Opinion
H033103.
2-23-2009
MIGUEL ANGEL MARQUEZ, et al., Plaintiffs and Appellants, v. NOVELLUS SYSTEMS, INC., Defendant and Respondent.
Not to be Published in Official Reports
In this wrongful death action based on premises liability, defendant Novellus Systems, Inc. (Novellus) obtained summary judgment on the ground that the decedent was the employee of a contractor Novellus had hired to work on its property. On appeal, plaintiffs, members of the decedents family, contend that there were triable issues of fact as to whether Novellus had retained control over the contractors work and whether Novellus had a nondelegable regulatory duty to ensure that the work was performed safely. We find no error and must therefore affirm the judgment.
Background
The underlying facts are not disputed. In October 2004 Novellus retained ArborScience, Inc. to trim and cut trees on property owned by Novellus. The decedent, 19-year-old Miguel Marquez, was employed as a groundsman by ArborScience. On Sunday, November 7, 2004, as Marquez was feeding brush and tree branches into a wood chipper, his feet apparently became caught in the brush and were drawn into the running machine. Marquez suffered fatal injuries, including asphyxia and amputation of his right leg and left foot. Although there were other workers nearby, Marquez was working alone and no one witnessed the accident. However, Marquez had been observed at a previous job site pushing branches into the chipper with his feet. ArborScience received multiple citations for safety violations from the California Division of Occupational Safety and Health (Cal-OSHA).
On November 3, 2006, Marquezs parents, stepmother, and siblings filed this wrongful death suit against Novellus, ArborScience, the manufacturer and the distributor of the wood chipper, and others. In the first cause of action for premises liability plaintiffs alleged that Novellus "actively directed, retained control over safety conditions and supervised the working methods and procedures" used by ArborScience on its premises, thereby "affirmatively" causing and contributing to the accident on Novelluss property. Novellus "knew or should have known" that ArborSciences weekend employees were "unqualified and untrained" to use the chipper safely, that no emergency personnel were present on site, and that the equipment had been maintained in a defective and unsafe condition. The second cause of action against all defendants alleged negligence in the maintenance and operation of the equipment, for which Novellus was liable as property owner.
Novellus moved for summary judgment, citing Privette v. Superior Court (1993) 5 Cal.4th 689. Novellus argued that it could not be liable for Marquezs injuries because it was only the premises owner and had not retained control over the safety conditions or work performed by ArborScience. The trial court agreed and granted Novelluss motion.
Discussion
1. Scope and Standard of Review
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Summary judgment is appropriate "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)
A defendant who moves for summary judgment or summary adjudication bears the initial burden to show that the action or cause of action has no merit—that is, "that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c, subds. (a), (p)(2).) When the burden of proof at trial will be on the plaintiff by a preponderance of the evidence, the moving defendant "must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff `does not possess and cannot reasonably obtain, needed evidence" to support a necessary element of the cause of action. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, quoting Aguilar, supra, 25 Cal.4th at p. 854; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) If the defendant makes a prima facie showing that justifies a judgment in its favor, the burden then shifts to the plaintiff to make a prima facie showing that there exists a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.)
On appeal, we conduct a de novo review of the record to "determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiffs case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334; Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 274.) We apply the same procedure used by the trial court: We examine the pleadings to ascertain the elements of the plaintiffs claim; the moving papers to determine whether the defendant has established facts justifying judgment in its favor; and, if the defendant did meet this burden, plaintiffs opposition to decide whether he or she has demonstrated the existence of a triable issue of material fact. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 84-85; Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 887.)
2. Retained Control by Novellus
In Privette, supra, 5 Cal.4th 689, our Supreme Court examined the "peculiar risk doctrine," an exception to the common-law rule of nonliability of property owners for injuries to third parties resulting from work that was negligently performed on the property by independent contractors. The peculiar risk doctrine made property owners liable for injuries to an independent contractors employees performing inherently dangerous work on the owners land. It was believed that allocating the risk of loss to the hiring property owner, for whose benefit the work was performed, would more fairly ensure compensation to the innocent victim and promote workplace safety. In Privette, however, the court held that those justifications did not apply when the contractors employee could recover from the workers compensation system. "[I]n the case of on-the-job injury to an employee of an independent contractor, the workers compensation system of recovery regardless of fault achieves the identical purposes that underlie recovery under the doctrine of peculiar risk." (Id. at p. 701.)
