Opinion
A097402.
11-20-2003
CAMERON KIMBARK et al., Plaintiffs and Respondents, v. METAL DECK SPECIALISTS, INC., Defendant and Appellant.
Frederick Kimbark died after falling through a hole in a metal roof at a construction site where he was working. His sons prevailed in an action for wrongful death, negligence per se and survivorship against defendants including Metal Deck Specialists, Inc. (Metal Deck), the subcontractor which cut the hole, and McCrary Construction Company (McCrary), the general contractor on the project. Metal Deck appeals, contending it owed no duty to Kimbark or, alternatively, properly discharged its duty. Respondents cross-appeal, arguing the trial court erred in granting a partial directed verdict dismissing their claim for punitive damages. We affirm.
STATEMENT OF THE CASE
On October 13, 1999, a complaint for wrongful death, negligence per se and survivorship was filed by Paula Kimbark, as guardian for Kimbarks sons Cameron and Clinton Kimbark, and John Kimbark, the personal representative of Kimbarks estate. The complaint named as defendants McCrary, Horizon Sheet Metal, Inc. (Horizon), Protection Plus, Judith P. Martin, and Does 1 through 55; Metal Deck was subsequently substituted for Doe 1. The complaint alleged that the defendants negligently caused Kimbarks death by breaching duties of care relating to safety at the work site and that the defendants committed negligence per se by violating provisions of the California Code of Regulations concerning the guarding and covering of roof openings. On May 11, 2000, the cause of action for negligence per se against Horizon Sheet Metal was voluntarily dismissed and the entire complaint was voluntarily dismissed as to Judith P. Martin and Protection Plus.
Jury trial began with voir dire on September 10, 2001. The evidentiary phase of the trial concluded on September 28. On October 1, Metal Deck moved for a nonsuit/directed verdict on the basis that it had no duty to Kimbark, as well as that Kimbarks death was a result of a superseding cause. It also joined McCrarys motion for a partial directed verdict on punitive damages. The motion for a partial directed verdict was granted on October 2, 2001; the other motion was denied, albeit without direct reference to the duty issue.
On October 4, the jury returned a special verdict finding each of the defendants negligent, with the fault apportioned 45 percent to McCrary, 30 percent to Metal Deck and 25 percent to Kimbark. The jury found that Horizons negligence did not cause Kimbark injury. Economic damages were assessed at $390,600 and noneconomic damages at $781,200, for a total of $1,171,800. Judgment was entered on October 22, 2001.
On November 7, Metal Deck filed a motion for judgment notwithstanding the verdict in which it argued it owed no duty to decedent and did not breach any such duty. This motion was denied on December 21, 2001.
Metal Deck filed a timely notice of appeal on December 21, 2001. On January 10, 2002, respondents filed an amended notice of cross-appeal from "that portion of the judgment directing a partial directed verdict re: punitive damages against plaintiffs."
STATEMENT OF FACTS
In 1998, McCrary entered a contract for construction of a gymnasium and a classroom building for the Orinda Unified School District. The contract called for McCrary to be "solely responsible for construction means, methods, techniques, sequences, procedures, supervision, scheduling, and coordinating trades to achieve a timely completion and work-man like result."
Mark Nelson was McCrarys full time superintendent on the Orinda project. His job responsibilities included "scheduling the project, working with the subcontractors on a daily basis, schedule appearances, looking at the work as it progressed for contract compliance along with the Inspector of Record. [& para;] Essentially, building the project as quickly as within the timeframe that we have, and safely." Nelson testified that he understood his duties to include following all California OSHA regulations and talking with subcontractors if he observed unsafe conditions or practices.
A number of subcontractors worked on the project, including Metal Deck, responsible for furnishing and installing the metal deck system on the roof; Horizon, responsible for installing heating, ventilation and air conditioning units (HVAC) and performing miscellaneous sheet metal work; Van der Haeghen, responsible for rough carpentry work; and Lucas Steel, the structural and miscellaneous metal subcontractor. Part of Metal Decks job was to cut holes in the roof of the gymnasium building to accommodate the HVAC equipment, specifically, four 42-inch square holes, running north to south, and four smaller rectangular holes, two each to the east and west of the larger holes. The larger holes were to be surrounded by 48-inch square wooden curbs installed by Van der Haeghen.
Kimbark was a carpenter for Van der Haeghen and the companys supervisor on the Orinda job. At the time of his death, he had worked as a foreman for the company about 18 years and was viewed by Van der Haeghens president as his most competent and experienced foreman. Mr. Van der Haeghen testified that Kimbark exercised good judgment, was very safety conscious and was trained in the companys safety program. Judith Martin, the inspector of record on the project, testified that the Van der Haeghen crew was one of the best she had worked with and that Kimbark was conscientious and safety conscious.
An inspector of record is certified by the Department of State Architects. Martins role on the Orinda project was to conduct a full time, continuous inspection of all phases of the work to ensure the project was built according to plans and specifications.
The proposal which Metal Deck submitted to McCrary for its work stated it would furnish and install "[t]he specified metal roof deck, floor deck, gauge metal flashings and associated accessories as per plans (A- & S-drawings only), specifications, and as clarified in this letter." The proposal stated, among other things: "We do exclude . . . Perimeter safety cables, barricading and/or planking of openings that do not require metal decking. (We assume perimeter safety cables to be in place before metal deck erection starts)."
McCrary did not sign this proposal but rather executed a subcontract that both McCrary and Metal Deck signed. The subcontract did not contain any exclusion for covering holes cut by Metal Deck, although it did state, "perimeter safety cables, if required, to be by others." It called for "A complete job of metal decking work in strict accordance with the project plans, specifications, Addenda 1 & 2, Attachments A & B, and applicable codes. The contract price was identical to the price in Metal Decks proposal.
Paragraph 5 of Attachment A to the contract between Metal Deck and McCrary provided: "Subcontractor to protect his work, and the work of others while performing his scope of work. Subcontractor to protect the public and other workers on the site while performing his scope of work utilizing whatever means is deemed appropriate; including flagmen, barricades, railings, temporary stairs, etc., conforming to current CAL-OSHA regulations, including obtaining required CAL-OSHA permits relating to his work."
Cal/OSHA regulation 1632 provides in pertinent part: "(a) This section shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways. [& para;] (b) Floor, roof and skylight openings shall be guarded by a standard railing and toeboards or cover. Covering shall be capable of safely supporting the greater of the weight of a 200-pound person or twice the weight of the employees, equipment and materials that may be imposed on the cover at any one time. Covering shall be secured in place to prevent accidental removal or displacement, and shall bear a pressure sensitized, painted, or stenciled sign with legible letters not less than one inch high, stating: `Opening - Do Not Remove. Markings of chalk or keel shall not be used. In general, the railing shall be provided on all exposed sides, except at entrances to stairways." (Cal. Admin. Code, tit. 8, § 1632.)
The cover page of the subcontract provided: "No portion of this Subcontract may be altered, deleted or qualified without the prior written consent of an officer of our corporation. Please contact issuing office at once if you have any questions regarding the provisions of this Subcontract."
Metal Deck cut the holes on the gymnasium roof on the afternoon of June 16, 1999. Shawn Hill, a Metal Deck employee, testified that he arrived at the site about 3:00 or 3:30 p.m. and spent about an hour and a half cutting the holes in the roof. The only other person on the roof at the time was someone Hill did not know, who was following behind and covering the holes with plywood as Hill cut them. Hill covered the last hole he cut by himself with two sheets of plywood.
Metal Decks payroll records indicated that Hill was not at the site on June 16. Hill testified that he had never been to the job site before June 16, but Metal Decks payroll records indicated that he was there for eight hours on June 14.
Steve Plummer, Horizons sheet metal foreman on the job, testified that he was on the roof when Metal Decks employee was cutting the holes and that the task took approximately two hours. Plummer testified that he knew the holes were cut before 3:00 or 3:30 p.m. because he left the job at that time and the holes had already been cut.
