Alber v. Owens

Decision Date29 May 1967
Citation66 Cal.2d 790,59 Cal.Rptr. 117,427 P.2d 781
CourtCalifornia Supreme Court
Parties, 427 P.2d 781 Robert ALBER, Plaintiff and Appellant, v. C. William OWENS, Eugene F. Parrish, Jacqueline E. Parrish, and George W. Briggs, Defendants and Respondents. Sac. 7791

Bradford, Cross, Dahl & Hefner and William A. Wilson, Sacramento, for plaintiff and appellant.

Rust & Hoffman, David C. Rust, Sacramento, and Ellis J. Horvitz, Los Angeles, for defendants and respondents.

SULLIVAN, Associate Justice.

Plaintiff appeals from a judgment of nonsuit entered in an action for damages for personal injuries.

Viewing the evidence under the applicable rules (Blumberg v. M. & T. Incorporated (1949), 34 Cal.2d 226, 229, 209 P.2d 1; Estate of Lances (1932), 216 Cal. 397, 400, 14 P.2d 768), we set forth the following pertinent facts. Plaintiff was the president and a co-owner of Alber & Van, Inc., a cement subcontractor for the construction of an apartment house complex. Charles Van Landingham, the other co-owner, was vice-president of the firm. Although the duties of the two men sometimes overlapped, generally speaking, plaintiff's position was that of a manager and superintendent while Van Landingham's was that of a foreman. Plaintiff's duties were to estimate the job, assign the work, and act basically as a coordinator. He was a working employee of the firm, receiving a weekly salary of $200; he did 'physical work' on the jobs and in addition to his other duties 'would go out and help pour on the jobs'; he was a member of 'the union.' Defendants were the owners, developers and the general contractor-supervisor of the project.

On the day of the accident here involved, Rex Walker, a laborer employed by Alber & Van, Inc., was on the second story of one of the apartment buildings and was nailing wire mesh in preparation for the pouring of concrete on the second-story balcony. Walker needed tin snips to cut the mesh and called to plaintiff who brought them up to him. Both men then proceeded to cut the mesh and nail it down to the platform, working on their hands and knees. In the course of this work, plaintiff fell off the balcony to the ground level and sustained serious injuries, including brain damage followed by retrograde amnesia. His present action is grounded on the theory that his fall resulted from defendants' negligent failure to provide guard rails on the second-story platform.

The parties raise no issues relating to defendants' negligence. Indeed the record before us establishes a duty on the part of defendants respectively to furnish plaintiff a safe place to work, either on the theory that as a result of an invitor-invitee relationship they owed him a common law duty to provide him with a safe place to work or to warn him of dangers not obvious (Florez v. Groom Development Co. (1959), 53 Cal.2d 347, 354--355, 1 Cal.Rptr. 840, 348 P.2d 200; Pauly v. King (1955), 44 Cal.2d 649, 653, 284 P.2d 487; Rest.2d Torts, § 343) or on the theory that they were employers within the meaning of the Labor Code (§ 6304) 1 and therefore under a nondelegable duty to comply with the applicable safety provisions found therein. (Souza v. Pratico (1966), 245 A.C.A. 680, 686--687, 54 Cal.Rptr. 159; Conner v. Utah Constr. & Mining Co. (1964), 231 Cal.App.2d 263, 276, 41 Cal.Rptr. 728). However, whether liability for failure to provide a safe place to work is predicated upon the common law duty or the statutory duty, the defense of contributory negligence is available to defendants. (Mason v. Case (1963), 220 Cal.App.2d 170, 177--179, 33 Cal.Rptr. 710; Mula v. Meyer (1955), 132 Cal.App.2d 279, 284--285, 282 P.2d 107.) 2

In the case at bench, the motion for nonsuit was made and granted on the basis that, irrespective of any duty imposed on defendants as employers within the meaning of section 6304 to furnish a safe place to work (§§ 6400, 6401, 6402, 6403), 3 plaintiff, as a person performing supervisory and managerial functions, was himself an employer within the meaning of section 6304. As such, according to the theory of the nonsuit, he had a concurrent and identical, if not greater, statutory duty to furnish a safe place to work for all employees of Alber & Van, Inc. and by failing to do so was himself guilty of contributory negligence as a matter of law and therefore barred from recovery.

Thus, the charge of contributory negligence asserted against plaintiff poses a novel issue: Whether a plaintiff-employee, who Vis-a-vis other employees under him is also an employer within the scope of section 6304, is, as a matter of law, to be thereby held to the rigorous statutory safety obligations imposed on employers in evaluating his care for his own safety. The issue is resolvable by reference to the legislative purposes in regulating the relationships involved.

