Conner v. Utah Const. & Min. Co.

• Decision Date: 16 December 1964
• Citation: 41 Cal.Rptr. 728,231 Cal.App.2d 263
• Court: California Court of Appeals Court of Appeals
• Parties: Dayton Joe CONNER, Plaintiff, Defendant-in-Intervention and Respondent, v. UTAH CONSTRUCTION AND MINING COMPANY, a corporation, Defendant, Defendants-in-Intervention, Respondent and Appellant. Employers' Liability Assurance Corporation, Ltd., a corporation, Plaintiff-in-Intervention, Appellant and Respondent. Civ. 21645.

Page 728

41 Cal.Rptr. 728

231 Cal.App.2d 263

Dayton Joe CONNER, Plaintiff, Defendant-in-Intervention and Respondent, v. UTAH CONSTRUCTION AND MINING COMPANY, a corporation, Defendant, Defendants-in-Intervention, Respondent and Appellant Employers' Liability Assurance Corporation, Ltd., a corporation, Plaintiff-in-Intervention, Appellant and Respondent.

Civ. 21645.

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

Dec. 16, 1964.

Rehearing Denied Jan. 15, 1965.

Hearing Denied Feb. 10, 1965.

Kilday, Nemer, Farbstein & Green, Donald F. Farbstein, San Mateo, for appellant Utah Construction & Mining Co.

Boyd, Benson & Gregory, San Francisco, Herbert Chamberlin, San Francisco, of counsel, for appellant Employers' Liability Assurance Corp., Ltd.

Naphan & Arne, Oakland, for respondent.

TAYLOR, Justice.

Plaintiff Conner was injured on March 17, 1961, when he fell from an open second floor on the tower of the Oakland Municipal Airport, then under construction. He filed this action for personal injuries against the general contractor, Utah Construction and Mining Company (hereafter referred to as Utah). Utah cross-complained against the steel subcontractor, San Jose Steel Company (hereafter referred to as San Jose) The jury awarded Conner $200,000 against Utah but exonerated Statewide. The jury also found in favor of Employers against Utah and awarded damages in the amount of $8,852.33. Subsequently, the trial court denied Utah's motion for a nonsuit, directed verdict, judgment notwithstanding the verdict, and motion for a new trial against Conner, but granted Utah's motion for a judgment notwithstanding the verdict or in the alternative for a new trial against Employers on grounds of insufficiency of the evidence and errors of law.

and Conner's employer, the steel [231 Cal.App.2d 269] erection sub-subcontractor, Statewide Steel (hereafter referred to as Statewide). The workmen's compensation carrier for Statewide, Employers' Liability Assurance Corporation (hereafter referred to as Employers) intervened against Utah to recover a stipulated amount of $8,852.33 in workmen's compensation benefits paid to Conner. The action against San Jose was dismissed at the beginning of the trial.

Utah appeals from the judgment on the verdict in favor of Conner and from the denial of its motion for a judgment notwithstanding the verdict against Conner. Employers appeals from the judgment notwithstanding the verdict in favor of Utah and the order granting Utah a new trial. The issues presented by these appeals concern the state of the evidence to sustain the various judgments and orders, certain alleged errors in the instructions to the jury and whether the trial court properly refused to extend the doctrine of Witt v. Jackson, 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641, to future benefits.

Viewing the facts most favorably to Conner, as we must on appeal, the record reveals the following: the eleven-story airport tower building was constructed of cement framed and poured by Utah with reinforcing steel beams fabricated by San Jose and erected and put in place by Statewide. By March 17, 1961, the second floor cement slab had been poured and set. The next step was the lifting and positioning of the exterior wall forms by Utah and then Statewide's placement of reinforcing steel bars or rebars vertically and horizontally along the exterior wall form or panel.

The irregularly shaped tower was designed in such a manner that when the entire perimeter of exterior wall panels had been erected, there would still be voids in the wall. On March 17, 1961, Utah had erected some but not all of the exterior wall panels around the perimeter of the second floor. At the south corner of the west main exterior wall panels where the accident occurred, the main wall panel was in place but the return or wing walls had not been erected by Utah. Thus, except for the areas where the exterior wall panels were actually in place, the entire perimeter of the second floor was open. There were no railings or guard or hand rails. Several Utah carpenters and employees of other subcontractors, including cement finishers, plumbers, electricians and carpenters, were at work in the 40' by 40' accident area.