Alan Blackburn, Metal Decks foreman on the project, testified that he told Nelson several days before the holes were cut that Metal Deck was not going to cut the holes until Nelson had people and material ready to cover the holes immediately, and that Metal Deck would leave without cutting the holes if Nelson was not ready to cover them. Nelson agreed, but it was about three days before he had the plywood and person ready to cover the holes as Metal Deck cut them. While the holes were being cut, Blackburn was on the floor 33 feet below to keep people away from the areas where metal was falling. He could see two workers covering the holes as they were cut. Blackburn testified that Hill did not assist in covering the holes and that he would have stopped Hill from doing so because "it wasnt our contract to provide safety on the job, and there is a big liability involved." Blackburn further testified that he would not walk away from a hole he cut: If he was not responsible for covering it, he would make sure whoever was responsible did so. Blackburn felt he was "morally" obligated to cover holes he cut even if not contractually obligated. When Blackburn left the jobsite on June 16, all the holes Metal Deck had cut in the roof were covered.
Lance Smith, Metal Decks field superintendent, testified that he spoke with Nelson the day before the holes were cut and Nelson assured him he would take care of having the holes covered. Smith spoke with Nelson again mid-day on June 16 and told him Metal Deck would not cut the holes unless safety was provided. When Metal Deck had finished all its other work, Blackburn reported that no safety material or men were on the roof and Smith instructed him to get ready to leave. Ten minutes later, Blackburn called Smith and said that Nelson had told him to get men and equipment to the roof to cover the holes.
Nelson testified that Blackburn told him around mid-day on June 16 that Metal Deck would not cover the holes because they "just didnt cover holes" and they had to get to another job site. This was the first time Nelson heard Metal Deck was unwilling to cover the holes. Nelson told Blackburn it was Metal Decks responsibility to cover the holes, looked at the subcontract and saw it did not exclude covering the holes. Nelson then spoke with Smith on the phone, who told him that Metal Deck would not cover the holes and McCrary would have to do so. Nelson told Smith he would have the holes covered and the Metal Deck workers left the jobsite. Nelson testified, "I didnt reach an agreement with them, I was told they would not cover the holes, and it was up to me to cover the holes." Nelson later expressed to Mr. McCrary that he felt "left in the lurch" or "left holding the bag" when Metal Deck left without covering the holes. Respondents expert witness Gary Fulghum testified that Nelson was left "in a corner." Horizons expert testified that Nelson was left "holding the bag" and had a "tiger by the tail." Nelson acknowledged that once Metal Deck left the work site he was not relying on Metal Deck to cover the holes.
At this point, Nelson saw Plummer getting ready to leave for the day and asked him to cover the holes; Plummer agreed. Nelson knew there was plywood on the roof which Van der Haeghen had placed there for a different purpose. Nelson did not tell Plummer how to cover the holes; they did not discuss the need to screw the plywood down over the holes or paint warnings on the covers. Nelson did not see Plummer cover the holes and did not check his work afterward. He testified that he was not concerned about the holes being properly covered because he trusted and relied upon Horizon and could see from the floor that the holes were covered.
Plummer testified that Nelson acted surprised that the Metal Deck people had not covered the holes. Plummer had never done such a task on a steel roof, did not know the correct way to do it, and realized he might need to fasten the cover down, but he did not mention these things to Nelson. Plummer testified that the "[w]hole idea of it was I was doing him a favor of taking the plywood and covering the holes." Plummer testified that it was the end of the work day, about 3:00 or 3:30, when Nelson asked him to cover the holes. He and an assistant covered the holes in about 10 minutes. Plummer did not see any Metal Deck employees on the roof when he was covering the holes, nor did he see any on site when he left to go home at about 3:00 or 3:30.
After June 16, according to Nelson, there was no work on the gymnasium roof on Friday, June 18, or the following weekend. Plummer recalled having an hour-long meeting with Nelson and Kimbark on the roof several days after he had covered the holes on June 16 during which the men took the cover off one of the holes and discussed work that needed to be done. The plywood covers were not affixed to the roof and Nelson did not comment on this fact.
On Monday, June 21, Kimbark was on the roof to install curbs around the HVAC openings and determined that the placement and size of some of the bolt holes required correction by the structural steel contractor. Nelson testified that Kimbark would have had to remove the covers of each of the holes to make this determination. Nelson observed Kimbark at the northernmost hole, with the cover off, discussing the situation with Daryl Lucas from Lucas Steel.
Also on June 21, Metal Deck employees returned to the roof to complete welds they had missed, cut plumbing holes and cut a 30-inch square access hatch in the lower roof. Metal Deck covered this hole with the metal decking cut out for the hole. Blackburn and Hill both noticed workers working around the holes on the gymnasium roof with some of the holes uncovered.
On June 22 or 23, Plummer was on the roof with Nelson and Kimbark and did not notice any change in the plywood covers over the holes. Kimbark was not on the roof on June 22 or 23.
On June 24, Kimbark and Kenneth Kitchens, his assistant, were building curbs around the HVAC openings on the gymnasium roof, to enable the HVAC units to sit level. Kitchens testified that when he arrived at work that morning, Kimbark gave him a "little speech about being careful," telling him, "If you fall here, you aint going to walk away from this." On the roof, they began work at the northernmost hole, with Kimbark taking measurements, Kitchens cutting the wood and Kimbark assembling the curb and securing it to the roof. No one else was on the roof. The plywood covering the holes was not screwed down. Kitchens did not watch Kimbark remove the covers from the holes as they worked but testified that Kimbark must have done so because Kitchens himself did not. Only one hole was uncovered at a time. After the curb at each hole was completed, Kimbark put the plywood back over the hole and tacked it down with nails so it would not fly off in the wind.
At about 2:30 p.m., Kimbark told Kitchens it was time to quit for the day. Kitchens rolled up his cords, gathered his tools and took them to the lift. He looked back and saw Kimbark, who had lifted a piece of plywood, step forward and fall through the southernmost hole, one on which they had not yet begun to work. Kitchens screamed, "Call 9-1-1," emergency personnel arrived and Kimbark was flown away by helicopter. Plaintiffs expert Gary Fulghum testified that he did not believe Kimbark "was consciously aware that he was uncovering a hole at the time that he fell through." Dr. John Bobis, Horizons expert, assumed that Kimbark picked up a piece of plywood thinking it was covering only the metal deck, not a hole.
Nelson testified that after the accident he looked up from the gymnasium floor and saw that the holes other than the one through which Kimbark had fallen were uncovered. That night, he went to the roof and covered all the holes, spray-painting a warning on each piece of plywood. Mr. Van der Haeghen testified that after the accident he and Kitchens covered the holes that were not covered. He did not recall exactly what they did but stated that on the holes that had been curbed they probably nailed the plywood to the curbs and on the other holes they probably "put something on top of the plywood."
The day after the accident, Blackburn went to the site and saw screws in the corners of the plywood covering the holes. Smith, who was with Blackburn and Nelson on the roof on June 25, also saw that the plywood covers were screwed to the metal deck. In a statement Blackburn wrote that day, he stated that when the holes were cut, someone covered them and screwed the plywood to the roof. At trial he stated that he had assumed the covers had been screwed down on the day the holes were cut, had not actually seen this done and realized that the covers in fact had not been screwed down at that time.
In an answer to interrogatories verified by Metal Decks president, Metal Deck stated that it took no photographs of the scene of the accident. Metal Decks vice president Wendell Mann, however, testified that he took photographs of the roof on June 25, the day after the accident. These photographs show the covers marked with painted warnings and screwed to the roof. The date stamps on the photographs are June 28, but Mann insisted the photographs were taken on June 25.
Late in the morning on June 28, Cal/OSHA engineer Vic Dayco visited the roof with Nelson and Martin. As shown on photographs taken by Dayco that day, date-stamped June 28, 1999, the plywood covering the holes was not marked with paint warnings. While on the roof, neither Nelson, Martin nor Dayco took any steps to fasten down the sheet of plywood depicted in Exhibit 19.
