Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS025762
Pollak, J.
Plaintiff D. Craig Anderson was injured when he fell through an unprotected opening on a construction site at which he was working as a foreman for the general contractor. His workers’ compensation claim and personal injury claims against other subcontractors have been resolved, but he now appeals from a summary judgment dismissing his negligence complaint against an additional subcontractor on the job, defendant Denham Contracting, Inc. (Denham). Summary judgment was granted on the ground that Denham did not create the dangerous condition that caused plaintiff’s injuries and owed plaintiff no duty of care to have prevented the injury. We agree with the trial court that no duty was imposed on Denham by common law, by statute, or by the terms of Denham’s subcontract and, therefore, shall affirm the judgment.
Factual and Procedural Background
Plaintiff was site foreman for Sierra Bay Contractors, Inc. (Sierra Bay) at a construction project at the California Maritime Academy in Vallejo. On April 2, 2003, plaintiff fell through an unguarded hole in the roof of the project and landed on a concrete floor 17 feet below, sustaining injuries. Sierra Bay had subcontracted with Deck West to furnish and install steel deck for the roof of the structure, and Deck West in turn had subcontracted with Cold Steel Erectors to perform the roof installation, which included cutting the access hole to the roof through which plaintiff fell. Denham is a framing contractor that subcontracted with Sierra Bay to install wall and ceiling systems, which included construction of a parapet wall around the roof. Before Denham began its work on the parapet, Cold Steel Erectors had cut an access hole to the roof and had not placed a barrier over or around the hole. When defendant began its work on the roof, a ladder extended through the hole that workers used to get to the roof. Denham’s employees used the ladder to access the roof for approximately one week while they built the parapet wall. Their work on the roof was completed four to five days before the accident. When they finished their work on the roof, they moved on to work in another part of the project, leaving the ladder where they had found it—protruding through the access hole.
Plaintiff filed a complaint for negligence against Denham, alleging that Denham was “responsible for safety conditions at the location where plaintiff fell and/or [was] responsible for creating the hole and unsafe condition which caused plaintiff to fall and be injured.” Defendant filed a motion for summary judgment on the ground that it did not owe plaintiff a duty of care because it did not create the hole, it did not control the work area at the time of the accident, it had not accepted responsibility for maintaining safe conditions around the access hole, and it did not cause the accident. The trial court granted the motion, ruling that Durham owed no duty of care to plaintiff. According to the trial court, “The work performed on the roof by Denham was to build a parapet wall around the perimeter of the building. This work had nothing to do with the hole or the integrity of the roof deck. Even if this court found the use of the hole was necessary for access to the roof, extending the scope of Denham’s work to the use of the hole, defendant had finished its work on the roof well prior to the date of the accident and, at the time of the incident, Denham’s work at the site had nothing to do with the roof.”
The complaint also included a cause of action for breach of contract, but the disposition of that cause of action is not challenged on appeal.
Plaintiff timely filed a notice of appeal.
Discussion
“We review a summary judgment motion de novo to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. [Citations.] We are not bound by the trial court's stated reasons or rationales. [Citation.] ‘In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment.’ [Citation.] Thus, we independently determine the construction and effect of the facts presented to the trial judge as a matter of law. [Citation.] Summary judgment is a drastic remedy to be used sparingly, and any doubts about the propriety of summary judgment must be resolved in favor of the opposing party.” (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17.)
“Actionable negligence is traditionally regarded as involving the following: (1) a legal duty to use due care; (2) a breach of that duty; and (3) the breach as the proximate or legal cause of the resulting injury.” (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 835, p. 52.) “ ‘ “The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. [Citations.] Whether this essential prerequisite to a negligence cause of action has been satisfied in a particular case is a question of law to be resolved by the court.” ’ ” (Paz v. State of California (2000) 22 Cal.4th 550, 559.)
