Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Superior Court County of Ventura, Henry J. Walsh, Judge, No. CIV241467
Law Offices of David M. Karen, David M. Karen and Panda Lynn Kroll for Plaintiffs and Appellants.
Trachtman & Trachtman and Ryan M. Craig for Defendant and Respondent.
PERREN, J.
Horatio Barajas, a subcontractor's employee, died when a trench he was excavating collapsed. The decedent's wife and children filed a wrongful death action alleging negligence and negligence per se against numerous parties, including the general contractor. All defendants, except the general contractor, either settled with the decedent's relatives or were dismissed from the case.
Relying on Privette v. Superior Court (1993) 5 Cal.4th 689, the general contractor sought summary judgment on the ground that it had no duty of care to Barajas. The trial court agreed and granted the motion.
On appeal, plaintiffs assert that the trial court erred in granting summary judgment because issues of material fact exist as to whether the general contractor had a contractual or statutory duty to protect the decedent from harm and whether the general contractor breached that duty by failing to have a supervisor on site at the time of the accident. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Horatio Barajas was employed by Brandt Construction Company (Brandt). Brandt was a subcontractor hired by the general contractor, respondent Valley Commercial Contractors (Valley), to excavate trenches for storm drain, water and sewer pipes for a project in the City of Moorpark owned by Sharma Contractors Inc. (Sharma).
On May 31, 2005, Barajas and another Brandt employee were excavating a trench. The trench caved in and Barajas was asphyxiated. The trench was approximately 17 feet deep when the cave-in occurred. At the time of the accident, Valley had no supervisor on duty although it usually had an on-site supervisor at the project on a daily basis.
Barajas' wife and children, appellants Monica, Jonathan and Natalie Barajas, received compensation from Brandt's workers' compensation carrier. In addition, they sued for damages naming Valley, among others, as defendants. Relying on Privette, Valley moved for summary judgment contending it owed no duty of care to Barajas. The trial court agreed and granted summary judgment.
The court reasoned: "Privette held that there was no duty which ran from the hiring entity in favor of the injured employee. Following Privette, there have been areas of exception carved out, but these are all predicated on the hiring entity doing something active or affirmative to cause the injury. These have included creating the dangerous condition which causes the injury, furnishing unsafe equipment, and/or exercising site control that directly leads to the injury. So long, however, as the entity hiring the independent contractor is passive in its conduct, and had no obligation to do anything more, there is no duty of care towards the injured workman.
"Here the evidence establishes that Mr. Barajas was killed on May 31, 2005; that he supervised the construction of the trench that fell in on him; that the actual excavation was done by his employer, BRANDT CONSTRUCTION; that the trench work itself all occurred on May 31, 2005; and that Valley had no employees on site on May 31, 2005. There are no facts presented which would put this case into one of the recognized areas of exception to Privette."
DISCUSSION
Standard of Review
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Summary judgment is appropriate "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)
A defendant who moves for summary judgment or summary adjudication bears the initial burden to show that the action or cause of action has no merit—that is, "that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c, subds. (a), (p)(2).) If the defendant makes a prima facie showing that justifies a judgment in its favor, the burden then shifts to the plaintiff to make a prima facie showing that there exists a triable issue of material fact. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)
On appeal, we conduct a de novo review of the record to "determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel Nat., Inc. (2000) 24 Cal.4th 317, 334.) We apply the same procedure used by the trial court: We examine the pleadings to ascertain the elements of the plaintiff's claim; the moving papers to determine whether the defendant has established facts justifying judgment in its favor; and, if the defendant did meet this burden, plaintiff's opposition to decide whether he or she has demonstrated the existence of a triable issue of material fact. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 84-85.)
Because our review is de novo, appellants' argument that the trial court improperly "weighed" the evidence is unnecessary to our decision and will not be discussed except to note that the trial court's comment that it "retains discretion to determine how much weight to give to it" was made in the context of overruling the parties' objections to evidence, not in the context of determining the existence of a material issue of fact. Moreover, the rule is that on summary judgment, the trial court is to a certain extent required to weigh evidence in determining whether the factual issues asserted relate to a material fact. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 474.)
