Opinion
Rehearing Denied Jan. 26, 1962.
Hearing Granted Feb. 28, 1962.
Opinion vacated 21 Cal.Rptr. 575, 371 P.2d 311.
Edgar Simon, Beverly Hills, for appellant.
Spray, Gould & Bowers, Philip L. Bradish and Henry E. Kappler, Los Angeles, for respondents Safway.
Schell, Delamer & Loring, Lee A. Solomon, Los Angeles, for respondent Vegetable Oil Products Co., Inc.
FOX, Presiding Justice.
This is an action for damages for personal injuries occasioned when plaintiff fell from a movable, 'tower' type scaffold supplied by one defendant while working on the premises of the other defendant. Plaintiff appeals from a judgment on a jury verdict in favor of defendant Safway, the supplier of the scaffold, and from a judgment entered against him and for defendant Vegetable Oil Products Co., on whose premises the work was being performed, notwithstanding a verdict in his favor. Plaintiff's employer, Bay View Welding Company, an independent contractor employed by Vegetable Oil to perform the work in question, is not involved in this action. Also appealed from is an order granting Vegetable Oil a new trial in the event the judgment notwithstanding the verdict is reversed.
In 1957 a storage tank on the premises of Vegetable Oil was damaged by fire and an explosion. The roof was destroyed and the upright shell, cylindrical in shape, had buckled inwards in places and suffered creases in others. Vegetable Oil entered into a contract with Bay View, a contractor licensed by the State of California, to repair the damage. All the work was to be done by Bay View, without direction or control by Vegetable Oil. All equipment and tools, including the scaffold, were obtained and supplied by Bay View. At no time did Vegetable Oil exercise any degree of control over the tank or the work pertaining to it.
In order to straighten the buckles and creases a tower-like structure called a scaffold, which is supported by wheels, or casters, was placed inside the tank in question. Workmen could stand at various levels on the scaffold by moving wooden planks from one level to another. At the thim of the accident plaintiff was working at the twenty-three foot level, near the top of the tank. The device supplied by Bay View to straighten the buckles was in the nature of a long pipe which extended nearly the diameter of the tank. At one end of the pipe a jack was affixed. The pipe and jack together combined to make a device which increased in length as the jack handle was raised and lowered. To facilitate the operation a bar about five feet in length was supplied, apparently for use in conjuncation with the jack handle. The pipe-like device was suspended by a cable so that it might be raised or lowered to the desired level. To straighten a buckle, one end of this device would be placed against the inside wall of the tank and the other end against a buckle at the opposite side of the tank. The jack would then be manipulated so that the device would expand and force out the buckle. The evidence indicates that plaintiff was injured when, having straightened a buckle in the above manner, he proceeded to retract the jack. When the pressure was released the metal suddenly buckled back in toward its former position, causing the aforementioned bar to strike plaintiff and propel him off the scaffold. He was severely injured.
With respect to defendant Safway, the supplier of the scaffold, plaintiff rests his appeal on the sole claim that the court erred in failing to instruct the jury on certain provisions of the labor code and certain safety orders which were in evidence. It affirmatively appears on the face of the record, however, that although these instructions were offered originally, they were withdrawn at plaintiff's request in Cowin v. Lindsay,
The appeal relating to Vegetable Oil rests on the contention that the record contains evidence that would support a judgment imposing liability on Vegetable Oil on theories which were either submitted to the jury or which were embodied in instructions which were improperly refused. The rules relating to judgments entered notwithstanding a verdict are well settled--they are proper only when, disregarding conflicting evidence and indulging in every legitimate inference which may be drawn in favor of the complaining party, the result is that there is no substantial evidence to support the verdict. (Biggar v. Carney, 181 Cal.App.2d 22, 5 Cal.Rptr. 94; Bell v. Huson, 180 Cal.App.2d 820, 4 Cal.Rptr. 716.)
Plaintiff argues that Vegetable Oil (hereafter referred to as defendant) violated not only its independent duties to plaintiff, but also that it is vicariously responsible for the negligence of Bay View, the independent contractor who employed plaintiff. We will first consider the contentions relating to defendant's independent duties.
Only two instructions were submitted to the jury directly bearing on the liability of defendant. The first reads: 'If one engages another to perform work when he knows, or in the exercise of ordinary care would know, that the person, firm or corporation engaged will use improper and unsafe equipment which is likely to cause damage to others, then the one engaging such a person, firm or corporation is liable for any damages proximately caused by the performance of such work because of the use of any such improper or unsafe equipment.' While this instruction is a correct statement of the law (see Risley v. Lenwell, 129 Cal.App.2d 608, 277 P.2d 897), we have carefully examined plaintiff's transcript citations and we find no evidence in the record which would support a conclusion that defendant knew or should have known that Bay View would use unsafe equipment. The fact they Bay View is a small outfit; and that it has no engineer on its payroll is not sufficient in itself for this purpose. There is evidence that Bay View consulted with engineers from time to time.
