Jimenez v. Pacific Western Construction Co.

• Decision Date: 02 September 1986
• Citation: 229 Cal.Rptr. 575,185 Cal.App.3d 102
• Court: California Court of Appeals Court of Appeals
• Parties: Edward JIMENEZ, a Minor, etc. et al., Plaintiffs and Respondents, v. PACIFIC WESTERN CONSTRUCTION COMPANY, INC., Defendant, Cross-complainant and Appellant, Batchelor Construction Company, Inc., Cross-defendant and Respondent. F004958.

Page 575

229 Cal.Rptr. 575

185 Cal.App.3d 102

Edward JIMENEZ, a Minor, etc. et al., Plaintiffs and Respondents, v. PACIFIC WESTERN CONSTRUCTION COMPANY, INC., Defendant, Cross-complainant and Appellant, Batchelor Construction Company, Inc., Cross-defendant and Respondent.

F004958.

Court of Appeal, Fifth District, California.

Sept. 2, 1986.

Review Denied Nov. 25, 1986.

Sandell, Young & St. Louis, Bradley B. Geery and Harold D. Sandell, Fresno, for defendant, cross-complainant and appellant

Walkup, Shelby, Bastian, Melodia, Kelly & O'Reilly, Ralph W. Bastian, Jr., and Michael P. Clark, San Francisco, for plaintiffs and respondents.

Parichan, Renberg, Crossman & Harvey and Charles L. Renberg, Fresno, for cross-defendant and respondent.

OPINION

FRANSON, Acting Presiding Justice.

STATEMENT OF THE CASE

Gregorio Jimenez was killed, and Virgil Sinclair was injured while working for respondent, Batchelor Construction Company, Inc. (Batchelor), when a trench wall collapsed. The heirs of Gregorio Jimenez filed a complaint for wrongful death against appellant, Pacific Western Construction Company, Inc. (Pacific). Virgil Sinclair also filed a complaint for personal injuries against Pacific.

Pacific answered the complaints and filed cross-complaints for express indemnity against Batchelor. The cross-complaints incorporated the language of a contract between Pacific and Batchelor which provided for a general right of indemnity ¹ in favor of Pacific. The contract also provided for payment of reasonable costs and attorney's fees to Pacific should suit be filed to enforce the contract and Batchelor should be found at fault.

Batchelor then filed a cross-complaint against Pacific in each action seeking indemnity from Pacific for costs of suit and attorney's fees and alleging that Pacific was actively negligent and therefore barred from any recovery from Batchelor.

By stipulation and order of the court, the complaints and cross-complaints were consolidated for trial.

The jury returned a verdict in favor of each plaintiff against Pacific. The jury further found that Pacific's negligence was active. Based on this finding, it was ordered that Pacific take nothing on its cross-complaint and that Batchelor recover its costs and attorney's fees in the sum of $27,113.50.

Pacific moved for judgment notwithstanding the verdict or for a new trial. This motion was denied.

STATEMENT OF THE FACTS

Pacific was hired as the general contractor to build a road in Sequoia National Park. Pacific hired Batchelor, a pipeline installation specialist, to dig the trenches and to install the drain and culvert pipes for this project.

Pacific's president, Frank Pozar, requested Batchelor to, and Batchelor did, obtain a trenching permit before beginning construction. Such a permit is necessary if trenches deeper than five feet are going to be dug. Mr. Pozar also requested Batchelor to get information on the regulations for such trenching. The industry safety standards require that any trench deeper than five feet which workmen are required to enter be either shored or sloped back. However, Mr. Pozar never inquired as to the safety measures Batchelor would employ with regard to the trenches.

Bobby Hays was Pacific's overall foreman on this job and was on the site every day. It was Mr. Hays's responsibility to report any unsafe conditions on the project to Mr. Pozar. Mr. Hays did not report any unsafe practices with respect to trenching.

Mr. Hays was "roughly" aware of the industry standards regarding the sloping or shoring of trench walls. He had had experience with trenching on only one other project. Mr. Hays testified that he observed other trenches dug by Batchelor which, although less than five feet in depth, were sloped. Mr. Hays knew that Batchelor employees would be working in trenches. Although Mr. Hays testified that he did not see the trench which collapsed or any other trenches which exceeded five feet in depth, other witnesses testified that Mr. Hays did see those trenches. Mr. Hays left the decision as to whether shoring or sloping would be done up to the Batchelors, and he did not discuss safety precautions with them.

