Suarez v. Pacific Northstar Mechanical, Inc., A121349.

• Decision Date: 18 December 2009
• Docket Number: No. A121349.,A121349.
• Citation: 180 Cal.App.4th 430
• Court: California Court of Appeals Court of Appeals
• Parties: MIGUEL SUAREZ et al., Plaintiffs and Appellants, v. PACIFIC NORTHSTAR MECHANICAL, INC., Defendant and Respondent.

180 Cal.App.4th 430

MIGUEL SUAREZ et al., Plaintiffs and Appellants, v. PACIFIC NORTHSTAR MECHANICAL, INC., Defendant and Respondent.

No. A121349.

Court of Appeals of California, First District, Division Four.

December 18, 2009.

Corsiglia McMahon & Allard, Bradley M. Corsiglia and Jeffry W. Lochner for Plaintiffs and Appellants.

Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Christopher J. Nevis, Richard G. Garcia and Matthew B. Stucky for Defendant and Respondent.

OPINION

RUVOLO, P. J.

I. INTRODUCTION

A subcontractor's employee, while working at a multiemployer construction site, was slightly injured by a preexisting, nonobvious hazard that had not been created in the course of the subcontractor's work. The employee told his foreman about the incident, but the foreman did not report it to the general contractor. Shortly thereafter, two employees of the general contractor were severely injured by the same hazard.

Can the injured employees of the general contractor sue the subcontractor for negligence, based on the subcontractor's failure to warn the general contractor about the hazard? We hold that neither the common law nor the applicable construction contract created a duty on the part of the subcontractor to take affirmative steps to protect those working for other employers from hazards not created by the subcontractor.

However, we conclude that the subcontractor did have a statutory duty of care, created by applicable workplace safety statutes and regulations requiring the subcontractor to report hazards to which its employees were exposed. Under California Supreme Court case law, one who breaches such a duty is liable in tort. Accordingly, we reverse the trial court's grant of summary judgment to the subcontractor.

II. FACTUAL AND PROCEDURAL BACKGROUND

In January 2005, appellants Miguel Suarez and Luis Avila were working for a construction company called All Bay Contractors, Inc. (All Bay). All Bay was the general contractor on a tenant improvement project on which appellants were working (the project). All Bay hired respondent Pacific Northstar Mechanical, Inc. (PNM), as a subcontractor to install only the heating, ventilation, and air-conditioning (HVAC) components of the project.

Before appellants began working on the project, an unguarded electrical circuit, to which an ungrounded light fixture (the ungrounded fixture) was wired, was installed on the premises on which appellants were working. Neither All Bay nor any of the subcontractors on the project, including PNM, had been hired to do any work with the ungrounded fixture, and PNM did not install it.

On January 14, 2005, during the course of appellants' work on the project, Suarez climbed to the top of a ladder inside the building that was being remodeled, so as to make some marks on the ceiling, and grabbed an I-bolt to steady himself while on the ladder. Meanwhile, Avila was standing on the floor holding the ladder. Unbeknownst to Suarez, the light fixture that was hanging from the I-bolt he grabbed was the ungrounded fixture. When Suarez grabbed the I-bolt, he immediately received an electric shock, fell off the ladder, and landed on Avila, resulting in injuries to both men.

On November 18, 2005, appellants filed a complaint in San Mateo County Superior Court against the owner of the property on which the project was located. The complaint alleged two causes of action: one for premises liability, and one for general negligence.

On March 5, 2007, appellants filed an amendment to their complaint substituting PNM for a fictitious defendant. On May 21, 2007, appellants filed an amended complaint alleging that the ungrounded fixture that caused their injuries was installed by the previous owners of the property, who had failed to disclose the latent hazard to the defendant that owned the property at the time of the project. The amended complaint also alleged that before appellants were injured, a PNM employee encountered the ungrounded fixture and failed to report the problem to other contractors or to the property owner.

On August 23, 2007, PNM filed a motion for summary judgment, or, in the alternative, for summary adjudication of issues. In support of its motion, PNM relied on the following facts: PNM did not own, lease, occupy or control the property where the accident occurred; PNM's work on the HVAC installation did not create any dangerous conditions at the project; PNM was not hired to inspect or work on the ungrounded fixture; and PNM did not work on or use the ungrounded fixture.

