Maehl v. O'Brien

• Decision Date: 24 June 1991
• Docket Number: No. H006561,H006561
• Citation: 283 Cal.Rptr. 23,13 Cal.App.4th 1290
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 231 Cal.App.3d 674, 13 Cal.App.4th 1290, 18 Cal.App.4th 1630, 2 Cal.App.4th 1034, 8 Cal.App.4th 1396 231 Cal.App.3d 674, 13 Cal.App.4th 1290, 18 Cal.App.4th 1630, 2 Cal.App.4th 1034, 8 Cal.App.4th 1396 Kirk MAEHL, Plaintiff and Respondent, v. Beryl O'BRIEN, Defendant and Appellant.

Page 23

283 Cal.Rptr. 23

Previously published at 231 Cal.App.3d 674, 13 Cal.App.4th 1290, 18 Cal.App.4th 1630, 2 Cal.App.4th 1034, 8 Cal.App.4th 1396

231 Cal.App.3d 674, 13 Cal.App.4th 1290, 18 Cal.App.4th 1630,

2 Cal.App.4th 1034, 8 Cal.App.4th 1396

Kirk MAEHL, Plaintiff and Respondent, v. Beryl O'BRIEN, Defendant and Appellant.

No. H006561.

Court of Appeal, Sixth District, California.

June 24, 1991.

Review Granted Oct. 17, 1991.

Review Transferred to the Court of Appeal Oct. 28, 1993.

Mark G. Bonino, Susan Handelman, Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Redwood City, for defendant and appellant.

Donald F. Costello, Blair Griffith, Law Offices of Donald F. Costello, Santa Cruz, for plaintiff and respondent.

ELIA, Associate Justice.

Beryl O'Brien appeals the judgment entered in favor of Kirk Maehl in Maehl's action to recover damages for personal injuries suffered while he was helping an independent contractor fell a tree on O'Brien's property. O'Brien contends that the trial court erred in determining that the felling of the tree constituted a "peculiar risk" as a matter of law and in refusing to instruct the jury on the doctrine of collateral negligence. O'Brien also argues that Maehl assumed the risk of injury as a matter of law. We find no error and therefore affirm.

FACTUAL BACKGROUND

Mr. and Mrs. Beryl O'Brien own a home in Felton, California, a small community in the Santa Cruz mountains. After their house was lost to fire in 1985, the O'Briens moved off the property while their house was being rebuilt. During the rebuilding, and while the O'Briens were living off the property, they decided to have four redwood trees removed from an area between their house and the detached garage.

Mr. O'Brien hired Mitch Elam to cut down the trees. He had heard that Elam, an independent contractor, had worked for two professional tree services in the past and was skilled in removing trees. O'Brien did not discuss with Elam the type of equipment he would need to do the job or whether anyone would be assisting him.

Elam began the job by himself, cutting the branches off the four trees. The next morning, he and Maehl went to the O'Brien property. Neither Mr. nor Mrs. O'Brien was present. Elam "chunked" down the first two trees, cutting them down in sections. The work proceeded without incident, except that one chunk of a tree bounced as it fell and damaged a planter box. While Elam worked on the first two trees, Maehl watched.

Because the third tree was leaning slightly over the O'Briens' garage, Elam feared that if he chunked it down pieces might fall onto the garage and cause damage. He decided to "free fall" the tree in one piece into an area behind the garage, between a well and some bushes. Maehl agreed that the tree should be felled in one piece rather than chunked down.

In order to guide the tree to fall between the well and the bushes, it was necessary to tie a rope from the redwood tree to another tree some distance away, which would serve as an anchor. A large oak was selected for the purpose. Elam planned to make cuts at the base of the redwood. Then, at Elam's signal, Maehl was to pull on the rope. As soon as he saw the tree begin to fall, Maehl was supposed to run away from the tree's landing area along a preplanned escape route. Before he made the cuts, Elam asked Maehl if he knew where he was going to run. Maehl replied that he did. Elam did not ask precisely where Maehl planned to run.

Elam sawed the base of the redwood tree and signalled to Maehl to pull the rope. Maehl did so. After a while, the tree began to fall. Maehl turned and started to run along his escape path. After a few seconds, he looked back to judge in which direction the tree was falling. He realized that the tree was already halfway down and he did not have time to outrun it on his planned escape route. Knowing he had to do something else, he darted behind the large oak anchor tree and made himself small. The falling redwood struck the top of the oak tree and slowed as it came down. Maehl was struck by a piece of the redwood tree, a piece of the oak tree, or other debris.

