Opinion
F081560
12-14-2022
JOSEPH L. CHAIDEZ, Plaintiff and Appellant, v. GILLIAM AND SONS, INC. et al., Defendants and Respondents.
Rodriguez & Associates, Daniel Rodriguez and Chantal A. Trujillo; Turek Law and Kenneth C. Turek; Esner, Chang & Boyer, Andrew N. Chang and Kathleen J. Becket for Defendant and Appellant. Friedenthal, Heffernan & Brown, Jay D. Brown and Daniel Ray Friedenthal; Wiggin and Dana, Jonathan M. Freiman and David R. Roth for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BCV-15-100408 Stephen D. Schuett, Judge.
Rodriguez & Associates, Daniel Rodriguez and Chantal A. Trujillo; Turek Law and Kenneth C. Turek; Esner, Chang & Boyer, Andrew N. Chang and Kathleen J. Becket for Defendant and Appellant.
Friedenthal, Heffernan & Brown, Jay D. Brown and Daniel Ray Friedenthal; Wiggin and Dana, Jonathan M. Freiman and David R. Roth for Defendants and Respondents.
OPINION
MEEHAN, J.
INTRODUCTION
Appellant Joseph L. Chaidez appeals a jury's special verdict in favor of respondents Gilliam and Sons, Inc. (GSI) and Jeff Johnson (Johnson) (collectively, respondents). On March 30, 2015, while employed with the City of Bakersfield (City), a trench collapsed on Chaidez at a sewer project site, injuring Chaidez. Chaidez sued the trench excavator, Johnson, and Johnson's employer, GSI, for negligence arising out of how Johnson performed and operated the excavator, GSI's training of Johnson, and purported violations of the California Occupational Safety and Health Act of 1973 (CalOSHA; Lab. Code, §§ 6300-6721). Respondents disputed they were negligent, and claimed the City was negligently responsible for proximately causing Chaidez's injuries. The jury returned a verdict in favor of respondents, finding Chaidez had not proved respondents breached their respective duties of care. The jury also found the City, a nonparty, breached its duty of care and that negligence was a substantial factor in causing the cave-in incident.
On appeal, Chaidez claims the jury's special verdict is not supported by the evidence, and a finding of GSI's and/or Johnson's negligence is compelled as a matter of law. After thorough examination of the entire record, we are unable to conclude Chaidez has met the very stringent appellate burden of establishing that a verdict in his favor is compelled as a matter of law. Further, there was substantial evidence to support the jury's findings regarding the City, an affirmative defense negligence claim for which respondents bore the burden of proof. For the reasons explained below, the jury's verdict is supported by the evidence, and the judgment is affirmed.
FACTUAL BACKGROUND
I. General Overview
On March 25, 2015, GSI and the City entered into an annual contract under which GSI would provide, as an independent contractor, trenching and excavation services as the City required during the contract period. GSI assigned its employee Johnson to excavate at a site where the City was performing sewer work.
Johnson walked the site with City supervisor Brandon Stevens prior to excavating and suggested Stevens order a shoring device called a trench shield for the excavation work. On March 30, 2015, Johnson excavated a trench somewhere between 10 and 16 feet deep. Two City workers, Fausto Ayson and Chaidez, entered the trench before Johnson installed the shield. After Johnson drove the excavator out of the trench to attach the shield, one wall of the trench collapsed, causing injury to Chaidez inside the trench.
A CalOSHA investigation ensued after the collapse, recorded statements were collected from witnesses, and testimony was taken at a hearing. In July 2015, Chaidez filed a negligence suit against Johnson and GSI. At trial, Chaidez presented evidence on the theory Johnson negligently excavated the trench and operated his excavator, GSI violated its duty of care in furnishing the excavation services and had negligently trained Johnson, and GSI and Johnson violated several CalOSHA regulations.
II. Trial Evidence
A. Witnesses at the Site During the Trench Collapse
1. Johnson, Excavator Operator
At the time of the trench collapse, Johnson had worked for GSI for approximately 22 years as an equipment operator, and his immediate supervisor was Ken Owen. His job required him to operate a number of different machines designed to excavate or move dirt, but he had never received any classroom training from GSI on how to operate an excavator, and he does not have a license to operate it. He knew the soil at the sewer job site was type-C, but he had never received any training on the different soil types. GSI had not told him daily inspections of the soil were required, trained him about what the term competent person meant, or that the competent person was supposed to assess vibrations from sources such as traffic and machinery. GSI had also never told him there should be daily inspections for the possibility of trench collapse before starting to excavate, or that a safety plan was to be in place before beginning excavation.
Before Johnson began excavation at the sewer sight in March 2015, he and City supervisor Stevens walked the site; Johnson recommended Stevens order a trench shield because the soil at the site was too sandy. On the morning of the trench collapse, Johnson arrived at the site around 6:45 a.m., and the excavator and the shield were already there. When City personnel arrived, Johnson met with them about what he was going to be doing, but he could not remember exactly who was at that meeting. Johnson eventually got the excavator into the trench to dig down to the sewer line. He sloped the north wall of the trench and benched the south wall, excavating down about 10 to 16 feet. At trial, Johnson testified the south wall was compacted hard dirt that did not appear very sandy to him, but, during his CalOSHA interview, he told the investigator the soil was sandy.
While Johnson was excavating, Ayson was spotting from the north wall of the trench; Ayson could not have spotted inside the trench right in front of the excavator. Johnson testified Ayson was not in the trench while Johnson was digging, and when Ayson gave Johnson the level sign, Ayson went into the trench. In prior deposition testimony, Johnson indicated Ayson was already grading in the trench with a shovel when Johnson exited the trench in the excavator. Johnson clarified at trial that Ayson was shoveling and grading down at the turquoise sewer pipe just before Johnson turned around and drove out of the trench.
Johnson drove the excavator out of the trench on the south side and stopped the excavator so the shield could be attached to the excavator bucket. Johnson denied the shield was ever hooked to the excavator, or that he lifted the shield off the ground and slammed it back down. Instead, he sat the excavator bucket on the ground once people yelled the accident had happened, jumped out of his excavator, went to grab shovels from his pickup truck, and got in the trench to dig Chaidez out. At trial, Johnson could not remember if he ever got back in the excavator that day, but Johnson's CalOSHA hearing testimony indicated he did not.
Johnson acknowledged he had "work stop authority" for himself-meaning, he could stop what he was doing if he saw anything hazardous or dangerous. Johnson had testified at the CalOSHA hearing that he did not see any hazardous or dangerous condition relating to anyone on the job site, but, if he had, he had the ability to stop the job and he would have done that.
During cross-examination, Johnson testified that in the more than 20 years he has operated heavy equipment, he has never had a certificate nor has he been advised one was needed. He considered the soil at the sewer project site to be sandy, and he dug the trench knowing it was sandy soil. Johnson testified he visited Chaidez twice in the hospital to see how he was doing; he never kicked dirt in Chaidez's face when he was trying to dig him out, and he never told Chaidez he did so. He never dropped the trench shield, and he never told Ayson or Chaidez to get into the trench. He is still doing work for GSI as a heavy equipment operator.
2. Ayson, City Maintenance Worker
Ayson was working for the City's sewer maintenance division on the date of the trench collapse. He had been working for the City for about one and one-half years doing pipe repair and raising and lowering manholes. When he was hired, he participated in one training about trench safety, but he did not know about soil types. Ayson was aware that a competent person was someone who knows soil types, but he was never designated a competent person.
On the morning of the incident, Ayson went to the City's maintenance yard where he met Pablo (Paul) Franco, Albert Sapiens, and Chaidez. Of the four, Franco was the crew leader and Chaidez had been on the job only about a month. They did not discuss the depth of the trench at the yard, and Ayson did not recall any discussion about a trench shield.
Before they started work at the site, Ayson had a tailgate meeting with Johnson, which GSI required Johnson to have. There was no discussion about a trench shield, but Ayson testified it was his understanding that the trench shield was for the deep part of the trench. They did discuss that Johnson was going to need someone to spot him, but Ayson did not remember exactly when they had that discussion or whether Franco was present for it.
The shallow part of the trench was already dug out to the west. Johnson drove the excavator into the trench and dug eastward down to approximately 16 feet. The goal was to dig down to the existing sewer main so that the City crew could connect additional sewer pipe. Ayson could not remember if Johnson had laid out the plan of how he was going to dig the trench, but Johnson did ask Ayson to work as a spotter for Johnson. Ayson proceeded into the trench upon assurances by Franco and Johnson it was safe to do so. He and Johnson communicated via hand signals while Johnson was in the excavator on the shallow end of the trench.
When Ayson concluded his spotting duties, he began grading and leveling out the dirt for the sewer main. At some point, Ayson asked Chaidez to come into the trench to help him, although at his deposition Ayson testified he did not ask Chaidez to come into the trench. Ayson conceded he was unsure if he asked Chaidez to come into the trench. The trench was 10 to 15 feet wide where Ayson and Chaidez were working, and the sewer pipe was at the center of the trench. Ayson testified that at some point Franco was in the deep part of the trench with him and Chaidez. After they had been working about 20 minutes, Franco, who was not in the trench at that point but was up above, told Ayson and Chaidez that Franco and Sapiens were going to hook up the trench shield. Meanwhile, Johnson moved the excavator to the shallower west end of the trench after telling Ayson and Chaidez he was heading up to the top to attach the trench shield. Ayson believed the trench shield was going to be placed on the west side of the storm drain. No one told Ayson he should not be in the trench before the trench shield was in place, nor did anyone say they should get out of the trench so that the trench shield could be put into place. Ayson never saw the excavator come back into the trench, but he could feel the vibration from the excavator through the ground, which signaled to Ayson the excavator was close.
Just before the collapse, Ayson stepped over the pipe to the trench's north side; Chaidez was straddling the pipe facing west, and Ayson shoveled dirt back to Chaidez while Chaidez packed the sides of the pipe. Ayson heard a slam on the ground above that sounded like a big boom, and then saw the south wall of the trench collapse. He tried to grab Chaidez, but Chaidez was ripped out of his grasp by the collapsing soil.
Ayson started yelling for help and digging with his hands. Two other crew members joined him and started shoveling; eventually Chaidez was dug out, and Ayson came out of the trench. Johnson stayed up on top and did not assist in digging out Chaidez. Ayson saw the excavator up on top with a search and rescue vehicle behind it, and when he examined a photograph exhibit showing the excavator in relation to the trench, he confirmed that is where the excavator was located when he came out of the trench. Ayson estimated the excavator's closest track was six to seven feet from the south edge of the trench. The excavator bucket was not hooked up to the trench shield, and the shield was in the same place as when they had arrived that morning. Ayson did not believe it had been moved.
