Lacount v. Henzel Phelps Constr. Co.

• Decision Date: 12 April 1978
• Court: California Court of Appeals Court of Appeals
• Parties: Russell LaCOUNT, Plaintiff and Respondent, v. HENSEL PHELPS CONSTRUCTION COMPANY, Defendant and Appellant. Civ. 39315.

Page 244

145 Cal.Rptr. 244

79 Cal.App.3d 754

Russell LaCOUNT, Plaintiff and Respondent, v. HENSEL PHELPS CONSTRUCTION COMPANY, Defendant and Appellant.

Civ. 39315.

Court of Appeal, First District, Division 2, California.

April 12, 1978.

James J. Duryea, Loraine A. Wallace, San Francisco, for defendant and appellant.

Carnes & Bailey, Don E. Bailey, San Francisco, for plaintiff and respondent.

WHITE, ^* Associate Justice.

This is an appeal by defendant and appellant Hensel Phelps Construction Company from a judgment entered after a jury verdict was returned in favor of plaintiff and respondent Russell LaCount for damages sustained as a result of personal injuries he received on February 16, 1972, at Ben C. Gerwick Company construction yard in Petaluma, California. ¹

Appellant presents us with three contentions in this case. The principal question directed to us was to decide as a matter of law that the employer of an independent contractor is not liable for the physical harm to the employee of the independent contractor. What follows then is a rather detailed consideration of the facts and review of applicable law. We conclude that the trial court properly allowed the jury to decide liability under proper instructions on the doctrine of peculiar risk giving rise to a nondelegable duty. Appellant's remaining points claim trial court reversible error in regard to interpretation of contracts and instructions of law to the jury. However, we are unable to find any error in the trial court's application of the parol evidence rule; interpretation of the parties' contract and instructions to the jury in regard to particular safety orders, nondelegable duty and the relationships of the parties. Accordingly, we affirm the judgment.

Facts

Appellant was employed by the Bay Area Rapid Transit District (hereinafter BART) as the general contractor for the construction of the Daly City BART station under BART contract 1M0071. In furtherance of that project appellant entered into a subcontract dated May 27, 1971, with Ben C. Gerwick Company (hereinafter Gerwick), a wholly owned subsidiary of Santa Fe Pomeroy, Inc. Under this subcontract Gerwick agreed to fabricate, deliver, and install 27 prestressed concrete girders, each weighing approximately 100 tons. The 100-ton girders were constructed at the Gerwick yard in Petaluma.

The enormous weight of the girders required special handling procedures for the loading of the girders on barges for delivery in San Francisco. Two separate gantry cranes, each with a capacity of 70 tons were used in tandem for lifting of the girders. Using these huge cranes mounted on tracks, the girders were carried to the barges where they were loaded.

In order to properly balance the barges for the trip down the Petaluma River to San Francisco, it was necessary to use ballast to "trim the barge." For this purpose other concrete girders were used. These weighed approximately eight tons each.

On February 16, 1972, the last of the 100-ton girders were being loaded. Respondent, an employee of Gerwick, was helping with the loading under the supervision of Gerwick's rigging foreman. One of the gantry cranes was being used to place ballast on the barge. The ballast selected for this particular operation was two girders each weighing eight tons. The ballast girders were hooked to slings (heavy wire cables) which were then attached to trolleys which rolled along a track on the underside of the overhead gantry crane. The load capacity of the trolleys was not properly marked as required by the California Administrative Code. At the time of loading the barge, there was a controversy as to the exact weight of the ballast girders. The Gerwick yard superintendent told the rigging foreman that the combined weight of the two girders was less than 10 tons. It was later determined that the actual combined weight of the ballast girders was approximately 16 tons.

The rigging foreman decided to lift and load both girders at once. The two girders were lifted without incident but while trying to position the girders over the barge, the excess weight caused the trolley assembly on the crane to separate and the girders dropped. The trolley assembly struck respondent on the head. Respondent was knocked into the water and remained in the water until pulled to safety by several fellow employees. As a result of this incident, respondent suffered various injuries which are not the subject of this appeal.

On February 14, 1973, respondent filed a complaint in the Superior Court of San Francisco County naming appellant, as the general contractor for the BART station for which the concrete girders were being constructed, and Santa Fe International Corporation and Gerwick, as owners, operators, maintainers and controllers of the yard in Petaluma in which respondent was injured, as defendants.

Appellant answered and generally denied that any act or omission on its part caused injury to respondent. Appellant alleged as affirmative defenses that respondent was contributorily negligent and assumed the risk. Appellant also sought affirmative relief based on the negligence of respondent's employer.

Pursuant to a motion for change of venue the case was ordered transferred to Sonoma County Superior Court on June 26, 1973. In December of 1974, Santa Fe International Corporation and Santa Fe Pomeroy, Inc., sued herein as Gerwick, were dismissed without prejudice from the action.

On June 3, 1975, appellant's motion for summary judgment was denied. On August 18, 1975, appellant's motion for a separate trial on the issue of liability was denied.

On August 26, 1975, jury trial commenced before the Honorable Joseph P. Murphy. The proceedings resulted in a jury verdict for respondent. The damages were found to be $100,000 and were reduced to $90,000, based on a finding that respondent's negligence was 10 percent. ² Judgment was entered on the jury verdict. Appellant's motion for a new trial was denied. Appellant filed a timely notice of appeal. ³

Issues

Respondent based his case against appellant on two theories. He contended that the general contractor, appellant, would be liable to him under the Restatement Second of Torts sections 413 and 416, which set forth the liability of the employer of an independent contractor under certain situations where there is a peculiar risk of harm involved.

In addition, respondent contended that, because of appellant's contract with BART, appellant assumed a nondelegable duty to insure the compliance by all "subcontractors" with all safety regulations and orders. Respondent contended that, under the terms of the BART contract and the May 27, 1971 contract between appellant and Gerwick, Gerwick became a subcontractor within the meaning of that term in the BART contract, thus creating a duty on the general contractor, appellant, to insure Gerwick's compliance with all safety regulations.

Appellant contends on appeal that as a matter of law that the peculiar risk doctrine and the nondelegable duty doctrine are inapplicable to the instant case. Appellant also contends that the trial court improperly construed the contracts in question when it determined Gerwick was a subcontractor of appellant.

The Peculiar Risk Doctrine

Appellant first argues as a matter of law that sections 413 and 416 of the Restatement Second of Torts have no application to the instant case and therefore as a matter of law, it is not liable for the injuries sustained to an employee of an independent contractor.

The general rule is that an "employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants." (Rest., 2d Torts, § 409.) But as acknowledged in the comment to section 409, there are so many exceptions to the " 'general rule' " that it is applied only "where no good reason is found for departing from it." The question this court faces is whether as a matter of law it can be said that none of the exceptions are applicable in the instant case.

Section 413 of the Restatement Second of Torts provides: "One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer (P) (a) fails to provide in the contract that the contractor shall take such precautions, or (P) (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions."

Section 416 of the Restatement Second of Torts provides: "One 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." ⁴

The rule stated in section 427 of the Restatement Second of Torts is closely related to and to a considerable extent a duplication of the rule stated in section 416. Section 427 provides: "One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger."

The California Supreme Court has determined that employees of an independent contractor come within the word "others" found in the above-quoted sections of the Restatement Second of Torts. (Van Arsdale v. Hollinger (1968) 68 Cal.2d 245,...