Di Muro v. Masterson Trusafe Steel Scaffold Co.

• Decision Date: 18 July 1961
• Citation: 14 Cal.Rptr. 551,193 Cal.App.2d 784
• Court: California Court of Appeals Court of Appeals
• Parties: John DI MURO, Plaintiff and Respondent, v. MASTERSON TRUSAFE STEEL SCAFFOLD CO., Inc., a corporation, et al., Defendants, Masterson Trusafe Steel Scaffold Co., a corporation, and Long Beach Sandblasting Company, a corporation, Appellants. Civ. 24865.

Page 551

14 Cal.Rptr. 551

193 Cal.App.2d 784

John DI MURO, Plaintiff and Respondent, v. MASTERSON TRUSAFE STEEL SCAFFOLD CO., Inc., a corporation, et al., Defendants Masterson Trusafe Steel Scaffold Co., a corporation, and Long Beach Sandblasting Company, a corporation, Appellants.

Civ. 24865.

District Court of Appeal, Second District, Division 3, California.

July 18, 1961.

Rehearing Denied Aug. 17, 1961.

Hearing Denied Sept. 13, 1961.

Kirtland & Packard and Robert C. Packard, Los Angeles, for appellants.

Joseph L. Spray, Los Angeles, Jim Bentson, Seal Beach, and Spray, Gould & Bowers, Los Angeles, for respondent.

VALLEE, Justice.

Appeal by defendants Masterson Trusafe Steel Scaffold Co., called Masterson, and Long Beach Sandblasting Co., called Sandblasting, from a judgment for plaintiff entered on a unanimous verdict in an action for damages for personal injuries.

Plaintiff was a journeyman painter employed by J. F. Just Company. Just had a subcontract to paint a garage in Long Beach. Sandblasting was a subcontractor of Just. On February 16, 1957 Masterson, for a valuable consideration, rented a scaffold, also called a rolling stage, to Sandblasting. Sandblasting requested Masterson to deliver the scaffold without 'hand or guard rails.' Masterson's superintendent, Smith, made a notation on the rental order reading: 'Doesn't want Guard Rails because of Trusses in Bldg.' Masterson's superintendent testified it was Masterson's practice to send out guardrails with rolling stages and that the reason guardrails were not sent out in this case was because of the notation on the rental ticket. There was also evidence that Masterson determined that guardrails would not be supplied. Masterson delivered the scaffold to Sandblasting. As delivered, it was not assembled. No hand- or guardrails were delivered. Sandblasting assembled the scaffold. It did 'not put any hand or guard rail' on it. When assembled, the scaffold was a movable stage mounted on casters which was pushed from place to place. It was about 10 feet, 7 inches from the floor to the platform on which the worker stood. It was 5 feet wide and 10 feet long. A workman was assigned to move the scaffold from place to place in the building in order that a painter could paint an area not yet painted.

Sandblasting used the scaffold on the job on the Saturday and Sunday before the accident, which occurred on a Monday. At the completion of its work it left the scaffold on the site for use by Just's painters. Sandblasting's superintendent testified it was agreed that Just woudl furnish the 'picks' and Sandblasting would furnish the scaffold and they would both use it. 'Picks' are lightweight hollow plywood planks used to stand on when working at elevations. There was evidence that where sandblasting is done and painting follows it is customary for the sandblasters to leave their scaffolding for the painters.

About 10 a. m. on Monday, February 18, 1957, plaintiff was on the rolling stage spray-painting part of the ceiling. John Bladen was on the rafters, spray-painting them, about 30 [193 Cal.App.2d 789] to 35 feet from where plaintiff was working. Bladen testified: 'Just a couple of minutes' before the accident he heard plaintiff call out that he was out of paint; plaintiff was standing erect on the rolling stage about the middle of it waiting for his pot to be filled; there were no beams or rafters above him and he was not near any beams; at about the position he was standing on the scaffold there was room enough to stand up and paint the ceiling. Bladen testified further: 'About two minutes later I turned around and just happened to glance and I saw him falling towards the ground. He [plaintiff] was approximately halfway down,' in the air; he (Bladen) heard no sound; the scaffold remained in the same position from the time he saw plaintiff on the scaffold and the time he saw him in the air; it remained stationary. There were no other witnesses to the fall. The platform of the scaffold was open on all sides at the time of the accident.

Plaintiff suffered severe injuries. He had no memory of his fall, nor of any of his activities for about an hour before it. He had worked on the scaffold the day before for about five hours. Plaintiff testified:

'Q. Do you work with what they provide you? A. Yes. * * *

'Q. Now, when you came to work the day before, did you voluntarily go to work on one of these rolling stages? A. Voluntarily? Well, I don't know if I was told to go there or whether I walked over there or assumed that I should work there.'

