Anderson v. Chancellor Western Oil Dev. Corp.

• Decision Date: 25 November 1975
• Citation: 53 Cal.App.3d 235,125 Cal.Rptr. 640
• Court: California Court of Appeals Court of Appeals
• Parties: Clarence ANDERSON, Appellant, v. CHANCELLOR WESTERN OIL DEVELOPMENT CORPORATION, a corporation, Respondent. Civ. 45202.

Page 640

125 Cal.Rptr. 640

53 Cal.App.3d 235

Clarence ANDERSON, Appellant, v. CHANCELLOR WESTERN OIL DEVELOPMENT CORPORATION, a corporation, Respondent.

Civ. 45202.

Court of Appeal, Second District, Division 2, California.

Nov. 25, 1975.

Hearing Denied Jan. 28, 1976.

Margolis, McTernan, Scope & Sacks, by John T. McTernan, Los Angeles, for appellant.

Archbald, Zelezny & Spray, by Korman Dorsey Ellis and Maurice A. Greenwald, Santa Barbara, for respondent.

COMPTON, Associate Justice.

Clarence Anderson, the plaintiff in a personal injury action brought against the Chancellor Western Oil Development Corporation (Chancellor), appeals from a judgment entered upon a jury verdict in favor of Chancellor.

The facts are not in dispute. Anderson on the day of the accident, April 20, 1971, was an experienced oil worker employed by Camay Drilling Company (Camay). Camay was an Independent contractor engaged by Chancellor to drill an oil well on a lease located in Ventura County. Anderson was a member of a five-man crew, each member of which had various duties connected with the drilling operation.

At the base of the derrick or rig commonly used in such drilling operations is a drilling floor, located above ground level, upon which members of the crew work. During various phases of the drilling operation it becomes necessary for members of the crew to be positioned at differing heights above the drilling floor. When so positioned the crew members stand on what is known as a 'stabbing board,' which is a plank approximately 20 feet long, 12 inches wide and 3 inches thick, reinforced with angle iron along the edges and by metal bands around its width. It weighs approximately 150 to 200 pounds. When in use the 'stabbing board' rests on cross members of the derrick and it is the usual practice in the industry to fasten the ends of the 'stabbing board' to prevent it from being dislodged as a result of vibration or being struck with other objects.

When it becomes necessary to raise or lower heavy objects, including the 'stabbing board' itself, on the derrick, a 'catline' is used. This device is simply a rope and cable suspended from a pulley near the top of the derrick.

At the time of the accident here the 'stabbing board' was in position about 15 feet above the drilling floor but was not in use. The crew, including Anderson, were working at the level of the drilling floor and using the 'catline' to move a portion of the drilling floor. One end of the 'stabbing board' was fastened but the other was unfastened. The 'catline' was positioned on 'the wrong side' of the 'stabbing board' and as the crew moved the drilling floor to one side the 'catline' moved against the 'stabbing board,' dislodging it. The board fell, striking Anderson on the head.

Under the contract between Chancellor and Camay, Camay controlled all details of the work subject only to Chancellor's 'right . . . to supervise and direct the work . . . to the sole end that the well may be protected and properly completed.' Additionally, Camay agreed to indemnify Chancellor against any and all liability arising out of any claim or demand for personal injury to or death to Camay's employees and all other persons. Of course, Camay as Anderson's direct employer provided workmen's compensation benefits to its employees, including Anderson, for injuries sustained in the course of employment.

There is no claim that Chancellor was itself negligent nor that Chancellor had control of the premises or the employees of Camay so as to be a 'statutory employer' under the provisions of former Labor Code section 6304 ¹ as that section read at the time of the accident.

Anderson's claim against Chancellor rests purely on the contention that Chancellor was vicariously liable for the negligence of Camay and Camay's employees, and if sustained would, because of the contract of indemnification, result in tort liability coming to rest on Camay, Anderson's direct employer.

Anderson on appeal makes a number of attacks on the judgment which can simply be grouped into two categories: (1) a claim that the evidence fails to support the judgment, and (2) that the court failed to properly define for the jury the rules governing the liability of the employer of an independent contractor.

As a general rule no liability is imposed upon a general contractor for injuries caused by the negligence of the subcontractor or an employee of the subcontractor. (Prosser Law of Torts, 3d ed., p. 480.) However, it has long been held that a person may not insulate himself from liability to others in all cases by employment of an independent contractor. An exception to the rule exists for the employer's own negligence in the selection of an incompetent contractor or in the employer's direct control of or interference with the work. (Caswell v. Lynch, 23 Cal.App.3d 87, 99 Cal.Rptr. 880.) Exceptions to the rule of nonliability based on vicarious liability have generally been described in terms of 'nondelegable duties.' (Van Arsdale v. Hollinger, 68 Cal.2d 245, 66 Cal.Rptr. 20, 437 P.2d 508.)

' Nondelegable duties' in turn have been found to exist in 'inherently dangerous' activity, but generally in connection with some primary basis of liability, such as an activity done under license of public authority (Taylor v. Oakland Scavenger Co., 17 Cal.2d 594, 110 P.2d 1044; Van Arsdale v. Hollinger, supra), negligence in hiring an incompetent contractor (Risley v. Lenwell, 129 Cal.App.2d 608, 277 P.2d 897) or strict liability for blasting in a populated area (Alonso v. Hills, 95 Cal.App.2d 778, 214 P.2d 50.)

'The rule of nondelegability is the broad and inclusive concept, while the supposedly separate doctrine of inherent danger is merely one of several bases for finding a justification for refusing to permit delegation.' (44 Cal.L.Rev. 762, at p. 768.)

The inherently dangerous work exception was developed in the earlier cases to protect third persons. (Houghton v. Loma Prieta Lumber Co., 152 Cal. 500, 93 P. 82; Bedford v. Bechtel Corp., 172 Cal.App.2d 401, 342 P.2d 495; Ferrel v. Safway Steel Scaffolds, 57 Cal.2d 651, 21 Cal.Rptr. 575, 371 P.2d 311; also see 13 Hastings L.J. 147.) As was stated in 44 Cal.L.Rev. 762, at p. 764: 'In each case in which liability has been predicated on the inherent danger exception, . . . there is also some special relationship between the employer and the injured party which can be characterized as something more than simply that the plaintiff was foreseeable.'

The latest statement of the general rules is set forth in Restatement of Torts, 2d ed., sections 413 and 416. Section 413 is considered to cover the direct negligence of the employer and section 416 deals with vicarious liability in the employment of an independent contractor. The case at bar deals only with the principles of section 416 which provides: '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.'

The California Supreme Court in Woolen v. Aerojet General Corp., 57 Cal.2d 407, 20 Cal.Rptr. 12, 369 P.2d 708, expanded the concept by holding that 'others' could include employees of the independent contractor. However, in that case the peculiar risk was that of an explosion in a confined area and the general contractor exercised some control over the activity by specifying the use of a paint which had explosive properties.

Thus the rule which imposes vicarious liability upon the employer of an independent contractor for failure to take special precautions to prevent a peculiar risk is best stated in terms of 'direct consequences,' i.e., the peculiar risk must be one which can be foreseen as a direct consequence of the work being done. The court must find something in the circumstances of the work or the relationship of the parties which creates a nondelegable duty of care to the injured party.

'It is difficult to suggest any criterion by which the nondelegable character of such duties may be determined, other than the conclusion of the courts that the responsibility is so important to the Community...