Maehl suffered severe burst fractures of the spine, requiring implantation of steel rods and fusion of multiple spinal levels. His injuries prevented him from resuming his work as an auto mechanic for over a year. Maehl sued O'Brien for his injuries. ¹

Two expert witnesses testified at trial. Lester Liebenberg, who has long been involved in the tree service business, testified that the accident was caused by Maehl's failure to follow his planned escape route. Leslie Mayne, a longtime consulting forester, opined that the accident would not have happened had Elam used a longer rope, thereby placing Maehl outside the redwood's fall zone. The parties stipulated that Maehl's medical expenses totalled $31,700 and his lost earnings amounted to $25,200.

The case went to the jury on the sole issue of O'Brien's liability under the peculiar risk doctrine. The jury found in Maehl's favor, awarding $60,000 by general verdict.

DISCUSSION

1. Peculiar Risk Doctrine

a. General Principles

Generally, one who employs an independent contractor is not liable for injuries caused by the contractor's negligence. Courts have, however, carved out exceptions to the general rule of the employer's nonliability. It is said that the general rule of nonliability is now followed only when no good reason is found to depart from it. (Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 252, 66 Cal.Rptr. 20, 437 P.2d 508.) A significant exception to the general rule, the "peculiar risk" doctrine, is set forth in sections 413 and 416 of the Restatement Second of Torts. Section 416 of the Restatement Second of Torts provides that "[o]ne 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." Section 413 differs from section 416 only to the extent that it imposes direct liability on the employer when he has made no provision in the contract or otherwise for the taking of the required precautions. (Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578, 585-586, 153 Cal.Rptr. 213, 591 P.2d 503.)

A peculiar risk is one that is peculiar to the work to be done and arises out of its character or the place where it is to be done, against which a reasonable person would recognize the necessity of taking special precautions. (Id. at p. 586, 153 Cal.Rptr. 213, 591 P.2d 503; Rest.2d Torts, §§ 413, com. b., 416, com. b.) "It is something other than the ordinary and customary dangers that may arise in the course of the work or of normal human activity." (Ibid.) "Peculiar does not mean that the risk must be one which is abnormal to the type of work done, or that it must be an abnormally great risk. It has reference only to a special, recognizable danger arising out of the work itself." (Ibid., quoting Rest.2d Torts, § 413, com. b [internal quotations marks omitted].) " 'It is not essential that the peculiar risk be one which will necessarily and inevitably arise in the course of the work, no matter how it is done. It is sufficient that it is a risk which the employer should recognize as likely to arise in the course of the ordinary and usual method of doing the work, or the particular method which the employer knows that the contractor will adopt.' " (Ibid., quoting Rest.2d Torts, § 416, com. e.)

A variety of activities have been found to involve a peculiar risk of physical harm. These risks include the risk of being struck by an automobile while eradicating traffic lines on a busy street (Van Arsdale v. Hollinger, supra, 68 Cal.2d at p. 254, 66 Cal.Rptr. 20, 437 P.2d 508), the risk of being run over by dump trucks backing up during road construction work (Anderson v. L.C. Smith Constr. Co. (1969) 276 Cal.App.2d 436, 445-446, 81 Cal.Rptr. 73), the risk of explosion while painting the inside of a tank with a volatile paint (Woolen v. Aerojet General Corp. (1962) 57 Cal.2d 407, 410, 20 Cal.Rptr. 12, 369 P.2d 708), the risk of falling while working on a 10-foot high wall (Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548, 557-558, 85 Cal.Rptr. 308) or on a 20-foot high bridge (Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 365-366, 104 Cal.Rptr. 566), the risk of electrocution while operating a crane near high voltage wires during bridge construction work (Walker v. Capistrano Saddle Club (1970) 12 Cal.App.3d 894, 900, 90 Cal.Rptr. 912), and the risk of a cave-in while working in a 14-foot deep trench (Widman v. Rossmoor Sanitation, Inc. (1971) 19 Cal.App.3d 734, 744-747, 97 Cal.Rptr. 52).

Imposition of liability in circumstances embraced by the peculiar risk doctrine is considered proper because the employer is the one who primarily benefits from the contractor's work, selects the contractor and is free to insist on one who is financially responsible, or to demand indemnity. Moreover, the insurance necessary to distribute the risk is properly a cost of the employer's business and the performance of the duty of care is one of great public importance. (Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 502, 508, 156 Cal.Rptr. 41, 595 P.2d 619.)

b. Application of Doctrine to Homeowners

O'Brien urges us to fashion an exception to the doctrine of peculiar risk to exonerate owners of residential property from liability for injuries caused by the negligence of independent contractors hired to do work in or about the home. Neither his research nor ours discloses a reported case in which an individual homeowner incurred liability resulting from a peculiar risk. By the same token, however, neither the case law nor the...