Aceves v. Regal Pale Brewing Co., S.F. 23768

Citation24 Cal.3d 502,595 P.2d 619,156 Cal.Rptr. 41
Decision Date08 June 1979
Docket NumberS.F. 23768
Parties, 595 P.2d 619 Enrique A. ACEVES, Plaintiff and Appellant, v. REGAL PALE BREWING COMPANY et al., Defendants and Appellants, State Compensation Insurance Fund, Intervener and Respondent
CourtUnited States State Supreme Court (California)

Boccardo, Blum, Lull, Niland & Bell, Edward J. Niland and Stanley A. Ibler, Jr., San Francisco, for plaintiff and appellant.

Shovlin & Lahde, Shovlin & Babin, James P. Shovlin and Norbert C. Babin, San Francisco, for defendants and appellants.

James J. Vonk, George S. Bjornsen and Walter G. Watson, San Francisco, for intervener and respondent.

MANUEL, Justice.

Plaintiff Enrique Aceves brought this action for damages for personal injuries sustained while working for Arons Building Wrecking Company (Arons) on the job of demolition of brewery buildings owned by defendants Regal Pale Brewing Company, Maier Brewing Company and General Brewing Company. State Compensation Insurance Fund, the carrier for Arons, filed a complaint in intervention for reimbursement of the sum of $1,679.30 paid in workers' compensation benefits to Aceves. The jury returned a general verdict in favor of plaintiff Aceves for $22,140. In response to special interrogatories the jury found that there was contributory negligence on the part of plaintiff and that the proportion of such negligence to the total negligence proximately causing the accident was 5 percent, that the proportion of chargeable negligence on the part of plaintiff's employer was 75 percent, and that the proportion chargeable to defendants was 20 percent.

After a further hearing on the issue of the application of comparative negligence principles to the verdict, the court rendered its judgment that defendants were liable for 20 percent of the total verdict, amounting to $4,428, and that plaintiff in intervention's claim was to be reduced by 75 percent to the amount of $419.18. Plaintiff's recovery was therefore set at $4,008.18 ($4,428 less $419.82). Since plaintiff's recovery was less than the jurisdictional amount for superior court, the court in its discretion allowed plaintiff 20 percent of his costs and plaintiff in intervention 25 percent of its costs pursuant to Code of Civil Procedure section 1032, subdivision (d).

Plaintiff appeals from the judgment, contesting only the propriety of the court's reduction of his recovery by the proportionate amount attributable to his employer's negligence. Defendants cross-appeal, arguing that the evidence is insufficient to support the judgment and that certain instructions were erroneous.

In resolving the issue of the sufficiency of the evidence, we are bound by established rules of appellate review to view all factual matters in the light most favorable to the prevailing party. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925, 101 Cal.Rptr. 568, 496 P.2d 480; In re Marriage of Mix (1975) 14 Cal.3d 604, 614, 122 Cal.Rptr. 79, 536 P.2d 479.) Accordingly, all conflicts are resolved in plaintiff's favor in the following summary of the evidence regarding the accident.

On February 7, 1973, plaintiff was sent by his union to work as a laborer for Arons, which had contracted with defendants to demolish brewery buildings in San Francisco. Plaintiff's foreman called him to assist in attempting to dislodge a steel panel weighing about 500 pounds that blocked removal of a door on the street level of the building. Plaintiff and the foreman pushed on the panel from the inside while, unbeknown to them, a bulldozer pushed on the door from the outside. In this struggle of man versus machine, man lost; the door gave way, the panel fell and struck plaintiff on the shoulder, throwing him into a large pile of broken beer bottles.

The contract between defendants and Arons did not provide for any special precautions to be taken by Arons during the course of the demolition. All equipment and labor was to be furnished by Arons; defendants exercised no control over the project.

Plaintiff presented evidence that demolition operations are an inherently dangerous activity which require a number of special precautions to prevent the risk of injury to the workers from falling materials. Because of the special hazards presented by demolition operations, customary safety standards require that heavy equipment such as a bulldozer not be operated in an area where workers are working without a flagman or other warning device and that the work be carefully coordinated so that one worker does not do something that endangers another. Evidence was also presented that on a demolition job of this size it would be normal custom and practice for the owner of the property to have an inspector on the job.