Judith Martin, the inspector of record for the Orinda project, testified that she discussed getting the holes covered with Nelson at a couple of their weekly meetings before the holes were cut. In her opinion, Nelson had the overall responsibility for safety at the site and the responsibility to ensure jobs like covering the holes were taken care of properly. Martin also testified that the southernmost hole, through which Kimbark fell, was used for access to the roof and therefore intentionally left uncovered from the time it was cut until long after the accident. Martin stated that a hole cut in the lower roof was also used for access, but mostly at a later point in time; she mainly used the hole Kimbark fell through, many times accompanied by Nelson, and she observed the Van der Haeghen crew using that hole for roof access. Nelson, by contrast, testified that no one used the vent holes to access the roof until "long after the accident" and that he never saw Kimbark or Kitchens use the hole through which Kimbark later fell as a means of access to the roof. Horizons expert witness testified that if a general contractor provides access through a hole, it is that contractors responsibility to install a hinged cover over the hole.
Metal Deck asserts that Nelson contradicted his testimony that the southern hole was not used for access before the accident. The testimony cited in support of this statement, however, does not in fact support it. At these pages, Nelson testified as stated in the text. After Nelson stated that he did not think the southern hole was used for access before the accident because workers were using a boom lift to access the lower roof, then getting to the upper roof through a wall opening, Nelson was asked a series of questions about his inspections of the gymnasium during the week of June 14. He was then asked if he ever went to the gymnasium to see how subcontractors were accessing the roof. Nelson stated that he did, to make sure they were accessing the roof safely, and testified that "at times" he saw subcontractors using the southern hole for access and felt this was appropriate. These statements do not contradict Nelsons testimony that the southern hole was used for access after the accident.
As acknowledged at trial by Murray McCrary, the companys major shareholder, Nelson and Metal Decks expert witness, Richard Seifert, Metal Decks subcontract did not specifically exclude or include responsibility for Metal Deck to cover holes it cut; the contract did not specify who was to cover the holes. Mr. McCrary understood, based on his experience of the industry standard, that Metal Deck would cover holes they cut in the roof. Mr. McCrary "[a]bsolutely" expected that a subcontractor would not leave a hazardous condition such as a hole on a roof deck when its work was completed." Nelson, McCrarys on-site superintendent, also assumed Metal Deck would cover the openings it cut in the roof. McCrary testified, however, that Metal Deck had a right to rely upon Nelson when Nelson said he would arrange to have the holes covered. McCrary expected Nelson to understand the OSHA requirements for openings and fall hazards, and the subcontractors had a right to the same expectation.
Jan Borjeson, the president of Metal Deck, testified that he was aware before he signed the contract with McCrary that the subcontract did not contain the exclusion for planking and barricading that had been in Metal Decks proposal. Weldon Mann, Metal Decks vice president, testified that he did not think Metal Deck was required to cover the holes because the proposal had excluded this work and McCrarys acceptance of the proposed price indicated the scope of work had not been increased, as well as because as a general practice Metal Deck did not plank holes. Mann testified that the companys standard procedure was to obtain assurance that holes would be covered before beginning to cut holes. He testified that Metal Deck fulfilled its obligation to remedy a hazard it was creating, and to comply with its safety obligations under paragraph 5 of attachment A to the subcontract, by contacting the general contractor and telling him to arrange for covering the holes Metal Deck was about it cut. Mann stated the holes should have been covered as they were cut and Metal Decks foremen were trained not to cut holes until someone was present to cover them.
Borjeson testified that on a prior job at the Monte Vista High School in Danville, Metal Decks proposal had contained similar language excluding the covering of holes and the actual contract did not contain this exclusion. On that job, however, Metal Decks foreman had made temporary covers for the holes.
Metal Decks expert witness, Richard Seifert, testified that typically if the scope of work on a subcontractors proposal was increased in the contract, the price of the contract would change as well.
Respondents expert witness, Gerald Fulghum, and Horizons expert witness, John Bobis, explained that California Code of Regulations section 1632, subdivision (b), the OSHA regulation requiring that roof and floor openings be secured in place and marked with warnings, was intended to prevent accidental removal or displacement of covers which would pose hazards if workers on a construction site were distracted. Fulghum explained that there are many distractions in a construction environment, so that even "experienced safe workers . . . have a tendency to forget, become disoriented, lose their train of thought" and section 1632(b) was designed to provide "even for the times when people arent alert and conscious of their surroundings and hazards." Bobis stated that the hazard of someone inadvertently misplacing a cover was foreseeable.
Fulghum was a safety engineer, retired after a 27-year career, the last 16 years at Cal/OSHA. During his years at Cal/OSHA, Fulghum also did consulting work for construction companies and litigation support, 90 percent for plaintiffs.
Bobis was a civil engineer with a masters degree in occupational safety and health and a Ph.D. in safety engineering and 37 years of experience in the field. He had worked for the Cal/OSHA Standards Board, the agency required to adopt occupational safety and health regulations for all workplaces in California, where he either wrote or approved OSHA regulations including section 1632, the regulation dealing with wall, roof and floor openings.
Fulghum testified that Metal Deck "created a hazardous condition by cutting an opening in the gym roof and failing to protect workers from the hazards posed by that hole by complying with 1632(b)." According to Fulghum, Metal Deck was the cause of the mistake that resulted in Kimbarks death because it created the hazard before it asked to be relieved; the holes "should have been covered and secured as they were cut."
Fulghum also viewed Horizon as having created a hazardous condition, in that laying plywood over the hole without securing or labeling it created a "hidden and concealed danger," and McCrary as having been negligent in not requiring Metal Deck to cover and secure the openings before leaving the roof and in failing to instruct Horizon on the requirements for covering the openings or inspecting the work that was done. He viewed Kimbark as having had some responsibility for ensuring that the hole covers were fastened and labeled for the protection of himself and his crew. According to Fulghum, "[e]very person and every entity who works in a construction contract has the responsibility to provide a safe place for their own employees, but also to be their brothers keeper and to make sure their work, their activities, or their actions do not pose a hazard to other people that are working on the project, nor even passersby."
Horizons expert, John Bobis, testified that according to industry custom and practice, the person who cut the holes should have secured a cover over the holes, and it would have taken only about two minutes per hole to do so. He felt it was inappropriate for Metal Deck to tell the general contractor to deal with the holes, that in doing so Metal Deck violated its own safety rules, OSHA regulations and the contract, and that this was a "willful disregard for safety on the part of Metal Deck." Bobis noted that the contract, in Article 34, required subcontractors to strictly observe and comply with applicable safety laws, rules and regulations and testified that both Metal Deck and McCrary were required to know the OSHA regulations regarding covering holes. According to Bobis, aside from contractual obligations, an employer that exposes an employee to a certain hazard has an "undelegable responsibility" to provide a reasonably safe workplace, or to remove either the hazard or the employees.
Bobis disagreed with Fulghums conclusions about Horizons conduct: He saw the placement of the plywood as a temporary solution to avoid an imminent hazard, undertaken at a time when there was no one on the roof to be exposed to the danger.
Metal Decks expert witness, Richard Seifert, acknowledged that under current standards, a subcontractor who cuts a hole is required to protect its own employees as well as those of other subcontractors. He testified that Metal Deck had the responsibility to assure that the holes were covered properly and would have been wrong to leave the job if provisions had not been made for covering the holes. The depositions Seifert had read led him to conclude that Metal Deck was not responsible for covering the holes because Horizon was installing plywood covers as Metal Deck cut them. Seifert had not read Nelsons deposition at the time he formed this opinion, but had read it by the time of trial and nevertheless maintained this opinion. Seifert assumed, based on what he recalled reading in Plummers deposition and on photographs, that on the day the holes were cut they were covered with plywood secured by a heavy object which might have been a metal curb. In fact, Plummers deposition testimony was that he had not placed anything on top of the plywood coverings. Seifert had not read Blackburns statement that the covers were screwed onto the deck on the day the holes were cut. Seifert testified that Metal Decks obligation to cover the holes was assumed by McCrary when Nelson said he would get them covered. He stated that according to industry practice, if covers were to be placed for the use of other trades, the work would typically be assigned by contract or picked up by the general contractor.