A few days after the trench collapse, the City gave Ayson a commendation for helping recover Chaidez, but on May 18, 2015, the City suspended Ayson and issued a reprimand indicating the City workers should not have been in the trench at the time it collapsed. The City's suspension letter said that upon inspection of the site, the safety devices that would have prevented this accident were not in place and had not been used-which Ayson thought was a reference to the trench shield. The letter also indicated Ayson had entered the area voluntarily, but that Ayson should have checked with Franco or called Stevens. Ayson testified, however, he never received training from the City that if there was an unsafe work area that he should call his supervisor, nor had the City trained him that he was not to get into a trench without proper shoring protections installed. Ayson also had not received any training on how to ensure a safe worksite, they had just been shown videos. Nonetheless, Ayson testified the reprimand letter was correct in stating that he had received all the necessary training and knowledge to make sure the site was safe before entering.
Ayson explained he had never worked on a job with the City where a trench shield was used. He did not know who the competent person on the job site was that day, although he thought it was usually the excavator operator. However, Ayson told the CalOSHA investigator that Johnson had no authority on the sewer project. At a prior deposition, Ayson testified the City had no competent person on site that day-usually a competent person would tell him when to get into a trench. He also testified at his deposition he was unsure when a trench shield would be installed during the trenching process; at trial, however, he testified the trench shield was to be placed directly where he and Chaidez were at the time of the collapse. That information did not come from anyone at the City or on the crew-it was Ayson's understanding from working on other trenches. No one from the City instructed Ayson to wait until the trench shield was installed to go into the deep part of the trench. Franco never talked about why the shield had been ordered, and while Stevens had previously told them the shield had been ordered, he did not say where it was going to be inserted in the trench.
3. Franco, City Lead Worker
Franco currently works for the City doing maintenance. He had experience with trench shields before the accident, but he could not remember if he had ever worked in a trench as deep as the one that collapsed. He had taken a competent-person training class in 2009, which required learning about soil mechanics and trench excavation. He received a completion certificate, but he did not remember if he was the competent person on the day of the accident. He did, however, remember testing the soils onsite each day; it was type-C soil-sandy.
With Franco on the crew that day were Sapiens, Ayson, and Chaidez. Franco never told anyone to go into the trench, but he could not remember if he had told them to stay out of it. He denied seeing Ayson or Chaidez in the deeper part of the trench. Franco remembered Johnson backtracking out of the trench and then coming up to connect the trench shield; he parked the excavator near the shield. Franco and Sapiens helped hook up the trench shield so it could be installed in the trench. They eventually hooked it up, it was raised off the ground a foot, and then it dropped and made a loud sound when it landed. It hit the ground hard, and a few seconds after it fell, they heard Ayson yelling. They ran to the trench, saw that Chaidez had been buried, and they jumped down into the trench to help, including Johnson.
Franco could not remember if he went to the edge of the trench and told Ayson and Chaidez that he and Sapiens were going to help attach the trench shield. He could not recall any discussions about the trench shield that morning. Looking at a photograph taken after the collapse, it did not appear as though the bucket was hooked up to the trench shield, and he could not recall if he disconnected the trench shield when it was dropped.
Franco acknowledge he was the crew leader on the site, and he was the senior crew member in terms of experience; Chaidez had only been on the job a couple of weeks. Johnson was in charge of the excavator, driving it to the trench shield, and installing the shield in the trench. Franco was unaware of who was in charge of deciding whether or not to slope the trench. Franco received a commendation from the City for his help digging out Chaidez, but then received a reprimand later because workers were in the trench when it collapsed.
In reviewing the suspension letter Franco received from the City, it indicated that after inspection it was determined that safety devices-which Franco understood to mean the trench shield-would have prevented the accident but were not in place and had not been used. The letter also indicated that as the crew leader, Franco was responsible to make sure that everyone on the crew was safe and not working in an unsafe environment. Franco acknowledged that as soon as he saw Ayson and Chaidez in the trench, he should have told them to get out until it was safe to enter. He knew it was a violation of policy to allow crew members to enter an unsafe trench.
4. Chaidez, City Maintenance Worker
Chaidez was hired by the City on February 9, 2015, about two months before the trench collapse. He had not been involved in trenching before that incident; the only trenches he had worked in were about three to five feet deep-he had never worked in a trench as deep as the one that collapsed. When he started working for the City, he received a job manual and some videos to watch, including something along the lines of safety for trenching and something about bracing in the trench. There was a safety meeting every month, but those he attended had nothing to do with trenching.
On the morning of the collapse, he arrived at the site about 8:30 a.m. with another worker in a City truck. Franco was the lead crew member, and Sapiens and Ayson were also on the crew. Chaidez had been to the City sewer project location before the day of the collapse. The excavator was there when Chaidez arrived, and a section of the trench had been dug out previously. The trench shield was also at the site, but Chaidez did not know how it would be used at the project.
The south side of the trench contained a waterline and a storm line. The excavator was working in the trench; the excavator dug out the east end of the trench about 16 feet in depth. Ayson was down in the trench while the excavator was digging in that area, and Chaidez made his way down into the trench to help Ayson. He felt it was safe to do so because Ayson was down there and communicating with Johnson via hand signals. No one told Chaidez to go into the trench; he went of his own accord.
Once Chaidez was in the trench, he helped Ayson grade underneath the sewer line; where Chaidez was working between the water and storm lines, he had an unobstructed view of Johnson in the excavator. He did not know what Johnson was going to do, but when the excavator moved away from them, he and Ayson finished grading the last pipe; he was not aware of the excavator again after it left the trench.
At the time of the collapse, Chaidez was straddling the sewer pipe and facing east. He was about to walk to the north side of the trench, but the south wall came down on him. He did not hear or feel anything just before the collapse. He was eventually dug out and went to the hospital. Johnson visited him once and apologized; Johnson felt it was his fault because of the vibration from the machine and the fact he dropped the shield.
Chaidez spoke with a CalOSHA investigator later and told him that he thought the shield should have been in place before anyone got into the deep part of the trench. At his deposition, he said he never received any training from the City, and that he could not recall Johnson telling anyone to go into the trench. At trial, Chaidez acknowledged he did not know anything about soil types on the date of the incident; no one asked him to go into the trench, and he never asked anyone if it was safe to do so. Franco never told Chaidez anything about the trench shield, and Chaidez had no knowledge of where it was supposed to go in the trench or when it was supposed to be installed. He never discussed where the shield should go with anyone, and Chaidez could not recall asking anyone about the shield before the accident.
B. Stevens, City Supervisor
Stevens was a supervisor for the City, and he oversaw the sewer project. He believed he walked the job site with Johnson before the project, but he had no recollection of going over any plans with Johnson. He and Johnson may have discussed a trench shield, and Stevens did order the shield for the site. Stevens explained that all the soil in Bakersfield is rated as sandy. He also acknowledged the industry term competent person means one who understands the soil, can identify hazards, and can stop a job at any time. Stevens assumed Franco had received particular training for that purpose.
Stevens was not on the site when the trench collapse occurred, but he knew Johnson was the excavator. Chaidez was the least experienced person on the City crew, and Stevens had no knowledge of his training level. The other crew members on site included Sapiens, Ayson, and Franco. According to Stevens, Johnson was not the competent person for the City employees, and he would not have instructed City employees what to do. Franco was in charge of the whole job, which included safety; Stevens believed that Franco had been trained on safety. Stevens never asked anyone from GSI to direct the City crew in relation to installation of the trench shield.
After the trench collapse, Stevens acknowledged Franco and Ayson had been suspended by the City for allowing employees into the trench without the trench shield. Stevens testified Chaidez never should have been in that trench and had Stevens been on the site and saw employees doing this, it would have been "shut down."
C. GSI Personnel
1. Gilliam, Vice President
Gilliam has been working at GSI since 1978, and has been the vice president since 1981. GSI specializes in earthmoving and demolition. On March 25, 2015, GSI and the City entered into an annual contract under which GSI agreed to perform up to $3.5 million in various earthmoving and hauling services. The contract recitals indicate GSI is well experienced and qualified in the field of earthmoving, which includes trenching and excavation. The contract also provides that GSI will contact the "appropriate underground alert authorities" before starting any subsurface work, and that GSI would comply with all laws, including permitting requirements. Once a project site was identified by the City, GSI would conduct a site inspection.
Before GSI signed the contract, Gilliam confirmed GSI had submitted a bid form that became part of the contract. As part of the bid form, GSI acknowledged it had responsibility and control over construction means and methods, including safety precautions. GSI also acknowledged it was to ensure the protection of all persons and property in a manner satisfactory to the City, and that GSI would have exclusive control of work sites, maintaining them and adjacent areas in a reasonable, safe and secure manner. Gilliam testified these aspects of the bid form were not applicable to the March 2015 sewer project, however, because the City was running that job, and GSI's role was limited: the City had required GSI services for an excavator and operator only. GSI invoiced the City under the annual contract for Johnson's excavating work on March 30, 2015.
Gilliam indicated one of GSI's permitting requirements involved an annual CalOSHA permit. Permit holders were required to supply CalOSHA with activity notifications on an "Activity Notification Form for Holders of Annual Permits." The form required the permit holder to identify trenches being dug, their depth, whether a soil analysis was done, the trenching method and any shoring devices to be used, and identify the competent person on the job. Gilliam did not know whether GSI submitted this form for the work Johnson performed for the City sewer project.
Gilliam acknowledged that subsurface work also requires a notification be made with the Underground Service Authority (USA), but he conceded GSI did not make this notification prior to Johnson's work at the City sewer project because they thought the City had made the notification. He had testified at his deposition that GSI was wrong in not notifying USA.
Gilliam testified a competent person in the excavation industry means one who knows certain things about excavation such as shoring techniques and soil types. The competent person should make daily inspections of excavations before starting work; if there is any evidence of a possible collapse, all excavation work should stop. There is no written definition of how you become a competent person, and GSI had no policies about how someone is to be determined competent. Gilliam indicated that experience is what creates competence, although there was no set number of jobs needed to reach that threshold. Gilliam did not necessarily trust outside sources to certify employees for competence; he preferred to determine competence himself. GSI has used an outside company for various trainings.
GSI maintains training records of its employees, including safety meetings and any training certificates an employee completes. Records of various trainings Gilliam was asked to review indicated Johnson was not in attendance. GSI had not ever done a written evaluation of Johnson's job performance, but Gilliam pointed out Johnson had been assigned a lot of specialty work over the years, and when the City requested excavation work from GSI, Gilliam usually assigned Johnson. While Johnson did not have a certificate establishing him as a competent person, he had more than 20 years of on-the-job experience.
GSI has an internal code of safe work practices, which was issued by Gilliam as part of his job responsibilities. Among other things, the practices included accepting responsibility for the safety of others; the policies were to be acknowledged by each employee by signing the end of the employee handbook.