Pursuant to the instructions given to the jury defendants were found liable under the peculiar risk doctrine, a well-recognized exception to the rule that one who employs an independent contractor is not liable for injuries caused by the negligence of the contractor. (Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578, 585, 153 Cal.Rptr. 213, 591 P.2d 503; Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 253, 66 Cal.Rptr. 20, 437 P.2d 508; Rest. 2d Torts, §§ 413, 416.) A number of considerations have led courts to depart from the rule of nonliability of an employer for the torts of an independent contractor. Some of the principal ones are that the employer is the one who primarily benefits from the contractor's work, the employer selects the contractor and is free to insist on a competent and financially responsible one, the employer is in a position to demand indemnity from the contractor, the insurance necessary to distribute the risk is properly a cost of the employer's business, and the performance of the duty of care is one of great public importance. (Van Arsdale v. Hollinger, supra, 68 Cal.2d at p. 253, 66 Cal.Rptr. 20, 437 P.2d 508; Widman v. Rossmoor Sanitation, Inc. (1971) 19 Cal.App.3d 734, 747, 97 Cal.Rptr. 52.)

The applicable law on the peculiar risk doctrine is stated in sections 413 and 416 of the Restatement Second of Torts. (See Woolen v. Aerojet General Corp. (1962) 57 Cal.2d 407, 20 Cal.Rptr. 12, 369 P.2d 708; Ferrel v. Safway Steel Scaffolds (1962) 57 Cal.2d 651, 21 Cal.Rptr. 575, 371 P.2d 311; Van Arsdale v. Hollinger, supra, 68 Cal.2d at p. 254, 66 Cal.Rptr. 20, 437 P.2d 508.) Section 416 states that "One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise." Section 413 differs from section 416 only to the extent that it imposes direct liability on the employer when he had made no provision in the contract or otherwise for the taking of required precautions. 1 (Griesel v. Dart Industries, Inc., supra, 23 Cal.3d at pp. 585-586, 153 Cal.Rptr. 213, 591 P.2d 503; Rest. 2d Torts, § 416, com. c.)

A peculiar risk is a risk which is peculiar to the work to be done and arises out of its character or the place where it is to be done, and against which a reasonable person would recognize the necessity of taking special precautions." (Griesel v. Dart Industries, supra, 23 Cal.3d at p. 586, 153 Cal.Rptr. at p. 217, 591 P.2d at p. 507; Rest. 2d Torts, §§ 413, com. b., 416, com. b.) It is something other than the ordinary and customary dangers which may arise in the course of the work or of normal human activity. " 'Peculiar' does not mean that the risk must be one which is abnormal to the type of work done, or that it must be an abnormally great risk. It has reference only to a special, recognizable danger arising out of the work itself." 2 (Rest. 2d Torts, § 413, com. b.)

The determination of whether a danger is recognizable requires consideration of the employer's knowledge and experience in the field of work to be done. (Rest. 2d Torts, § 413, com. f; Widman v. Rossmoor Sanitation, Inc., supra, 19 Cal.App.3d at pp. 746-747, 97 Cal.Rptr. 52.) "(A)n inexperienced widow employing a contractor to build a house is not to be expected to have the same information, or to make the same inquiries, as to whether the work to be done is likely to create a peculiar risk of physical harm to others, or to require special precautions, as is a real estate development company employing a contractor to build the same house." (Rest. 2d Torts, § 413, com. f.) 5] Liability under the peculiar risk doctrine does not extend to so-called "collateral" or "casual" negligence on the part of the contractor or his employees. (Van Arsdale v. Hollinger, supra, 68 Cal.2d at p. 252, 66 Cal.Rptr. 20, 437 P.2d 508.) "Casual" or "collateral" negligence has sometimes been described as negligence in the operative detail of the work, as distinguished from the general plan or method to be followed. Although this distinction can frequently be made, since negligence in the operative details will often not be within the contemplation of the employer when the contract is made, the distinction is not essentially one between operative detail and general method. "It is rather one of negligence which is unusual or abnormal, or foreign to the normal or contemplated risks of doing the work, as distinguished from negligence which creates only the normal or contemplated risk." (Rest. 2d Torts, § 426, com. a; see Prosser, Law of Torts, 4th ed. (1971) pp. 474-475.)

The evidence in this case, viewed in the light most favorable to plaintiff (see In re Marriage of Mix, supra, 14 Cal.3d at p. 614, 122 Cal.Rptr. 79, 536 P.2d 479), was sufficient to support a finding that the demolition work involved a recognizable risk of harm to the workers from falling structures unless special precautions were taken. The fact that defendants...

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