Plaintiff does not dispute that the hole in the metal roof deck through which he fell was cut by Cold Steel Erectors and was not created by Denham. “A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.” (Williams v. State of California (1983) 34 Cal.3d 18, 23.) “In the traditional ‘special relationship’ setting, ‘the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff's welfare.’ ” (Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1328.) “[A] special relationship has been found to exist between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees, and also between common carriers and passengers, innkeepers and their guests, and mental health professionals and their patients.” (Giraldo v. Department of Corrections & Rehabilitation (2006). 168 Cal.App.4th 231, 246 [special relationship exists between jailer and prisoner].) Plaintiff was not dependent on Denham, Denham had no control over plaintiff’s welfare, and their relationship in no way resembles any of the special relationships that have been held to give rise to a duty of care to the dependent party.
Plaintiff argues that a weighing of the “Rowland factors” (Rowland v. Christian (1968) 69 Cal.2d 108) indicates that a duty should be recognized for Denham, having observed the dangerous condition of the open hole, to have taken steps to protect other workers against the danger it presented. However, in the absence of a special relationship or a statutorily or contractually imposed obligation to have maintained the premises, the factors identified in Rowland do not justify imposing a duty of care upon one who has no causal responsibility for creating the dangerous condition. (Cf. Taylor v. Elliott Turbomachinery Co, Inc. (2009) 171 Cal.App.4th 564 [based on consideration of Rowland factors, manufacturer has no duty to warn of danger arising from other manufacturer’s products that it did not supply that were used with its equipment]; Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1408 [under Rowland, landlord who had complied with statutory safety requirements was “not required to forestall the foreseeable consequences of [tenants’] negligence—only his own”]; Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 516 [“foreseeability is not commensurate with duty”]; Felton v. Schaeffer (1991) 229 Cal.App.3d 229, 236 [under Rowland, absent special relationship physician not liable for negligence unless he caused injury].)
In opposition to the summary judgment motion plaintiff presented evidence that Denham did bring the dangerous condition to the attention of Sierra Bay, the general contractor, but now argues as follows: “Other than to allegedly complain to the general contractor, neither Denham nor its employees took any steps to protect the hole. Denham’s employees knew that other people would or did use the hole to access the roof. Denham’s employees knew that the hole was a potential danger to them, and thus, inferentially, they must have known it was a danger to other people. [¶] . . . Denham employees told the general contractor that a barricade should be put around the hole for safety. No one from Denham did anything to safeguard the hole for themselves or others except to allegedly tell the general contractor to do so.”
Plaintiff contends that the California Occupational Safety and Health Act (Cal-OSHA) Safety Order 1632, which requires roof openings at construction sites to be guarded by railings and toeboards or covered in a secure manner imposed a duty on Denham to exercise due care toward plaintiff. (Cal. Code Regs., tit. 8, § 1632.) “A duty of care may arise through statute or contract.” (J’Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803; see also Elsner v. Uveges (2004) 34 Cal.4th 915, 927 [“Statutes may be borrowed in the negligence context for one of two purposes: (1) to establish a duty of care, or (2) to establish a standard of care. . . . [¶] Cal-OSHA provisions . . . may be admitted to establish a standard or duty of care in all negligence and wrongful death actions, including third party actions [i.e. actions by a subcontractor’s employee against the general contractor”].)
Plaintiff contends that Safety Order 1632 applies to Denham by virtue of Labor Code section 6400, but this section supports precisely the opposite conclusion. Section 6400 provides: “(a) Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein. [¶] (b) On multiemployer worksites, both construction and nonconstruction, citations may be issued only to the following categories of employers when the division has evidence that an employee was exposed to a hazard in violation of any requirement enforceable by the division: [¶] (1) The employer whose employees were exposed to the hazard (the exposing employer). [¶] (2) The employer who actually created the hazard (the creating employer). [¶] (3) The employer who was responsible, by contract or through actual practice, for safety and health conditions on the worksite, which is the employer who had the authority for ensuring that the hazardous condition is corrected (the controlling employer). [¶] (4) The employer who had the responsibility for actually correcting the hazard (the correcting employer). [¶] The employers listed in paragraphs (2) to (4), inclusive, of this subdivision may be cited regardless of whether their own employees were exposed to the hazard.”