Another part of GSI's policies and procedures dealt specifically with trenching and excavation, which was prepared by GSI's safety manager and in place at the time of the incident in this case. The trenching and excavation policy was built on CalOSHA standards, and required an understanding of shoring techniques due to the risk of collapse in trenches deeper than five feet. Shoring and sloping of the soil were outlined as methods to prevent collapse. GSI's trenching standards explained the proper sloping ratio for different types of soil. Type-C soil is sandy and the least stable of soil types; GSI's policy was to assume the soil in Kern County is type-C. To properly slope this soil type, the slope was to be 34 degrees. The policy also indicated what had to be done before any trenching or excavation was to take place, and that a safety plan was to be established to address CalOSHA requirements. Gilliam testified GSI excavators should be able to identify soil types and the method of sloping type-C soil requires; this is all part of GSI's excavation and trenching policy. While Johnson was expected to know soil types, he might not identify them expressly by designated types; he might instead indicate he was to assume the soil type is sand.
GSI had done trench work for the City before and had done a lot of work in the county generally. While Gilliam was unsure how deep GSI excavations had been in the past, he testified the company had not done excavation greater than 20 feet in depth because Gilliam would have had to obtain a separate permit. Prior deposition testimony was admitted showing Gilliam had indicated a belief GSI had never excavated deeper than five feet before the March 30, 2015, incident. To Gilliam's knowledge, GSI had never used a trench shield or a trench box as it usually shores up trenches through sloping the trench walls; a trench shield is not on the list of equipment they offer as part of the contract with the City.
According to Gilliam, there are CalOSHA rules for the use of a trench shield, which includes that adjacent ground needs to be 18 inches below the trench shield. If a trench shield did not comply on a job like this sewer project, a GSI employee working under the direction of someone else should notify that person the shield is not in compliance.
As for the 2015 sewer project specifically, GSI was working under City direction and had no authority over City employees on the job. That is typically how it works when GSI provides a single operator and the rest of the job is run by the City. Johnson reported to the City on that project. Gilliam testified Johnson took the most conservative approach possible for grading the most unstable type-C soil. With respect to the south wall of the trench that collapsed, it could not be sloped because utility lines had been encountered; Johnson had recommended the trench shield as a mechanical method of shoring that south wall.
According to Gilliam, Johnson was not, and could not have been, a competent person for the 2015 sewer project. A competent person by definition has authority to take corrective measures to eliminate a known hazard, but Johnson had no authority to tell City employees what to do. Gilliam testified he had asked Johnson why there were workers in the trench that day, and Johnson did not know-Johnson said he was moving his excavator away from the trench and the next thing he knew, City employees were in the trench. Johnson never said he told employees to get into the trench or spot for him. The City has never notified GSI that it breached one of its contract provisions with respect to the March 30, 2015, work Johnson performed.
2. Owen, Project Manager
Owen has worked for GSI since 2008, he is currently the project manager and performs dispatching, and he is Johnson's immediate supervisor. Johnson has received training on types of soils, but Owen and Johnson had never discussed the trenching and excavation policy or GSI's code of safe work practices. Owen had not trained Johnson and noted Johnson had been with the company for 10 years longer than Owen.
Owen was not involved in the City contract in this case, but he was the one who dispatched Johnson to the job site. He could not recall Johnson ever saying the trench was going to be deep or that a trench shield would be needed. Owen had not conducted any inspections of the trench, and no one else from GSI had inspected the deep part of the trench before the collapse. GSI had a valid annual permit to do excavations through CalOSHA, and the USA alert "was active" for this project. However, the CalOSHA activity notification form for trenches over five feet deep was not submitted, and Owen testified that was his mistake-he was the one who should have submitted it.
Owen believed he received a call from Johnson after the trench collapse. At his deposition, Owen had said he and Johnson talked about the accident later and that the trench shield was in the air when the guys started screaming. Johnson had slammed the trench shield down at that time, but the trench had already collapsed. Deposition testimony further indicated Johnson had said this to Owen two years after the accident. Owen explained this deposition testimony was a combination of things he was told by Smith and Johnson, and that Johnson has since been adamant that he never even hooked up the trench shield.
According to Owen, GSI has never disciplined Johnson as a result of the trench collapse, and GSI has never received any notice from the City that GSI violated any contract provisions regarding the 2015 sewer project. Stevens had said the sewer project was a City job; the City had the entire responsibility for the plans; and the City had its own job foreman. GSI was there only to furnish the excavator.
D. Daniel Pulido, CalOSHA Investigator
Daniel Pulido investigated the trench collapse on behalf of CalOSHA. He went to the site on March 30, 2015, and took measurements and photographs. At the collapsed portion, the trench measured eight feet in depth postcollapse, and the height of the trench shield was about eight feet. There were two utility lines that ran perpendicular to the trench.
Pulido interviewed Jedd Smith, safety coordinator for GSI. Smith told Pulido that Johnson was the competent person on the site. Smith indicated he had only begun working with GSI four weeks before, so he did not have knowledge of Johnson's training. Smith indicated some GSI trench training was done internally, other training was performed by an outside company. Smith told Pulido that GSI keeps training records, but none of GSI's training or tailgate records showed Johnson in attendance. Pulido never asked Smith if Johnson had received on-the-job training.
Pulido also spoke to the four City employees who were there that day, and he interviewed Johnson. Johnson represented to Pulido that he was the competent person, but he never specifically said he was acting as the competent person for the City. Pulido could not recall Johnson saying he saw Ayson in the trench or that they talked about Ayson spotting for him or that Johnson had any authority over Chaidez on the day of the accident. Johnson told Pulido he had driven out of the west end of the trench to come back around to get the trench shield. Ayson indicated he was in the trench installing pipe, and Chaidez said he was in the trench helping Ayson.
Pulido never saw the trench before the collapse; he understood the trench depth where the collapse occurred was 12-feet deep based on his conversation with the City workers. Pulido reviewed the City plans for the project, but the plans did not mention a trench shield. Although the shield was eight-feet high, the trench at the collapse site was obviously deeper than that prior to collapse. Pulido was told by the City that Franco was the City's competent person on the site. Pulido understood that both Ayson and Chaidez were in the deep part of the trench while Johnson was in the trench excavating, although Chaidez never said that Johnson had asked him to get into the trench at any time.
Laura Barnes, president and CEO of a nonprofit trade association that offers competent person training in the Bakersfield area, testified this class is offered the first Friday of every month.
Charity Espinoza, Chaidez's girlfriend, testified she was at the hospital with Chaidez after the accident when Johnson came to visit. Johnson talked about the trench collapsing and said it was because of the vibration of the excavator. He also said something about not meaning to kick dirt in Chaidez's face. She did not know if Johnson said anything about a trench shield.
F. Chaidez's Experts
1. Robert Harrell, Safety Expert
Robert Harrell testified as an expert in construction safety. He explained that CalOSHA annual or job-specific permits are required for anyone who trenches or excavates five feet or deeper. GSI had a valid annual permit on the date of the incident, and it requires that the CalOSHA district office be notified in writing of dates and locations of job sites prior to commencement through the use of an activity notification form. The purpose of this form is to let CalOSHA know that the employer is using their annual permit to perform a job at a specific location, and it documents the conditions of the trench, including its depth, the name of the person in charge, and the competent person assigned to the job. The form allows CalOSHA to visit a site and ensure that safety conditions are being met. The form also puts the onus on the excavator to show that the job is planned out ahead of time in terms of safety. To the best of his knowledge, Harrell testified this form was never submitted by GSI for the excavation at the sewer project. Harrell acknowledged, however, GSI did have a USA dig alert number.
Harrell defined the industry standard for the term competent person as being one who can recognize existing and predictable hazards in the surrounding and who has the authority to take prompt, corrective measures. In Harrell's opinion, GSI had no person at the sewer project who qualified as a competent person for trenching and excavation, and it should have had its own competent person at the site. A competent person would have been able to analyze the soil and determine to slope the sides of the trench at the correct ratio. A competent person would also have known all the safety requirements for installation of a trench shield.
Harrell noted that CalOSHA standards require a minimum sloping ratio of 1.5 to 1 for sandy, type-C soil. The sloping lays the sides of the trench back and takes the weight and pressure off the soil so that it stays reasonably stable. The resulting 1.5 to 1 ratio leads to a slope of 34 degrees. The chance of the trench walls collapsing at that ratio are greatly reduced. Here, based on Pulido's measurements, even the north wall of the trench was inappropriately sloped.
Depending on the work site, sloping is used when there is a large open space; trench shields or hydraulic shoring methods are used for more congested spacing where sloping is not possible. One of the issues with the trench excavation in this case was the manhole and the connected storm drain that ran parallel to the south wall of the trench. Harrell thought the south wall could have been sloped on either side of these obstacles, and if additional stability for the manhole structure was required, it could have been supported or a portion of it could have been removed. Another option to work around the parallel storm drain would have been to dig vertically, install a trench shield, and then slope from there.
Harrell explained that to use a trench shield like the one in this case, the trench must be dug about four to six inches wider than the trench shield on either side so the trench shield can be slid into place. The shield does not keep the walls of the trench from collapsing, but it protects the workers inside the shield from collapsing dirt. The slope of the trench must begin at least 18 inches below the top of the trench shield, otherwise materials that slough off the trench wall will roll down into the trench shield. Because of the depth of the trench here, if the south wall could not be sloped properly, two 8-foot trench shields would have been needed to stack on top of each other so the upper shield reached ground level. However, if compound sloping (a vertical cut with sloping from the top of the vertical cut) was used, one trench shield might be sufficient, but that was not how Johnson dug the trench.
In this case, as an annual CalOSHA permit holder, GSI should have had a competent person on site who was trained to observe soil conditions as Johnson excavated. Johnson did not qualify as such a person, and the end result was that Chaidez was buried in a soil collapse. Had Johnson truly been a competent person, he would have taken corrective action to keep people out of the trench, or he would have laid the trench back at the proper angle to prevent the collapse. In this regard, Harrell opined GSI fell below the standard of care.
Harrell opined an experienced excavator would know that type-C soil needs to be either properly sloped or protected before allowing anyone to enter the trench. Given that the area was sand, Johnson violated the shoring and sloping standards. And, Johnson allowed Ayson to go into the trench to grade check when it was inadequately sloped or shored. Harrell believed the City had designated Franco as the City's competent person, but Harrell believed Franco did not meet the qualifications.
Although Johnson had no control over City workers, he still had options. He could have met with the crew and warned them not to get into the trench until it was properly shored or sloped; and if City workers had gone into the trench when it was not properly sloped or shored, Johnson could have stopped his work, informed his boss, and his boss could have called the City to take action.
Another issue was where the excavator was parked. Although Harrell stated an engineer would be more qualified to opine on this issue, the excavator and the trench shield was sufficient to create a surcharge load, which is the weight on ground level adjacent to the trench. In Harrell's opinion, the excavator should not have been so close to the edge of the trench.
Harrell also opined the City had failed to adequately train its employees to recognize the hazards of trenching and failed to give adequate competent-person training. Harrell understood the City's training was made of videos, which should not have been the entire curriculum. Due to that lack of training, workers got into a trench that was not properly sloped or stabilized and someone got hurt.
