MacKey v. Campbell Construction Co.

• Decision Date: 08 January 1980
• Citation: 162 Cal.Rptr. 64,101 Cal.App.3d 774
• Court: California Court of Appeals Court of Appeals
• Parties: Reid MACKEY, Plaintiff and Respondent, v. CAMPBELL CONSTRUCTION COMPANY et al., Defendants and Appellants. Civ. 17175.

Page 64

162 Cal.Rptr. 64

101 Cal.App.3d 774

Reid MACKEY, Plaintiff and Respondent, v. CAMPBELL CONSTRUCTION COMPANY et al., Defendants and Appellants.

Civ. 17175.

Court of Appeal, Third District, California.

Jan. 8, 1980.

Boccardo, Lull, Niland & Bell by Edward J. Niland, San Jose, for defendants and appellants.

Bronson, Bronson & McKinnon, Philip R. Diamond, Richard T. Bowles, Michael P. Verna, San Francisco, for plaintiff and respondent.

REGAN, Acting Presiding Justice.

Defendants appeal from a judgment entered upon a jury verdict in favor of plaintiff awarding him damages for personal injuries.

It is defendants' basic contention on appeal that as owners (Western Electric) and general contractors (Campbell Construction) they owed no duty of care, as a matter of law, to plaintiff, an employee of a subcontractor. Principally at issue is the application of the "peculiar risk of harm" doctrine which provides an exception to the general rule that owners and general contractors are not liable for injuries to employees of independent contractors.

Defendants also contend there are instructional errors and that it was error to admit testimony of one witness on the custom and practice of scaffold assembly in California and to limit cross-examination of the witness.

We find no reversible errors and affirm the judgment.

FACTS

On appeal, we must look at the facts in the light most favorable to the prevailing party. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926, 101 Cal.Rptr. 568, 496 P.2d 480.)

Defendant Western Electric Company (Western) had an engineering division, part of which was devoted to plant design and construction. Western's engineers had designed a large warehouse or material management center which contained about 13 acres under one roof, approximately 805 feet by 680 feet and about 40 feet in height.

Western hired defendant Campbell Construction Company (Campbell) to act as a management contractor, not as a general contractor to construct the entire building. This was done so that Western could work more closely through its own personnel with Campbell in selecting subcontractors. It is a type of construction contractual relationship wherein the owner (Western) participates more directly at all times in the project and both the owner and the contractor (Campbell) communicate more closely with the subcontractors. To this end the entire plans and specifications are not completed at the inception of the whole job, but the work is done in stages.

Western's representatives were on the job at all times. Western's engineers were in constant communication with Campbell's project manager and superintendent and they worked as a team. One of Campbell's functions was to solicit bids from subcontractors at various stages and Western had the final approval of the contract with each selected subcontractor. Walter Ringen, Jr., chief engineer for Western's construction division, was responsible for overall management of the project and was ultimately in charge.

Campbell was basically responsible for safety on the job but Western had power to order subcontractors to take safety measures if a hazard came to its attention, in which case it would usually refer the matter to Campbell.

Campbell entered into a subcontract with The Brookman Co., Inc. (Brookman) to furnish and install aluminum insulated metal wall panels or siding (exterior sheet, interior sheet and fiberglass insulation).

Before Brookman commenced its work, Walter Ringen of Western and Tom Worth, Campbell's project manager, had a meeting with Louis Mutschler, Brookman's foreman, to discuss the work and the method to be used in doing it. Ronald Swickard, Campbell's project superintendent, also met with Mutschler to talk about the use of a rolling scaffolding known as "the farm wagon." Western always sat down with subcontractors to find out how they were going to do their job, and if it didn't like the way they were going to do it, they would ask for a change. Initially some consideration was given to the use of a roof scaffolding rather than the rolling scaffolding which Brookman proposed to use, but it was decided to allow Brookman to use the rolling scaffolding. Campbell had the power and authority to tell Brookman not to use this equipment on the job. Mutschler testified that if Campbell were to tell him not to do something, he would not do it.

