Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. LC071018, Leon Kaplan, Judge.
Law Offices of Ball & Yorke and Esther R. Sorkin for Plaintiffs and Appellants.
Rockard J. Delgadillo, City Attorney, Richard M. Brown, Managing Senior Assistant City Attorney; Brown, Brown & Klass and David K. Ringwood for Defendant and Respondent.
KRIEGLER, J.
Plaintiffs and appellants Javier Murillo and his wife Thelma Murillo sued the County of Los Angeles and others, including defendant and respondent the City of Los Angeles, acting through the Department of Water and Power (the “DWP”), alleging personal injury claims of general negligence, premises liability, and loss of consortium after Javier suffered injuries in a construction accident on the DWP’s Water Quality Improvement Project in Encino (the “Project”). At the time of the accident, Javier was employed by Merco Construction, Inc. (“Merco”), an independent contractor hired by the DWP. The trial court granted the DWP’s motion for summary judgment, finding that the DWP had no duty of care as to Merco’s employees, based either on a theory of direct liability or breach of a nondelegable statutory duty. Plaintiffs timely appeal the trial court’s granting of summary judgment, contending the DWP had a nondelegable statutory duty to provide safety equipment that would have prevented or lessened Javier’s injuries. We disagree and affirm.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
The Murrillos’ complaint alleged, as pertinent to this appeal, that while working for Merco as a junior carpenter on the Project, Javier fell nearly 40 feet from a partially constructed building when the rebar to which he had secured the pelican hook of his safety harness gave way. Javier suffered serious, permanent injuries in his fall—injuries that would have been avoided had the rebar been properly secured or had he been provided with adequate fall protection equipment “as required by law.”
The DWP moved for summary judgment on the ground that under the doctrine established in Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette), an owner/hirer is not responsible for injuries suffered by the employees of an independent contractor except in limited circumstances inapplicable to plaintiffs. Based on the declarations of Cynthia Provinse, the DWP’s construction manager on the Project, and plaintiffs’ discovery responses, the DWP presented evidence that the DWP hired Merco as a general contractor to perform construction work on the Project. The contract between those parties allocated to Merco the responsibility of maintaining a safe work site for its employees. Merco undertook to “furnish . . . all necessary safety equipment, personal protective equipment, safety devices, and safeguards.” Merco’s contractually required injury prevention program included a section on fall protection, providing: “Anyone working 6 feet high or higher, if guardrails are impracticable, must be tied off and wearing an approved safety belt and lanyard.” The DWP reserved the right to review Merco’s safety programs and to stop work or terminate the contract if it determined that Merco was out of material compliance with “any regulatory agency’s [safety] requirements.”
The DWP also presented evidence that Javier was injured while working as a Merco employee. More particularly, the “rebar curtain” from which Javier fell was not built by the DWP; the DWP did not provide any of the equipment Javier used while on the Project job site; and no affirmative act by the DWP contributed to Javier’s injury.
In their summary judgment opposition, as relevant to this appeal, plaintiffs argued that the DWP had a nondelegable duty to provide Javier with the fall protection equipment and devices set forth in state and federal regulations. Specifically, California Code of Regulations, title 8, section 1670, subdivision (a) provides in pertinent part that “[a]pproved personal fall arrest, personal fall restraint or positioning systems shall be worn by those employees whose work exposes them to falling in excess of 7 1/2 feet from the perimeter of a structure.” The regulation’s detailed requirements for “personal fall arrest systems,” include that they “be rigged such that an employee can neither free fall more than 6 feet, nor contact any lower level, and, where practicable, the anchor end of the lanyard shall be secured at a level not lower than the employee’s waist.” (Cal. Code Regs., tit. 8, § 1670, subds. (a)-(b).) Code of Federal Regulations, title 29, section 1926.501 provides similar, highly detailed requirements, setting forth requirements “for employers to provide fall protection systems.” (29 C.F.R. § 1926.501, subd. (a).) Further, “Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.” (29 C.F.R. § 1926.501, subd. (b)(1).) Javier was not wearing fall arrest gear such as a safety lanyard that complied with those regulations at the time of his accident.