Seifert was the Safety and Environmental Director for a large general contractor. He was familiar with Cal/OSHA regulations and had served on advisory committees in the construction industry. He had been retained as a legal consultant some six to eight times, 80 percent on behalf of defendants.
All the expert witnesses agreed that if a general contractor agrees to assume an obligation from a subcontractor, the subcontractor is relieved of responsibility. Accordingly, they all testified that once Nelson said he would take care of covering the holes, it was reasonable for Metal Deck to rely upon him to have the holes covered appropriately. Bobis testified that any employer who opened a hole on the roof assumed the obligation of complying with all regulations, including securing it when closed. He stated that if a subcontractor leaves the job, the responsibility to deal with safety hazards shifts to the general contractor, and subsequent subcontractors assume their own responsibilities for safety.
DISCUSSION
I.
Metal Deck argues it owed no duty to Kimbark. "`"A tort . . . involves a violation of a legal duty, imposed by statute, contract or otherwise, owed by the defendant to the person injured. Without such a duty, any injury is `damnum absque injuria—injury without wrong. [Citations.]" [Citation.] Thus, in order to prove facts sufficient to support a finding of negligence, a plaintiff must show that defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury. [Citation.] (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292-293 . . . .)" (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 400-401.)
"A duty of care may arise through statute or by contract. Alternatively, a duty may be premised upon the general character of the activity in which the defendant engaged, the relationship between the parties or even the interdependent nature of human society." (JAire Corp. v. Gregory (1979) 24 Cal.3d 799, 803; Ratcliff Architects v. Vanir Construction Management, Inc. (1999) 88 Cal.App.4th 595, 604-605.)
"As a general rule, each person has a duty to use ordinary care and `is liable for injuries caused by his failure to exercise reasonable care in the circumstances . . . . (Rowland v. Christian [(1968)] 69 Cal.2d 108, 112 (Rowland); Civ. Code, § 1714.) Whether a given case falls within an exception to this general rule, or whether a duty of care exists in a given circumstance, `is a question of law to be determined on a case-by-case basis. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124 . . . .)" (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.) "[I]t has been repeated countless times over decades by our high court that, since Civil Code section 1714 allows for no exception from its language establishing a general duty of care applicable to all, no exceptions should be created by the courts unless clearly supported by public policy." (Ma v. City and County of San Francisco (2002) 95 Cal.App.4th 488, 503.)
"`"[D]uty" is not an immutable fact of nature "`but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." (Dillon v. Legg (1968) 68 Cal.2d 728, 734 ....) (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6 . . .)" (Parsons v. Crown Disposal Co., supra, 15 Cal.4th 456, 472-473.) "`[L]egal duties are ... merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434 . . .)" (Adams v. City of Fremont (1998) 68 Cal.App.4th 243 at p. 265.)
"Some of the considerations that courts have employed in various contexts to determine the existence and scope of duty are: `the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendants conduct and the injury suffered, the moral blame attached to the defendants conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (Cf. Schwartz v. Helms Bakery Ltd. [(1967)] 67 Cal.2d 232, 237, fn. 3 . . . ; Wright v. Arcade School Dist. [(1964)] 230 Cal.App.2d 272, 278 . . . ; Raymond v. Paradise Unified School Dist. [(1963)] 218 Cal.App.2d 1, 8 . . . .) (Rowland, supra, 69 Cal.2d at p. 113.)" (Parsons v. Crown Disposal Co., supra, 15 Cal.4th 456, 472-473.) Another consideration, when assessing the liability of a defendant arising from a contractual relationship to a third party not in privity, is "the extent to which the transaction was intended to affect the plaintiff." (Biakanja v. Irving (1958) 49 Cal.2d 647, 650.)"
Metal Deck contends it had no duty under its subcontract with McCrary to cover the holes it cut in the gymnasium roof, as the contract did not specifically require it to do so. As respondents point out, however, the subcontract did expressly require Metal Deck to "comply with all applicable safety laws, rules, and regulations. . ." and to "protect the public an other workers on the site while performing his scope of work utilizing whatever means is deemed appropriate; including flagmen, barricades, railings, temporary stairs, etc., conforming to current CAL-OSHA regulations, including obtaining required CAL-OSHA permits relating to his work." Regulation 1632, as indicated above, applies as relevant here to "temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings" and requires that floor, roof and skylight openings "be guarded by a standard railing and toeboards or cover[.]" The regulation further specifies that such a cover must "be capable of supporting the greater of the weight of a 200-pound person or twice the weight of the employees, equipment and materials that may be imposed on the cover at any one time[,]" "be secured in place to prevent accidental removal or displacement" and "bear a pressure sensitized, painted, or stenciled sign with legible letters not less than one inch high, stating: `Opening - Do Not Remove." (Cal. Code of Regs., § 1632.)
As the contractor responsible for cutting the holes in the metal roof of the gymnasium, thereby creating the hazard the regulation was aimed at eliminating, Metal Deck was required to cover the holes rather than leave them uncovered until someone else took the required safety measures. Metal Deck urges that the uncertainty caused by the contracts failure to specify the party responsible for covering the holes should be construed in favor of Metal Deck because McCrary drafted the contract. (Civ. Code, § 1654.) Civil Code section 1654 provides: "In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist." We do not view the contract as uncertain. Although the contract does not expressly state Metal Decks responsibility to cover the holes it cut, it does expressly charge Metal Deck with ensuring safety and abiding by applicable regulations, which obviously include section 1632 of the Code of Regulations. Nor are we persuaded by Metal Decks assertion that the "original subcontract, not Attachment A, defines Metal Decks scope of work." Metal Deck relies upon Civil Code section 1651, which provides: "Where a contract is partly written and partly printed, or where part of it is written or printed under the special directions of the parties, and with a special view to their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts, and the parts which are purely original control those which are copied from a form. And if the two are absolutely repugnant, the latter must be so far disregarded." Metal Decks assertion is based on the fact that Attachment A is a form rather than a document specifically prepared with the Orinda project in mind. The portion of the contract which is specific to this transaction, however, expressly states that Metal Decks work is to be performed "in strict accordance with the project plans, specifications, Addenda 1 & 2, Attachments A & B, and applicable codes." This portion of the contract further states: "Your attention is specifically called out to the below listed items which are made a part of this Subcontract but without limiting the scope as outlined above." As the italicized language demonstrates, the portion of the contract specifically drafted for the Metal Deck/McCrary subcontract expressly incorporated Attachment A and the applicable safety regulations.
Even aside from the contract, consideration of the Rowland factors leads to the conclusion that Metal Deck must be viewed as having had a duty to cover the holes it created. There can be no doubt that a worker accidentally falling through an uncovered hole in the roof was a foreseeable result of the hole being left uncovered. That such a result is foreseeable is evident not only as a matter of common sense but as reflected in the existence of an administrative safety regulation specifically directed at the risk posed by roof and floor openings. The undisputed evidence at trial was that regulation 1632(b) was specifically addressed to the hazard facing even skilled and experienced workers at a construction site who work in an environment rife with distractions and may have "momentary lapses of consciousness."
Respondents suggest that resort to a Rowland analysis is unnecessary because case law already establishes that a contractor has a duty not to affirmatively contribute to injury to another contractors employee. They rely upon Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 2002, and McKeown v. Wal-Mart Stores (2002) 27 Cal.4th 219, 225, which held that the employee of an independent contractor could seek relief against the hirer of the contractor where the hirers exercise of retained control affirmatively contributed to the employees injury (Hooker) and where the hirers provision of unsafe equipment contributed to the employees injury (McKeown). They also rely upon Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, which found triable issues of fact as to whether the hirer and general contractor owed a duty of care to the employee of a subcontractor for failing to take precautions (in the sole control of the contractor) that would have prevented the employees injury.
