Fonseca v. County of Orange

• Decision Date: 27 October 1972
• Citation: 104 Cal.Rptr. 566,28 Cal.App.3d 361
• Court: California Court of Appeals
• Parties: Adalberto FONSECA, Plaintiff and Appellant, v. ORANGE COUNTY, Defendant and Respondent. Civ. 11964.

Page 566

104 Cal.Rptr. 566

28 Cal.App.3d 361

Adalberto FONSECA, Plaintiff and Appellant, v.ORANGE COUNTY, Defendant and Respondent.

Civ. 11964.

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

Oct. 27, 1972.

Hearing Denied Dec. 20, 1972.

Hidalgo, Aranda & Garcia and Manuel Hidalgo, Los Angeles, for plaintiff and appellant.

Garrett & Dimino, Inc. and Franklin J. Dimino, Tustin, for defendant and respondent.

OPINION

KERRIGAN, Associate Justice.

Plaintiff sustained permanent injuries to his left arm when he fell from the Warner Avenue Bridge being constructed across the Santa Ana River in Santa Ana.At the time of the fall, plaintiff was employed as a cement finisher for the bridge builder, Lomar Construction Company.Lomar Construction had contracted with the defendant, County of Orange, to erect the bridge.The fall occurred on January 5, 1970, when plaintiff slipped on some wet, excess cement as he was doing finish work on the concrete deck of the bridge at a height of 20 feet or more above the dry riverbed.No scaffolding or railings had been installed around the perimeter of the bridge for the protection of workmen as required by law.Plaintiff received workmen's compensation benefits for the injuries sustained.¹In addition, he sued the County of Orange in its capacity as owner of the bridge and employer of the bridge contractor.

The case was tried by jury.During its deliberations, the jury requested the rereading of instructions on the doctrine of contributory negligence and also the rereading of certain testimony relating to the issue of contributory negligence.The jury then returned with a unanimous defense verdict.

In response to special interrogatories submitted by the court, the jury also found that plaintiff's employer, Lomar Construction, violated certain state safety orders requiring the installation of railings on construction jobs where workers were required to work at heights in excess of 7 1/2 feet above ground level and scaffolding at heights above 15 feet, and that said violations were the proximate cause of the plaintiff's injuries.

Plaintiff's motion for judgment notwithstanding the verdict and motion for a new trial were denied, and he appeals from the judgment entered upon the verdict.

His attack on the judgment is stated in varying ways but takes the following form:

(1) The county was vicariously liable as a matter of law for the negligence of its contractor; and

(2)The court erred in instructing on the doctrine of contributory negligence.

Plaintiff initially contends that the county was vicariously liable as a matter of law for the bridge builder's negligence.In support of his argument, plaintiff maintains that bridge construction can be a highly dangerous undertaking if special precautions are not taken; that such precautions include the installation of railings on jobs over 7 1/2 feet in height and scaffolding on jobs over 15 feet; that such precautions were not taken by the defendant's contractor and the jury so found; consequently, the trial court erred in denying the motion for judgment notwithstanding the verdict.

The employer of an independent contractor is ordinarily not liable to third parties for the contractor's negligence.(Green v. Soule(1904)145 Cal. 96, 78 P. 337.)However, the general rule is subject to exceptions of such magnitude as to leave only a small area in which the general rule operates.(Rest. 2d, Torts, § 413 et seq.;2 Witkin, Summary of Calif.Law (1960), Torts, § 310, p. 1506.)In fact, the exceptions have almost emasculated the general rule.(2 Harper & James, Torts (1956), § 26.11;Widman v. Rossmoor Sanitation, Inc.(1971)19 Cal.App.3d 734, 743, 97 Cal.Rptr. 52.)

In recent years, a new concept has been formulated constituting an exception to the general rule granting immunity to the employer of an independent contractor.This exception finds expression in section 416 of the Restatement Second of Torts and depends on the type or kind of work undertaken by the contractor in behalf of the owner or employer.This section 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.'(Emphasis supplied.)An employee of an independent contractor comes within the word Others as used in section 416 of the Restatement.(Van Arsdale v. Hollinger(1968)68 Cal.2d 245, 254, 66 Cal.Rptr. 20, 437 P.2d 508.)