In subsequent decisions, the Privette rule was refined to accommodate various contexts. Pertinent to this case is Hooker v. Department of Transportation (2002) 27 Cal.4th 198 (Hooker), where the defendant agency had retained control of the work. The Supreme Court held that a hirer of an independent contractor can remain liable to the contractors injured employee if the hirer not only retains control over the details of the work but exercised that control in a manner that "affirmatively contributed" to the employees injuries. (Hooker, supra, 27 Cal.4th at p. 210.) An affirmative contribution can occur, for example, by actively directing the contractor or its employees, or by promising to undertake a particular safety measure and then negligently failing to do so, resulting in an employees injury. (Id. at p. 212, fn. 3.) Merely retaining the ability to control or direct the work, without the actual exercise of that authority, is insufficient to impose liability on the hirer. (Id. at p. 215; see also Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1348 [no liability of general contractor that did not affirmatively exercise control over subcontractors work].)
In their complaint plaintiffs alleged that Novellus was liable for Marquezs death because it had "retained control over safety conditions and supervised the working methods and procedures used" in the hazardous activity conducted by ArborScience. In its summary judgment motion, Novellus asserted that there was no evidence that it had retained control over ArborSciences work or affirmatively contributed to Marquezs injuries, nor was there knowledge or notice of a preexisting hazardous condition on the premises. Accordingly, Novellus argued, under Privette v. Superior Court, supra, 5 Cal.4th 689 and its progeny, it had no duty toward ArborSciences employees as a matter of law.
When, as here, a defendant moving for summary judgment contends that no evidence exists to support a cause of action, it must submit affirmative evidence that negates an essential element of plaintiffs claim or evidence "that the plaintiff does not possess, and cannot reasonably obtain, needed evidence" supporting an essential element of its claim. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855.) Novellus provided a declaration by John Blanchette, the facilities manager at Novellus, who had hired ArborScience to do the tree-trimming work on the Novellus property. Blanchette affirmatively stated that no one from Novellus had supervised ArborSciences work, "nor did we have any control of the work other than to identify the area of trees that needed to be trimmed during the initial negotiations for the work to be done." To the contrary, Novellus had expected that "the contractor, a certified arborist, would have properly trained employees and appropriate and safely performing equipment to perform their job." Patrick Ireland, the San Jose facilities manager, also stated by declaration that Novellus expected that the companies it hired "comply with the law governing their trade, including having a safety program, properly trained employees and appropriate and safely performing equipment to perform their job."
These statements were sufficient to satisfy Novelluss burden to show that it had not retained control over ArborSciences work. Plaintiffs then had the obligation to present evidence that raised a triable issue of fact on this question. They attempted to do so by offering a declaration from their attorney, who had taken Patrick Irelands deposition. According to the attorney, Marilynn Winters, Ireland testified that after the accident, he "required" ArborScience to have two people present during the operation of the chipper, and the owner of ArborScience agreed.
In their opposition plaintiffs contended that this evidence was "directly relevant" to the issue of retained control. They maintained that Novellus had failed to establish that it had retained no control over ArborSciences work or that it had complied with the non-delegable duties imposed on it by the Cal-OSHA regulations. In their reply, Novellus expressed objection to the evidence as "irrelevant and inadmissible to establish any issue of negligence or control."
In its summary judgment order, the trial court did not expressly rule on the admissibility of the proffered evidence. On appeal, plaintiffs contend that the form of Novelluss objection was improper and inadequate under California Rules of Court, rule 3.1352, and the court therefore should have considered the evidence of Novelluss post-accident conduct. They assume that because this evidence was not mentioned in the summary judgment order, that the court disregarded it. The assumption is faulty. If no ruling was made on an objection to evidence, we treat the evidence as having been considered. (Cf. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670 [if objecting party does not secure a ruling, reviewing court must view the objectionable evidence as having been admitted in evidence and therefore as part of the summary judgment record].) It thus makes no difference whether the objection was made in the proper form, as we treat the post-accident remedial measures as having been considered by the court. In summary judgment contexts, "the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court . . . ." (Code Civ. Proc., § 437c, subd. (c), italics added.) We will presume that the trial court complied with this statutory mandate and considered the evidence submitted by plaintiffs. (Cf. Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563 [on silent record, courts not mentioning dismissal rule does not mean it was ignored].)
Including the post-accident evidence, however, does not help plaintiffs overcome Novelluss showing. That Ireland requested and obtained ArborSciences agreement to have two people present in the future while the chipper was in use does not imply that Novellus personnel had control over ArborSciences activities at the time of the accident. At most, Irelands request (or requirement, according to Winterss account) suggests that Ireland stepped forward to assume some measure of control by demanding that ArborScience place additional employees at the site of the tree-trimming activity. No facts indicated any pre-accident control by Novellus.