Neither Hooker nor McKeown is particularly useful in the present case, as they dealt with application of certain theories for derivative tort liability as set forth in Chapter 15 of the Restatement Second of Torts, and did not separately discuss the element of duty. Ray did hold that a general contractor might owe a duty of care to the employee of a subcontractor, but in a situation where, pursuant to the parties contract, only the contractor was in a position to take the safety precaution at issue. Ray offers limited support for a finding of duty in the present case in that it holds one contractor may be liable for contributing to the injury of another contractors employee, but the facts involved are too different from those in the present case for Ray to provide the sole basis for a finding of duty.
Metal Decks argument that Kimbarks injury was not reasonably foreseeable is based entirely on the premise that Nelson agreed to cover the holes. According to Metal Deck, it had no duty to cover the holes it cut because it was reasonable for it to rely on Nelson to have the holes covered.
Respondents, of course, dispute the characterization of Nelson as having "agreed" to cover the holes, and much evidence supports their view. Nelson testified that Metal Deck refused to cover the holes, leaving him no choice but to take on that task. Respondents and Horizons expert witnesses testified that Nelson had no alternative in the matter. Plummer testified that Nelson acted surprised that Metal Deck had not covered the holes. No witness testified that Metal Deck would have covered the holes if Nelson had refused.
In any case, even assuming for the sake of argument that Nelson did "agree" to cover the holes upon Metal Decks request, Metal Decks foreseeability argument actually addresses the standard of care, not foreseeability and duty. If Metal Deck had no duty to cover the holes it cut, it would not have been necessary for it to ask or direct Nelson to cover them; it could simply have been left to Nelson to take the required steps. Yet Metal Deck emphasizes that Nelson agreed to have the holes covered. In essence, Metal Decks position is that it adequately discharged its duty to cover the holes by arranging to have Nelson do so. Whether this was sufficient to meet the standard of care was a question of fact for the jury. (See Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202.) But Metal Decks reliance on Nelsons alleged agreement begs the duty question altogether.
In arguing that Metal Deck is contesting the issue of breach of the standard of care rather than duty, respondents rely upon Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703. In Lugtu, the court noted that defendants were really arguing about the proper scope of the duty of care, not the threshold question whether a duty existed. There, the issue was whether a police officer who stopped a vehicle on a highway satisfied the duty of care as long as the vehicle was stopped off the travel lanes, regardless of factors such as whether the stop is on the center median or the right shoulder, width or length of the area, and visibility of the stopped car to oncoming traffic. (26 Cal.4th at p. 218.) Lugtu in turn cited Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546, which explained that "scope of duty" is determined by reference to the "standard of care," the formulation of which is a question of law for the court. Metal Deck therefore states that Lugtu simply confirms that the issue before this court is one of law, whether viewed as a question of existence or scope of duty. The problem in the present case, however, goes further: The issue Metal Deck argues is less concerned with the scope of its duty than with whether its conduct satisfied the standard of care. Breach of duty, of course, is a jury question. (Ramirez v. Plough, Inc., supra, 6 Cal.4th at p. 546.)
In arguing Kimbarks injury was unforeseeable, Metal Deck relies on Romero v. Superior Court (2001) 89 Cal.App.4th 1068. In that case, a 16-year-old boy sexually molested a 13-year-old girl at the home of the Romeros, whose son the teenagers were visiting, while the Romeros left the house for an hour to buy pizza. In an action by the girl and her mother against the Romeros, the court concluded the Romeros owed the girl no duty to protect her from assault by the boy because the Romeros had no actual knowledge of the boys assaultive propensities and, therefore, the assault was not reasonably foreseeable. (Id., at pp. 1086-1087, 1092.) Metal Deck urges that the present case "leads to an identical conclusion about foreseeability" because Nelson agreed to cover the holes and the accident occurred on a busy construction site where all the workers were charged with safety consciousness. We disagree. In Romero the defendants had no reason to believe an assault might occur when they left the house. Here, Metal Deck had every reason to belief an accident might befall a worker on the roof with the holes left uncovered. The injury was clearly foreseeable.
We are similarly unpersuaded by Metal Decks reliance upon Bryant v. Glastetter (1995) 32 Cal.App.4th 770 (Bryant). In Bryant, the police stopped a drunk driver on a freeway and called for a tow truck to remove her car from the shoulder of the road. While working to remove the car, the tow truck driver was struck and killed by another car. The decedents family sued the drunk driver. Bryant concluded that the decedents death was not a foreseeable result of the drunk driving because it resulted from "independent negligence by a third party." The court stated that the "harm suffered by decedent . . . was not a `harm of a kind normally to be expected as a consequence of negligent driving, such as a collision or narrowly averted collision involving [the drunk driver]." (Id., at p. 779.)
Here, the harm suffered by Kimbark was precisely the kind to be expected from cutting holes in a high roof on a construction site without covering them. Whether securing Nelsons agreement to cover the holes was sufficient to meet the standard of care in assuring the holes were covered is a different question than whether Metal Deck had a duty to cover them in the first instance.
Metal Deck quotes from Juarez v. Boy Scouts of America, supra, 81 Cal.App.4th 377, 402-403: "In examining the critical element of foreseeability of harm, we must adhere to the rule that `[f]oreseeability supports a duty only to the extent the foreseeability is reasonable. (Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 306 . . . (Sturgeon ); Rowland, supra, 69 Cal.2d at p. 113, . . .) In other words, `a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated. [Citations.] (Ann M. [v. Pacific Plaza Shopping Center (1993)] 6 Cal.4th [666,] 676 . . . .) Basically, `[t]he reasonableness standard is a test which determines if, in the opinion of a court, the degree of foreseeability is high enough to charge the defendant with the duty to act on it. " (Sturgeon, supra, 29 Cal.App.4th at p. 307. . . .)
"`". . . [I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. [Citation.] On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required." [Citation.] Thus, foreseeability is a somewhat flexible concept. (Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d 112, 125, . . ; see also Kentucky Fried Chicken of Cal., Inc. v. Superior Court [(1997)] 14 Cal.4th [814,] 819, . . .) If injury to another `"`is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct" [citations], we must label the injury "reasonably foreseeable" and go on to balance the other Rowland considerations. (Sturgeon, supra, 29 Cal.App.4th at p. 307 . . . )"
We view this discussion of foreseeability as directly contrary to the position Metal Deck seeks to advance. As stated above, the foreseeability of the type of accident that occurred here is clear. According to the evidence at trial, the burden to Metal Deck in covering the holes as they were cut would have been minimal. Quite obviously, the policy reasons for preventing the harm are strong. The foreseeability factor militates in favor of finding Metal Deck owed a duty to Kimbark to cover the holes it cut.
Turning to the next factors in the duty analysis, there can be no doubt as to the certainty Kimbark suffered harm: Kimbark died as a result of his fall. Kimbarks death was closely connected to Metal Decks conduct in that the fall would not have occurred if the hole had been properly covered. Metal Deck argues that the connection between its failure to cover the holes and the accident was attenuated in that many days passed between the time the holes were cut and the time of the accident, and that other parties took action with respect to the holes. Again, Metal Deck relies upon Bryant, which found "no logical cause and effect relationship" between the negligent drunk driving and the decedents death: "[The drunk driver] was not even directly responsible for having brought decedent to the place where he was injured since he had been contacted by the police officers. We decline to hold that an intoxicated driver is, as a matter of policy, liable for all subsequent harm regardless of intervening acts by third parties . . . ." (32 Cal.App.4th at p. 782.)
Metal Deck further relies upon Avis Rent A Car System, Inc. v. Superior Court (1993) 12 Cal.App.4th 221, in which Avis was found to have no duty to a person injured when a vehicle stolen from Aviss inadequately supervised lot crashed into the plaintiffs car while being pursued by the police after an unrelated shoplifting. After concluding that no special circumstances existed to make Avis liable for the conduct of the thief who crashed into the plaintiffs car, the court stated that any duty owed by avis "would not be perpetual and unlimited in scope. . . . it would not extend to this accident: (1) in another county; (2) one week later (3) during a police chase not caused by a report of the vehicle theft." (Id., at p. 233.)
