Kuntz v. Mitchell Steel, Inc.
| Decision Date | 26 July 1961 |
| Citation | 14 Cal.Rptr. 881 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Alex J. KUNTZ, Plaintiff and Respondent, v. MITCHELL STEEL, INC., a corporation, Del E. Webb, Individually and doing business as Del E. Webb Construction Company, Del E. Webb Construction Company, a corporation, et al., Defendants, Del E. Webb Construction Co., a corporation, Appellant. Civ. 24781. |
Richard B. Coyle and Henry F. Walker, Los Angeles, for appellant.
Rose, Klein & Marias, Robert P. Dockeray, Los Angeles, of counsel, for respondent.
Defendant Del E. Webb Construction Company appeals from a judgment for $11,000 in favor of plaintiff and from an order denying its motion for judgment non obstante. The judgment runs against Mitchell Steel, Inc., also, but that defendant did not appeal. The problem is that troublesome one of liability of a general contractor for injuries to an employee of a subcontractor caused by negligence of the employee of another subcontractor.
The accident occurred during construction of Union Oil Center in Los Angeles on December 14, 1956. Del E. Webb Construction Company was general contractor; Mitchell Steel, Inc., was a subcontractor under another subcontractor, H. H. Robertson; Patent Scaffolding Company was a subcontractor under Webb, 1 the general contractor. Patent was charged with operation of a material tower alongside the new building, and plaintiff, a journeyman iron worker was its employee. Mitchell was engaged in laying steel decking which was to act as a form and base for concrete floors to be poured later. The steel decking came in strips of deeply corrugated metal about 16 feet long and 2 feet wide which had interlocking lips and when in place would be welded to the girders across which they lay, thus forming a continuous floor awaiting a cement filling. The decking comes to the site of installation in bundles, is then scattered preparatory to laying and then, as the strips are assembled for interlocking etc., each one is laid across a girder at each end for support; finally they are welded to the girders. In order to be safe for use as a temporary walk the ends of the decking strips must overlap from 6 inches to a foot; if that is not done one end may become detached and fall, carrying the whole piece of decking to the floor below.
About 2:45 in the afternoon of December 14, 1956, plaintiff was about his work, on his way to tighten guy wires from the material tower and passing from one side of the structure to the other on the 13th floor (or roof) level; as he did so he walked partly on girders and partly on decking which was in place. On this day he had passed the place of accident in the morning and as he left for lunch and as he returned from same; at those times the decking involved in the accident was not in place. About 2:45 he walked along the girder until he came to some decking which had been laid since he returned from lunch. It looked safe for use as a walk, a thing he had done many times before. Two of Mitchell's men, Dold and Walker, who had laid those strips, were standing some 35 to 40 feet away smoking cigarettes. They gave no warning that plaintiff understood, not until he was falling. As he stepped onto the first sheet of decking it and another one went down and plaintiff went with them to the floor below, receiving the injuries which brought about the verdict in his favor. Neither side argues that the Mitchell men were not negligent or that their negligence was not the proximate cause of the accident.
The law governing liability of a general contractor for injuries inflicted upon the employee of one subcontractor by negligence of the employee of another subcontractor is involved in some confusion due largely to application of fairly well-settled principles to varying and often complicated factual situations.
The general principles are thus stated in George v. Trinity Church, 176 Cal. 553, 556, 169 P. 69, 70: 'A subcontractor bears the same relation to the contractor that the latter does to his employer, and the rule governing each status is the same'; and in McDonald v. Shell Oil Co., 44 Cal.2d 785, 788, 285 P.2d 902, 904: In the Hard case, thus cited with approval, it was said in 112 Cal.App.2d 263, 274, 246 P.2d 724: 'A general contractor may be liable for injuries resulting from defective appliances only when he has the privilege of selecting them or the materials out of which they are made (Roche v. Llewellyn Iron Works Co., 140 Cal. 563, 569, 74 P. 147), but he is not liable for injuries caused by defective scaffolds or other instrumentalities unless he has supplied them (Rae v. California Equipment Co., 12 Cal.2d 563, 569, 86 P.2d 352; Martin v. Food Machinery Corp., 100 Cal.App.2d 244, 248, 223 P.2d 293; Dahms v. General Elevator Co., 214 Cal. 733, 739, 7 P.2d 1013; McCall v. Pacific Mail S. S. Co., 123 Cal. 42, 44, 55 P. 706.)'
Bedford v. Bechtel Corp., 172 Cal.App.2d 401, 411, 342 P.2d 495, 501:
'In Hard v. Hollywood Turf Club, 1952, 112 Cal.App.2d 263, 246 P.2d 716, the employees of a painting subcontractor sued the owner and general contractor for injuries received from a defective scaffold supplied by their employer. The court held that although the general contractor had general supervision of the work and knew of the high painting being done on the scaffolding, such contractor owed no duty to the employees of the subcontractor.
'The reasoning behind the rule that the general contractor (and the same reasoning applies to the owner) is not liable to the employees of an independent contractor for the latter's negligence, is the same as that set forth in the Hard case, supra, 112 Cal.App.2d 263, 246 P.2d 716, where the court in discussing the persons included in the word 'employer' in the (Stats.1913, ch. 48, §§ 1 and 2, pp. 49-50) said (112 Cal.App.2d at page 271, 246 P.2d at page 722): '* * * to impose the duty upon the general contractor directly to oversee all labor being performed and to inspect every device imported for use by the workmen on a particular construction and to impose nondelegable duties upon him to enforce all statutory safety provisions would be to place an extremely enerous burden upon him who has the general control over the ultimate result of the labor done yet without control or management of the means utilized to achieve the purpose planned.''
Respondent argues that §§ 6400-6404 and 6310-6311, Labor Code, add a statutory duty to the normal duties of all general contractors, requiring them to furnish to employees of subcontractors a safe place to work, safety devices and safeguards and to adopt and use practices, means, methods, operations and processes reasonably adequate to render such employment and places of employment safe. This was the theory applied by the trial judge in Hard, supra, but it was rejected by this division of this court, by the Supreme Court in denying a hearing and by later cases which have approved and followed the Hard opinion. That case seems to represent the weight of authority with respect to liability of the general contractor where not affected by statute such as our Labor Code. See, 26 Cal.Jur.2d § 28, page 422; 57 C.J.S. Master and Servant § 609, page 380; 65 C.J.S. Negligence § 95, page 612.
There are several cases in this jurisdiction which seem to qualify the Hard rule to such an extent as to flatly place upon the general contractor the duty to perform toward a subcontractor's employee all the duties which his immediate employer owes him, such as, furnishing a safe place to work and adopting practices, means, methods, operations and processes reasonably adequate to render employment and place of employment safe (per Labor Code, §§ 6400, 6401).
An example is Gonzales v. Robert J. Hiller Const. Co., 179 Cal.App.2d 522, at page 530, 3 Cal.Rptr. 832, at page 837, which after quoting Labor Code §§ 6400, 6401 and 6403, says 'These statutes apply to the general contractor,' and quotes Johnson v. Nicholson, 159 Cal.App.2d 395, 406-407, 324 P.2d 307, as follows: " ...
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