make reasonable inspections to see that the tank remained a reasonably safe place for Woolen to work. No such specific duty was cast upon Aerojet. As we have said, the duty of care placed upon Aerojet by the circumstances of this case could be met in a number of ways and it was error to tell the jury that certain specific conduct was absolutely required to avoid liability.
The court also instructed the jury as follows: 'Even though it is admitted that Otto Woolen was an employee of D. Zelinsky and Sons this relationship of employer and employee will not in any way affect the right of plaintiffs to recover as against the defendants, Aero-Jet General Corporation or Amercoat Corporation.' It was not true that the employer-employee relationship between Woolen and Zelinsky would not 'in any way affect' the right of Woolen to recover against Aerojet. The fact that Woolen was the employee of Zelinsky and that Zelinsky and Aerojet bore toward each other the relationship of independent contractor and owner narrowed the right of Woolen to recover from Aerojet to the exceptional ground we have discussed.
The court told the jury that the violation of any of the provisions of the General Industry Safety Orders of the State of California, which the court might read to the jury, would be presumptively an act of negligence on the part of Aerojet. The court then read to the jury Section 6302 of the Labor Code which defines 'place of employment' as any place where employment is carried on. The court read Section 6400 of the Labor Code which requires 'every employer' to furnish and use safety devices and safeguards and to adopt and use practices, means and methods reasonably adequate to render such employment and place of employment safe, and to do every other thing reasonably necessary to protect the life and safety of employees. The court read Labor Code, § 6402 which forbids any employer to require or permit any employee to go or be in any place of employment which is unsafe. The court read Labor Code, § 6403 which requires every employer to provide and use safety devices and safeguards, methods and processes adequate to render employment safc and to do every other thing reasonably necessary to protect the life and safety of employees. The court then instructed the It was error for the court to tell the jury that Aerojet stood as though it was an employer of Woolen, obligated for his benefit to obey all of the Labor Code sections and General Industry Safety Orders which declare the duties of an employer to an employee. These code sections and Industry Safety Orders do not apply to Aerojet under the circumstances of this case where concededly Aerojet was an owner who had let a contract for the doing of specific work by an independent contractor. Hard v. Hollywood Turf Club, supra; Gonzales v. Robert J. Hiller Construction Co., 179 Cal.App.2d 522, 529, 3 Cal.Rptr. 832; Johnson v. A. Schilling & Co., 170 Cal.App.2d 318, 323, 339 P.2d 139. In this case the dangerous condition did not exist in the place of employment when Aerojet turned it over to Zelinsky. The danger arose during and because of the performance of the work in the manner specified by the contract between Aerojet and Zelinsky. The effect this has upon the liability of an owner who has employed an independent contractor is discussed in several cases. In Johnson v. Schilling & Co., supra, 170 Cal.App.2d on page 324, 339 P.2d on page 142, the court said:
'We are satisfied that as to unsafe conditions of employment which exist in the place of employment at the time that it is turned over by the owner to an independent contractor the owner is an 'employer' within the meaning of Labor Code, section 6304. This being so the owner's duties as 'employer' under 6304 were obviously greater than his common-law duties as invitor to an invitee. As 'employer' under that section he was obliged under section 6400, Labor Code, to furnish a place of employment which was 'safe for the employees therein.' This is a statutory duty which cannot be satisfied by mere Atherley v. MacDonald, Young & Nelson,
In Gonzales, supra, the court said, 179 Cal.App.2d at page 529, 3 Cal.Rptr. at page 836:
"To make the owner responsible as 'employer' under section 6304 of the Labor Code, as construed by the cases the dangerous condition must exist in the place of employment when it is turned over to the contractor.' (Johnson v. A. Schilling & Co., 170 Cal.App.2d 318, 323, 339 P.2d 139.' (Italics added.)
The instructions we are discussing placed a much heavier burden of duty upon Aerojet than would rest upon it as invitor of Woolen, or than would rest upon it under the duties imposed by the pertinent exception to the general rule of non-liability of an owner for the torts of an independent contractor.
The court gave extensive instructions as to the duty of Aerojet as invitor of Woolen. These should not have been given under the facts prevailing here. They did not state applicable law and could only confuse the jury. It is undisputed that the premises of Aerojet, including its tank in which the explosion occurred, were safe, and contained no hidden dangers. It was only after Zelinsky began to perform his contract that the tank became an unsafe place to work, and the tank became unsafe only because of the negligent doing of the work.
Although the liability of Aerojet to Woolen, under the facts presented at the trial, had to be grounded on the exception to the general rule of non-liability which we have discussed, nevertheless the court told the jury 'that the defendant, Aerojet General is not responsible for the negligent acts, it any, of D. Zelinsky & Sons, its agents, servants or employees.' Under the facts here the jury could have found that Aerojet was responsible for Zelinsky's negligence.
We have come to the conclusion that we must reverse the judgment. The erroneous instructions were most prejudicial to Aerojet. This is apparent from what we have said. The jury was never instructed on the real ground of liability. No such instructions were requested. We cannot assume that ground was considered. Liability was not established as a matter of law. Zelinsky was an experienced painting contractor, using journeymen painters to do the work; the labels on the cans contained specific warnings; dangerous gases exude from paints other than Amercoat; the source of ignition was unexplained. For these and other reasons apparent from the record it cannot be said to be improbable that a different result will not ensue upon a retrial.
The judgment is reversed and the cause remanded.
SCHOTTKY and PEEK, JJ., concur.