MADDEN v. SUMMIT VIEW INC., A117128.

• Decision Date: 11 August 2008
• Docket Number: No. A117128.,A117128.
• Court: California Court of Appeals Court of Appeals
• Parties: David MADDEN, Plaintiff and Appellant, v. SUMMIT VIEW, INC., Defendant and Respondent.

165 Cal.App.4th 1267

81 Cal.Rptr.3d 601

David MADDEN, Plaintiff and Appellant,

v.SUMMIT VIEW, INC., Defendant and Respondent.

No. A117128.

Court of Appeal, First District, Division 1, California.

Aug. 11, 2008.

COPYRIGHT MATERIAL OMITTED.

Oreck & Oreck, Eugene R. Oreck, Oakland; Paoli & Geerhart, Thomas Alan Paoli, San Francisco, for Plaintiff and Appellant.

Archer Norris, William H. Staples, W. Eric Blumhardt and Kimberly M. Amick, Walnut Creek, for Defendant and Respondent.

MARGULIES, J.

Plaintiff David Madden was injured when he fell from a raised patio while working for a subcontractor at a home construction site. He sued the general contractor, Summit View, Inc. (Summit View), alleging that his injuries were caused by Summit View's negligence in failing to place a protective railing along the open side of the patio. Summit View moved successfully for summary judgment under the Privette-Toland doctrine. ( Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 ( Privette ); Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504 ( Toland ).) Madden contends that the trial court erred in finding there were no triable issues of material fact. We affirm.

I. BACKGROUND

A. Pleadings

Madden, an electrician employed by a subcontractor at a home construction site, sued Summit View, the general contractor, for injuries he sustained on July 1, 2003, in a fall from a raised unenclosed patio at the site. Madden's form complaint asserted a single cause of action for premises liability against Summit View, based on the allegation that his injuries were proximately caused by Summit View's negligence in maintaining, managing, and operating the subject premises. Summit View's answer included an affirmative defense based on Privette and Toland.

B. Summary Judgment Motion

By motion for summary judgment, Summit View asserted that it was entitled to judgment as a matter of law under the Privette-Toland line of cases, based in substance on the following undisputed facts:

Busch Electric was working as a subcontractor on the construction of a home for a Mr. and Mrs. Welsh, and Madden was employed as Busch's electrical foreman for the project. Summit View was the general contractor.

Under a subcontract between Summit View and Gary Tschantz Construction, Gary Tschantz was the project supervisor. However, Madden sequenced and directed his own work at the Welsh project. Summit View did not control the methods Busch used for its work nor did it control the method or means or provide any materials for Madden's work.

Madden was injured when he fell from a raised patio while pulling some electrical wire for installation in the home. He had worked in the area where the fall occurred many times before. Madden left the area of the installation and was walking backwards in an effort to untangle a knot of wire when the fall occurred. There were no witnesses to the fall. Madden does not know how high off the ground he was at the time of the fall.

In opposition to Summit View's motion, Madden cited the following facts, among others, that he contended were undisputed and created triable issues of material fact regarding Summit View's Privette-Toland defense:

A Summit View officer, Tom Berry, was at the project site two or three times a week, while Tschantz was there just about every day. Tschantz did not consider jobsite safety to be part of his work as project supervisor and that subject was never discussed with him. Tschantz was unaware that anybody at the jobsite had been hired by the Summit View representative to be responsible for site safety. Tschantz was not familiar with California Occupational Safety and Health Act (Cal-OSHA) regulations relating to fall protection, which required railings to be provided on all unprotected and opens sides of elevated platforms or other elevations of seven and one-half feet or more.

The elevated patio was about eight feet wide, 30 to 40 feet in length, and between two and eight feet high, depending on the slope of the land that ran adjacent to it. About a year before the accident, a subcontractor had built the retaining wall for the patio, but the patio floor remained covered with dirt until June 2003, when the patio was cemented over. Between the time the retaining wall was built and patio was cemented over, the patio was used as a walkway and platform for workers on the project, including Tschantz, Berry, and Madden. No railing was put in place along the unprotected retaining wall side of the patio until after Madden's accident. Tschantz would have required Summit View's approval to install a railing.