Plaintiffs agreed that the DWP neither provided any safety equipment to Javier nor built the structure from which he fell, but contended that the DWP was nevertheless responsible to provide adequate safety equipment to Merco employees based on facts showing the DWP had the authority to stop work at the Project to insure compliance with all safety regulations. Additionally, the DWP’s own employees were potentially exposed to the same risk as those of Merco employees, but they had access to additional safety equipment unavailable to Merco employees.
Plaintiffs’ evidence that DWP employees were subject to the same risk of fall as Merco employees like Javier consisted of deposition testimony by city employee Jeff Joel, who inspected the reinforced concrete structure on which Javier worked. Joel testified that he did not inspect the rebar for worker safety purposes; he would “spot-check” to ensure that the rebar was adequately held in place so that it would not move when the concrete was poured. In making his inspections, he did not climb the rebar, but used a “ladder, scaffolding, or man lift.”
The trial court granted the summary judgment motion, finding no evidence that the DWP had a regulatory duty to provide safety equipment to the employees of its independent contractor. Nor was there evidence the DWP had any contractual obligation, or the DWP undertook any duty, to provide safety equipment. Further, there was no evidence the DWP knew of the alleged dangerous condition and failed to inform others about it. Plaintiffs presented no evidence the DWP retained control over the work site or affirmatively contributed to Javier’s injury.
Plaintiffs argue that the DWP failed to address the issue of regulatory compliance in connection with the summary judgment motion. We find otherwise. That issue was fully encompassed by the DWP’s motion papers, and fairly presented to the trial court.
DISCUSSION
Plaintiffs contend the trial court erred in finding no triable issue of fact as to whether the DWP had a nondelegable statutory duty to provide safety equipment that would have prevented or lessened Javier’s injuries. The standard of review for summary judgments is well established. “‘A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has “shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,” the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff “may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .” [Citations.]’ [Citation.]” (Evard v. Southern California Edison (2007) 153 Cal.App.4th 137, 143 (Evard), citing Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
With regard to the circumstances in which an employee of an independent contractor may sue the hirer of that independent contactor, our Supreme Court has defined and refined the general rule of nonliability and the exceptions thereto in a line of cases beginning with Privette, supra, 5 Cal.4th 689. The Privette court examined the common law’s peculiar risk doctrine, under which a person who hired an independent contractor to perform inherently dangerous work could be held liable for tort damages when the contractor’s negligent performance of the work causes injuries to others, and held that “when the independent contractor’s employee suffers injuries, ‘the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries.’” (Evard, supra, 153 Cal.App.4th at p. 144, quoting Privette, supra, 5 Cal.4th at p. 702.) The policy rationale for the liability limitation was the recognition that workers’ compensation insurance already covered the employee’s injuries. (Ibid.)
In Hooker v. Department of Transportation (2002) 27 Cal.4th 198 (Hooker), the Supreme Court addressed the related circumstance in which the hirer entrusts work to an independent contractor, but retains control over part of that work. “Hooker held that to be liable for injuries to an independent contractor’s employee, the hirer must do more than retain control over worksite safety conditions. The hirer must exercise that retained control ‘in a manner that affirmatively contributed to the injury of the contractor’s employee.’ [Citation.] This affirmative contribution to the employee’s injury becomes a form of direct liability. [Citation.] It can take the form of actively directing a contractor or contractor’s employee, but can also take the form of a hirer’s omission, such as failing to undertake a particular safety measure after promising to do so. [Citation.] Hooker holds that if a hirer retains control over safety conditions at a worksite and negligently exercises that retained control so as to affirmatively contribute to the injury of the independent contractor’s employee, the hirer is subject to direct liability to the injured employee. [Citation.]” (Evard, supra, 153 Cal.App.4th at p. 145, citing Hooker, supra, 27 Cal.4th at pp. 210-213.)