The Privette Doctrine
In Privette v. Superior Court, supra, 5 Cal.4th 689, our Supreme Court examined the "peculiar risk doctrine," an exception to the common-law rule of nonliability of property owners for injuries to third parties resulting from work that was negligently performed on the property by independent contractors. The peculiar risk doctrine made property owners liable for injuries to an independent contractor's employees performing inherently dangerous work on the owner's land. It was believed that allocating the risk of loss to the hiring property owner, for whose benefit the work was performed, would more fairly ensure compensation to the innocent victim and promote workplace safety. In Privette, the court held that those justifications did not apply when the contractor's employee could recover from the workers' compensation system. "[I]n the case of on-the-job injury to an employee of an independent contractor, the workers' compensation system of recovery regardless of fault achieves the identical purposes that underlie recovery under the doctrine of peculiar risk." (Id. at p. 701.)
For purposes of analysis under Privette, "there is no legal distinction between a general contractor and a landowner who hires independent contractors; both are 'hirers' within the meaning of the doctrine." (Michael v. Denbeste Transp., Inc. (2006) 137 Cal.App.4th 1082, 1097.)
In subsequent decisions, the Privette rule was refined. In Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, a subcontractor's employee sued the general contractor for on-the-job injuries asserting Privette did not bar recovery for direct liability but only for vicarious liability. The court rejected the argument, holding that Privette applies whether the theory of recovery is based on the general contractor's failure to take special precautions as provided in a contract or on the general contractor's failure to provide in the contract for the taking of special precautions. "In either situation, it would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for the worker's on-the-job injuries, is limited to providing workers' compensation...." (Id. at p. 267.)
In Hooker v. Department of Transportation (2002) 27 Cal.4th 198, the Supreme Court slightly expanded the scope of a hirer's duty by holding that the hirer of an independent contractor can remain liable to the contractor's injured employee if the hirer not only retains control over the details of the work but exercises that control in a manner that "affirmatively contributed" to the employee's injuries. (Id. at p. 210.) Merely retaining the ability to control or direct the work, however, without the actual exercise of that authority, is insufficient to impose liability on the hirer. (Id. at p. 215.) Such is the case in the instant matter.
Retained Control
Barajas relies on the contract between Sharma and Valley to show that Valley retained control over the project. Section 8.2.1 of the contract states in part: "The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work under the Contract...."
Section 15.1 of the contract states: "The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: [¶]... employees on the Work and other persons who may be affected thereby...."
Barajas also relies on language in the excavation permit issued by the State of California to Valley that "[t]he employer will comply with all occupational safety and health standards or orders applicable to the above projects...."
Barajas also submitted evidence that Valley usually had a supervisor at the project on a daily basis, but no supervisor was there on the day of the accident. The supervisor's duties were to conduct inspections of the subcontractors' work to ensure safety regulations were being followed and that the work was on schedule.
Valley did not dispute this evidence. It submitted evidence that Valley hired Brandt because of its expertise in excavation work, Brandt provided all equipment and materials for the work, and only Brandt employees were involved in excavating the trench. Valley also provided a copy of a certificate issued to Barajas confirming that he completed "competent person" training. In addition, Valley provided a copy of an excavation permit issued to Brandt identical to the permit issued to Valley requiring Brandt to comply with all occupational and health standards and orders for the excavations. Valley acknowledged that it usually has a supervisor at the construction site on a daily basis, but that a supervisor was not at the site at the time of the accident.
A "competent person" is "[o]ne who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them." (Cal. Code Regs., tit. 8, § 1504, subd. (a).)
In Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28, the appellate court held that substantially similar contractual provisions were sufficient to at least raise a triable issue of fact as to retention of control of workplace safety. (Id. at p. 33.) Nonetheless, the court affirmed summary judgment for the general contractor because it interpreted Privette and Toland as requiring some affirmative conduct that contributed to the injury in addition to retained control. (Id. at p. 39.) The Kinney decision was relied on and approved by our Supreme Court in Hooker v. Department of Transportation, supra, 27 Cal.4th 198. In Hooker, the court concluded: "Plaintiff raised triable issues of material fact as to whether defendant retained control over safety conditions at the worksite. However, plaintiff failed to raise triable issues of material fact as to whether defendant actually exercised the retained control so as to affirmatively contribute to the death of plaintiff's husband.... [T]here was no evidence Caltrans's exercise of retained control over safety conditions at the worksite affirmatively contributed to the adoption of [the] practice by the crane operator. There was, at most, evidence that Caltrans's safety personnel were aware of an unsafe practice and failed to exercise the authority they retained to correct it." (Hooker, at p. 215.)