The remaining instruction bearing on defendant's independent duties reads, 'It was the duty of the defendant * * *, in the conduct of any active operations on its property, to use ordinary care to avoid injury to the plaintiff, and to use ordinary care to keep the premises in a reasonably safe condition for the plaintiff.' This instruction is based on BAJI # 213-C.I. Since there is no evidence that the injury arose from the 'conduct of any active operations' on the part of defendant, we need only concern ourselves with the portion of the instruction requiring that the premises be kept in a safe condition. (La Malfa v. Piombo Bros., 70 Cal.App.2d 840, 161 P.2d 964.) The servant of an independent contractor engaged in performing services on the land of another, for its possessor, occupies the status of an invitee. (Hinds v. Wheadon, 19 Cal.2d 458, 460, 121 P.2d 724; La Malfa v. Piombo Bros., supra; Peters v. Pioneer Laundry Co., 32 Cal.App.2d 494, 497, 90 P.2d 146.) 'The general rule * * * is that an owner or occupier of premises, who, by invitation * * * induces, or knowingly permits, a workman to enter the premises for the performance of duties mutually beneficial to both parties, is required to use reasonable care to protect the workman by supplying him with a reasonably safe place in which to work * * *' Miller v. Pacific Constructors, Inc.,
Rodin v. American Can Co., Delk v. Mobilhomes, Inc., Moran v. Zenith Oil Co., McDonald v. Shell Oil Co.,Directly in point in this context is West v. United States, 361 U.S. 118 123, 80 S.Ct. 189, 4 L.Ed.2d 161. In that case an employee of an independent contractor was injured while he was engaged in repairing a ship owned by the defendant. Under the agreement the contractor was to completely overhaul the ship, including cleaning and repairing all water lines, replacement of all defective or missing plugs and other parts. The plaintiff was injured when a plug from a water pipe struck him on the knee. It was loosely fitted and was propelled with some force when another worker turned on the water. Mr. Justice Clark, speaking for the Court, had this to say: 'Of course, one aspect of the shipowner's duty to refrain from negligent conduct is embodied in his duty to exercise reasonable care to furnish a safe place to work. But we do not believe that such a duty was owed under the circumstances of this case. Petitioner overlooks that here the respondent had no control over the vessel, or power either to supervise or to control the repair work in which petitioner was engaged. We believe this to be decisive against both aspects of plaintiff's dual theory. There was no hidden defect in the water system. It was one of the objects to be repaired and its plugs were to be replaced where necessary. Its testing was to be done by the contractor--not by the shipowner. It appears manifestly unfair to apply the requirement of a safe place to work to the shipowner when he has no control over the ship or the repairs, and the work of repair in effect creates the danger which makes the place unsafe. The respondent, having hired Atlantic to perform the overhaul and reconditioning of the vessel--including the testing--was under no duty to protect petitioner from risks that were inherent in the carrying out of the contract.' (Emphasis added.)
Plaintiff presents the additional contention that there is evidence that would support the conclusion that the decision to repair instead of replace the tank was a negligent act. The evidence relied upon is testimony by an expert that such a repair job involved some unspecified dangers to workmen. We are unable to agree that liability should attach to an entrepreneur who has made a business decision to repair instead of replace an object, merely because the repair job might be the more dangerous undertaking.
Furthermore, no instruction embodying this theory of liability was offered to the trial court.
Plaintiff's most vigorous argument is devoted to a theory which would make Courtell v. McEachen,
Restatement of Torts. Potter v. Empress Theatre Co., Snyder v. Southern Cal. Edison Co., Knell v. Morris,Plaintiff argues that it is a question of fact whether defendant should have recognized the work as 'necessarily creating a condition involving an unreasonable risk of bodily harm' (or involving an inherent or intrinsic danger--27 Am.Jur., Independent Contractors § 39), and therefore this theory should have been submitted to the jury. Conceding for the sake of argument that the evidence presented such a question of fact, there is also the question whether this rule applies to employees of the independent contractor who are engaged in the work.
It might be noted that in Hard v. Hollywood Turf Club, 112 Cal.App.2d 263, 274-275, 246 P.2d 716, it was stated that there is nothing inherently dangerous in working on a high scaffold.
