McDonald v. City of Oakland

• Decision Date: 13 November 1967
• Citation: 63 Cal.Rptr. 593,255 Cal.App.2d 816
• Court: California Court of Appeals Court of Appeals
• Parties: Larry Clinton McDONALD and Doris Ann McDonald, by Beatrice McDonald, their Guardian ad litem, Mary A. McDonald, 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. 23964.

Page 593

63 Cal.Rptr. 593

255 Cal.App.2d 816

Larry Clinton McDONALD and Doris Ann McDonald, by Beatrice McDonald, their Guardian ad litem, Mary A. McDonald, 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. 23964.

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

Nov. 13, 1967.

Rehearing Denied Dec. 6, 1967.

Hearing Denied Jan. 11, 1968.

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

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

MOLINARI, Presiding Justice.

In this wrongful death action plaintiffs, as the heirs of decedent, Lawrence C. McDonald, appeal from the judgment in favor of defendant, the City of Oakland (hereafter referred to as 'City'). The judgment was entered upon a jury verdict in the City's favor. Plaintiffs challenge the propriety of various instructions and the admissibility in evidence of a certain document.

Statement of the Case

The instant case was tried following the reversal of the judgment of nonsuit in McDonald v. City of Oakland, 233 Cal.App.2d 672, 43 Cal.Rptr. 799, ¹ where it was held that section 416 of the Restatement of Torts is a part of the California law. That section 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.' ² In reaching its decision McDonald noted that section 416 has been cited with approval in Courtell v. McEachen, 51 Cal.2d 448, 456--457, 334 P.2d 870; Snyder v. Southern Cal. Edison Co., 44 Cal.2d 793, 797, 285 P.2d 912; and Knell v. Morris, 39 Cal.2d 450, 456, 247 P.2d 352; and that in Connor v. Utah Constr. & Mining Co., 231 Cal.App.2d 263, 273, 41 Cal.Rptr. 728, (petition for hearing by Supreme Court denied), the giving of an instruction on section 416 was held proper.

The instant case, therefore, was tried upon the theory that section 416 was the 'law of the case' in view of the holding in McDonald. With this background in mind we proceed to set out the pertinent facts of the present case. McDonald, an industrial painter, was killed in an explosion which occurred inside the water tank that he was painting at Oakland Auditorium Theater pursuant to a written contract between his employer, J. A. Boehner, and the City, whereby Boehner, a painting contractor, agreed to paint the inside of two water sprinkler tanks. Each of these tanks was cylindrical, measuring 32 feet long by 6 1/2 feet high, and had as its sole entrance a manhole at one end, which was approximately 11 by 17 inches. In accordance with the bid which Boehner had submitted to the City to obtain the contract for painting these tanks, Boehner was using a product called 'Amercoat Protective Coating No. 33.' The instructions of the manufacturer of this paint were contained in a brochure accompanying the paint and stated that when the product is applied in confined areas, an exhaust fan of sufficient capacity to keep the solvent vapors below 20 percent of the explosive limit or 1/4 percent by volume of solvent vapor in the air is required equipment. This same brochure contained the following warning: 'Solvents in this product are volatile and flammable. Keep containers closed and away from heat, open flames or sparks. Avoid prolonged breathing of vapors or prolonged or repeated contact with skin. 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.'

Boehner testified that prior to obtaining the contract for the painting job at the Oakland Auditorium he had used Amercoat 33 on other jobs; that he was familiar with its properties and aware of the safety precautions which had to be taken in order to create adequate ventilation in the area which was being painted and to prevent detonation of any explosive gases which were created during the painting process; and that he discussed all facets of the job, including the hazards of using Amercoat 33 and the safety precautions to be followed, with McDonald prior to commencement of the work.