Appellants assert that failure of Valley's supervisor to be on site on the day of the accident amounted to an affirmative contribution sufficient to withstand summary judgment. They rely on a footnote in Hooker: "[An] affirmative contribution need not always be in the form of actively directing a contractor or contractor's 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 hirer's negligent failure to do so should result in liability if such negligence leads to an employee injury." (Hooker v. Department of Transportation, supra, 27 Cal.4th at pp. 211-212, fn. 3.)
That footnote in Hooker has no application here. There is no evidence that Valley "promise[d] to undertake a particular safety measure." (Compare McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219 [hirer liable for injury to contractor's employee because it furnished defective forklift that contributed to employee's injury].) Moreover, in the body of the opinion, the Hooker court explained that a hirer's failure to correct an unsafe practice of which it was aware, and that it retained authority to correct does not "affirmatively contribute" to the employee's injuries. (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 215.) In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, our Supreme Court reiterated that "when the hirer does not fully delegate the task of providing a safe working environment, but in some manner actively participates in how the job is done, and that participation affirmatively contributes to the employee's injury, the hirer may be liable in tort to the employee." (Id. at p. 671, italics added.)
Here, the undisputed evidence shows that no Valley employee was present at the time of the accident, Brandt and Barajas had sole control over the excavation site, and no Valley employee participated in any manner in excavating the trench. Thus, even if Valley had a contractual duty to ensure Barajas' safety, a breach of that duty is insufficient by itself to impose liability on Valley, in the absence of evidence that Valley affirmatively contributed to the accident. Therefore, regardless of the existence of a factual dispute as to retained control, summary judgment was proper. (See Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267 [summary judgment for general contractor affirmed even though general contractor failed to place protective guardrail which would have prevented subcontractor's employee's injury]; see also Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1348 [general contractor not liable where it did not control means or methods of subcontractor's work and general contractor's employee was not at worksite when accident occurred] and see Michael v. DenbesteTransportation, Inc., supra, 137 Cal.App.4th 1082 [where evidence showed general contractor failed to intervene in subcontractor's working methods, such failure was not affirmative contribution required to impose liability on general contractor].)
Nondelegable Duty
Appellants argue that Valley is chargeable with negligence per se because it had a nondelegable duty imposed by statute and regulation obligating it to ensure that the excavation work was performed safely. As we shall explain, the concept of negligence per se is but a variant of the concept of negligence. It does not, in and of itself, expand or contract the duty owed under the circumstances. Rather, by statute, it establishes a standard of care.
The nondelegable duty doctrine addresses an affirmative duty imposed by reason of a person's or entity's relationship with others. Such a duty cannot be avoided by entrusting it to an independent contractor. (Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1036.) "Nondelegable duties may arise when a statute provides specific safeguards or precautions to insure the safety of others." (Id. at pp. 1038-1039; see also Padilla v. Pomona College (2008) 166 Cal.App.4th 661, 672 [same].)
Appellants rely on Labor Code section 6304.5, providing that Cal-OSHA regulations are admissible as evidence of negligence. The admission of Cal-OSHA regulations does nothing to expand the general common law duty of care. (Elsner v. Uveges (2004) 34 Cal.4th 915, 937.) As explained in Madden v. Summit View, Inc., supra, 165 Cal.App.4th at pages 1279-1280, "Labor Code section 6304.5, as construed in Elsner, did not in any way abrogate the Privette-Toland doctrine, nor expand a general contractor's duty of care to an injured employee of a subcontractor.... [S]afety regulations are only admissible in actions by employees of subcontractors brought against general contractors where other evidence establishes that the general contractor affirmatively contributed to the employee's injuries." (Accord, Millard v. Biosources, Inc., supra, 156 Cal.App.4th at pp. 1352-1353.)