A model of Brookman's rolling scaffold or farm wagon was used during the trial. The scaffold consisted of a wagon chassis, which had four wheels with hard rubber truck tires, on which frame sections consisting of tubular steel with cross braces were installed. Other sections were then bolted on top of these sections. Normally only one section, ten feet long, six feet high and five feet wide, was placed on the wagon, but Mutschler decided to stretch it out by adding another section at each level.

When it was assembled at the job site, the entire scaffold was five sections high, 30 feet up from the base; two sections long, a total length of 20 feet; and five feet in width. The wheel base of the wagon chassis was six feet, and the base itself was 36 inches above the ground. There was a ladder on the exterior of the assembled scaffold, so that the workmen had access to the various levels. Aluminum planks with 2 by 12-inch wood backings were located along the entire side of the scaffold which would be against the wall of the building. The location of these planks affected the center of gravity of the scaffold.

Representatives of Western and Campbell had some doubts about the safety of the scaffolding. Ringen had never seen a rolling scaffold this high. He thought it appeared unstable, but would be satisfactory when tied into the building with outriggers behind it. He was aware that during Brookman's work, the scaffold had to be moved, which required it to be untied from the building and the outriggers carried on each side by the workmen. Mutschler had described to Ringen the method by which he had relocated the scaffold on a previous job as that project went ahead. Ringen knew that the scaffold was to be hooked to a pickup truck for the move, but he did not know that it was to be moved without removing any of the top sections. If he had known, he still would have allowed them to do it this way, even though he could have ordered Brookman to break it down. He also could have stopped the move if he thought it was unsafe. He was aware there was a risk of the scaffold tipping, and he agreed that if two or three sections had been taken off before the move, it would have been safe because there would have been a better ratio between the top and the bottom. Ringen was aware that the aluminum planks and equipment on the scaffold affected its center of gravity.

In the area where the accident occurred, there was a downhill grade of about two percent. It was Ringen's opinion that the scaffold fell when it was caught by a gust of wind once it went beyond the edge of the building. He agreed that if a mere gust of wind could tip the scaffold, the maneuver of moving it was a very delicate one. He knew the risks and dangers involved in the move could be limited by taking the precaution of removing the top two sections. This would have substantially decreased the risk, and if the aluminum planks had been removed before the move, this would have distributed the weight in the scaffold more evenly.

Campbell considered the safety of any equipment used by a subcontractor on the job. Swickard expressed several misgivings about the use of the farm wagon. He was concerned about moving it. It seemed to be higher than he had ever seen before, and he told Mutschler that he was concerned about it tipping over. He was not concerned about using it when it was tied to the building and supported by outriggers behind it; he was only concerned with a movement, such as the one during which the accident occurred. Swickard was familiar with the principle in the industry that on a free-standing scaffold the height should never be more than three times the base so that it would be stable and not tip over. He knew that the scaffold did not conform to this ratio, and this was one of the factors he considered when he expressed concern about moving it away from the building. He did not know whether it could be moved safely at its full height with all the planks, fasteners and tools on it. Looking at the scaffold, and knowing how it was to be moved, he felt that there were inherent dangers in this move, which could vary according to circumstances and these dangers could have been minimized by taking precautions. The problem could have been helped by downward dismantling to a three-to-one ratio. If this had been done, there probably would have been no need for the outriggers on the sides. He could have insisted that the scaffold be broken down in this manner, and if he had not been convinced by Mutschler that the move could have been made safely, he would have stopped it. He knew that with all of the planks and equipment on the left side, there was a center of gravity problem; and that even the most careful men might have difficulty trying to hold the outriggers close to the ground. He was also aware that the higher the scaffold and the more problems with the center of gravity on one side, the more difficult it might be for men making such a sophisticated move to keep the outriggers at the proper height. He also knew that there were gusts of wind in the area.

Because of the inherent danger in the move, Swickard had suggested that if the scaffold started to tip, the men should put the outriggers on the ground and "run like hell." He thought that was a better plan than nothing.

Swickard went to the scene of the accident shortly after it happened. He observed that the scaffold had fallen on its left side, which was the side on which the planks and equipment had created a problem with the center of gravity. The ground sloped...