On May 25, 1982, Batchelor employees Gregorio Jimenez and Virgil Sinclair were buckling a pipe together in a trench dug by Kenneth Batchelor. These two Batchelor employees and Kenneth Batchelor were the only people present at this trench site. During this buckling process, the north wall of the trench, which was between eight and nine feet high, collapsed, killing Mr. Jimenez and injuring Mr. Sinclair.

William Seiner, a safety engineer for Cal-OSHA, observed the trench following the accident and determined that it had no sloping. Virgil Sinclair testified that this trench had vertical walls.

All of the trenches dug by Batchelor were dug in the same manner as the trench which collapsed. Arthur Knudsen, an expert soils engineer, testified that any trenches which were dug in this manner were improperly sloped and failed to meet industry standards. Industry standards require a trench to be sloped out at least eight inches for every foot of depth.

At trial, the jury was instructed on the peculiar risk doctrine as follows:

"By reason of the nature of the work contemplated by the contract in this case, the court finds that the work necessarily requires the creation during its progress of a peculiar risk of bodily harm. The Peculiar Risk Doctrine is therefore applicable to this case and you must determine whether Batchelor Construction failed to exercise reasonable care to take the necessary special precautions. Therefore, if you find Batchelor Construction was negligent in failing to exercise reasonable care to take the necessary special precautions, you must find that defendant Pacific Western was negligent in that regard." (Emphasis added.)

Thus, the trial court found that the peculiar risk doctrine was applicable to these facts as a matter of law. Based on this doctrine, the jury found Pacific was negligent.

The trial court found that the indemnity provision in the subcontract was a general indemnity clause. Therefore, Pacific was denied recovery against Batchelor under this contract when the jury found Pacific was actively negligent.

DISCUSSION

I. The trial court properly decided the peculiar risk doctrine applied to this case as a matter of law.

The peculiar risk doctrine is a well-recognized exception to the general rule that one who employs an independent contractor is not liable for injuries caused by the negligence of the contractor. (Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 502, 508, 156 Cal.Rptr. 41, 595 P.2d 619.)

California has adopted the peculiar risk doctrine as expressed in sections 413 and 416 of the Restatement Second of Torts. (Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578, 585, 153 Cal.Rptr. 213, 591 P.2d 503.)

"Section 416 states that '[o]ne 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.' Section 413 differs from section 416 only to the extent that it imposes direct liability on the employer when he has made no provision in the contract or otherwise for the taking of required precautions. [Citation.]

"A peculiar risk is a risk which is peculiar to the work to be done and arises out of its character or the place where it is to be done, and against which a reasonable person would recognize the necessity of taking special precautions. [Citation.] It is something other than the ordinary and customary dangers which may arise in the course of the work or of normal human activity. ' "Peculiar" does not mean that the risk must be one which is abnormal to the type of work done, or that it must be an abnormally great risk. It has reference only to a special, recognizable danger arising out of the work itself.' [Citation.] 'It is not essential that the peculiar risk be one which will necessarily and inevitably arise in the course of the work, no matter how it is done. It is sufficient that it is a risk which the employer should recognize as likely to arise in the course of the ordinary and usual method of doing the work, or the particular method which the employer knows that the contractor will adopt.' [Citation.]" (Griesel v. Dart Industries, Inc., supra, 23 Cal.3d 578, 585-586, 153 Cal.Rptr. 213, 591 P.2d 503.)

Pacific agrees that the jury should have been instructed on the peculiar risk doctrine. However, Pacific contends that the trial court erred when it ruled that the peculiar risk doctrine applied to impose liability on Pacific as a matter of law if the jury found that Batchelor was negligent. Pacific alleges that whether Pacific exercised sufficient control over the project or had sufficient knowledge and experience in the subject of trenching to hold it vicariously liable was a preliminary factual question which should have been submitted to the jury.

The analysis of the applicability of the peculiar risk doctrine to a particular fact situation can be broken down into two elements: (1) whether the work is likely to create a peculiar risk of harm unless special precautions are taken; and (2) whether the employer should have recognized that the work was likely to create such a risk. These questions are ordinarily resolved by the trier of fact. (Mackey v. Campbell Construction Co. (1980) 101 Cal.App.3d 774, 785, 162 Cal.Rptr. 64.) In this case, however, it was proper for the trial court to find that the peculiar risk doctrine applied as a matter of law.

In Griesel v. Dart Industries, Inc., supra, 23 Cal.3d 578, 153 Cal.Rptr. 213, 591 P.2d 503, the court held that where workers ...