Johnson v. Raytheon Co., B281411

• Decision Date: 08 March 2019
• Docket Number: B281411
• Court: California Court of Appeals Court of Appeals
• Parties: Laurence JOHNSON, Plaintiff and Appellant, v. The RAYTHEON COMPANY, INC. et al., Defendants and Respondents.

33 Cal.App.5th 617

245 Cal.Rptr.3d 282

Laurence JOHNSON, Plaintiff and Appellant,

v.The RAYTHEON COMPANY, INC. et al., Defendants and Respondents.

B281411

Court of Appeal, Second District, Division 8, California.

Filed March 8, 2019

Robinson Calcagnie, Mark P. Robinson, Kevin Calcagnie, Newport Beach, Genevieve Outlaw; Steinbrecher and Associates and Edward Steinbrecher for Plaintiff and Appellant.

Horvitz & Levy, Mitchell C. Tilner, Stephen E. Norris, Burbank; Burke, Williams & Sorensen, Mark J. Mulkerin, Santa Ana, and Brian Hamblet, Los Angeles, for Defendant and Respondent The Raytheon Company Inc.

Yukevich Cavanaugh, James J. Yukevich, Raymond H. Hua, Los Angeles, and Michael D. Johnson for Defendant and Respondent Systems XT, Inc.

GRIMES, Acting P. J.Plaintiff and appellant Laurence Johnson was seriously injured when he fell from a ladder at work. At the time, Johnson was employed by an independent contractor which provided maintenance engineering staff for defendant and respondent The Raytheon Company, Inc. Raytheon was undergoing a renovation project of a water cooling tower on its premises. The prime contractor for the water cooling tower project was defendant and respondent Systems XT, Inc.

In the course of Johnson’s maintenance engineering work, he investigated a low water level alarm by looking over the water cooling tower wall. To do so, he used an unsafe partial extension ladder which had been left at the wall by one of Systems XT’s subcontractors, and he fell when the ladder slipped. Johnson sued multiple defendants, alleging they were all responsible for the unsafe conditions which led to his fall. Two of the defendants, Raytheon and Systems XT, obtained summary judgment, and Johnson appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Parties

Before we discuss the facts in detail, it is useful to identify all of the entities involved and their contractual relationships.

Johnson was a maintenance engineer employed by ABM Facilities Services, Inc., an independent contractor which provided control room staff to Raytheon. ABM is not a defendant in this case; Johnson received workers' compensation benefits through ABM for the injuries he sustained in his fall.

Separate and apart from Raytheon’s contractual relationship with ABM was Raytheon’s contractual relationship with Systems XT. Systems XT is a mechanical contractor which Raytheon hired to remove and replace its water cooling towers. It was the prime contractor on the job.¹

Two of Systems XT’s subcontractors are also defendants in this case, although they are not parties to this appeal. The first is Brownco Construction Company, Inc. which was the concrete subcontractor, and the entity which left the unsafe partial extension ladder at the cooling tower wall. The second is Power Edge Solutions, Inc. The water cooling tower required constant electronic monitoring of its water level. Power Edge Solutions was the subcontractor which installed electronic monitors as the water cooling tower renovation project progressed. This is relevant because Johnson alleges the alarm to which he was responding was a false alarm, which only occurred due to Power Edge Solutions' alleged faulty wiring of the water level monitor.

2. Johnson’s Accident²

Johnson worked the graveyard shift, monitoring various computers in the control room in Raytheon’s Building E5. At around 2:50 a.m. on February 20, 2013, he started receiving low water level alarms pertaining to the water cooling towers. He was unable to resolve the alarms, so he telephoned his ABM supervisor, Robert Whitney. Whitney told him to do whatever he thought he should do. Johnson chose to go to the cooling tower wall directly, and look over the wall to verify the water level.

Johnson saw a ladder leaning against the cooling tower wall. In the past, there had been a Raytheon-owned platform ladder at the wall.³ There was no platform ladder at the wall when Johnson approached. Instead, there was what appeared to be a straight ladder, which Brownco had left against the cooling tower wall. It turns out the ladder was not a straight ladder, but the upper half of an extension ladder. As it was intended for use only with the bottom half of the extension ladder, it did not have proper footing. In fact, the upper half of the extension ladder leaning against the wall had a caution label on it, stating, in all capital letters, "CAUTION" and "THIS LADDER SECTION IS NOT DESIGNED FOR SEPARATE USE." Johnson did not see the caution label, nor did he move or adjust the ladder to make certain it was secure prior to using it. This was so even though Johnson noticed that the ground was wet; it had rained earlier.