Utah coordinated and determined the order, location and timing of the work of the various subcontractors. Utah usually informed the subcontractors the day before where and when they were to proceed. White, Utah's project superintendent, had so informed Brashear (Statewide's superintendent and general foreman) the day before the accident. Thus, in accordance with industry custom, Brashear assumed that the second floor area was 'workwise' and, therefore, told Conner, an experienced iron worker or rebar man, Proctor, another experienced rebar man, and their foreman, Flint, to prepare the west wall form for the rebars. The three men went up to the second floor slab together and Flint directed Conner to get the hickey and straighten the steel dowels located in the southwest corner.

The dowels installed by Statewide projected upward out of the second floor concrete. Conner picked up a hickey, went to the southwest corner and began to straighten up the dowels. As he did so, he was facing the south edge of the west wall with his left side at the edge There is conflicting evidence as to whether Conner properly used the hickey to straighten the dowels or improperly attempted to do so with his safety belt. Several workmen saw Conner as he lost his balance, slipped and fell to his left from the second floor to the level below. Conner fell about 15' and landed with his face striking the edge of some exposed unguarded vent pipes protruding from the ground floor. The nature and extent of the injuries suffered by Conner are not in issue.

of the open second floor slab. He was wearing a safety belt and hooked it over one of the No. 9 dowels away from the wall panel.

I. UTAH'S APPEAL FROM THE JUDGMENT ON THE VERDICT IN FAVOR OF CONNER, AND THE ORDER DENYING ITS MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT.

An owner or general contractor exercising supervision over a project owes a common law duty to the employees of independent contractors to exercise ordinary care, to furnish them with a reasonably safe place in which to work or if there is danger attendant upon the work which arises from conditions that are not obvious, to gave the employee reasonable warning of such danger (Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 232, 282 P.2d 69; Dingman v. A. F. Mattock Co., 15 Cal.2d 622, 624, 104 P.2d 26; Delk v. Mobilhomes, Inc., 118 Cal.App.2d 529, 531, 258 P.2d 75; Oldham v. Atchison, T. & S. F. Ry. Co., 85 Cal.App.2d 214, 218, 192 P.2d 516; Jean v. Collins Construction Co., 215 Cal.App.2d 410, 417, 30 Cal.Rptr. 149; Johnson v. Nicholson, 159 Cal.App.2d 395, 406, 324 P.2d 307). The relationship between the general contractor and the employees of the subcontractor is equivalent to that of invitor-invitee (Rodin v. American Can Co., 133 Cal.App.2d 524, 531, 284 P.2d 530; Biondini v. Amship Corp., 81 Cal.App.2d 751, 760, 185 P.2d 94; Lamar v. John & Wade, Inc., 70 Cal.App.2d 806, 809, 161 P.2d 970; Miller v. Pacific Constructors, Inc., 68 Cal.App.2d 529, 545, 157 P.2d 57). The area of invitation is dependent upon the nature of the work and the circumstances of the particular case (Biondini v. Amship Corp., supra). Where the invitation, express or implied, extends to and includes a certain portion of the premises, the employee has a right to assume that he can enter the area without danger (Florez v. Groom Development Co., 53 Cal.2d 347, 1 Cal.Rptr. 840, 348 P.2d 200). Such an employee-invitee while properly using a portion of the premises is not held to the duties of an inspector but is required to exercise only the same quantum of care in his own behalf that may be required of other invitees (Miller v. Pacific Constructors, Inc., 68 Cal.App.2d 529, 157 P.2d 57).

Where a general contractor not only exercises general supervision over a construction project but in addition controls the premises or the instrumentality causing the injury, he is an employer within the meaning of sections 6304 et seq. of the Labor Code ¹ and is subject to the duties set forth therein (Kuntz v. Del E. Webb Constr. Co., 57 Cal.2d 100, 18 Cal.Rptr. 527, 368 P.2d 137). The statutory duties imposed on an employer by the Labor Code are greater than those imposed by the common law rule generally applicable to the invitor-invitee relationship and require the general contractor to maintain the ground over which a subcontractor's employee is engaged in a condition reasonably safe for those who might In determining whether Utah was properly held accountable under the above principles, we are mindful that all conflicts must be resolved in favor of respondent Conner and all reasonable inferences indulged in to uphold the verdict. The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury (Fibreboard Paper Products Corp. v. East Bay Union of Machinists, 227 A.C.A. 743, 764, 39 Cal.Rptr. 64).

fall while working on the structure above (Jean v. Collins Construction Co., supra).

It is undisputed that the structure on which Conner was working was under the management and control of Utah. Because of the nature of the construction, procedures which involve the coordination of the work of various subcontractors as well as Utah's cement pouring and the erection of wall panels with Statewide's erection of the rebars, Utah controlled the scheduling as to what the subcontractors were to do and when and where they were to work. Utah had full knowledge that there were no railings or other installations to protect employees of subcontractors on the second floor deck and knew that many persons of different crafts would be working on the...