In their opposition to the motion, appellants did not dispute these facts. However, appellants introduced evidence that approximately three weeks before they were injured, PNM's employees were working in the room where the ungrounded fixture was located, and that PNM learned of the dangerous condition at this time, and did not warn anyone about it or correct the problem. Specifically, appellants produced evidence that a PNM employee named Rafael Campos, Jr. (Campos Jr.), suffered an electric shock from the ungrounded fixture while PNM's workers were in the location, receiving only minor injuries. Appellants also produced evidence that a PNM foreman (who happened also to be Campos Jr.'s father, Juan Rafael Campos (Campos Sr.)) knew about Campos Jr.'s injury before appellants were injured.¹

In their opposition to the summary judgment motion, appellants introduced evidence supporting the contention that before appellants were injured, no one at PNM informed All Bay, or anyone else in authority at the project, about any injury to Campos Jr., or about the existence of the ungrounded fixture. In its reply papers, PNM contended that these facts were irrelevant, but did not dispute them.

Appellants also relied on deposition testimony from Campos Jr., Campos Sr., and PNM's owner to the effect that they each had an obligation to report the existence of safety hazards at the jobsite to All Bay. PNM's owner testified that one purpose of PNM's policy of requiring such reports was to protect all of the workers at the jobsite, not just those employed by PNM.

The motion for summary judgment was heard on November 7, 2007. On December 27, 2007, the trial court entered a formal order granting PNM's motion for summary judgment, and ruling on the parties' respective evidentiary objections. On February 26, 2008, the court entered judgment in favor of PNM. This timely appeal ensued.

III. DISCUSSION

Appellants acknowledge that their premises liability cause of action does not lie against PNM, and that the trial court properly granted summary judgment in PNM's favor on that cause of action. Thus, the sole issue on appeal is whether summary judgment was properly granted as to appellants' cause of action against PNM for negligence.

A. Standard of Review

"We review a summary judgment motion de novo to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. [Citations.] We are not bound by the trial court's stated reasons or rationales. [Citation.] `In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment.' [Citation.] Thus, we independently determine the construction and effect of the facts presented to the trial judge as a matter of law. [Citation.] Summary judgment is a drastic remedy to be used sparingly, and any doubts about the propriety of summary judgment must be resolved in favor of the opposing party. [Citations.]" (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17 .)

When reviewing a trial court's decision granting summary judgment to a defendant, we, "[l]ike the trial court, . . . view the evidence in the light most favorable to the opposing party [i.e., the plaintiff] and accept all inferences reasonably drawn therefrom. [Citation.]" (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 .) We use the same three-step analysis as the trial court: (1) identifying the issues framed by the pleadings; (2) determining whether the defendant negated the plaintiff's claims; and (3) deciding whether the plaintiff demonstrated the existence of a triable, material factual issue. (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261 .)

B. Negligence and Duty of Care

(1) "Actionable negligence is traditionally regarded as involving the following: (1) a legal duty to use due care; (2) a breach of that duty; and (3) the breach as the proximate or legal cause of the resulting injury." (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 835, p. 52.) "`"The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. [Citations.] Whether this essential prerequisite to a negligence cause of action has been satisfied in a particular case is a question of law to be resolved by the court." [Citations.]' [Citation.]" (Paz v. State of California (2000) 22 Cal.4th 550, 559 [93 Cal.Rptr.2d 703, 994 P.2d 975]; see also Gilmer v. Ellington (2008) 159 Cal.App.4th 190, 195-196 .)

As appellants recognize, it is undisputed that PNM had nothing to do with the installation of the ungrounded fixture that resulted in their injury. However, for purposes of this summary judgment appeal, we must accept appellants' factual assertion that before appellants were injured, PNM acquired actual knowledge of the hazard posed by the ungrounded fixture, due to the injury it caused to Campos Jr. Appellants' cause of action against PNM is premised on the contention that despite this knowledge, PNM neither informed All Bay about the hazard, nor took any other action to protect others from the danger.²

(2) Under standard common law tort principles, "[a] person who has not created a peril is not liable in tort merely...