In addition to the direct liability exception to the Privette doctrine recognized in Hooker, our appellate courts have delineated a closely related exception based on a non-delegable duty imposed by statute or regulation. (See Evard, supra, 153 Cal.App.4th at p. 146 [“Privette did not abolish liability for breach of a nondelegable duty imposed by statute or regulation”]; Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281, 295-298 (Barclay) [concluding hirer could be liable to contractor’s employee if its breach of regulatory duties owed to the employee affirmative contributed to the employee’s injuries]; Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, 1135-1136 [finding triable issue of fact as to whether non-delegable duty arose under the Vehicle Code].)
‘A nondelegable duty is a definite affirmative duty the law imposes on one by reason of his or her relationship with others. One cannot escape this duty by entrusting it to an independent contractor.’ [Citation.] A nondelegable duty may arise when a statute or regulation requires specific safeguards or precautions to insure others’ safety. [Citation.] Restatement Second of Torts, section 424, states the nondelegable duty rule as follows: ‘One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.’” (Evard, supra, 153 Cal.App.4th at p. 146.)
At the same time, however, a hirer or owner’s liability for “injury to employees of independent contractors caused by breach of a nondelegable duty imposed by statute or regulation continues to be subject to the test in Hooker. [Citations.] Under that test, ‘an owner may be liable if its breach of regulatory duties affirmatively contributes to injury of a contractor’s employee.’ [Citations.]” (Evard, supra, 153 Cal.App.4th at p. 147.) That is, an owner/hirer’s breach of regulatory duty must affirmatively contribute to the injury of a contractor’s employee. (Ibid.; Barclay, supra, 129 Cal.App.4th at p. 297 & fn. 14.)
As the trial court found, plaintiffs failed to present evidence sufficient to raise a triable issue of fact as to the DWP’s liability, either under the direct liability exception under Hooker or under the nondelegable regulatory duty exception. First, under Hooker, the evidence below merely supported a reasonable inference that the DWP retained the ability to control safety conditions. “‘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. . . .’ [Citation.]” (Hooker, supra, 27 Cal.4th at p. 209.) There was no evidence of the crucial factor—that the DWP affirmatively contributed to the employment of those methods or procedures. (Ibid.)
Plaintiffs assert they presented evidence that DWP inspectors were aware of the safety hazard that likely caused Javier’s injury—that wires used to tie horizontal and vertical rebar had broken. However, review of the evidence cited fails to support that assertion. There was no evidence the DWP was aware of that hazard prior to Javier’s accident. Nor was there evidence that the DWP prevented Merco employees from using safety lanyards or other fall protection equipment. Indeed, a Merco employee testified that DWP employees had advised him to wear a safety lanyard. “[W]here, as here, the plaintiff fails to present a triable issue as to whether the defendant’s exercise of retained control affirmatively contributed to the employee’s injuries, summary judgment is appropriate.” (Hooker, supra, 27 Cal.4th at p. 212.)
Plaintiffs also failed to identify a nondelegable duty imposed on the DWP to provide safety equipment to the employees of its independent contractor. Under the state and federal regulations plaintiffs have identified—California Code of Regulations, title 8, section 1670, and Code of Federal Regulations, title 29, section 1926.501—the duty to provide fall protection equipment arises out of the employment relationship. As the trial court found, there was not such relationship between the DWP and Javier. Nevertheless, as they did below, plaintiffs rely on the multi-employer doctrine codified in Labor Code section 6400 and Code of Regulations, title 8, section 336.10, to argue that because there were DWP employees at the work site, the DWP had a duty to provide fall equipment to Merco employees as well. Plaintiffs’ reliance is misplaced factually and legally because the DWP was not Javier’s employer, and the DWP’s own employees at the Project did not work with the Merco employees at the accident site. Rather, it was Merco that was responsible by contract and in practice for the safety precautions at that part of the site.