Here, Metal Deck notes that in the period between the cutting of the holes and the accident, Nelson asked Plummer to cover the holes, Plummer placed plywood over the holes but did not secure it or paint warnings, Nelson failed to inspect Plummers work, and Kimbark lifted the covers off the holes. According to Metal Deck, five days of construction work passed after the holes were cut and Plummer negligently covered them, and "eight full days of apparently intense construction activity passed" after the holes were cut and Nelson had them covered.
Metal Deck greatly overstates the amount of activity on the roof during the relevant period. The holes were cut on June 16; Plummer covered them, at Nelsons request, on the same day. There is no evidence any work was conducted on the roof over the ensuing several days and Nelson expressly stated that no such work was done on Friday, June 18, Saturday, June 19 or Sunday, June 20. Nelson testified that Monday, June 21, was the only day anyone was working on the roof, during this period, although at another point in his testimony he stated that Lucass work to make the corrections Kimbark found necessary on June 21 was not completed until sometime on June 22. Kimbark did have the covers off the holes on June 21: Although Nelson only saw him with the cover off one hole, he testified that Kimbark would have had to remove the covers from each of the holes to determine that the bolt holes needed to be corrected.
Undisputedly, certain events occurred after Metal Deck cut the holes and before Kimbark fell through one of them: Nelson asked Plummer to cover the holes, Plummer placed plywood over them but did not secure it in place, Nelson failed to inspect Plummers work and several days later Kimbark removed the plywood to inspect the area in which he was to work. We are not convinced, however, that these events were sufficient to break entirely the connection between Metal Decks conduct and Kimbarks accident. Unlike the situations in Bryant and Avis, here no third party introduced an unexpected element into the sequence of events. In Bryant, the drunk driver was not directly responsible for calling the tow truck, nor for the negligence of the third party whose car struck the tow truck driver. In Avis, the company had no duty to control the conduct of a thief—and especially no duty to control such conduct a week after the theft, in a different county and during a chase that had nothing to do with the theft from Avis.
Here, Metal Deck was directly responsible for cutting the holes without covering them and Kimbarks accident was precisely the type to which that could be foreseen from this conduct. Metal Deck attempts to distance itself from Kimbarks accident by stressing that it left the work site only after Nelson agreed to cover the holes. This characterization, however, is not supported by the evidence. The testimony from Blackburn and Hill that someone covered the holes as Hill cut them—testimony which would support a conclusion that Nelson did in fact agree to have the holes covered—was contradicted by Nelsons testimony that he was informed of Metal Decks refusal to cover the holes after they had been cut and by Plummers testimony that he covered the holes at Nelsons request after Metal Deck left the site. If Nelson had Plummer cover the holes not as part of an "agreement" with Metal Deck but because Metal Deck refused to cover the holes, Metal Deck cannot be viewed as having relied upon Nelson to cover the holes when it made its decision to leave them uncovered.
Metal Deck additionally relies upon Benson v. Central Pacific R. R. Co. (1893) 98 Cal. 45, in which the plaintiff was injured when she was struck by a train while walking along the tracks from one station to the previous one, where she had been unable to disembark because the train stopped too briefly. Benson found the railroad was not liable because the plaintiff chose an unreasonable means to return to the station when other means (such as waiting for a return train) were available. (Id., at pp. 49-50.) As Metal Deck notes, we distinguished Benson in Ingram v. Luxor Cab Co. (2001) 93 Cal.App.4th 1045, in which we rejected the claim that a taxi company owed no duty to a passenger it refused to deliver to the desired location and instead left off several blocks away; the passenger exited the taxi unharmed but was injured while walking up a steep hill which her disabilities prevented her from successfully negotiating. In its discussion of proximate cause, Ingram distinguished Benson because the conduct of the plaintiff in Benson after leaving the train had been unreasonable.
Contrary to Metal Deck, we view the present case as, if anything, closer to Ingram than Benson. As in Ingram, the defendant created the danger that resulted in injury: There, the taxi driver put the passenger out of the car despite being told of her condition and the likelihood of injury; here, Metal Deck cut the holes and did not cover them. In Benson, by contrast, the railroad did not create the danger; its failure to permit the passenger to disembark at the first station set in motion the ensuing events, but it was the passengers decision to return to the station by an unsafe path that created the situation in which the injury was sustained. To reiterate, Metal Decks argument that it had no duty depends on its assumption that Nelson agreed to assume the obligation to cover the holes—and that very assumption demonstrates that Metal Deck did in fact have at least an initial duty to cover the holes. If negligence on the part of Kimbark, McCrary or another subcontractor contributed to the harm, they would also be liable (and, of course, the jury so found). But these were matters of comparative fault and contributory negligence, and cannot serve to exonerate Metal Deck completely.
Respondents discussion of the Rowland closeness of the connection factor delves into the issues of intervening and superseding causation, arguing that the conduct of others after Metal Deck cut the holes was not a superseding cause that would operate to eliminate Metal Decks responsibility for Kimbarks accident. Whether intervening negligence is a superseding cause, however, is a question of fact (Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 666; Torres v. Xomox Corporation (1996) 49 Cal.App.4th 1, 19), to be determined by the jury if the legal question of duty is resolved in the affirmative. Metal Deck did not raise causation as an issue on this appeal.
In its reply brief, Metal Deck responds to respondents discussion of this issue by arguing that the other contractors conduct constituted a superseding cause as a matter of law. "`Where, subsequent to the defendants negligent act, an independent intervening force actively operates to produce the injury, the chain of causation may be broken. It is usually said that if the risk of injury might have been reasonably foreseen, the defendant is liable, but that if the independent intervening act is highly unusual or extraordinary, not reasonably likely to happen and hence not foreseeable, it is a superseding cause, and the defendant is not liable. [Citations.] ([Citations.].)" (Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1848.)
"`[T]he foreseeability test is twofold relating both to the act and the nature of harm suffered: "[W]here [an] injury was brought about by a later cause of independent origin . . . [the question of proximate cause] revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused the injury of a type which was foreseeable. If either of these questions is answered in the affirmative, then the defendant is not relieved from liability towards the plaintiff; if however, it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable, then the intervening cause becomes a supervening cause and the defendant is relieved from liability for the plaintiffs injuries." [Citations.] (Pappert v. San Diego Gas & Electric Co. (1982) 137 Cal.App.3d 205, 210 . . .)" (Hardison v. Bushnell (1993) 18 Cal.App.4th 22, 27.)
Here, there was evidence that Metal Deck cut the holes and then refused to cover them, effectively forcing Nelson to take steps to get them covered. That Nelson and/or the person he found to do this job should be negligent in covering the holes, or that a worker on the roof should accidentally step into a hole, can hardly be viewed as extraordinary. Moreover, it is obvious that the injury Kimbark suffered was "of a type which was foreseeable." (Ibid.)
Metal Deck relies on an example given in the Restatement (Second) Torts, § 452, to illustrate the principle stated in subdivision (2) that where "the duty to prevent harm to another threatened by the actors negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause." In the example, "A is one of a crew of workmen employed by a construction company to excavate a trench in the public highway. One of As duties, at the close of a days work, is to set out barriers and warning flares for the protection of travelers on the highway. A forgets to do so before going home at the end of the day. When halfway home he remembers, and returns to the scene, intending to make good his neglect. There he meets B, the foreman of the company, who tells him to go one home, promising that he, B, will look after the barriers and flares. A goes home. B in turn forgets, and the trench is left without guard, lights, or warning. During the night C, a traveler on the highway, drives into the trench and is injured. A is not liable to C." (Example 5 to comment j.). Metal Deck views this fact pattern as "strikingly similar" to the present case. It can do so, however, only by assuming Nelsons agreement to cover the holes. As discussed above, there was evidence that Nelson took on the task of covering the holes only after Metal Deck refused to cover them, creating an entirely different scenario than the one Metal Deck presents, and making the Restatement example inapt.
At the very least, the evidence created a factual question. The jurys verdict demonstrates it viewed the negligence of McCrary and Kimbark as intervening rather than superceding causes, as it would otherwise have found Metal Deck was not negligent. As the above discussion demonstrates, substantial evidence supports this conclusion.