Furthermore, as plaintiffs acknowledge, Evidence Code section 1151 precludes evidence of remedial measures to prove "negligence or culpable conduct in connection with the event." Their effort to circumvent this provision on the ground that they wanted to prove retained control rather than negligence is not advanced by the authority they cite. Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548 involved an injury to a subcontractors employee who was injured in a fall at a construction site. Evidence that after the plaintiffs injury the defendant contractor installed handrails at the location where the plaintiff fell was held admissible on the issue of the defendants control over the premises, but that control was allocated to the contractor by its general contract, in which it undertook to provide safeguards at the worksite. Further, the defendant had maintained a policy of erecting guardrails around elevated areas. The appellate court held that the evidence was properly received "on the issue of control of the premises, and as to whose duty it was under the contract to take such safety measures." (Id. at p. 555; see also Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162 [post-injury construction of fence around area surrounding injury relevant to issue of exercise of control over area].) "Thus, in Taubman, the very nature of the business relationship between two contractors created inherent uncertainty about the degree of responsibility for workplace safety retained by each in their joint efforts on the contracted project. Evidence that one or the other actually undertook safety duties on the site, both before and after the accident, was therefore probative on that issue." (Alcaraz v. Vece, supra, 14 Cal.4th at p. 1189 [dis. opn of Baxter].)
This provision states: "When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event."
Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, likewise does not help plaintiffs. There it appeared from the contract between the defendants (the owner of the road project and the general contractor) that the contractor retained control over traffic safety, including road closures. As between the contractor and the subcontractor who employed the injured worker, it appeared that the latter was "contractually restrained" from barricading the roadway. The contractor was thus subject to liability for failing to close the roadway while high winds from the overhead bridge posed a safety threat.
Here, as we have observed, none of the evidence submitted by the parties provides a factual basis for a triable issue as to whether Novellus retained control over ArborSciences tree-trimming activity. Even more significantly, plaintiffs offered no evidence, nor did they suggest that any could be reasonably obtained, showing that Novellus had exercised any control in a manner that affirmatively contributed to the injury. Thus, even if the post-accident evidence permitted an inference of control over ArborSciences work before the accident, there is no conduct by Novellus that could be said to have affirmatively contributed to plaintiffs injury within the meaning of the Hooker exception to non-liability under Privette.
Plaintiffs also note the more recent case of Padilla v. Pomona College (2008) 166 Cal.App.4th 661, where the injured employee of a subcontractor sued the project owner (Pomona College) and the general contractor after a pressurized pipe broke, releasing water which knocked the plaintiff off a ladder. Relying on Hooker, the plaintiff argued that the defendants, not his employer, had retained control over the worksite but failed to take the precautionary step of depressuring the pipe. The Second District, Division Seven, held that summary judgment had been properly granted. "Although ultimately only defendants had the ability to physically turn off the pipe once the accident occurred, this control does not rise to the level of control necessary to impose liability under Privette." (Id. at p. 671.) Further, the plaintiff was unable to show that any control defendants did retain had affirmatively contributed to the injury: Defendants had delegated safety measures to the subcontractor, they were not asked by the subcontractor to turn off the water, and they did not prevent the subcontractor from setting up an emergency valve on the pipe.
We agree with plaintiffs that Padilla is factually distinguishable from the present case. The distinction is not material, however. Padilla merely reinforces the requirement that retention of control and the affirmative exercise of that control are both necessary to impose liability on a defendant contractor or owner. Both are absent here.
Plaintiffs further attempt to create a basis for liability by arguing that Novellus "had an opportunity and obligation to make sure that persons coming onto their property, felling trees and using hazardous machinery[,] were not creating a dangerous condition on their property." They insist there is a triable issue of fact as to "whether [Novellus], at a minimum, should have at least observed ArborSciences work on their property and made sure that the work was being performed safely." Stated another way, plaintiffs argument is that Novellus, as owner of the property, should have retained and exercised control over the contractors work. No authority supports such a position; on the contrary, the court in Hooker emphasized that even a hirer who retained control and was aware of a hazard would not violate a duty toward the contractors employee absent its affirmative conduct that directly contributes to the plaintiff employees injury. Such affirmative conduct could include the omission to take a particular safety measure when such a measure has been promised (see Hooker, supra, 27 Cal.4th at p. 212, fn. 3) or the supply of defective equipment (McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 222), but no comparable circumstance is present here. "`The mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff." (Hooker, supra, 27 Cal.4th at p. 209, quoting Kinney v. CSB Const., Inc. (2001) 87 Cal.App.4th 28, 39; compare Browne v. Turner Const. Co. (2005) 127 Cal.App.4th 1334, 1345-1346 [where defendant contractor supplied safety equipment but removed it, creating safety hazard for subcontractors workers, defendant "not only actively contributed to plaintiffs injuries, but actually created the situation in which they were likely to occur"].)