Comment (a) of both section 413 and section 416 of the Restatement of Torts, referred to in the Courtell opinion, supra, implies that the employer is liable only to members of the general public under this rule. The illustrations set forth to demonstrate the application of the rule all involve liability to third persons completely unrelated to the project. All doubt on the question was resolved in the case of Bedford v. Bechtel Corp., 172 Cal.App.2d 401, 342 P.2d 495. In a thoughtful and instructive opinion, Presiding Justice Bray stated, at p. 414, 342 P.2d at p. 503, that 'an employee is not a third person within the meaning of the rule. (Citations.)' In that case the complaining parties were employees of an independent contractor hired to erect oil storage tanks for Pacific Gas & Electric Company. It was claimed that under the above theory P.G. & E. was liable for the negligent manner in which the independent contractor used the equipment. Since it was held that employees of independent contractors are not among those to whom such a duty is owing, the general principles relating to the liability of the employer of the independent contractor were applied and a judgment of nonsuit was affirmed.
It was alternatively held that the activity there involved was not inherently dangerous as a matter of law.
These general principles are set forth in the opinion of McDonald v. Shell Oil Co., 44 Cal.2d 785, 285 P.2d 902. In that case an employee of an independent contractor was injured while performing work upon a Shell lease. There was evidence that the contractor had been negligent. A nonsuit in favor of Shell was affirmed. At pages 788-789, 285 P.2d at page 904, it was Hard v. Hollywood Turf Club,
Williams v. Fairhaven Cemetery Ass'n, Kuntz v. Del E. Webb Construction Company, Cal.,Applicable here is the statement in Bedford v. Bechtel Corp., 172 Cal.App.2d 401, at page 407, 342 P.2d 495, at page 499, supra, that 'The Pacific Gas and Electric did not reserve unto itself * * * the right of control as to how * * * these two tanks were to be put together, nor did [it] direct or interfere in any manner with the actual physical construction [here repair] of the tanks. * * * [The independent contractor] by the work procedures which [it] adopted and used created the only hazards which the plaintiffs encountered.' Also in the case it was stated, at page 413, 342 P.2d at page 495, that no duty devolves upon the contractee merely because its representatives observed the work as it was being carried on. Although this statement must be read in the light of the particular facts of that case (Kuntz v. Del E. Webb Construction Company, supra), it would seem to be a correct statement of the law where the evidence would not support the conclusion that knowledge of a danger was obtained through the observations. Such is the case here.
The cases cited by plaintiff to establish vicarious liability are inapplicable. Courtell v. McEachen, 51 Cal.2d 448, 334 P.2d 870, applied the theory of vicarious liability in a traditional situation--where a member of the general public was injured because of the negligence of an independent contractor in the performance of work which involved an unreasonable risk of harm if proper precautions were not taken. A child was burned when a fire was left unattended and unextinguished. Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 282 P.2d 69, held the owner of the premises liable to an employee of an independent contractor. Liability was predicated on the negligent failure of the owner to make safe a portion of the premises under its control. In Snyder v. Southern California Edison Co., 44 Cal.2d 793, 285 P.2d 912, the plaintiff was injured while working on power Gonzales v. Robert J. Hiller Const. Co.,
Dow v. Holly Manufacturing Co., Knell v. Morris, Finnegan v. Royal Realty Co., Brown v. George Pepperdine Foundation, Nini v. Culberg, Gilbert v. Pessin Grocery Co., Bazzoli v. Nance's Sanitarium, Inc.,Plaintiff sets forth various other contentions. He argues that certain sections of the Labor Code and certain safety orders are applicable to Vegetable Oil. But as we have seen, all instructions relating to that subject were voluntarily withdrawn from the case by plaintiff.
He also argues that defendant is liable for not having warned plaintiff of the danger, of which defendant had superior knowledge. We need not consider this question because the instruction embodying this theory of liability was also withdrawn by plaintiff. As originally requested, it was contained in BAJI #213-C., which sets forth generally the duties owed an invitee. But the record affirmatively shows that this instruction was voluntarily withdrawn from the case.
The record discloses that plaintiff offered and the court refused the following instruction: 'The duty of an occupant of premises to warn invitees of dangers * * * is a duty which cannot be delegated. * * *' Since plaintiff had not chosen to have the jury instructed on the duty to warn, an instruction as to the non-delegability of that duty would, of course, be inappropriate.
Also unavailing is the contention that the court erred in instructing the jury that one is not ordinarily liable for the negligence of his independent contractor. Although there are exceptions to the rule, it is still an unquestionably valid proposition. (Nini v. Culberg, 183 Cal.App.2d 657, 661, 7 Cal.Rptr. 146; Bedford v. Bechtel Corp., 172 Cal.App.2d 401, 407, 342 P.2d 495.)
Plaintiff complains that the trial court 'refused' to instruct the jury that the defendant was under a duty to exercise reasonable care in the selection of an independent contractor. This instruction is similar to one which has already been discussed. This instruction, however, was also withdrawn by plaintiff, not refused by the court.
Because we have determined that the judgment notwithstanding the verdict must be affirmed, it is unnecessary to discuss the merits of the appeal from the order granting Vegetable Oil a new trial.
The judgments are affirmed.
ASHBURN and HERNDON, JJ., concur.