Harrell criticized defense expert Brian Iler who testified in his deposition that type-C soil can be benched. Harrell asserted type-C soil cannot be benched; it must be sloped or protected.
On cross-examination, Harrell conceded he was not a soils engineer. Harrell also conceded that to be a competent person as that term is used in the industry, the person must have both the knowledge to identify existing, predictable hazards and have the authority to take prompt corrective action-knowledge without any authority is insufficient. Harrell agreed the City had a duty to train Chaidez; Chaidez was a new and inexperienced City employee; and Harrell acknowledged that new hires are at a heightened risk for injury, as is someone who gets into a trench before a trench shield is in place.
Harrell agreed that Franco as crew leader should have been keeping extra watch on Chaidez to make sure he did not go into the trench before he was supposed to be there. Harrell knew of no evidence that Johnson actually saw Chaidez in the trench at any point. If Franco was the competent person for the City, he should have taken immediate steps to remove Chaidez from the trench.
From his review of the evidence, Harrell believed Ayson was in the trench while he was helping to spot for Johnson. However, Harrell agreed that a person could not spot from a location right in front of where the excavator bucket is digging because the bucket would obscure the view-a spotter would need to be off to the side or in a location where there would be direct visual contact with the excavator operator. Hypothetically, Ayson could have been five- to 10-feet up the northern slope while spotting. From such a location, he would not have been at risk of falling soil from the southern trench wall. At some point after spotting, Ayson did the grade check and smoothed out the soil, but Harrell did not know exactly where he would have been grading other than at the bottom of the trench.
Harrell testified there was no evidence Johnson ever told Chaidez or Ayson to do anything inside the trench. Harrell agreed that it would have taken Johnson about 8 to 10 minutes to drive out of the trench, hook up the shield, and then come back to the trench. Harrell did not know whether Chaidez was in the trench at the time Johnson backed out of the trench to get the shield. When Johnson was driving out of the trench, Franco was at the trench shield getting it ready to hook to the excavator.
Finally, Harrell acknowledged he did not have the expertise to run mathematical calculations to determine how far vibration would travel or how far a surcharge load would extend. A soils engineer would be needed to do this exact calculation; Harrell had no opinion from a soils perspective what caused the trench to collapse. Applying a general rule, however, anything placed in the area adjacent to the edge of the trench can be no closer than the number of feet deep the trench is dug.
2. Chad Welke, Soils Engineer
Welke is a registered soils engineer and a certified engineering geologist. As a soils engineer, he provides stability analyses of slopes and provides information a structural engineer would use to build a structure. To analyze this case, he went to the site and did hand-auger borings to analyze the soil samples. The samples came back type-C soil, which is the least stable.
Knowing the trench had collapsed in this case, he worked backwards from the data about the collapse to do the stability analysis. Using the soil type with the photos that were available to reconstruct the depth of the trench and the benching that was done, Welke could model the rest of the details. From photographs, Welke identified the locations where Johnson had benched the south wall in two places. Based on his scene inspection and his own calculation, he developed diagrams that showed the factor of safety for the south wall of the trench.
Welke's first diagram calculated the safety factor of the trench's south wall at 2.339 had Johnson sloped the wall at the 1.5 to 1 ratio CalOSHA requires. For a temporary excavation such as this, industry standard requires a safety factor of 1.1; if the safety factor is below 1.0, the trench wall is going to collapse. As it was benched by Johnson, however, the safety factor of the south wall was .998. Modeled again with only the single four-foot bench rather than the two benches Johnson had cut, the safety factor was 1.099. In other words, if the top bench had been removed, the weight reduction would have made the trench wall more stable.
Welke explained surcharge as a type of danger zone. With trenching, the general rule of thumb is for every foot you go down into the trench, you need to go out horizontally the same number of feet and stay out of that zone with stockpiles of dirt or heavy equipment. If you put any kind of weight in that danger zone, the trench wall will collapse. Based on photographs and deposition testimony, Welke opined the excavator was in the danger zone when the failure occurred.
Welke testified that a vibration analysis takes into consideration peak velocities, and it is typically used for evaluating the stress to a structure-e.g., damage from seismic shaking. He did not perform a vibration analysis in this case because it was not necessary. There was already an unsafe excavation. When a large piece of equipment- the excavator-is driven into the danger zone, that will cause the trench to collapse. Welke claimed Brian Kramer, a defense expert, had based his soil analysis on a research paper about saturated soils which relates to water in the soil all the way up to the surface-but the trench here did not involve saturated soil. Second, the paper related to structure damage, and this case does not deal with any man-made structures. Third, Kramer's analysis considers only velocity and thus his conclusions were limited in scope.
On cross-examination, Welke explained he had determined from depositions, photographs and plans for the storm drain that the depth of the trench nearest the south wall was 15 feet. His estimate was not 100 percent certain-the depth could have ranged from 12 to 15 feet. Asyon said the trench was 15-feet deep, but the storm-drain plans have the storm drain at a 12-foot depth.
If there were a storm pipe running parallel to the southern wall, Welke opined it would still be feasible to slope the wall or, alternatively, do a shorter vertical and then slope from there. Welke testified he had not looked to see whether there was any seismic activity in the area around the date of the incident. He conceded it would be possible that an earthquake could cause a trench to collapse that was already on the verge of failure. However, Welke opined it was most likely the excavator working in that area caused the failure, but the basis for his testimony was only his rule-of-thumb, not any vibration analysis or calculations.
III. Defense Evidence
A. Brian Iler, Safety Expert
Brian Iler testified as a defense safety expert. Iler opined the City was running the sewer project where the trench collapsed. The City supplied all the materials, equipment and labor on the project; and Stevens stated the City was in charge of the job. Iler also opined GSI did not need a CalOSHA permit for the work Johnson was doing for the City. GSI was not in control of the job; the permit goes along with whomever is in control of the excavation portion of the job, and CalOSHA exempts municipalities from having to obtain such permits. The project GSI was performing on a different section of the property was a GSI project because it was staffed by GSI employees.
As for the CalOSHA activity notification form, the permit holder is required to fill out the form. Iler opined GSI was not required to submit that form in connection with the sewer project because the form follows the permit. Since the City was not required per CalOSHA regulations to have a permit, no form was required. Iler knew Owen testified he thought he should have sent in the activity notification form, but Iler felt that was perhaps just out of an abundance of caution and that Owen did not understand the nuances of how the activity notification ties in with the permit. In over 100 times that Iler has submitted an activity notification, CalOSHA has never followed up with any questions. The form is typically printed from a fax machine and stuck in a file.
Iler disagreed with Harrell's opinion that Johnson should have sloped the south wall at 34 degrees all the way up, scraping around the embedded obstacles. Iler opined Harrells's sloping recommendation was impractical and not something that would ever be done. Sloping in this manner would affect the risers on the manhole and tend to push them over.
The trench shield that was on site was to provide protection for employees in the trench. Iler explained it is usually inserted in a spot that has been dug out in the trench, typically with vertical sides. When obstacles are encountered along the sides of the trench-like the manhole and risers here-the best method is to provide a shield rather than slope the walls of the trench. The shield that was available here would have worked, and Iler disagreed with Harrell's contrary opinion. Iler explained the shield could have been placed against the vertical south wall, and Johnson could have used backfill against the north side to fill in between the trench shield and the north wall, which was sloped.
The trench shield is the simplest of the methods, and the excavator does not need a license or certification to install it. The trench shield option, as opposed to sloping, requires excavating the width of the shield rather than taking out a huge amount of dirt to slope on each side of the trench. This also minimizes the obstacles that will be encountered when digging out a much wider area for sloping.
Iler explained a compound slope is where the bottom part of the slope has a vertical component and the top part of the slope is angled away from the vertical cut. With a compound slope, a trench shield could be installed next to the vertical part, and then must extend 18 inches above the transition from the vertical to the angled component of the trench. On a vertical cut, the trench shield has to extend at least to the catch point. The catch point is where the top of the shield meets the level ground. In this case, there was no compound slope, but there were two, flat bench cuts that created flat catch points. The shield only needed to reach the height of one of the catch points created by the benches. Iler had no criticism of the type or height of the shield on the site for use in this particular trench.
Iler opined the trench shield here was never hooked up to the excavator. Nothing in the deposition testimony indicated anyone stopped to unhook the trench shield from the excavator before or after they ran down to help Chaidez, and the photographs after the accident do not show any rigging connecting the trench shield to the excavator.
Iler reviewed Franco's suspension letter from the City, which indicated to Iler that Franco was the competent person on the site and failed in his duties by allowing Chaidez into the trench. Franco qualified as a competent person because he had both the necessary training and the authority to take corrective action. Iler opined the City was the only entity able to provide a competent person because they were in control of the excavation. The suspension letter sent to Ayson was further indication the sewer project was a City job under City control, and City employees allowed a person to enter the excavation before it was safe.
According to Iler, Johnson could not have been the competent person on the job because he did not have the proper authority to take corrective measures with respect to getting City employees out of the trench. While Johnson could have stopped digging, he had no authority over anything else at the site, including the City employees. Franco was the only person on site with both the knowledge and the authority to take that corrective action.
As for Johnson's training, excavator operators do not need a certificate or any type of classroom training; on-the-job training is sufficient. Iler opined there was nothing in the evidence he had reviewed that showed GSI or Johnson violated the standard of care at the sewer project. Johnson was not required to follow GSI's safety requirements on a City job with respect to others. Iler conceded that Johnson was responsible to dig the trench and operate the excavator in a safe manner, but, Iler maintained, the competent person at the site was responsible to dictate the trenching standards. Iler also opined that nothing GSI or Johnson did caused the trench to collapse. With respect to the City employees, Iler agreed with Harrell that the City failed in its duty to train them and failed in its duty to properly supervise Chaidez.
B. Brian Kramer, Soils Engineer
Brian Kramer, an expert soils engineer, testified for the defense. Kramer opined the cause of the collapse was the drying out of the soil. When the collapse occurred, the temperature was sunny and 75 degrees around that time. Moreover, if anyone had touched anywhere near the base of that wall at or near the time of the collapse, that could have affected the stability of the wall. In Kramer's opinion, none of Welke's testimony or any other evidence actually showed what caused the trench to collapse.
In response to Welke's criticism of Kramer's reliance on a particular research paper regarding saturated soil conditions, Kramer explained the formula he utilized from the research paper was not for saturated site conditions; rather, it related to conditions like those at the sewer project site. Kramer also defended his use of peak particle velocity as an appropriate measure to estimate the energy associated with dropping a trench shield.
Kramer noted that while Welke had opined the vibrations from the excavator could cause the trench to fall, he had not actually done the calculations for this more complex analysis. Kramer also opined the parameters Welke assumed to reach his modeling diagrams were flawed, suggesting the trench may have been more stable than Welke's analysis provided. In Welke's analysis, both benches Johnson had created were part of the trench failure but in actuality only one of the benches actually sheared off in the collapse, demonstrating the assumption errors in Welke's analysis.