Plaintiff's duties in his capacity as an employer arose out of the safety in employment provisions of the Labor Code. (Lab.Code, div. 5, §§ 6300--7804.) The substance of division 5 was first enacted in 1917 4 as part of a broad legislative program, which included the passage of the workmen's compensation provisions, 5 designed to improve the position of the working man. The legislative program was two-pronged; it sought increased safety on the job by imposing duties that were greater than those prescribed by the common law (Souza v. Pratico, supra, 245 A.C.A. 680, 687, 54 Cal.Rptr. 159; Conner v. Utah Constr. & Mining Co., supra, 231 Cal.App.2d 263, 271--272, 41 Cal.Rptr. 728; Jean v. Collins Construction Co. (1963), 215 Cal.App.2d 410, 416--417, 30 Cal.Rptr. 149), and, if injury occurred, it sought mitigation of hardship by a system of loss-shifting that was largely unknown under the common law. (See generally, 2 Hanna, Employee Injuries and Workmen's Compensation (1954) pp. 3--21.)

As we have already noted, the statutory safety provisions directed the employer to furnish a safe place of employment and forbade him to permit or require an employee to be in any unsafe place of employment. (§§ 6400, 6401, 6402, 6403; see fn. 3, ante.) Construction Safety Orders 6 imposed more specific duties under this general statutory obligation. In the instant case, the applicable Construction Safety Orders specified that: 'Railings shall be provided on all open sides and ends of all built-up scaffolds, runways, ramps, rolling scaffolds, elevated platforms, or other elevations ten feet (10 ) or more above the ground, floor, or level underneath.' 7

We have adopted the statutory safety provisions as standards of care applicable in an action at common law against a party included within the section 6304 definition of employer. Breach of this statutory duty by the employer is negligence Per se. (Atherley v. MacDonald, Young & Nelson (1956), 142 Cal.App.2d 575, 587, 298 P.2d 700.) An adoption of this statutory standard of care furthered the legislative purpose in these cases where 'the plaintiff is one of a class of persons whom the statute was intended to protect and the harm which has occurred is of the type which it was intended to prevent.' (Finnegan v. Royal Realty Co. (1950), 35 Cal.2d 409, 416, 218 P.2d 17, 21; Atherley v. MacDonald, Young & Nelson, supra; Mula v. Meyer, supra, 132 Cal.App.2d 279, 284, 282 P.2d 107.)

The responsibility for implementing the safety standards, a matter of vital importance in the construction industry, 8 is placed through the broad statutory definition of an employer. (§ 6304, fn. 1, ante.) While not all general contractors (Kuntz v. Del E. Webb Constr. Co. (1961), 57 Cal.2d 100, 106--107, 18 Cal.Rptr. 527 368 P.2d 127), or even all corporate officers of the actual employer (e.g., officers outside the 'chain of responsibility' for the company activity in which the accident occurs: see Mason v. Case, supra, 220 Cal.App.2d 170, 176--177, 33 Cal.Rptr. 710; Towt v. Pope (1959), 168 Cal.App.2d 520, 528--529, 336 P.2d 276), are employers in the terms of section 6304, the farther down the command hierachy of a construction job one focuses his attention, the more likely it is that one finds that any employee who is in a supervisory position is a statutory employer with the consequent duty of complying with section 6400 and the pertinent Construction Safety Orders. (See Cravens v. Kurtz (1962), 210 Cal.App.2d 810, 812--815, 26 Cal.Rptr. 802; Jackson v. Georgia-Pacific, Inc. (1961), 195 Cal.App.2d 412, 416--419, 15 Cal.Rptr. 680.) Undoubtedly safety is encouraged insofar as a duty for safety is imposed on many persons and the extensive scope is therefore desirable.

The principles underlying these rigorous, broadly imposed duties for safety and the civil liability consequent upon the failure to fulfill them, promote both legislative objectives: job safety and compensation for injury. Defendants would now have us adopt a rule clearly tending to thwart these statutory purposes. A rule of concurrent obligations, as urged by defendants, that automatically ascribes to all employee-plaintiffs in civil actions for damages contributory negligence as a matter of law, would effectively insulate, by a prescript of absolute nonliability, all employers from liability to any employee except one bearing no responsibility whatsoever for 'direction, management, control, or custody of any employment, place of employment, or any employee.' (§ 6304.) Application of such a rule of law would make the statutory standards 'simultaneously rules of care for employers and shields against liability as well.' (Mason v. Case, supra, 220 Cal.App.2d 170, 181, 33 Cal.Rptr. 710, 716; cf. Asplund v. Driskell (1964), 225 Cal.App.2d 705, 717, 37 Cal.Rptr. 652; Lokey v. Pine Mountain Lumber Co. (1962), 205 Cal.App.2d 522, 530--531, 23 Cal.Rptr. 293.) Such elimination of employers' liability would remove a great incentive to assume seriously the responsibilities for safety imposed by statute. We believe that it would constitute a regression in the advances made by legislatures and courts in the past...

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