Contrary to appellants' claim, the regulations cited do not impose a nondelegable duty. Rather they impose the obligation to ensure safety at an excavation site to a "competent person"--in this case, the decedent Barajas. California Code of Regulations, title 8, section 1541, subdivision (k) provides: "(1) Daily inspections of excavations, the adjacent areas, and protective systems shall be made by a competent person for evidence of a situation that could result in possible cave-ins, indications of failure of protective systems, hazardous atmospheres, or other hazardous conditions. An inspection shall be conducted by the competent person prior to the start of work and as needed throughout the shift. Inspections shall also be made after every rain storm or other hazard increasing occurrence. These inspections are only required when employee exposure can be reasonably anticipated.
"(2) Where the competent person finds evidence of a situation that could result in a possible cave-in, indications of failure of protective systems, hazardous atmospheres, or other hazardous conditions, exposed employees shall be removed from the hazardous area until the necessary precautions have been taken to ensure their safety." (Italics added.)
Appellants' citation to Appendix A, section (d)(1)(G), to section 1541.1 of the California Code of Regulations, title 8, is similarly misguided. Appellants argue that this section requires Valley's on-site supervisor to make such inspections. This is incorrect. Appendix A concerns soil classification. Subdivision (d) contains directions for conducting visual and manual tests. Subdivision (d)(1)(G) states: "Observe the area adjacent to the excavation and the area within the excavation for sources of vibration that may affect the stability of the excavation face." Subdivision (c)(2) states that visual and manual analysis of soil "shall be conducted by a competent person using tests described in paragraph (d) below...." (Italics added.) Thus, the regulatory duty to ensure the safety of the excavation fell on Barajas, not Valley.
The federal regulation appellants cite, 29 Code of Federal Regulations part 1926.652, similarly imposes no duty on a general contractor. It provides only that "[e]ach employee in an excavation shall be protected from cave-ins by an adequate protective system...."
Appellants rely on Evard v. Southern California Edison (2007) 153 Cal.App.4th 137, where a billboard owner was found to have a nondelegable duty to its contractor's employee who was injured while working on the billboard. That duty was contained in a regulation that made the owner responsible for maintaining the billboard in a safe condition. (Id. at p. 147.) In those circumstances the defendant's failure to act could create liability for affirmatively contributing to the plaintiff's injuries. (Ibid.) Whether the defendant owner had breached its regulatory duty was a factual issue that withstood the owner's summary judgment motion.
Appellants also rely on Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281. In Barclay, the appellate court reversed summary judgment in favor of a property owner because the property owner breached a regulatory duty to have fire extinguishers available which may have contributed to the burn injuries sustained by a subcontractor's employee. The regulation at issue in Barclay, like that in Evard, expressly delegated to the property owner the duty to provide a particular piece of safety equipment at all times.
Evard and Barclay are inapposite. "[I]t is the nature of the regulation itself that determines whether the duties it creates are non-delegable." (Padilla v. Pomona College, supra, 166 Cal.App.4th at pp. 672-673.) In Padilla, the language of the applicable regulation required specific precautions regarding utilities in preparation for demolition work. The regulation did not, however, indicate who must perform these duties. Unlike the regulations in Evard and Barclay, which required the owner to maintain specific protective conditions on the property at all times, the regulation at issue in Padilla "pertained solely to the preparation of the worksite when specific work was being done, that is at a time when contractors were necessarily present. Therefore, there is no basis in Regulation 1735(a) to conclude the duties could not be delegated." (Id. at p. 673.) The Padilla court further held that even if there had been a nondelegable regulatory duty on the owner or contractor, the Hooker test remained applicable; thus, the breach of that duty would have led to liability of the hirer only if its breach had affirmatively contributed to the injury of a contractor's employee. (Ibid.)
In summary, under Privette and its progeny, to avoid summary judgment, Barajas must show both that Valley retained control over the details of the work and that it exercised that control in a manner which affirmatively contributed to Barajas' death. The undisputed facts show that Valley had no involvement in the excavation. Therefore, summary judgment was properly granted.
The judgment is affirmed. Respondent shall recover costs on appeal.
We concur: GILBERT, P.J., YEGAN, J.