In the case under review, there was evidence establishing that cement work being done on the deck of a bridge at a height in excess of 20 feet was a highly dangerous activity in the absence of precautionary measures.Under the contract between the defendant(employer) and the bridge builder (contractor), the latter agreed to construct the bridge in a safe manner in accordance with state safety orders.The evidence establishes that the defendant's contractor violated the construction safety orders issued by the State of California, Division of Industrial Safety, by failing to install scaffolding and railings.(Title 8, Art. 16, §§ 1620, 1621;Title 8, Art. 21, § 1637.)The court herein instructed the jury on the liability of an owner who employs an independent contractor to perform dangerous work.(BAJI No. 13.21.)It also instructed the jury that railings were required on construction jobs being performed at a height in excess of 7 1/2 feet and scaffolding at heights above 15 feet, and that the contractor's failure to provide scaffolding and railings constituted negligence per se. (BAJI No. 3.45.)Based on the foregoing evidence and instructions, the jury determined that Lomar Construction was negligent and that such negligence proximately caused plaintiff's injuries.

In moving for judgment notwithstanding the verdict, the plaintiff argued in the trial forum that the jury's special verdict (answers to special interrogatories) finding the contractor (Lomar Construction) negligent in causing plaintiff's injuries was inconsistent with its general verdict in favor of the employer (Orange County).In effect, the same argument is again advanced on appeal, to wit, that the county was vicariously liable as a matter of law in view of the jury's findings of liability on the part of its contractor.

The argument has integrity if plaintiff was free of contributory negligence.Contributory negligence was raised as a defense in the county's answer to plaintiff's complaint.Evidence was presented, and the argument was made, that plaintiff had considerable experience in cement work and should have refused to start work when he observed the lack of scaffolds and railings.The court instructed the jury that the plaintiff was entitled to a verdict against the defendant(Orange County) if its contractor (Lomar Construction Company) was negligent and such negligence was the proximate cause of injury to the plaintiff, Provided that plaintiff was not contributorily negligent.(BAJI No. 3.01.)

Turning to the evidence presented at trial, the record reflects the following facts: Plaintiff was born in October 1922; while he enjoyed a limited formal education (second grade), he had spent a good part of his adult life in the construction field; on several occasions, he had been employed as a working foreman, and, in such capacity, had received safety pamphlets containing construction safety orders; a few days prior to the accident, he was working as a cement foreman for another employer; a Lomar Construction Company representative contacted his regular employer and requested the services of a cement finisher for one day; inasmuch as plaintiff's regular employer did not require his services at that particular time, he consented to plaintiff's working on the Warner Avenue Bridge job; on Monday, January 5, 1970, plaintiff arrived at the job site at 6:45 a.m. and met the county engineer assigned to the bridge job; while plaintiff testified that he told the county engineer that scaffolding and railings should be installed around the perimeter before he proceeded with the cement work, the county engineer said he did not recall whether plaintiff made any protest; in any event, plaintiff proceeded to work on the deck; about 1 p.m. that afternoon, he slipped on some wet cement and fell.From all the evidence, the sole reason for the fall was the contractor's failure to install scaffolding and railings.

Inasmuch as the court instructed the jury over objection on the defense of contributory negligence, the critical issue on appeal is whether the instruction was proper.

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause, with the negligence of defendant, in bringing about the plaintiff's harm; the amount of care required of a plaintiff is that which would be exercised by a person of ordinary prudence in the same circumstances; and when a person must work under unsafe or dangerous conditions, the amount of care he is required to exercise for his own safety may be less than would otherwise be required because of the necessity of giving attention to his work.(Gyerman v. United States Lines Co.(1972)7 Cal.3d 488, 500--501, 102 Cal.Rptr. 795, 498 P.2d 1043;seeAustin v. Riverside Portland Cement Co.(1955)44 Cal.2d 225, 239, 282 P.2d 69;McDonald v. City of Oakland(1967)255 Cal.App.2d 816, 827, 63 Cal.Rptr. 593.)

While contributory negligence has been eliminated entirely as a bar to recovery in negligence actions arising from violations of safety regulations or orders in some jurisdictions (seeAlber v. Owens(1967)66 Cal.2d 790, 798, ...