The trial court granted summary judgment to Summit View, and this timely appeal followed.

II. DISCUSSION

A. Standard of Review

On appeal after a trial court has granted summary judgment, we review the record de novo to determine whether the evidence submitted for and against the motion discloses material factual issues warranting a trial. ( Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476, 110 Cal.Rptr.2d 370, 28 P.3d 116; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334-335 & fn. 7, 100 Cal.Rptr.2d 352, 8 P.3d 1089.)

Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subds. (a), ( o) (2).) Once the defendant has met that burden, the burden shifts to the plaintiff “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493, fn. omitted.)

B. The Privette-Toland Doctrine

Defendant brought its motion for summary judgment on the theory that Madden's suit is barred as a matter of law by Privette and its progeny, a series of cases that have defined and limited the circumstances in which an independent contractor's employee may recover in tort from the party hiring the contractor. In Privette, the Supreme Court examined whether a hired contractor's employees may seek recovery based on the theory of “peculiar risk” from a nonnegligent hiring party for injuries caused by the negligent contractor. ( Privette, supra, 5 Cal.4th at p. 696, 21 Cal.Rptr.2d 72, 854 P.2d 721.) The peculiar risk doctrine had developed as an exception to the general rule that a person who hired an independent contractor was not liable to third parties for injuries caused by the contractor's negligence in performing the work. ( Id. at p. 693, 21 Cal.Rptr.2d 72, 854 P.2d 721.) It had been applied by the courts when the contracted work was deemed to pose some inherent risk of injury to others. ( Id. at pp. 693-694, 21 Cal.Rptr.2d 72, 854 P.2d 721.) The theory underlying the exception was that a private landowner who engages in inherently dangerous activity on his land should not be able to insulate himself from liability for injuries to others simply by hiring an independent contractor to do the work. ( Ibid.) In the event of the contractor's insolvency, the peculiar risk exception would allocate the loss to the person for whose benefit the job was undertaken. ( Id. at p. 694, 21 Cal.Rptr.2d 72, 854 P.2d 721.) By spreading the risk of loss to the person who primarily benefited from the hired work, the courts also sought to promote greater workplace safety. ( Ibid.) The peculiar risk doctrine was gradually expanded to allow the hired contractor's employees to seek recovery from the nonnegligent property owner for injuries caused by the negligent contractor. ( Id. at p. 696, 21 Cal.Rptr.2d 72, 854 P.2d 721.)

The Privette court rejected the extension of the peculiar risk doctrine to the contractor's employees. The court reasoned that “when the person injured by negligently performed contracted work is one of the contractor's own employees, the injury is already compensable under the workers' compensation scheme and therefore the doctrine of peculiar risk should provide no tort remedy, for those same injuries, against the person who hired the independent contractor.” ( Privette, supra, 5 Cal.4th at p. 696, 21 Cal.Rptr.2d 72, 854 P.2d 721.) Because the workers' compensation scheme shields an independent contractor from tort liability to its employees, “applying the peculiar risk doctrine to the independent contractor's employees would illogically and unfairly subject the hiring person, who did nothing to create the risk that caused the injury, to greater liability than that faced by the independent contractor whose negligence caused the employee's injury.” ( Toland, supra, 18 Cal.4th at p. 256, 74 Cal.Rptr.2d 878, 955 P.2d 504 [summarizing the holding of Privette ].) The scope of the Privette doctrine has been held to include claims that the hirer failed to take special precautions ( Toland, at p. 267, 74 Cal.Rptr.2d 878, 955 P.2d 504) and that the hirer was negligent in hiring the contractor whose negligence caused the injury ( Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1244-1245, 108 Cal.Rptr.2d 617, 25 P.3d 1096).

In Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 200-202, 115 Cal.Rptr.2d 853, 38 P.3d 1081 ( Hooker ), the court considered whether the hirer of an independent contractor could be held liable for injuries to the contractor's employee resulting from the contractor's negligence under the theory that the hirer retained control...