Gonzales v. R. J. Novick Construction Company, Inc.

CourtCalifornia Court of Appeals
Citation70 Cal.App.3d 131,139 Cal.Rptr. 113
Decision Date26 May 1977
Parties, 1977-1978 O.S.H.D. (CCH) P 21,958 Ben C. GONZALES, Plaintiff and Respondent, v. R. J. NOVICK CONSTRUCTION COMPANY, INC., a corporation, Defendant, Cross-Complainant, Respondent and Appellant, Vienna Stonecraft, Inc., a corporation, Cross-Defendant and Appellant. Civ. 47059.

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139 Cal.Rptr. 113
70 Cal.App.3d 131, 1977-1978 O.S.H.D. (CCH) P 21,958
Ben C. GONZALES, Plaintiff and Respondent,
R. J. NOVICK CONSTRUCTION COMPANY, INC., a corporation, Defendant, Cross-Complainant, Respondent and Appellant,
Vienna Stonecraft, Inc., a corporation, Cross-Defendant and Appellant.
Civ. 47059.
Court of Appeal, Second District, Division 2, California.
May 26, 1977.
As Modified on Denial of Rehearing June 21, 1977.
For Opinion on Hearing, See 144 Cal.Rptr. 408, 575 P.2d 1190.

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Clausen, Gilliland, Koelsche, Roberson & Moser, William N. Roberson, Los Angeles, and Edward L. Lascher, Wendy C. Wilner and Richard C. Gilman, Ventura, for appellant R. J. Novick Const. Co.

Kean & Engle and Joseph A. Kean, Los Angeles, for appellant Vienna Stonecraft, Inc.

Vogt & Woloz and James D. Vogt, Los Angeles, for respondent Ben C. Gonzales.

BEACH, Associate Justice.

Ben Gonzales sued R. J. Novick Construction Company (Novick) for personal injuries suffered when he was working for Vienna Stonecraft, Inc. (Vienna), a subcontractor of Novick. 1 Novick cross-complained against Vienna for indemnity. The trial was trifurcated, with the liability issue tried before a jury, the cross-complaint before the court, and damages before the jury. A verdict was entered for plaintiff and against Novick in the amount of $111,500, from which there was a set-off of a $12,578 workers' compensation payment. On the cross-complaint, the trial court found for Novick against Vienna for $98,922 plus interest and costs. Vienna appeals from the judgment on the cross-complaint, and Novick cross-appeals from the judgment for plaintiff. 2

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On April 25, 1972, Ben Cruz Gonzales was a brick tender working for Vienna Stonecraft on a construction project in the San Fernando Valley. According to Gonzales' testimony, Harold Eklund, foreman for Vienna, told him to 'hurry up and get the mud boards and stands over to the north wall; the bricklayers are going to be there.' 3 Gonzales picked up the mud boards and mud stands and started walking on the north wall scaffold. Since bricks were lying in the portion of the planks nearest to the wall, Gonzales was forced to walk on the outside planks. A plank gave way under him, and he fell on a cement floor. He testified that he first realized there were no handrails on the scaffold when he fell down. The accident apparently was caused by incorrect overlapping of planks.

Vienna Stonecraft, Gonzales' employer, was in charge of building the scaffolding. Eklund was in charge of the laborers; he would check scaffolds. 4 Randy Wineinger, who was the job superintendent for Novick, testified that he would bring a dangerous condition to the attention of Eklund and would stay with it until he saw that it was corrected. Safety was one of his duties on the job sites; this duty included inspecting the premises daily. He would usually report safety hazards to Eklund and have them corrected immediately; if he could correct them himself, he would do so if it needed to be done immediately. 5 Franz Neuwirth, president of Vienna, testified that he assumed Wineinger checked for safety.


Appellant Vienna Stonecraft, Inc., contends:

1. There is no liability of an employer to indemnify for injuries to its employee unless there is a written agreement so to do.

2. Agreements for indemnity for sole negligence of a contractor are void and unenforceable.

3. An indemnitee is not entitled to indemnity when actively negligent if the indemnity agreement does not refer expressly to negligence.