Returning to Rowland, the factor of moral blame also points in favor of finding a duty in the present case. There was evidence that Metal Deck did not inform McCrary it was not going to cover the holes until after they had been cut, and that Plummer was sent to cover the holes after Metal Deck had left the construction site. It is difficult not to view as morally blameworthy the failure to cover the holes cut in this roof, 35 feet above the ground and the workplace of a number of people. Several witnesses—McCrary, Nelson, Bobis—testified that industry standards call for the person who cuts a hole to secure a cover over it, and even Metal Decks expert witness agreed that a subcontractor who cuts such a hole is required to protect its own employees and those of other contractors. Seifert felt Metal Deck was not responsible in the present case because he believed that Horizon had installed plywood covers as Metal Deck cut the holes, but Plummers testimony made clear that this had not happened.
In discussing the factor of moral blame, Metal Deck recites the standard this court described in Adams v. City of Fremont, supra, 68 Cal.App.4th at p. 270: "Moral blame has been applied to describe a defendants culpability in terms of the defendants state of mind and the inherently harmful nature of the defendants acts. To avoid redundancy with the other Rowland factors, the moral blame that attends ordinary negligence is generally not sufficient to tip the balance of the Rowland factors in favor of liability. Instead, courts have required a higher degree of moral culpability, such as where the defendant (1) intended or planned the harmful result; (2) had actual or constructive knowledge of the harmful consequences of their behavior; (3) acted in bad faith or with a reckless indifference to the results of their conduct; or (4) engaged in inherently harmful acts." Here, while there is no evidence Metal Deck intended or planned the harmful result, it clearly had at least constructive knowledge that the holes posed extreme danger to workers at the site if left uncovered. If indeed Metal Deck left the job site without covering the holes as described in Nelsons and Plummers testimony, such conduct would also clearly demonstrate bad faith and reckless indifference to the consequences of the hazard it had created. Bobis testified that Metal Decks conduct was a "willful disregard for safety." Indeed, Metal Decks foreman, Alan Blackburn, testified that he was "morally" obligated to cover holes he cut even if he was not contractually obliged to do so.
With respect to the policy of preventing future harm, Metal Deck urges that the interest in making everyone on a construction site responsible for safety would not be served by imposing a duty in the present case. Metal Deck takes the position that it did nothing wrong: It ensured that McCrary found someone to cover the holes appropriately and therefore did all it could to comply with the Cal/OSHA regulations.
Underlying this argument, of course, are the same assumptions Metal Deck relies upon throughout its briefing, that Nelson agreed to cover the holes before they were cut and that securing this agreement was sufficient to discharge any duty Metal Deck might have to cover the holes. As has been discussed, there was evidence that Metal Deck was responsible for covering the holes and that Nelson was forced to take on this task after the holes had already been cut, when Metal Deck refused to cover them. Under this evidence, it is clear Metal Deck did not do all it could to comply with regulation 1632.
More fundamentally, we disagree with Metal Decks framing of the issue at stake here. To be sure, encouraging everyone on a construction site to assume some responsibility for safety is a laudable and necessary goal. The critical issue here, however, is the avoidance of the specific harm involved in this case: A worker on a construction site falling through an improperly covered hole in a roof. It seems obvious that imposition of a duty upon the contractor who cuts a hole in a roof to cover it securely would further the policy of preventing future harm by requiring the party who creates a danger to take the necessary safety precautions.
Metal Deck further argues that imposition of a duty here would make Metal Deck an "insurer" of the conduct of everyone at the construction site, leaving Metal Deck with the untenable choice of assuming this role and remaining on the site to monitor the work of the subcontractors covering the holes, or refusing to cut the holes as required by the subcontract. Metal Deck ignores the alternative course open to it: To cover the holes itself. Bobis testified that it would have taken a total of 16 minutes to do this. On this same job, Metal Deck did cover a hole it made in another roof, using the piece of metal it had cut to do so. There was also evidence of another job for which, as here, the original proposal had excluded covering holes and the actual contract was silent on the point, and for which Metal Deck did cover its own holes. We see no undue burden in requiring the contractor who cuts holes in a roof to cover them or make prior arrangements to have them covered.
We similarly disagree with Metal Decks assessment of the factor of consequences to the community. Metal Deck urges that a finding of duty would have adverse consequences for the community—whether defined as the population at large or the construction community—because making a subcontractor the "insurer" of everyone elses conduct on a job site would result in inefficiencies, increased costs and "chaos." No inefficiencies or chaos would result, however, from the subcontractor covering its own holes. To the contrary, the community interest in safety would be furthered by requiring a subcontractor to comply with regulations governing the installation of covers over holes such as involved here. Where there is a dispute between subcontractor and general contractor about which is responsible for taking such safety measures, better to ensure adequate safety and subsequently allow the parties to resolve responsibility for costs than to permit a serious hazard to continue unabated.
On the last Rowland factor, availability of insurance, Metal Deck asserts that a finding of duty would require subcontractors to carry more insurance and would increase costs, while a finding of no duty would "highlight that liability should be imposed only upon those responsible for a particular victims injury." Respondents, by contrast, urge that insurance is readily available and that insurance rates might drop as insurers increase their monitoring of their insureds compliance with OSHA regulations and industry standards. Neither party offers any authority for their positions. We do not view this factor as weighing heavily on either side of the duty question.
Finally, to the extent Metal Decks duty in this case arises from its contractual relationship, the parties dispute whether the subcontract may be viewed as having been intended to benefit Kimbark. On the one hand, Metal Deck is surely correct that the primary intent of the contract was to benefit the contracting parties, Metal Deck and McCrary, and the school district for whom the work was undertaken. On the other hand, Metal Decks assertion that the contract "had nothing to do with Frederick Kimbark, his employer, nor anyone connected to them" overstates the case. The subcontract, as described above, specifically required Metal Deck to protect the safety of other workers at the site. The workers within the contemplation of this requirement were intended to benefit from it, and Kimbark was, of course, such a worker.
In sum, the Rowland factors strongly point toward a finding of duty in the present case.
Metal Decks alternative argument that it properly discharged its duty by arranging for Nelson to cover the holes is unavailing. As indicated above, whether a defendant properly discharged a duty is a question of fact. (Seo v. All-Makes Overhead Doors, supra, 97 Cal.App. 4th at p. 1202.) Here, substantial evidence supports the jurys conclusion that Metal Deck did not properly discharge its duty: According to Nelson and Plummers testimony, Nelson assumed the responsibility for covering the holes only when Metal Deck refused to do so after the holes had already been cut.
II.
Respondents cross-appeal challenges the trial courts grant of a partial directed verdict on punitive damages. They claim there was substantial evidence of "willful and conscious disregard for the safety of others" warranting an award of punitive damages—specifically, evidence that Metal Deck never intended to cover the holes and refused to do so, rather than cutting the holes after securing Nelsons agreement to cover them, and that Metal Deck knew it created a hazardous condition and had a duty to remedy it. Metal Deck responds that respondents are precluded from seeking punitive damages because they failed to offer proof of Metal Decks financial condition, a necessary element of a punitive damages claim, and that respondents cannot seek reversal of the trial courts order on the theory offered in their appellate briefs because their argument at trial was solely that punitive damages were warranted by Metal Decks fraudulent conduct after Kimbarks accident.
Under Civil Code section 3294, subdivision (a), "In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant." "Malice" is defined as "conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." (Civ. Code, § 3294, subd. (c)(1).) "Oppression" is defined as "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that persons rights." (Civ. Code, § 3294, subd. (c)(2).) "Fraud" is defined as "an intentional misrepresentation, deceit or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury." (Civ. Code, § 3294, subd. (c)(3).)
McCrary and Metal Deck first raised the punitive damages issue via an in limine motion asserting respondents could not prove their claim for such damages. At that time, respondents urged the motion in limine was an inappropriate vehicle to raise the issue. The court took the issue under consideration and granted a motion to bifurcate the issue of punitive damages.