Johnson ascended the ladder the few steps needed to look over the 8-foot wall. He looked over the wall and confirmed there was no problem with the water level. While he was climbing down the ladder, it slid out, causing him to fall on top of the ladder and sustain serious injuries. He was discovered some time later by a security guard who heard his screams in the distance.

Whitney later had Power Edge Solutions investigate the water level monitor. Power Edge Solutions reported to him that the connections on the sensor had corroded.⁴ When Power Edge Solutions replaced the wires, the false alarms stopped.

Whitney completed an incident report regarding Johnson’s accident. When asked why the unsafe conditions occurred, he responded, "Connections on the level sensor to sump level corroded, rain and tower runoff to wet concrete surface, lack of lighting and poor choice of ladder used."

3. Allegations of the Complaint

Johnson originally brought suit against Raytheon, which removed the case to federal court. The matter was subsequently remanded after Johnson added additional defendants whose presence defeated diversity jurisdiction. The operative complaint is the first amended complaint, which named as defendants Raytheon, Systems XT, Brownco, and Power Edge Solutions.

As against Raytheon, Johnson alleged causes of action for negligence and premises liability.⁵ Johnson alleged that Raytheon was negligent in the "retention of their control of the subject premises, including the water cooling tower, the worksite, the procedures, and the unsafe equipment including the subject ladder, and Defendant Raytheon Company affirmatively contributed to causing [his] severe and catastrophic injuries." Johnson’s complaint, however, did not specify any way in which Raytheon "affirmatively contributed" to his injuries.

As to Systems XT, Johnson alleged that it was the general contractor and therefore responsible for all of the work of its subcontractors, including Brownco and Power Edge Solutions. Johnson alleged Systems XT was negligent in two specific ways: (1) in allowing the sensor wires to be hooked up in a manner in which they were exposed to the elements, such that a false alarm was generated; and (2) in failing to supervise the construction site and require Brownco to put its ladders away at the end of each day.⁶

Raytheon and Systems XT each moved for summary judgment. Although the briefing was virtually simultaneous, we discuss the proceedings on, and resolution of, each motion separately.

4. Raytheon’s Motion for Summary Judgment

In Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 ( Privette ), our Supreme Court held that when an employee of an independent contractor hired to do dangerous work suffers a work-related injury, the employee cannot recover against the individual who retained the independent contractor. ( Id . at p. 692, 21 Cal.Rptr.2d 72, 854 P.2d 721.) As Johnson was injured during the course of his employment with ABM, an independent contractor retained by Raytheon, Raytheon sought summary judgment on the basis of Privette and its progeny.

In opposition, Johnson argued that Privette was inapplicable, because his theory of liability against Raytheon was not one of vicarious liability, but direct liability for Raytheon’s own breach of duties owed to Johnson. Specifically, the Privette doctrine allows for liability when the hirer of the independent contractor retained control over safety conditions at the worksite, and negligently exercised that retained control in a manner which affirmatively contributed to the employee’s injuries. ( Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202, 115 Cal.Rptr.2d 853, 38 P.3d 1081 ( Hooker ).) Johnson took the position that Raytheon had retained control over which ladders ABM employees could use to look over the water cooling tower wall. Johnson argued that Raytheon had retained that control by generally leaving a platform ladder at the wall for ABM’s use. Johnson believed that Raytheon’s course of conduct of leaving a platform ladder at the wall constituted an implied agreement to always have one present, on which ABM’s engineers relied. Johnson then argued that Raytheon was negligent in failing to have a platform ladder at the wall on the night of the accident. However, Johnson conceded in his opposition that "[i]t is unknown why a platform ladder was not present at the time of the accident." He simply argued that "Raytheon’s omission in not having a platform ladder present is the basis of its negligence."

Because Johnson’s theory of liability against Raytheon was based on Raytheon’s alleged failure to leave a platform ladder at the accident scene, evidence was submitted as to the presence and availability of other ladders at the Raytheon plant.⁷

Specifically, there was a great deal of evidence that there were other ladders available for Johnson’s use at Raytheon.⁸ Johnson himself testified that he was aware of other ladders on Raytheon’s premises that night, including platforms. He did not know where the platform ladders were stored. However, A-frame ladders were stored in the boiler room and the chiller room in the E5 building, downstairs from the control room where Johnson had been working. In fact, in walking to the water cooling tower, Johnson...