Cross-appellant Novick first asserts that the indemnity agreement was valid in all respects and that substantial evidence supports the determination that Novick was entitled to indemnity. Novick states, however, that if Vienna is successful in its appeal from the judgment on the cross-complaint, then only should we consider Novick's additional contentions that Novick was not negligent and that the jury verdict finding Novick negligent was based on erroneous instructions given by the trial court.

However, in our opinion, the underlying issue of negligence on the part of Novick is so basic to the entire lawsuit that it must be examined and determined first. The matter has been properly brought to our attention. We are not limited by Novick's 'conditions' of its cross-appeal. If there is no negligence on the part of Novick, then there is no liability and thus no need for indemnity. It would be wrong to allow an erroneous judgment of Novick's liability to stand simply because there is someone else from whom Novick may collect. Novick as cross-appellant asserts in its brief 'only the presence of indemnity from Vienna prevents

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this case from becoming a gross miscarriage of justice.' We view both the finding of Novick's tort liability, as well as the passing of the total tort liability on to the employer Vienna, unjust and improper. That finding of liability and fault of Novick is nothing less than a fiction and a sham. There is no substantial evidence that Novick was negligent, passively or actively. The jury's giving to the badly injured workman a recovery in tort against Novick was the result of sympathy compounded by error of the trial court in instructing the jury. Novick contends in its cross-appeal that the instructions on federal OSHA regulations, and on peculiar risk theory were error. We agree.


1. The negligence if any here was entirely that of Vienna's employees, whose duties included erecting the scaffold.

Novick should not be held responsible for any negligence of Vienna. Here unlike other reported cases involving general contractors such as Herman Christensen & Sons, Inc. v. Paris Plastering Co., 61 Cal.App.3d 237, 132 Cal.Rptr. 86, and cases cited therein, the general contractor Novick did not provide or erect and was not required to provide or to erect a scaffold. It was not required to supervise, direct, or inspect the erection of the scaffold.

Although the general rule that the employer of an independent contractor is not liable to third parties for the contractor's negligence has been virtually engulfed by its exceptions (Holman v. State of California, 53 Cal.App.3d 317, 327, 124 Cal.Rptr. 773), it nevertheless remains true that the general contractor's conduct must fall within some one of those exceptions to ground liability. No such exception is present here. There is no evidence that Novick negligently employed an incompetent subcontractor, nor were there any plans or specifications prepared by Novick that negligently required something to be done which is inherently dangerous or wrong. (Widman v. Rossmoor Sanitation, Inc., 19 Cal.App.3d 734, 743, 97 Cal.Rptr. 52.) Neither is this a case in which the general contractor's liability is predicated on a dangerous condition of the premises which constitutes a hazard to all employees on the premises. (Kuntz v. Del. E. Webb Constr. Co., 57 Cal.2d 100, 105, 18 Cal.Rptr. 527, 368 P.2d 127.)

That leaves two other exceptions. Liability of general contractors may sometimes be predicated on a finding of 'nondelegable duty' owed by reason of a special situation created by statute, common law, franchise or contract. (West v. Guy F. Atkinson Constr. Co., 251 Cal.App.2d 296, 300, 59 Cal.Rptr. 286.) Absent the federal statute erroneously injected into the case by plaintiff, there is clearly no basis for applying this exception here.

The remaining exception to the general rule of nonliability is the 'peculiar risk' doctrine of Restatement of Torts, 2d, § 416 (see Van Arsdale v. Hollinger, 68 Cal.2d 245, 251, 253, 66 Cal.Rptr. 20, 437 P.2d 508). This concept, too, has no place where the plaintiff is a subcontractor's employee suing for injuries caused by the subcontractor's equipment used in an ordinary manner.

2. The court erred in instructing that the Federal Occupational Safety and Health Act (OSHA) created a duty.

The jury was first told that OSHA requires every employer to furnish his employees a place of employment free from recognized hazards and then that federal law imposes many sorts of regulations upon 'scaffolds such as that involved in this accident.'

This was followed by BAJI 13.22:

'One who is under a duty to provide specified safeguards or precautions or to maintain certain equipment in a specified condition, is subject to liability for harm proximately caused to others by the omission of a contractor employed by him to provide such safeguards or precautions or by the failure of such contractor to put such equipment in the condition so required.

'Thus, if you find that the contractor employed by the defendant omitted to provide the specified safeguards or precautions

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or failed to put defendant's equipment in the condition required...

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