IV. Verdict and Judgment
Based on this evidence, Chaidez argued GSI and Johnson breached their respective duty of care, including that GSI failed to properly train Johnson; failed to provide a competent person for the sewer project worksite; failed to provide a worker well-experienced in excavation deeper than five feet; violated certain CalOSHA regulations; and that Johnson excavated the trench and operated his excavator in a manner that was both negligent and caused injury to Chaidez.
Through the use of a special verdict form, the jury was asked to determine the issues of breach of the duty of care and causation. The jury found Chaidez had not proven GSI or Johnson were negligent, and the jury found respondents had not proven Chaidez was negligent, but the jury determined respondents had proven the City was negligent and that negligence was a substantial factor in causing the cave-in incident. The jury assigned 100 percent of the fault to the City, who was not a party to the litigation. Due to these findings, the contingent, bifurcated issue of damages was never reached.
A special verdict is that by which the jury find the facts only, leaving the judgment to the court. (Code Civ. Proc., § 624.)
The trial court denied Chaidez's motion for a new trial, or in the alternative for judgment notwithstanding the verdict, and entered judgment for respondents. Chaidez timely appealed.
DISCUSSION
Chaidez argues the evidence did not support the jury's verdict findings as to GSI's and Johnson's negligence, and these findings were incompatible with its finding that the City was negligent and that negligence was a substantial factor in causing the cave-in incident.
A negligence cause of action requires establishing the "defendant had a duty to use due care, that he [or she] breached that duty, and that the breach was the proximate or legal cause of the resulting injury." (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292.) The existence of a legal duty to use reasonable care is generally a legal conclusion (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770), but the elements of breach of that duty and causation are ordinarily questions of fact for the jury's determination (Hernandez v. Jensen (2021) 61 Cal.App.5th 1056, 1064). Chaidez, as the plaintiff, bore the burden of proving each element of the negligence cause of action against GSI and Johnson. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; see Evid. Code, § 500 [burden of proof rests on each party as to each fact essential to his claim or defense].)
Respondents bore the burden of proving their affirmative defenses that Chaidez and the City were negligent, and that their negligence proximately caused the cave-in incident. (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 503 [burden of proving all aspects of affirmative defense of contributory negligence, including causation, rests on the defendant].)
The City was not a party to the litigation. Respondents' affirmative defense of the City's negligence was a so-called "empty chair" defense. (See Everman v. Superior Court (1992) 8 Cal.App.4th 466, 470 [empty chair defense is a tactic to ascribe fault to an actor who is not present to defend against it].)
I. GSI's and/or Johnson's Negligence
A. Standard of Review
Chaidez's claim that the jury's verdict is unsupported regarding the negligence of GSI and Johnson is governed by the substantial evidence standard of review, but because Chaidez bore the burden of proof on this issue, that review standard "takes on a unique formulation." (In re S.G. (2021) 71 Cal.App.5th 654, 671.)
"'[W]hen the trier of fact has expressly or implicitly concluded that the party with the burden of proof failed to carry that burden and that party appeals … the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." [Citation.]'" (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 733 (Eriksson); accord, Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838 (Dreyer's); see In re R.V. (2015) 61 Cal.4th 181, 201 [where party fails to meet its burden on an issue in the trial court, "the inquiry on appeal is whether the weight and character of the evidence … was such that the [factfinder] could not reasonably reject it"].)
The reason for this altered substantial evidence test is best illustrated by an example: when "the plaintiff has the burden of proving the elements of his claim and the court finds he has failed to satisfy that burden, judgment will be for the defendant-even if there is no evidence supporting the defense. There being no evidence for the defense, there could be no substantial evidence in the record to support the judgment. Yet, the plaintiff, who failed to prove his case, would clearly not be entitled to reversal of the defense judgment. Plainly, the substantial evidence standard, as it is usually stated, is an inadequate appellate tool in that situation." (Eriksson, supra, 233 Cal.App.4th at pp. 732-733.)
Despite this different compelled-as-a-matter-of-law formulation of the substantial evidence standard, the basic tenants of the substantial evidence review standard still apply. "The trier of fact is the sole arbiter of all conflicts in the evidence, conflicting interpretations thereof, and conflicting inferences which reasonably may be drawn therefrom; is the sole judge of the credibility of the witnesses; may disbelieve them even though they are uncontradicted if there is any rational ground for doing so, one such reason being the interest of the witnesses in the case; and, in the exercise of a sound legal discretion, may draw or refuse to draw inferences reasonably deducible from the evidence." (Horn v. Oh (1983) 147 Cal.App.3d 1094, 1099.) "The appellate court cannot substitute its factual determinations for those of the [factfinder]; it must view all factual matters most favorably to the prevailing party and in support of the judgment." (Dreyer's, supra, 218 Cal.App.4th at p. 838.) "'"All conflicts, therefore, must be resolved in favor of the respondent." [Citation.]'" (Ibid.)
An appellate challenge to the sufficiency of the evidence in the trial below poses a heavy burden for the appellant, especially where the appellant had the burden of proof. (See Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486 ["Where, as here, the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor."].)
Both parties acknowledge this different substantial evidence review formulation as to claims where the appealing party had the burden of proof at trial, and they cite Eriksson, among other cases, for this proposition. However, Chaidez frames some of his arguments as an absence of substantial evidence to support the jury's determination respondents acted with reasonable care, but that misapprehends the jury's finding and the appropriate standard of review.
The question on review is not whether there is substantial evidence that respondents were not negligent. (Eriksson, supra, 233 Cal.App.4th at pp. 732-733 [when plaintiff has burden of proof and factfinder concludes burden is not satisfied, plaintiff is not entitled to reversal of defense judgment on appeal due to this lack of supporting evidence for the defense].) Although the verdict form asked the jury to determine whether GSI and Johnson were negligent by answering yes or no, the jury's no finding did not indicate the evidence proved GSI and Johnson were not negligent.
Instead, the verdict reflected how the jury was instructed: that Chaidez had the burden to prove, by a preponderance of the evidence, that GSI and/or Johnson were negligent. The jury was instructed that if negligence had not been proven to that standard, the jury could not find negligence. As such, the jury's no answer as to GSI's and Johnson's negligence reflects only that Chaidez failed to prove either were negligent, not that respondents proved they were not negligent.
Specifically, the jury was instructed under CACI No. 200 that "[a] party must persuade you by the evidence presented in court that he or she is required to prove is more likely to be true than [not] true. This is referred to as the burden of proof. After weighing all of the evidence, if you cannot decide that something is more likely to be true than not true, you must conclude that the party did not prove it. [¶] … [¶] [I]n civil trials, such as this one, the party who is required to prove something, need prove only that it is more likely to be true than not true."
We review the record to determine whether the evidence compels a finding that GSI and/or Johnson were negligent-i.e., that the only reasonable hypothesis given the evidence is that negligence existed. (Horn v. Oh, supra, 147 Cal.App.3d at p. 1099.) We examine and measure the evidence under this formulation of the substantial evidence standard relative to the instructions the jury was given. (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 674-675.)
B. Jury Instructions
The jury was instructed on three different theories of negligence, all of which were relevant to GSI and Johnson: ordinary negligence, negligence per se; and negligent failure to train.
As to the basic standard of care, the jury was instructed pursuant to pattern instruction CACI No. 401:
"Negligence is the failure to use reasonable care to prevent harm to oneself or to others. A person can be negligent by acting, or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation, or fails to do something that a reasonably careful person would do in the same situation. You must decide how a reasonably careful person would have acted in [GSI's], Jeff Johnson, City of Bakersfield, and or Joseph Chaidez's situation."
As to negligent training, the jury was instructed under CACI No. 426:
"Joseph Chaidez claims that the cave-in incident on March = 30, 2015, was caused by Jeff Johnson, and that [GSI] is responsible for that wrong because [GSI] negligently trained Jeff Johnson. To establish this claim, Joseph Chaidez must prove all of the following: [(1)], that Jeff Johnson was not trained to perform the work for which he was hired; [(2)], that [GSI] knew or should have known that Jeff Johnson was not trained and that his lack of training created a particular risk to others; [(3)], that Jeff Johnson's lack of training caused [the] cave-in incident on March 30, 2015; and [(4)], that [GSI's] negligence in their failure to train Jeff Johnson was a substantial factor in causing the cave-in incident on March 30, 2015."
The jury was instructed under CACI No. 418 on three different negligence per se theories, which required the jury to consider whether GSI and/or Johnson had violated certain CalOSHA regulations regarding (1) the requirements for submitting an application for a project permit; (2) excavation inspections; and (3) requirements for the use of shield systems in trench excavations.
Finally, the jury was instructed that Chaidez had the burden to prove GSI and/or Johnson were negligent (breached the standard of care), and that this negligence was a substantial factor in causing the "cave-in incident":
"Joseph Chaidez claims that [GSI] and or Jeff Johnson's negligence caused the cave-in incident on March 30, 2015[;] to establish this claim, Joseph Chaidez must prove the following: One[,] that [GSI] were [sic] negligent, and or Jeff Johnson. [Two, that GSI's] negligence was a substantial factor in causing the cave-in incident on March 30, 2015."
C. Analysis
Chaidez maintains GSI was obligated under its contract with the City and its annual CalOSHA permit to provide an experienced and properly trained excavator who would qualify as an industry-defined competent person for GSI at the work site; to give the proper and required written notification to CalOSHA about the details of the excavation, the depth of the trench, and the identity of the competent person; to control and maintain the work site to keep it safe for everyone, which included safe operation of the excavator; and to determine a safe and CalOSHA-compliant method to excavate the trench, abiding by its own internal policies and procedures in doing so and in carrying out the excavation. Chaidez maintains the evidence undisputedly establishes GSI and/or Johnson negligently breached these obligations, and the jury's contrary verdict is unsupported.
Alternatively, however, even to the extent there were disputes about GSI's control of the project and the extent of its obligations under the annual contract and its CalOSHA permit, Chaidez argues Johnson still had to safely operate the excavator and excavate the trench, which he negligently failed to do; and GSI was negligent in training Johnson and in supplying an unqualified excavator to perform the work.
1. Control Over the Job Site, Competent Person and CalOSHA Notifications
One of the primary disputes between the parties was who controlled the job site where Johnson was excavating. Chaidez maintains it was clear from GSI's annual contract with the City that GSI was in control of the job; GSI was performing the excavation at the site, not the City, so GSI was operating under its annual CalOSHA permit and this meant GSI had to supply the CalOSHA activity notification form, but failed to do so; and GSI had the obligation to supply a competent person, which it failed to do because Johnson was not qualified. According to Chaidez, the evidence at trial indisputably established GSI negligently breached all of these obligations.