3. Nondelegable Duty
Plaintiffs lastly argue that Cal-OSHA regulations, specifically California Code of Regulations Title 8, section 3421 (governing safety procedures in tree-removal operations), imposed on Novellus a nondelegable duty obligating it "to ensure that the tree work on its [sic] property is performed safely." They compare this case to Evard v. Southern California Edison (2007) 153 Cal.App.4th 137, where a billboard owner was found to have a nondelegable duty to its contractors employee who was injured while working on the billboard. That duty was prescribed in section 3416, which made the owner responsible for maintaining the billboard in a safe condition. (Id. at p. 147.) In those circumstances the defendants omission to act could create liability for affirmatively contributing to a plaintiffs injuries. (Ibid.) Whether the defendant owner had breached its regulatory duty was a factual issue that withstood the owners summary judgment motion.
All further section references are to Title 8 of the California Code of Regulations.
No reasonable comparison to Evard is possible here, either on the facts or the law at issue. As the Padilla court pointed out, "it is the nature of the regulation itself that determines whether the duties it creates are non-delegable." (166 Cal.App.4th at p. 673.) In Padilla, the language of the applicable regulation required specific precautions regarding utilities in preparation for demolition work. The regulation did not, however, indicate who must perform these duties. Unlike the Evard regulation, which required the owner to maintain specific protective conditions on the property at all times, the regulation at issue in Padilla "pertained solely to the preparation of the worksite when specific work was being done, that is at a time when contractors were necessarily present. Therefore, there is no basis in Regulation 1735(a) to conclude the duties could not be delegated." (Ibid.) The Padilla court further held that even if there had been a nondelegable regulatory duty on the owner or contractor, the Hooker test remained applicable; thus, the breach of that duty would have led to liability of the hirer only if its breach had affirmatively contributed to the injury of a contractors employee.
Likewise, section 3421 of the Cal-OSHA regulations does not specifically address a property owners duties. The only persons identified as responsible for the safety procedures described in the provision are "a qualified tree worker," who must conduct a safety briefing before each assignment, and the employer, who must establish rescue procedures and first-aid training, provide potable water and hearing protection, and ensure that employees have been trained in the safe performance of their job assignments. The section is directed at the tree removal procedure itself, not the property on which the operation is to take place. No nondelegable duty on the part of the landowner can be read into section 3421.
In oblique recognition that the regulation does not target the property owner, plaintiffs project an obligation on Novellus by returning to Patrick Irelands post-accident requirement that two people be present when the chipper was in use. In plaintiffs view, achieved by bootstrapped reasoning, Novellus "assumed the obligation imposed by [section 3421] after the fact," thereby creating "a triable issue as to whether this regulation applies to [Novellus] in the first instance." The applicability of the regulation, however, is not in itself a factual issue, nor does it depend on any disputed facts. Plaintiffs have offered no evidence, and have shown no possibility of obtaining any, that could bear upon a nondelegable duty to protect ArborSciences workers from injury caused by the use of the wood chipper.
In summary, plaintiffs have demonstrated no legal or factual basis for proceeding to trial against Novellus for premises liability. In essence they have contended that if Novellus had only taken control before the accident by requiring the presence of two people during the use of the wood chipper, Marquezs death likely would have been prevented. We agree that this tragedy likely could have been prevented had Marquez been trained to operate the machine safely or at least been supervised or accompanied by a qualified tree worker. But the failure to implement such basic safety precautions was attributable to the employer, not Novellus. Novellus did not promise to take responsibility for any safety procedures in the tree-trimming work, but left it to the professional company hired to do the job. No liability can attach for failing to assume a duty that was not imposed on the property owner in the first place. Thus, both the facts and legal authority support the trial courts conclusion that Novellus was entitled to judgment as a matter of law.
Disposition
The judgment is affirmed.
WE CONCUR:
RUSHING, P. J.
PREMO, J.