McDonald v. City of Oakland

• Decision Date: 20 April 1965
• Citation: 43 Cal.Rptr. 799,233 Cal.App.2d 672
• Parties: Larry Clinton McDONALD and Doris Ann McDonald, minors, by Beatrice McDonald, their guardian ad litem, Mary A. McDonald, an individual, and Billie Norman McDonald, a minor, by and through his guardian ad litem, Mary A. McDonald, Plaintiffs and Appellants, v. CITY OF OAKLAND, a municipal corporation, Defendant and Respondent. Civ. 21929.
• Court: California Court of Appeals Court of Appeals

Page 799

43 Cal.Rptr. 799

233 Cal.App.2d 672

Larry Clinton McDONALD and Doris Ann McDonald, minors, by Beatrice McDonald, their guardian ad litem, Mary A. McDonald, an individual, and Billie Norman McDonald, a minor, by and through his guardian ad litem, Mary A. McDonald, Plaintiffs and Appellants, v. CITY OF OAKLAND, a municipal corporation, Defendant and Respondent.

Civ. 21929.

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

April 20, 1965.

Rehearing Denied May 20, 1965.

Hearing Denied June 16, 1965.

Robert C. Burnstein, John B. Brethauer, Sandra J. Shapiro, Oakland, for appellants.

Berry, Davis, Lewis & McInerney, Samuel H. Berry, Oakland, for respondent.

SHOEMAKER, Presiding Justice.

This is an appeal by the plaintiffs in a wrongful death action from a judgment entered in favor of defendant City of Oakland, upon the granting of its motion for nonsuit.

The facts are without dispute. Lawrence McDonald, appellants' decedent, while an employee of J. A. Boehner, was killed by an explosion during the painting of a tank located at the Oakland Municipal Auditorium. Boehner, a licensed painting contractor, had entered into a written contract with respondent city, whereby he agreed to reline two sprinkler tanks located at the auditorium. Boehner undertook the job as an independent contractor. He was awarded the contract after submitting a bid which, in compliance with specifications and conditions imposed by respondent city, was accompanied by a brochure describing the material to be used on the job and containing the manufacturer's instructions for application of such material. The brochure submitted by Boehner indicated that he would use 'Amercoat Protective Coating No. 33.' The manufacturer's instructions contained in said brochure stated that when the product was applied in confined areas, an exhaust fan of sufficient capacity to keep the solvent vapors below 20 per cent of the explosive limit or 1/4 per cent by volume of solvent vapor in the air was required equipment. The brochure concluded with the following warning: 'Solvents in this product are volatile and flammable. * * * In tanks and other confined areas, any hazard of fire or explosion can be prevented by (1) circulating adequate fresh air continuously during application and drying, (2) using fresh air masks and explosion-proof equipment, (3) prohibiting all flames, sparks, welding and smoking.'

The tank in which the accident occurred was cylindrical in shape, 32 feet long and 6 1/2 feet high. The only entrance to the tank was a manhole approximately 10 inches by 15 inches. Boehner furnished McDonald with an explosion-proof light and a blower to eliminate fumes. Immediately prior to the explosion which resulted in his death, McDonald was alone in the tank and was wearing a mask connected to a compressor. A ventilation pipe 8 inches in diameter had been inserted into the manhole entrance. McDonald had begun spraying at the end of the tank farthest from the manhole. As he moved toward the entrance, he removed sections of the ventilation pipe and handed them up to another of Boehner's employees in order that he could continue spraying.

Appellants' expert testified that the explosion could not have occurred had the solvent vapor in the air been kept below either of the levels specified as safe in the manufacturer's brochure. In his opinion, a hazardous concentration of flammable vapor had resulted from the fact that the ventilation pipe was located near the bottom of the tank, and from the additional fact that McDonald was required to remove sections of the pipe as the work progressed. He stated that it would have been impossible for McDonald, working in the tank with an air hood, to detect any increase in the volume of flammable solvents in the air.

Boehner had never discussed the equipment which he contemplated using on the job with any representative of respondent city. Mr. Campos, a city employee who was responsible for supervising building maintenance and inspecting work done by independent contractors, testified that he was responsible only for the safety of city employees under his supervision and had never undertaken to inquire into the methods or materials which were utilized by independent contractors. He stated that his sole duty in the latter connection was to examine the work executed by an independent contractor and determine whether it complied with the specifications. Although he had familiarized himself with the manufacturer's brochure on 'Amercoat 33,' he stated that he did not pay much attention to the warning as to its volitility and flammability because it was common practice for paints to bear such a warning. He further stated that he checked the tank relining job two or three times on the day of the accident, but did not inspect the ventilation.

'[A] nonsuit may be granted '* * * 'only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given.''' (Meyer v. Blackman (1963) 59 Cal.2d 668, 671, 31 Cal.Rptr. 36, 38, 381 P.2d 916, 918.)

In the instant case, the trial court's decision to grant the motion for nonsuit was based upon its views as to the applicability and authority of two related sections of the Restatement of Torts.

Section 413 of the Restatement of Torts provides that 'One who employs an independent contractor to do work which the employer should recognize as necessarily creating, during its progress, conditions containing an unreasonable risk of bodily harm to others unless special precautions are taken, is subject to liability for bodily harm caused to them by the absence of such precautions, if the employer (a) fails to provide in the contract that the contractor shall take such precautions (as to which see § 416), or (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.'

Section 416 of the Restatement of Torts provides that 'One who employs an independent contractor to do work, which the employer should recognize as necessarily requiring the creation during its progress of a condition involving a peculiar risk of bodily harm to others unless special precautions are taken, is subject to liability for bodily harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions.'

Comment c to section 413 states that 'The fact that the contract under which the work is done provides that the contractor shall take the necessary special precautions does not necessarily relieve the employer from liability, since he may be liable under the rule stated in § 416.'

Comment b to section 416 provides in relevant part that where an employer stipulates in his contract with the independent contractor that the latter shall take the precautions necessary to make the progress of the work safe, the contractor employed to take such precautions is under a duty to indemnify his employer for any liability which the contractor's negligence in failing to take reasonably adequate precautions may bring...