All evidence material to the negligence determination on these issues was in dispute. There were a number of provisions and representations in GSI's annual contract with the City that suggested GSI had full control at job sites where GSI performed work under the contract. For example, the contract provided GSI would bear all responsibility for and have all control over the construction means, methods, techniques, sequences, procedures and safety precautions or programs; GSI would take exclusive control of the sites at work and would maintain them and areas adjacent in a reasonable, secure and safe manner; GSI retained the right to control the manner in which the services described were performed; and GSI would supply all equipment, tools, materials and supplies necessary to perform services under the contract.
While there was no dispute about the literal contents of the contract with the City or that Johnson's excavation work on the day of the collapse was billed under that contract, there was a dispute about how the contract provisions applied to the sewer project job site. Gilliam testified the provisions related to GSI's exclusive control of work sites did not apply to the sewer project, and this was typically how it worked when GSI provides a single operator and the rest of the job was run by the City. Gilliam testified "the contract specifically says that you would work under [the City's] direction. And Jeff was one person out there with GSI. The [c]ity had possibly five or six guys with a project manager giving direction." According to Gilliam, City employees did not report to Johnson, Johnson reported to the City on that job.
Stevens testified that Franco was "in charge of the whole [sewer project] job," which included the safety of the crew. The City disciplined Franco and Ayson after the collapse because City workers had entered the trench, which Iler testified this was "further indication that it is a City job, under City control, with a City competent person that failed and allowed the City employees into an excavation that was not yet safe."
Gilliam and Owen testified the City had never indicated GSI violated any portion of the contract with respect to Johnson's excavation on the day of the collapse. The jury was instructed that the words of the contract could be interpreted in light of the parties' conduct after the contract was formed, and there was evidence to suggest the City and GSI had a mutual understanding that those terms applied only to job sites GSI controlled. Whether GSI controlled the worksite was a disputed issue of fact.
As for GSI's annual CalOSHA permit, Harrell opined GSI had a CalOSHA annual permit that obligated GSI to notify a local CalOSHA office if GSI was going to do excavation work under that permit. The purpose of the notification is to let CalOSHA know, among other things, the specific site location; the conditions of the trench; the name of the person in charge; and the competent person assigned to that job. Moreover, GSI's contract with the City required GSI to obtain all necessary permits and to notify all underground alert authorities before starting any subsurface work. Despite these obligations, Harrell observed GSI had never submitted that CalOSHA activity notification form.
Iler, however, testified that because the City controlled the project, the excavation itself was directed by the City, which meant GSI was not excavating pursuant to its own annual CalOSHA excavation permit. As such, GSI was not responsible for submitting the CalOSHA activity notification form. As a municipality, the City was exempted from the permit requirement and did not need to file any activity notification, either. In regard to Owen's testimony that he should have submitted the CalOSHA activity notification form, Iler explained he thought Owen was saying that out of an abundance of caution and perhaps a lack of understanding that the activity notification form was not required by GSI on this job. Iler also explained there was a dig alert with USA active for this job, which Harrell acknowledged.
As noted, and in support of Iler's testimony this was a City-controlled project, Owen indicated the City was wholly responsible for the plans, had its own foreman on the job, and GSI was furnishing only the excavator. Stevens testified Franco was the competent person and was "in charge of the whole job." In sum, how GSI's annual permit and City contract applied to this job was a disputed issue that must be resolved in favor of the verdict, and a finding that GSI negligently failed to submit the CalOSHA activity notification form is not compelled by the evidence.
There was also a related dispute about whether GSI was required to supply a competent person. Harrell opined GSI was responsible under its annual CalOSHA permit to file the requisite activity notification form and to have a competent person on site. In Harrell's opinion, GSI breached its duty of care because Johnson was not qualified to be a competent person. He did not have appropriate knowledge of soil types, inspection duties, proper excavation standards for trenches deeper than five feet, or an understanding of safety precautions for installation of a trench shield.
In support of Harrell's opinion GSI had to supply a competent person, CalOSHA inspector Pulido testified Johnson and GSI safety coordinator Smith told Pulido during recorded interviews that Johnson was the competent person on the site. Ayson testified GSI required Johnson to have a tailgate meeting with City employees at the sewer project site each morning, and they had a tailgate meeting on the morning of the collapse.
Iler testified it was not GSI's responsibility to provide a competent person to that job site and doing so would have been impossible. Iler opined that GSI, functioning as an independent contractor on a job site the City controlled, could not supply an employee who would have the proper authority to act as a competent person for the site. Iler indicated Franco was the competent person at the site: he had the specific, relevant competent-person training, he had the authority to take corrective action; and the City disciplined him for failing to exercise that authority. Indeed, Franco testified he had taken a class in 2009 and had received a certificate for competent person training, which included soil mechanics and trench excavation, and he indicated he did the soil testing each day at the sewer site. Ayson too was suspended by the City following the collapse, which further indicated to Iler it was a City job under City control, and City employees allowed workers to enter the excavation before it was safe.
The evidence raised a number of factual disputes the jury had to determine, including who controlled the job site and whether that fact governed application of certain contract provisions, as Gilliam testified, and/or dictated who was responsible for providing the competent person, as Iler testified. There was also a question whether GSI still had to provide a competent person for the excavation work itself, even if the City had to supply a competent person for the entire worksite-there was certainly evidence Johnson and Smith had both identified Johnson as a competent person to Pulido, but there was also Iler's testimony that GSI did not have to furnish a competent person because the City was running the entire site, including the excavation. Finally, if the City controlled the job site, but GSI's employee was still doing the actual excavation, the jury had to resolve whether that excavation came under GSI's annual permit, which required submittal of the CalOSHA activity notification form. Iler and Harrell had conflicting expert opinions on each of these issues.
To conclude Chaidez is entitled to a negligence finding stemming from this evidence would require discrediting aspects of the testimony of Iler, Gilliam, Owen, and Stevens and resolving certain factual disputes and drawing inferences in favor of Chaidez. This we cannot do. Under the applicable substantial evidence review standard, we must resolve all of these factual disputes in favor of the verdict and respondents. (Dreyer's, supra, 218 Cal.App.4th at p. 838.) As such, we cannot conclude the evidence is undisputed and unimpeached in any material way, or that it is of such great character and weight that GSI and/or Johnson must be found negligent as a matter of law in this regard.
2. Johnson's Excavation of the South Wall
Chaidez contends that regardless of any disputes about control of the job site, CalOSHA notifications, or the competent person, the evidence definitively shows that Johnson improperly excavated the trench's south wall using a benching technique with type-C soil that was improper and unsafe, and this evidence compels a finding of negligence.
Whether Johnson's excavation of the south wall of the trench was safe and met the requisite CalOSHA standards was disputed by the experts. Chaidez's expert Harrell and GSI's expert Iler both agreed the soil at the sewer project was type-C. The experts also agreed type-C soil is the least stable of the soil types, and for trenches exceeding five feet into which workers will go, the walls of the trench must either be sloped at 34 degrees or, if not sloped, then the walls must be stabilized with a mechanical shoring device to protect workers from collapse while they are in the trench.
Undisputed evidence showed Johnson sloped the north wall of the trench, but he benched the south wall-i.e., the south wall was vertical with two bench cuts that resembled stair steps. Harrell opined the south wall was excavated in an unsafe manner for several reasons. First, Harrell explained that with type-C soil, benching by itself is not an adequate, safe alternative to sloping because it is not stable enough for people to safely work in the trench, and Harrell criticized Iler's deposition opinion that type-C soil could be benched.
Second, Harrell opined the use of the trench shield in this case was going to be an inadequate shoring method. Harrell explained that because the depth of the trench was between 12 and 16 feet, the eight-foot tall shield on site was not adequate by itself-it was too short to reach from the bottom of the trench to ground level. As a result, there was a possibility any portion of the trench wall extending above the trench shield could still collapse onto workers inside the trench shield. One shield might have been sufficient, Harrell opined, if a compound sloping method had been used-i.e., where a vertical cut is made and then the rest of the trench wall is sloped out from the top of the vertical cut; but Johnson did not use a compound slope method. Moreover, because the north wall was sloped, Harrell opined a trench shield had no vertical wall to the north to provide any stability along that side of the shield.
While there were embedded obstacles along the south wall that would have complicated sloping the soil (including a manhole on risers and a storm drain), Harrell opined sloping could have occurred around the obstacles, and in place of the dirt supporting those obstacles, other support could have been provided.
Iler disagreed with Harrell and opined Johnson's decision to bench the south wall with the use of the trench shield was appropriate and that benching and shoring together was safe and proper under CalOSHA standards. Although Iler had testified at his deposition that type-C soil could be benched, and this by itself could be an adequately safe alternative to sloping, he clarified at trial his statement in this regard was contingent on an engineer examining the benching and concluding it was safe. The benching Johnson did, however, was not examined by an engineer to determine its safety, and Iler confirmed that benching alone without a shoring method was not going to be sufficiently safe for people to enter the trench.
Iler disputed Harrell's opinion it was practical to slope the south wall given the obstacles in it, and concluded Johnson's method of benching and shoring was the practical option. In this case, the bench cuts created a method for Johnson to comply with CalOSHA regulations using the single eight-foot trench shield at the site. The shield was required by regulation to rise to a catch point-a place where there was level ground. In Iler's opinion, one of the bench cuts created such a catch point; so long as the shield came up as high as that catch point, only one shield was required. Iler opined the sloping of the north wall did not preclude the use of the trench shield because backfill could be placed along the north side of the trench shield after it was installed.
The jury was entitled to ascribe weight to Iler's opinion, and we must resolve all conflicts in the evidence in favor of the verdict. Although Chaidez argues Johnson's election to bench the soil was undisputedly negligent, Chaidez does not account for the full scope of Iler's testimony about how the bench cuts shored by the trench shield would have complied with safety standards. The evidence does not compel a finding, as a matter of law, that Johnson negligently excavated the trench.
Moreover, although the trench collapsed before Johnson was able to get the trench shield into place, there were facts to infer this merely demonstrated the need for the trench shield in the first place. As the experts testified, sloping in type-C soil was the only excavation method-on its own and without approval of an engineer-that would provide enough stability to the trench walls for workers to safely enter the trench, and that in the absence of sloping, some shoring mechanism would be needed. Chaidez's soils expert, Welke, performed calculations and explained how the bench cuts on the south wall were unstable, and Kramer opined just the drying out of the soil from the weather likely caused the trench walls to crumble. The expert testimony pointing to negligent excavation by Johnson was far from uncontradicted and unimpeached. The evidence on this issue was not sufficient to compel, as a matter of law, a finding in favor of Chaidez. (Dreyer's, supra, 218 Cal.App.4th at p. 844.)