In connection with the ventilation problem created by using Amercoat 33 for the tank-painting job, Boehner described the exhaust-type ventilation system which was used on the job as consisting of a blower fitted with some 10-inch steel ducting, which was inserted into the tank through the manhole opening. According to Boehner the fumes created inside the tank during the painting would be exhausted through the piping and then blown by the blower through other piping and ultimately to the street outside the auditorium. However, although Boehner planned that the piping inside the tank would extend almost to the rear of the tank at the commencement of the job, he recognized that in order for McDonald to continue spraying as he moved towards the entrance of the tank it would be necessary for segments of the piping inside the tank to be removed.

In addition to this ventilation system which Boehner rigged for the painting of the tank, he also equipped McDonald with an aluminum explosion-proof lamp, an air mask which was connected to a compressor outside of the tank, and a spray gun, which was made of brass, but was not equipped with a ground wire.

Shortly before the explosion which resulted in his death, McDonald was alone inside the tank spraying at the end farthest from the manhole. He was wearing his air mask and therefore could not detect any increase in flammable solvents in the air inside the tank. As contemplated, in order to continue spraying as he moved toward the tank entrance, he removed sections of the ventilation pipe and handed them to a co-employee who was standing outside the tank. When the explosion occurred this pipe extended five feet into the tank. Also at that time the ground wire attached to the explosion-proof lamp which McDonald was using was not connected. Following the explosion a wrench which McDonald carried upon his clothing was found on the floor of the tank.

In a conversation which McDonald had with his co-employee at the hospital following the accident, McDonald stated that immediately prior to the explosion, when he had stepped backwards he felt that he had stepped on something other than the floor of the tank, so that he shifted his weight at this time and thus may have struck the side of the tank with the spray gun he was using.

Dr. Jerome F. Thomas, Professor of Sanitary Chemistry at the University of California, testified that although the basic components of Amercoat 33 are volatile in nature, an explosion, including one caused by a spark or flame, cannot occur if the solvent vapors in the air are kept below either of the levels specified as safe in the manufacturer's brochrue; but that adequate ventilation was essential in order to maintain the proper mixture of solvents in the air; and that in order for an exhausttype ventilation system to provide adequate circulation of air in a tank the size and shape of that which McDonald was painting, the ventilation pipe would have to extend to within 16 inches of the end of the tank. Thomas further testified that in his opinion the explosion that killed McDonald was caused by the fact that the ventilation pipe inside the tank, which did not extend to the end of the tank initially, was gradually shortened by the removal of sections of the pipe, and that the explosive vapors were thus permitted to accumulate in excess of the levels specified in the Amercoat brochure.

Concerning the City's involvement in the tank-painting project, the following evidence was adduced: The contract for relining the two tanks at the Oakland Auditorium Theater was awarded to Boehner on the basis of the bid which he submitted to the City. In accordance with the City's requirements concerning the submittal of bids, Boehner's bid specified that he would use Amercoat 33 paint on the job. He accompanied the bid with the brochure prepared by the manufacturer of this paint, which brochure, as already indicated, contained a description of the paint and instructions for its application, including warnings for use of this paint in closed areas.

According to Boehner, prior to commencing the job he never had a discussion with any representative of the City concerning safety precautions in the performance of the painting, nor did the City ever make any inquiries of him along these lines. Mr. Placido Campos, a city employee, testified that he was appointed by the City to act as inspector for the tank-painting job at the municipal auditorium; that in such a capacity his sole responsibility was to examine the work being performed by Boehner to determine whether it complied with the specifications for the job; that although he had read the manufacturer's brochure on Amercoat 33, including the warnings as to its volatility and flam-mability, he made no inquiry into the properties of the product, the equipment and method being used by Boehner, or what, if any, safety precautions should be taken in using this product. Finally Campos testified that he was at the Oakland Auditorium Theater approximately twice a day while the painting job was in progress, but that he never checked the painting or the ventilating equipment and never looked in the tank while painting was in progress.

Section 416 of the Restatement of Torts

We are initially presented with the specific question whether, for liability to attach under section 416, the...