Section 6400, subdivisions (a) and (b)(1) thus create a duty of an employer to provide a safe workplace to its own employees. (See, e.g., Elder v. Pacific Tel. & Tel. Co. (1977) 66 Cal.App.3d 650, 662-663 [“Labor Code section[] 6400 . . . “impose[s] both general and specific duties upon an ‘employer’ to provide a safe place to work for his employees”]; Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1130 [“violations of regulations and safety orders promulgated under CAL/OSHA can have no ‘application to . . . nor be admissible into, evidence in any personal injury or wrongful death action . . . except as between an employee and his own employer.’ (Lab. Code, § 6304.5”].) Plaintiff unquestionably was not Denham’s employee, to whom the duty to provide a safe workplace ran. Subdivisions (b)(2, 3, and 4) of section 6400 do impose a duty of care on employers that extends to employees of other employers, but only if the employer created the particular hazard, contractually or through actual practice had the authority to ensure that the hazardous condition was corrected, or had the responsibility to correct the hazard. Based on the uncontroverted facts, Denham was none of these.
One who hires a contractor may under some circumstances owe a duty to employees of the contractor or of its subcontractors to ensure the safety of working conditions. (See, e.g., Evard v. Southern California Edison (2007) 153 Cal.App.4th 137, 147 [hirer of subcontractor liable to contractor’s employees if it “affirmatively contributes” to the employee’s injury]; Ernest W. Hahn, Inc. v. Sunshield Insulation Co. (1977) 68 Cal.App.3d 1018, 1024, fn. 5 [“general contractor in control of premises where work is being done by employees of a subcontractor, is an employer subject to the statutory, nondelegable duty imposed by the Labor Code to provide a safe place of employment for such employees and to comply with the regulations for their safety prescribed by or pursuant to Labor Code section 6400 et seq.”]; Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1038 [violation of nondelegable duty by employer of independent contractor].) However, no decision has held the reverse to be true—that a subcontractor owes a duty of care to employees of the general contractor who are not under the subcontractor’s control, unless the hazard is created by the subcontractor or the subcontractor has assumed the responsibility to correct the hazard. In the present case, the duty to maintain a safe workplace fell upon the general contractor, Sierra Bay, and was not assumed by Denham for conditions it did not create simply by virtue of observing the hazard or performing work in the area of the hazard.
Plaintiff contends that Denham assumed the responsibility to ensure the safety of working conditions on the project by the terms of its subcontract. Section 2.5.1 of the “General Conditions” of the subcontract, on which plaintiff relies, requires Denham to take “reasonable safety precautions with respect to its work,” and to comply with all applicable safety laws and regulations. But subsection 2.5.1 refers only to work that Denham contracted to perform, or did perform, neither of which includes cutting the access hole in the roof decking. Nothing in the subcontract suggests that Denham assumed any duty with respect to work it did not perform, other than to ensure the safety of its own employees and to avoid creating hazards to the safety of others. Indeed, the subcontract contains a hand-written insertion excluding from the scope of the contract work on “access doors,” which may well include the access hole in the roof.
Section 2.5.1 of the subcontract reads in relevant part as follows: “The Subcontractor shall take all reasonable safety precautions with respect to its work, shall comply with all safety measures initiated by the Contractor and with all applicable laws, ordinances, rules, regulations and orders of any public authority for the safety of persons or property in accordance with the requirements of the Contract Documents.”
Plaintiff finally asserts that the trial court erred in dismissing his objections to evidence cited in Denham’s separate statement of undisputed material facts because of the form in which those objections were submitted. We need not pursue this contention, however, because the evidentiary objections did not relate to the critical facts on which the summary judgment rests. There is no dispute that Denham did not cut the hole in the roof decking and did not control the site at the time of the accident. Plaintiff has never contended that Denham or its employees contributed to the creation of the hazard, but only that having made use of the access hole and observed the dangerous condition Denham had a duty to take steps to prevent others from being injured. Notwithstanding plaintiff’s objections to evidence of various incidental and collateral facts, the undisputed evidence is sufficient to establish that Denham owed no such duty of care to the plaintiff. Plaintiff submitted no evidence creating a triable issue concerning any material fact, and summary judgment therefore was properly granted.
Disposition
The judgment is affirmed.
We concur, McGuiness, P. J.,Jenkins, J.