3. Johnson's Operation of the Excavator
Chaidez similarly argues the evidence compels a conclusion that Johnson's operation of the excavator was negligent. Chaidez emphasizes evidence that Johnson did not have sufficient deep excavation experience and safety training to recognize the known hazards of workers being in the trench before the shield was in place, and the hazards of driving the excavator too close to the trench. Chaidez also claims the evidence all points to the fact Johnson negligently dropped the trench shield near the south wall just before the collapse, creating a strong circumstantial inference Johnson caused the trench collapse.
a. Dropping the Trench Shield
There was a significant factual dispute about whether Johnson dropped the trench shield from the excavator just before the trench collapsed. Franco testified he helped hook the shield to the excavator, the shield was raised a foot off the ground, and then the shield dropped and made a loud sound when it landed. A few seconds after it fell, they heard Ayson yelling and discovered the trench collapse. Franco could not remember if he disconnected the shield after it dropped. Ayson testified that he heard a loud boom just before the collapse, but Chaidez could not remember any boom or vibrations. Chaidez testified Johnson came to the hospital and admitted it was vibration from his machine and from dropping the shield that caused the collapse. Chaidez's girlfriend testified she heard Johnson admit to Chaidez he felt the trench collapsed because of vibrations from Johnson's equipment, but she did not remember hearing about a trench shield. Prior testimony of Owen indicated he had received second-hand information from Smith (who was not present at the trench site) and Johnson that the trench shield had been slammed down after the collapse, but Owen testified Johnson had always since been adamant the trench shield had never been hooked to the excavator.
Johnson testified the trench shield was never even hooked up to the excavator, and he had not dropped it. Although Johnson was unsure whether he got back into the excavator at any point after the trench collapsed that day, his CalOSHA hearing testimony was that he did not do so. A photograph taken by the fire department immediately after the collapse showed the location of the excavator and the trench shield. Iler testified his review of the evidence confirmed the trench shield was never hooked to the excavator. He pointed out that none of the deposition testimony indicated anyone stopped to unhook the trench shield before or after they went to help Chaidez, and the photograph taken immediately after the collapse did not show any rigging connecting the shield to the excavator. While Chaidez argues the photograph does not conflict with testimony the shield was attached and then dropped, inferences favorable to respondents reasonably could be drawn from the photograph. As Iler explained, none of the depositions indicated anyone unhooked the trench shield before or after they helped Chaidez, and Johnson said he never got back in the excavator after the collapse, so it was inferable the photograph represented the scene exactly as it had been at the time of the collapse, and the shield was not rigged to the excavator. If the shield was never hooked up, the shield could not have been raised and then dropped immediately before or after the collapse.
Chaidez also argues there is no alternative way to explain testimony about a loud boom noise and vibrations that immediately preceded the collapse. But the jury was not obligated to credit Ayson's or Franco's testimony in this regard, or Owen's deposition testimony about what Johnson told him. Chaidez himself did not remember a loud noise or vibrations, and there were disputes about whether the shield was ever hooked to the excavator. There was also a factual dispute about whether Johnson said anything at the hospital about the trench shield being dropped. Chaidez said Johnson mentioned he dropped the trench shield, Johnson testified he never said that, and Chaidez's girlfriend did not remember overhearing anything about a trench shield. The jury had to determine which testimony to credit and, to do so, it had Iler's observations about the rigging and the photograph to consider, along with the testimony of Owen, Ayson, Franco, Chaidez, Chaidez's girlfriend and Johnson to weigh. Resolving all disputes and drawing all reasonable inferences in favor of the verdict, as we must, this evidence does not compel a conclusion Johnson dropped the trench shield.
Chaidez argues in his reply brief that even if the jury discredited all three witnesses who claimed Johnson made admissions about dropping the trench shield, this did not prove Johnson did not drop the shield or was not otherwise negligent. That argument misperceives the standard of review-we are not determining whether substantial evidence establishes respondents were not negligent. Since Chaidez bore the burden of proof on this issue, the question on review is whether the evidence compels a matter-of-law finding that they were negligent.
b. Excavator's Proximity to the Trench
Chaidez argues Johnson lacked training and an understanding of surcharge load, and, because of this, he negligently drove the excavator too close to the edge of the trench. Welke explained surcharge as creating a type of danger zone, and that if any kind of weight was placed into the danger zone, the trench would collapse. Welke explained there is a general rule of thumb that for every foot deep a trench is dug, the danger zone extends horizontally out from the edge of the trench the same number of feet. Based on Welke's review of the photograph taken just after the collapse and deposition testimony, the excavator was inside the danger zone. Welke did not perform a vibration analysis, however, because his analysis showed the trench was already unstable, and driving a large piece of equipment into the danger zone would cause the trench to collapse.
It was the province of the jury to determine from the evidence whether the excavator was in a danger zone, as Welke opined. To make that decision, the jury had to determine how deep the trench actually was, as testimony varied that it was between 10- and 16-feet deep; and they had to determine from the photograph and other testimony whether the excavator was as close to the trench as Welke opined. There was also other evidence for the jury to evaluate. Gilliam testified CalOSHA standards required excavators not get too close to the edge of a trench, but there was no evidence how close was too close according to CalOSHA standards. Harrell indicated he did not have the expertise to determine how far vibration would travel or how far a surcharge load would extend, but, as a general rule, anything placed in the area adjacent to the edge of the trench can be no closer than the number of feet deep the trench is dug. Yet, Harrell cited no CalOSHA standard to that effect, a GSI excavation safety policy, or other industry safety standard that set the general rule as the safety standard minimum. He also conceded he had no expertise to determine precisely how far surcharge load would travel, but he thought the excavator should not have been as close to the edge of the trench as it was. Kramer had reviewed the evidence and, based on his expert analysis, opined it was most likely the drying of the soil and not vibrations that caused the trench to collapse- giving rise to an inference Johnson was not too close to the edge of the trench with the excavator. Moreover, Iler testified Johnson did not breach the standard of care with respect to how he handled the excavator.
Johnson admittedly had not read the excavator user manual prior to the excavation except with respect to connecting the bucket to the shield, but given his decades of job experience, there was a basis to conclude he had no need to review the user manual. The portion of the manual he did review related to hooking the bucket to the trench shield. Rather than demonstrating his lack of training and competency to safely handle the excavator, as Chaidez claims is inferable from Johnson's review of this portion of the manual, it is also conducive to a different inference: Johnson's review of this information did not demonstrate a deficiency, but of care for the work he was doing by doublechecking this aspect of the excavator user manual.
Johnson conceded he did not know the exact weight of the excavator he was operating that day was 73,000 pounds, but he generally estimated it was 50,000 pounds. So, while Johnson did not know its exact weight, the jury could have concluded he possessed a reasonable general estimate. Johnson conceded he was not instructed by GSI that a competent person, as the term is used in the industry, was supposed to assess vibrations from sources such as traffic and machinery. Yet, Johnson was never questioned about his knowledge about how the weight of the machinery or vibrations from it would affect an excavation. There was never any evidence offered that unequivocally established Johnson had no conceptual understanding of surcharge loads or how those affected where he was supposed to park equipment or pile the soil being excavated. Moreover, to the extent the jury determined Johnson had not negligently parked the excavator too close to the trench, it was inferable that Johnson's knowledge and competency was not lacking in this regard. In sum, the evidence was not undisputed, nor was it of such a great weight and character as to compel a finding that GSI or Johnson was negligent as a matter of law with respect to where Johnson drove/parked the excavator or his training and knowledge on that issue.
c. Failure to Recognize Danger to City Workers
Chaidez argues Johnson demonstrated his lack of knowledge, competency and training by indicating he had no awareness whatsoever that workers should not be in the trench absent the shield. Chaidez points to Johnson's testimony that GSI had told him no one should be in the trench while he was digging, and he testified in this instance that "'[Ayson's] not down there [in the trench] while I'm digging. He's up on the side spotting. Once I get it out, he gives me the grade sign, and he goes down there.'"
It was possible the jury could have interpreted Johnson's testimony as Chaidez asserts, but considering Johnson's testimony about Ayson in context, it seemed to be an attempt to describe the timing of what had actually occurred, not his expectation of what was going to occur. Johnson testified he saw Ayson in the trench just before he turned the excavator cab as he was driving it out of the trench. No one asked him if he thought this was safe or whether he thought Franco had directed Ayson into the trench, since Johnson testified he never asked Ayson to get into the trench.
Harrell noted Johnson had control over his own excavation operations, and he should have warned workers not to go into the trench until it was sloped or shored properly. While Johnson may not have had any control over the City workers, he could have met with the City crew and given them this warning; had they not listened to his admonition, he could have stopped his work, called his boss, and asked the City to take action with respect to the City workers.
Iler opined Johnson had not violated any standard of care at the project site. Iler testified Johnson had no control over the City workers, and Franco was the competent person at the site-he had both competent-person training and the authority to dictate the trenching standards and whether City workers got into the trench at an unsafe time. Iler opined Johnson was required to follow GSI's safety requirements as to his own personal safety, and he was responsible to excavate and operate his excavator safely as to where he drove and parked it; but Iler maintained only Franco was responsible for the safety of the City workers.
Whether Johnson should have done something differently with respect to workers getting into the trench before the shield was in place was an issue for the jury to determine. Resolving in favor of the verdict all conflicts over who the competent person at the site was, who had the responsibility for and the authority to direct City workers, and the experts' conflicting opinions about the safety of Johnson's conduct, a finding GSI and/or Johnson were negligent in this manner is not compelled as a matter of law.
D. GSI's and Johnson's Experience and Compliance With GSI's Internal Policies and Procedures
Chaidez points to GSI's contractual representation that it was experienced and well qualified in the field of earthmoving, which Gilliam indicated included trenching and excavation; and that all GSI's employees had all requisite safety training and competencies, and their performance of all work would conform to CalOSHA requirements and other safety protocols. Yet, Chaidez argues, Gilliam testified he did not know of an instance GSI had ever trenched to a depth greater than five feet before the trench collapse in this case, he testified that GSI had never used a trench shield or a trench box before this incident, and Gilliam indicated trench shield was not a term defined in GSI's trench and excavation policy and procedures.
Moreover, Chaidez argues, Johnson undisputedly had never dug a trench deeper than five feet, he did not know that soil testing was required, or how soil was classified as A, B or C. Johnson had no idea how much the excavator weighed, and he had not read the manual thoroughly. There was no GSI record showing Johnson was trained as to the appropriate safety practices or about soil composition or GSI's trenching standards. Chaidez argues the evidence clearly and undisputedly shows GSI did not live up to its representations about its own experience and qualifications or that of Johnson; that Johnson negligently failed to follow GSI's internal safety and trenching protocols with respect to the excavation of the trench; and GSI was negligent with respect to Johnson's training in that regard.
While GSI's lack of trenching experience greater than five feet was undisputed, there was no evidence establishing this meant GSI was unequivocally underqualified or inexperienced in the field of earthmoving. Gilliam testified Johnson had more than 20 years of experience, he had been given "a lot of specialty type work," and when the City called for an excavator, Gilliam usually assigned Johnson. Chaidez notes Gilliam acknowledged GSI did not define trench shield or trench box in its excavating and trenching standards as evidence of GSI's lack of experience or expertise. Yet, GSI's trenching and excavation standards defined the broader concept of "Shoring," which includes specific devices such as a trench shield or trench box.