Labor Code section 6400 provides that the duty to provide a place of employment “that is safe and healthful for the employees therein” is placed on employers. On “multiemployer worksites,” that duty applies to (1) employers whose employees were exposed to the hazard; (2) employers who actually created the hazard; (3) employers who were responsible, by contract or through actual practice, for safety and health conditions on the worksite; and (4) employers who had the responsibility for actually correcting the hazard. (Lab. Code, § 6400, subds. (a)-(b).) Those provisions are restated in Code of Regulations, title 8, section 336.10. Subdivision (c) of Labor Code section 6400 makes it clear that the statute was not intended to broaden the scope of tort liability. “It is the intent of the Legislature, in adding subdivision (b) to this section, to codify existing regulations with respect to the responsibility of employers at multiemployer worksites. Subdivision (b) of this section is declaratory of existing law and shall not be construed or interpreted as creating a new law or as modifying or changing an existing law.” (Lab. Code, § 6400, subd. (c).)
Thus, Labor Code section 6400 “does not create civil liability on the part of specified ‘employers’ to injured employees, for breach of a nondelegable duty or otherwise. (See Waste Management Inc. v. Superior Court (2004) 119 Cal.App.4th 105, 110 [recognizing that an employer’s nondelegable duty under Lab. Code, § 6400 to provide a safe workplace is only imposed on the employee’s immediate employer and those who contract with the immediate employer and retain control over the workplace]; see also Kuntz v. Del E. Webb Const. Co. (1961) 57 Cal.2d 100, 106 [holding that Lab. Code, § 6400 ‘should not be construed as meaning that, where a general contractor or owner of premises does nothing more with respect to the work done by an independent contractor than exercise general supervision and control to bring about its satisfactory completion, it is his responsibility to assure compliance with all applicable safety provisions of the code and regulations issued thereunder’]; Kirk v. Kemp Bros. (1970) 12 Cal.App.3d 136, 141 [same].)” (Ruiz v. Herman Weissker, Inc. (2005) 130 Cal.App.4th 52, 64.)
In this case, the DWP presented uncontested evidence that Javier was injured while working as a Merco employee, and that the “rebar curtain” from which Javier fell was not built by the DWP. Additionally, the DWP did not provide any of the equipment Javier used while on the Project job site. Plaintiffs failed to present any evidence that the DWP retained control over the operations on that construction site, or that DWP employees took part in the construction of the building from which Javier fell.
The decisions finding a nondelegable duty are instructive. In Evard, the plaintiff was an employee of the independent contractor hired to perform work on an outdoor billboard. When he was seriously injured in a fall, the plaintiff sued the billboard owner and others. As the Evard court found, the specific regulation at issue imposed a duty that by its terms applied to the owner, as the entity that constructed and maintained the billboard, “to take one of three safety precautions: (1) to provide standard guardrails; (2) to provide a horizontal safety line; or (3) to insure that the employee’s safety belt or harness lanyard was secured to a special purpose poster ladder.” (Evard, supra, 153 Cal.App.4th at p. 147.) Similarly, in Ray v. Silverado Constructors, supra, 98 Cal.App.4th at pages 1135-1136, a Vehicle Code provision by its terms potentially applied to the owner of the construction project. Finally, in Barclay, supra, 129 Cal.App.4th at pages 298-300, there were Fire Code regulations that required the premises owner to provide fire extinguishers within a certain distance of the storage tanks where the fire occurred. The plaintiff presented evidence of noncompliance with a regulation and that the noncompliance affirmatively contributed to his injuries. (Ibid.)
Accordingly, because no regulation obligated the DWP to provide safety equipment to Merco’s employees, there was no evidentiary basis for finding a nondelegable duty to provide safety equipment to Javier. (See Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1038-1039 [“the ordinances and rules at issue here do not specifically require a cable operator to insure that its independent contractor’s employees wear safety belts or harnesses”].)
Plaintiffs’ reliance on Elsner v. Uveges (2005) 34 Cal.4th 915 to extend liability to the DWP is misplaced. In that case, the defendant was a general contractor who “acknowledged that he was directly responsible for supervising and controlling the work in order to ensure required safety practices were followed.” (Id. at p. 924.)
DISPOSITION
The judgment is affirmed. Defendant DWP is awarded its costs on appeal.
We concur: ARMSTRONG, Acting P. J., MOSK, J.