After the close of evidence at trial, McCrary and Metal Deck moved for a partial directed verdict on punitive damages, arguing that the evidence did not show conduct rising to the level required for punitive damages. Metal Decks argument was that because Nelson told Metal Deck he would have the holes covered, Metal Decks conduct in failing to cover them was not despicable conduct that would support an award of punitive damages. In response, as to Metal Deck, respondents attorney stated that the punitive damages claim was based on the fraud prong of the punitive damages standard and argued that Metal Deck engaged in fraud by attempting to manufacture evidence that the holes were covered and screwed down before Blackburn and Hill left the job site. Metal Decks attorney then urged that the post-accident conduct upon which respondents attorney was focused had no causal connection to Kimbarks death and therefore was not the type of misconduct intended to be punished by the punitive damages statute. He also stated that once Metal Deck brought the issue of the holes to Nelsons attention, it had a right to rely on Nelson to cover them. Respondents attorney rejoined that the law did not require the fraud upon which the punitive damages claim was based to be "pre-intent" and punitive damages were appropriate where a party attempts to take away legal rights from another. He then concluded with the statement, "I would remind the Court that even Mr. Bobis, I believe, on the record, was asked in his opinion about the conduct, if Metal Deck had left before these holes were covered, and he used the words `conscious disregard for safety. And he was not my expert, he was Horizons expert."
McCrary also raised a procedural argument concerning the need for testimony from the personal representative of Kimbarks estate.
When it granted the motion for a partial directed verdict, the court referred exclusively to the fraud theory for the punitive damages claim, stating, "The issue, as I understand, it primarily pertains to the statement from Blackburn and Metal Deck witnesses as the basis, essentially for fraud claim. [& para;] I dont find that, since this is post-accident that there is any justifiable reliance, or if taken as a separate independent incident, there is no evidence of any damage that has been admitted into evidence in regard to that issue."
Respondents do not pursue their fraud theory of punitive damages on appeal. Rather, they argue, as stated above, that Metal Decks conduct before Kimbarks accident demonstrates "willful and conscious disregard of the rights or safety of others" (Civ. Code, § 3294, subd. (c)(1)) sufficient to warrant an award of punitive damages.
In their briefs, respondents state that this theory may have been foreclosed by Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 17-18, in which the Supreme Court held there is "no tort remedy for the intentional spoliation of evidence by a party to the cause of action to which the spoliated evidence is relevant, in cases in which, . . . the spoliation victim knows or should have known of the alleged spoliation before the trial or other decision on the merits of the underlying action." We need not consider the relevance of the Cedars-Sinai decision to the present issue of punitive damages as respondents do not pursue the fraud theory on appeal.
It is clear from the transcript of the hearing on the motion for a partial directed verdict that respondents primary focus in the trial court, with respect to their punitive damages claim against Metal Deck, was on Metal Decks post-accident allegedly fraudulent conduct. Metal Decks attorney mentioned his clients pre-accident conduct only very briefly, at the conclusion of his argument. Even more significantly, when the trial court based its decision granting the partial directed verdict against Metal Deck solely on the fraud theory without reference to Metal Decks conduct in cutting and failing to cover the holes, respondents made no effort to secure a ruling from the court on the alternative theory that its pre-accident conduct did not permit a punitive damages award.
It has long been established that "where a court, through inadvertence or neglect, neither rules nor reserves its ruling, the party who objected or made the motion must make an effort to have the court actually rule, and that when the point is not pressed and is forgotten the party will be deemed to have waived or abandoned the point and may not raise the issue on appeal. ([Citations.])" (People v. Brewer (2000) 81 Cal.App.4th 442, 461-462; see,People v. Ramos (1997) 15 Cal.4th 1133,1171.) By failing to press for a ruling on the pre-accident theory for punitive damages, respondents deprived the trial court of the "opportunity to correct potential error." (People v. Ramos, supra, 15 Cal.4th at p. 1171.)
Respondents point out that the review of a directed verdict raises only a question of law. "Like a motion for nonsuit, a motion for a directed verdict is in the nature of a demurrer to the evidence. (Walters v. Bank of America (1937) 9 Cal.2d 46, 49 . . . ; Metzenbaum v. R.O.S. Associates (1986) 188 Cal.App.3d 202, 208 . . . ; Fuchs v. Southern Pac. Co. (1935) 5 Cal.App.2d 409, 412 . . . ; 7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 430, p. 491.) In determining such a motion, the trial court has no power to weigh the evidence, and may not consider the credibility of witnesses. It may not grant a directed verdict where there is any substantial conflict in the evidence. (7 Witkin, Cal. Procedure, supra, Trial, §§ 419, 431-432, pp. 480-481, 492-494.) A directed verdict may be granted only when, disregarding conflicting evidence, giving the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion, or a verdict in favor of that party. (Casey v. Proctor (1963) 59 Cal.2d 97, 103 . . . ; Walters v. Bank of America, supra, 9 Cal.2d at p. 49; Estate of Lances (1932) 216 Cal. 397, 400-401 . . . ; Shapiro v. Hu (1986) 188 Cal.App.3d 324, 334 . . . ; Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 394-395 . . . ; Grafton v. Mollica (1965) 231 Cal.App.2d 860, 862 . . . ; Estate of Easton (1931) 118 Cal.App. 659, 662 . . . ; 7 Witkin, Cal. Procedure, supra, Trial, §§ 419, 431-432, pp. 480-481, 492-494.)" (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629-630.)
This court has discretion to review even a theory raised for the first time on appeal if the issue is a legal question to be determined from undisputed facts. We are not convinced, however, of the propriety of doing so here. It is apparent, as already stated, that the argument being presented on appeal is not the one respondents were concerned with in the trial court. Respondents could easily have directed the courts attention to this theory when it appeared the court had neglected to consider it. Their failure to do so reflects the lack of importance attached to this theory at trial; they should not be able to resurrect it now, after the trial has concluded.
Finally, even if we were to consider respondents present argument, it would not be availing. A jury is required to make the findings supporting a punitive damage award by clear and convincing evidence. (Civ. Code, § 3294, subd. (a); Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 891.) Hence, the question in reviewing the trial courts decision to take this issue from the jury is whether there is any substantial evidence from which a reasonable juror could have found clear and convincing evidence of malice on Metal Decks part. (Ibid.; see, Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 60-61 [nonsuit].) "[M]alice does not require actual intent to harm. [Citation.] Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. [Citation.] Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences. [Citation.]" (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228.) The clear and convincing evidence standard "requires a finding of high probability[,]" evidence "`"`so clear as to leave no substantial doubt; `sufficiently strong to command the unhesitating assent of every reasonable mind."" (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc., supra, 78 Cal.App.4th at p. 891, quoting In re Angelia P. (1981) 28 Cal.3d 908, 919.)
The evidence most favorable to respondents position suggests that Metal Deck knew when the holes on the roof were cut that its actual contract with McCrary did not contain the exclusion for planking holes that had been in Metal Decks proposal; that Metal Deck employees cut the holes in the roof and then for the first time informed Nelson that they would not cover the holes, that Metal Deck had left the job site by the time Plummer covered the holes and that Blackburn and Hill were not truthful in their testimony that they saw the holes being covered as they were cut.
It is undisputed, however, that Nelson ultimately informed Blackburn that Nelson would have the holes cut and all the expert witnesses, including respondents, testified that Metal Deck had a right to rely on this representation once Nelson made it. In light of this last undisputed evidence, it is clear that however wrong Metal Deck may have been in failing to cover the holes, at the point it left the job site it had reason to believe the holes would be properly covered and the hazard it had created remedied. On these facts, Metal Deck simply cannot be viewed as having acted with willful and conscious disregard of another persons safety.
Having reached this conclusion, we need not resolve Metal Decks additional contention that punitive damages were precluded by respondents failure to present evidence of Metal Decks financial condition. We note, however, that the record indicates the punitive damages issue was bifurcated before the trial began. Accordingly, there would have been no occasion for respondents to present evidence bearing solely on the punitive damages issue.
The judgment is affirmed.
Haerle, J. and Lambden, J. concur.