Guardrails would not have weighed over 10 pounds. They could have been put on in 'A couple of minutes at the most' and could be taken down 'in almost no time at all. You can get a grip on each side and lift all four posts off.'

Melvin I. Masterson, Jr., was secretary-treasurer of both Masterson and Sandblasting and answered interrogatories on behalf of both. Both companies occupied the same office and some employees were interchanged from time to time.

The court and jury viewed the premises. There Bladen testified to the position of the scaffold at the time plaintiff fell, to the position of plaintiff on the scaffold when he last saw him before the accident, to the approximate spot where plaintiff struck the floor, and to his own position when he saw plaintiff standing erect on the scaffold and when he saw plaintiff falling.

The first assignment of error is that, as to Masterson, the record is devoid of any actionable negligence as no privity existed between Masterson and plaintiff's employer, Just. It is of course elementary that a supplier of a chattel alleged to have caused injury cannot be liable unless there has been a breach by the supplier of a duty running in favor of the injured person. 35 Cal.Jur.2d 495, § 10. 'The courts of this state are committed to the doctrine that the duty of care exists in the absence of privity of contract not only where the article manufactured is inherently dangerous but also where it is reasonably certain, if negligently manufactured or constructed, to place life and limb in peril.' Sheward v. Virtue, 20 Cal.2d 410, 412, 126 P.2d 345; Hale v. DePaoli, 33 Cal.2d 228, 230-231, 201 P.2d 1, 13 A.L.R.2d 183; Dow v. Holly Mfg. Co., 49 Cal.2d 720, 724-727, 321 P.2d 736; Stewart v. Cox, 55 Cal.2d 857, 13 Cal.Rptr. 521; Larramendy v. Myres, 126 Cal.App.2d 636, 640, 272 P.2d 824.

The Division of Industrial Safety, pursuant to authority granted by section 6312 and 6500 of the Labor Code, has prescribed the safety orders with respect to scaffolds quoted in the margin. ¹ Labor Code, § 6506, reads 'Every person shall comply with every order, decision, direction, rule, or regulation made or prescribed as specified in this part and in any way relating to or affecting safety of employments or places of employment or to protect the life and safety of employees in such employments or places of employment. Every person shall do everything necessary or proper in order to secure compliance with, and observance of, every such order, decision, direction, rule, or regulation.'

The safety orders were enacted for the protection of the class of which plaintiff was a member. They establish the duty of defendants. Bragg v. Mobilhome Co., 145 Cal.App.2d 326, 329-332, 302 P.2d 424. Defendants had the responsibility of complying with the quoted safety orders and of providing guardrails as to any scaffold to be used by workmen. Hall v. Paul Bunyan Lumber Co., 177 Cal.App.2d 761, 764, 2 Cal.Rptr. 519. Violation of such an order constitutes negligence per se. Nungaray v. Pleasant Valley etc. Ass'n, 142 Cal.App.2d 653, 663, 300 P.2d 285.

It is not essential to applicability of a safety order that any benefit be conferred by the injured worker or his employer on the party violating the order. Porter v. Montgomery Ward & Co., Inc., 48 Cal.2d 846, 850, 313 P.2d 854.

Hyde v. Russell & Russell, Inc., 176 Cal.App.2d 578, 1 Cal.Rptr. 631, is factually the nearest to the case at bar. The action was by a subcontractor's employee against the defendant, which was engaged in leasing scaffolding, for personal injuries sustained when the employee fell from a scaffold leased to his employer by the defendant. The backrails supplied by the defendant were round metal instead of rectangular wood, as required by a safety order of the Division of Industrial Safety. As the plaintiff and his coworker were changing positions on the scaffold, the left of the tubular safety rail slipped out of the bracket which previously had held it; and the plaintiff fell over backward to the ground below. The court stated (176 Cal.App.2d at page 586, 1 Cal.Rptr. at page 636):

'[I]n Porter v. Montgomery Ward & Co., Inc., supra [48 Cal.2d 846, 313 P.2d 854], we have a clearcut holding that a safety order, issued under the authority of the same constitutional and statutory provisions which authorized the issuance of the safety order involved in the case at bar, affected the rights and duties of parties between whom there was no relationship of employer and employee * * *.

'We think that any 'reasonable limitation' upon the reach of the safety order in question would include within its ambit the defendant as a professional supplier of scaffolding equipment. We are unable to comprehend defendant's contention that it lacked 'control' over the scaffolding in any sense essential to its ability to comply with the safety order. Indeed, if the salutary requirements of the safety order for the providing of safe guard rails on this type of equipment deserve effective enforcement, it is difficult to understand why a professional supplier of such equipment should be exempted from the duty of compliance.'

There is no question but that Masterson was negligent. It had a duty to supply a scaffold with guardrails. Its duty was nondelegable. Snyder v. Southern Cal. Edison Co., 44 Cal.2d 793, 801-802, 285 P.2d 912. It did not rest on the contract of bailment...