Kuntz v. Del E. Webb Const. Co.

• Decision Date: 22 December 1961
• Citation: 368 P.2d 127,57 Cal.2d 100,18 Cal.Rptr. 527
• Court: California Supreme Court
• Parties: , 368 P.2d 127 Alex J. KUNTZ, Plaintiff and Respondent, v. DEL E. WEBB CONSTRUCTION COMPANY, * Defendant and Appellant. L. A. 26528

Page 527

18 Cal.Rptr. 527

57 Cal.2d 100, 368 P.2d 127

Alex J. KUNTZ, Plaintiff and Respondent, v. DEL E. WEBB CONSTRUCTION COMPANY, ^* Defendant and Appellant.

L. A. 26528.

Supreme Court of California

Dec. 22, 1961.

Richard B. Coyle and Henry F. Walker, Los Angeles, for defendant and appellant.

Rose, Klein & Marias, Victor C. Rose, Robert P. Dockeray, Los Angeles, Ernest L. Graves and Arthur Sherman, Wilmington, for plaintiff and respondent.

GIBSON, Chief Justice.

Plaintiff was employed in the construction of a building when he was injured as the result of stepping on a panel of steel decking which gave way beneath him. Del E. Webb Construction Company was the general contractor for the erection of the building; the decking was being installed by employees of Mitchell Steel, Inc., a subcontractor; and plaintiff's employer was another subcontractor, Patent Scaffolding Company. This action was brought to recover damages against Webb and Mitchell, and the jury found against them. Webb appeals from the ensuing judgment and from the denial of its motion for judgment notwithstanding the verdict, contending that the evidence fails to establish a basis for holding it liable and that the court erred in instructing the jury.

The building under construction was thirteen stories high, and Mitchell was engaged in laying steel decking designed to act as a form for concrete floors to be poured later. The decking, which was composed of metal strips several feet long and two feet wide, was laid in the same manner at each level of the building. Mitchell's employees placed the panels between the girders at a given floor level and fitted the pieces together along the sides by means of interlocking lips, and at a later time the ends were welded to the girders on which they rested. In order for the decking to be safe for use as a temporary walk before welding, it was necessary to have the ends of each panel rest on the girders and overlap them by at least six inches. If one end was unsupported, the panel of decking could fall under the weight of a man who walked on it. There is testimony from which it can be inferred that ironworkers were permitted to work as a usual matter at levels of the building where panels of decking had not yet been welded to the girders.

Plaintiff's employer, Patent, was erecting the material tower, which was to be used to carry building material to the various floors of the structure. Plaintiff, who was an ironworker, had been on the job for about two weeks, and during that period he had walked on decking a number of times in order to go from one part of the building to another. On the day of the accident he was working at the 13th-story level where employees of Mitchell were also working. In performing his duties he walked on decking that had been installed there and used girders where no decking had yet been laid. While walking on a girder, he passed the place of the accident in the morning and again at 1:45 p. m., noticing that there was no decking at that place. About 2:45 he observed that some decking had been placed there which looked the same as decking he had previously walked on while working on the job. However, at the ends farthest from him the panels had not been placed on the girder, leaving a gap of about two inches. As he stepped on the first panel it and the adjoining one gave way, and he fell to the floor below.

John Jepson, a state safety engineer, testified that before the accident he had made several visits to the construction project and noticed that decking was being laid in an improper manner. He noticed that open spaces had been left in the decking on many of the floors, in some cases because a panel of decking did not reach a girder. On a number of occasions before the accident he discussed his observations not only with a representative of Mitchell, but also with Webb's project superintendent, and, although his testimony is not entirely clear as to exactly what subjects were discussed, it permits an inference that the conversations dealt in part with the existence of gaps between panels and girders and the need to take precautionary measures. Following an inspection of the building on the day before the accident, he left a written notice with Webb's superintendent which stated: 'FLOOR OPENINGS: Fence in all small floor openings, or shaft openings, or cover same with material strong enough to safely carry any load which may be imposed upon it. 1571.' He testified that the term 'small floor openings' as used in the notice included gaps between panels and girders and that the safety order referred to, section 1571, applied to such gaps.

It is undisputed that Webb did not give orders to the employees of Mitchell or otherwise assume to direct the installation of the decking. Such work was under the control of Mitchell, and no employee of Webb was present at the part of the building where the accident occurred. It was the responsibility of Webb's superintendent, who was in charge of the construction project as a whole, to see that the specifications of subcontracts were complied with.

The jury could properly find that the collapse of the decking when plaintiff stepped on it was due to a small gap left by Mitchell's employees between the far ends of the panels and the girder upon which they should have been placed for support. Although there is no evidence that Webb was aware that this condition existed with respect to those particular panels, the testimony of the safety engineer is sufficient to support an inference that Webb knew that Mitchell's employees had been guilty of leaving such gaps over a considerable period of time prior to the accident. Webb's knowledge the persons in plaintiff's position were thus being exposed to danger can be inferred from the evidence, particularly from the showing that ironworkers commonly worked at story levels where the decking had not yet been welded to the girders. As far as appears, no one representing Webb warned plaintiff or other ironworkers of gaps between panels and girders or took any corrective step before the accident with respect to such gaps.

In several cases where an employee of an independent contractor was injured as the result of a danger known to the defendant owner or general contractor who had engaged the services of the plaintiff's employer, liability has been imposed on the ground that the plaintiff was an invitee of the defendant who thus owed him a duty to exercise reasonable care to keep the premises reasonably safe for his use or to warn him of dangers which were not obvious. (E. g., Florez v. Groom Development Co., 53 Cal.2d 347, 354-357, 1 Cal.Rptr. 840, 348 P.2d 200; Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 229-234, 282 P.2d 69; Gonzales v. Robert Hiller Const. Co., 179 Cal.App.2d 522, 529 et seq., 3 Cal.Rptr. 832; Raich v. Aldon Construction Co., 129 Cal.App.2d 278, 284 et seq., 276 P.2d 822; Revels v. Southern Cal. Edison Co., 113 Cal.App.2d 673, 677-679, 248 P.2d 986.) In the Austin, Gonzales and Raich cases, it was held to be immaterial that the danger causing the injury was or may have been due in part to the negligence of plaintiff's employer or another contractor working on the premises. (See also Rest., Torts, § 449.)

The cases relied upon by Webb are not contrary to the decisions...