And, again, defense safety expert Iler testified nothing about Johnson's excavation was below the standard of care. Johnson had assumed the soil at the location was sandy-type-C soil-that required the most conservative level of sloping at 34 degrees or, alternatively, the use of a shoring device to ensure its stability for workers to enter. As Iler explained, Johnson had no need to understand the differing soil types since he assumed everything was type-C and excavated accordingly. Additionally, Johnson recognized the need for a trench shield when he walked the site with Stevens in advance of the excavation and recommended the City order one. Due to obstacles in the south wall, Iler testified Johnson's election to bench the soil in conjunction with the trench shield fully complied with CalOSHA trenching standards. Moreover, Iler opined Johnson was to "follow the direction and control of the competent person on the site and whatever they decide he needs to follow their direction," even as it related to GSI's trenching and excavation procedures. Resolving these evidentiary disputes in favor of the verdict, the evidence did not compel a finding Johnson's excavation negligently violated GSI's trenching and excavation policy, or that GSI's and/or Johnson's experience was inadequate for this project resulting in a negligently excavated trench.
Johnson's training and general competency to dig a trench deeper than five feet was a disputed factual issue. Although there was no GSI training records reflecting Johnson had received any formal instruction on excavation or safety standards, Iler testified no such training was required. As already noted, Johnson was not required to have a license to operate an excavator, and he had decades of excavation experience using multiple types of machinery, including an excavator. Ultimately, there was evidence Johnson had correctly identified the soil type, the need for a shoring device, and benched the soil in a manner that was safe to employ with the trench shield. The evidence in favor of Chaidez is not uncontradicted and of such great character and weight as to compel a matter-of-law conclusion GSI and/or Johnson were negligent with respect to Johnson's training in, or his experience and understanding of, safe excavation methods. (Dreyer's, supra, 218 Cal.App.4th at p. 838.)
While GSI's code of safe work practices stated that GSI employees were to accept responsibility for the safety of others, Iler testified Johnson was not the competent person on this work site, so while he had an obligation to excavate and operate the excavator in a safe manner, Johnson was not responsible for the safety of the City employees as he had no authority over them. Iler opined that was the responsibility of the City and Franco, the competent person at the job site who had the authority to take any necessary corrective action.
GSI's trenching and excavation policy states that whether to slope or bench "will be based upon [California Code of Regulations, title 8,] Section 1541.1[, subdivision ](b) (3) (A), soil borings in the area and investigation of soil conditions by [GSI.]" Iler testified Johnson was not required to follow the GSI internal policies and procedures; he was to follow the direction and control of the competent person on the site. Moreover, Franco testified he had been doing daily soil testing at the site, adding to the evidence he was the competent person even with respect to the excavation and related protocols.
In the end, there were factual disputes about the sufficiency of GSI's experience and Johnson's on-the-job training and competency; whether Johnson safely excavated the trench; and whether Johnson was required to follow GSI's internal safety and trenching procedures or the direction of the competent person. We must resolve all factual disputes and draw all inferences in favor of respondents and the verdict. (Dreyer's, supra, 218 Cal.App.4th at p. 838.) In doing so, we cannot conclude the evidence is uncontradicted or of such great weight and character as to compel, as a matter of law, a finding that GSI and/or Johnson were negligent with respect to training, experience and compliance with GSI's internal policies.
II. Jury's Finding As to the City's Negligence and Causation
At trial, the defense claimed that the City's negligence and its negligent training of its employees were substantial factors in causing the cave-in incident. The defense had the burden of proof on its City-negligence defense, and the jury was instructed on both theories:
"Defendants [GSI] and Jeff Johnson claim that the negligence of the City of Bakersfield also contributed to causing the cave-in incident on March 30, 2015. To succeed on this claim, Defendant[s GSI] and Jeff Johnson must prove both of the following: [(1)], that the City of Bakersfield was negligent; and, [(2)], that the negligence of the City of Bakersfield was a substantial factor in causing the cave-in incident on March 30, 2015. [¶] … [¶]
"Defendant[s GSI] and Jeff Johnson claim that the cave-in incident on March 30, 2015[,] was caused by the City of Bakersfield. And the City of Bakersfield is responsible for that harm because the City of Bakersfield negligently trained Pablo Franco, Fausto Ayson, and Plaintiff Joseph Chaidez. To establish this claim, Defendants [GSI] and Jeff Johnson must prove all of the following: [1], that Pablo Franco, Fausto Ayson, and or Plaintiff Joseph Chaidez were not trained to perform the work for which they were hired; [2], that the City of Bakersfield knew or should have known that Pablo Franco, Fausto Ayson, and/or Plaintiff Joseph Chaidez were not trained and that their lack of training created a particular risk to others; [3], that Pablo Franco, Fausto Ayson and or Plaintiff Joseph Chaidez's lack of training caused the cave-in incident on March 30, 2015; and, [4], that the City of Bakersfield's negligence in its failure to train Pablo Franco, Fausto Ayson and or Plaintiff Joseph Chaidez was a substantial factor in causing the cave-in incident on March 30, 2015."
The jury concluded the City was negligent, that this negligence was a substantial factor in causing the cave-in incident on March 30, 2015, and the jury assigned 100 percent of the fault to the City.
Chaidez argues the jury's assignment of zero blame to GSI and all the blame to the City is not supported by the evidence. According to Chaidez, the City's negligence could not have caused the trench collapse because the trench did not collapse by itself-some negligent act had to be the cause. Since the jury found that Chaidez himself was not negligent, the jury necessarily rejected Kramer's alternate causation opinion that City workers may have disturbed the soil at the base of the trench and triggered the collapse. As such, that leaves only GSI's and Johnson's actions in excavating the trench and/or operating the excavator as the cause of the collapse.
Chaidez's argument is based on the premise that the jury was required to find that some person's negligent act triggered the trench collapse, proximately causing Chaidez's resulting injuries. But the evidence does not require such a conclusion. Defense expert Kramer opined the collapse occurred because the trench soil dried out in the warm, sunny weather conditions that existed that day; and Iler opined Johnson's excavation with the planned use of the shield was safe and none of Johnson's actions at the sewer project violated the standard of care. Given Kramer's and Iler's opinions, there was evidence to conclude nothing Johnson or GSI did caused the trench to collapse. The problem, according to respondents, was that City workers got into the trench before it was shored, and that was the City's responsibility. Had the City properly trained or supervised its workers, Chaidez would not have been in the trench when it collapsed and, thus, not injured.
Chaidez maintains Kramer's desiccated soil theory supports only a conclusion that Johnson was negligent in excavating the soil. Chaidez interprets Kramer's testimony to mean that one cannot bench type-C soil because vertical cuts can become unstable when the soil dries. But Kramer did not opine that type-C soil can never be vertically cut. If that were so, no trenching of type-C soil could ever safely accommodate workers where sloping was impossible due to space constraints. But that was not what Iler or Harrell indicated. Iler explained type-C soil could be safely benched so long as a shoring device like a trench shield was used to stabilize the walls of the trench to prevent collapse. Iler explained that shoring was a preferred method of stabilization when there were embedded obstacles that made sloping impractical or impossible, as was the case here. Even Harrell did not opine that benching type-C soil in combination with a shoring device was always impermissible. Rather, he explained the benching and sloping Johnson did in this case could not accommodate the trench shield, so the excavation method was going to be unsafe even with the shoring device.
To the extent Chaidez argues Johnson's failure to test the soil, or GSI's failure to train Johnson to do so under its excavation policy, caused a failure to detect the drying of the soil Kramer opined was the cause, Iler testified Johnson had no obligation to follow GSI's excavation policies because the City was in charge of the excavation and had to supply the competent person for the site and the excavation. Iler opined Franco was the competent person at the site, he had competent-person training on trench excavation. Franco acknowledged he had experience with trench shields and that he was testing the soil at the site daily, which suggested any responsibility to detect the drying of the soil may lay at the City's feet.
Finally, the jury was not asked to decide only whether the City's negligence was a substantial factor in causing the trench collapse. Rather, the jury was asked to decide whether respondents had proven the City's negligence was "a substantial factor in causing the cave-in incident on March 30, 2015." The cave-in incident did not relate only to the trench collapse itself, but encompassed Chaidez's injuries as the damage that resulted from the collapse. The evidence allowed the jury to conclude the only negligence involved was the City's because it allowed a worker to get into a trench that required a shoring device to make it safe for workers, and it was that negligence that caused Chaidez's injuries. Had the City prevented him or properly trained him not to go into a trench before necessary shoring was installed, he would not have been hurt when the trench collapsed. Given the instructions and the jury's finding Chaidez was not proven to be negligent, and resolving all disputed issues in favor of the verdict, the evidence does not compel a finding GSI and/or Johnson negligent.
In the reply brief, Chaidez asserts respondents posed improper hypotheticals to Kramer and Welke, which could not serve as evidence. First, no objections were interposed on that ground at trial so any argument that opinion testimony garnered from improperly posed hypotheticals was inadmissible has been forfeited, particularly an argument raised for the first time in a reply brief. Second, the jury's findings are supported even without the alternative causation theories opined by Kramer that Vity workers or seismic activity could be responsible for the trench collapse.
To the extent Chaidez argues there is no substantial evidence to support the jury's findings the City was negligent and that negligence was a substantial factor in causing the cave-in incident (a defense claim for which respondents bore the burden of proof), that assertion also falls short. Chaidez testified he had only been on the job for a few months, and he testified at his deposition he never received any relevant training from the City. Franco never told him anything about the trench shield, nor had Stevens or Ayson. He had never worked in a trench more than five feet deep, and he was never trained about soil types.
Harrell opined that had Chaidez been properly trained, he would have known not to get into the trench before the shield was installed. Stevens testified Chaidez should not have entered the trench without the shield installed, and had Stevens seen anyone in the trench without the shield, that would have been "shut down." Iler testified the City failed in its duty by allowing Chaidez into the trench prior to the shield being installed; Iler explained that if Chaidez had been properly trained by the City not to go into an unsupported trench before it was shielded, then Chaidez could not be faulted, and it was the City's fault. Ayson and Franco were both disciplined by the City because City workers were in the trench before the shield was installed. There was substantial evidence that the City's negligence led to Chaidez being in the trench at an unsafe time and that this was a substantial factor in causing the cave-in incident-i.e., Chaidez's injuries. (See In re R.V., supra, 61 Cal.4th at pp. 217-218 (dis. opn. of Chin, J.) [generally observing traditional substantial evidence standard of review applies to findings for which the appellant did not bear the burden of proof].)
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
WE CONCUR: PEÑA, Acting P. J. SNAUFFER, J.