Michael v. Denbeste Transp., Inc.

• Decision Date: 23 March 2006
• Docket Number: No. B173832.,B173832.
• Court: California Court of Appeals Court of Appeals
• Parties: David MICHAEL, Plaintiff and Appellant, v. DENBESTE TRANSPORTATION, INC., et al., Defendants and Respondents.

40 Cal.Rptr.3d 777

137 Cal.App.4th 1082

David MICHAEL, Plaintiff and Appellant, v. DENBESTE TRANSPORTATION, INC., et al., Defendants and Respondents.

No. B173832.

Court of Appeal, Second District, Division 1.

March 23, 2006.

Certified for Partial Publication.^*

Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, David J. Cooper and Catherine E. Bennett, Bakersfield, for Plaintiff and Appellant.

Brown, Brown & Klass, Delos E. Brown, Agoura Hills, and John J. Stumreiter for Defendant and Respondent Denbeste Transportation, Inc.

McNamara, Spira & Smith, J. Patrick Jacobs, Los Angeles, and Mary O. O'Neill

for Defendants and Respondents Chemical Waste Management, Inc., and Aman Environmental Construction, Inc.

Wood, Smith, Henning & Berman, Kevin D. Smith, Glendale, Nicholas M. Gedo and Tod R. Dubow for Defendant and Respondent Secor International, Inc.

MALLANO, J.

In this work site accident case, plaintiff David Michael, a truck driver hauling hazardous waste, appeals from a summary judgment in favor of defendants Denbeste Transportation, Inc. (a hazardous waste hauler subcontractor and Michael's hirer), Chemical Waste Management, Inc. (CWM) (a hazardous waste handler and Denbeste's hirer), Aman Environmental Construction, Inc. (Aman) (the general contractor for the demolition work on the site and CWM's hirer), and Secor International, Inc. (a consultant hired by the owner of the site, but not the hirer of Michael or the other defendants).

In a line of cases from Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal. Rptr.2d 72, 854 P.2d 721 (Privette) to Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 36 Cal.Rptr.3d 495, 123 P.3d 931 (Kinsman), our Supreme Court, in a body of law known as the Privette doctrine, has defined the circumstances under which an injured worker who is an employee of an independent contractor may sue the hirer of that contractor. This case presents the first impression issue of whether the Privette doctrine applies where the injured plaintiff is not an employee, but an independent contractor, of that contractor. We conclude that the Privette doctrine governs because its policies and rationale are applicable here. Accordingly, we affirm the summary judgment in favor of Aman, CWM, and Secor on the ground that they owed no duty to plaintiff as a matter of law under the Privette doctrine. In the unpublished portion of our opinion, we conclude that Denbeste is not entitled to summary judgment because of triable issues of fact as to whether Michael was Denbeste's employee or an independent contractor.

I BACKGROUND¹

Michael was seriously injured at a construction site on the morning of January 18, 2002, when he fell about 10 feet from a loaded trailer to the ground while attempting without any fall protection to install a manual roll tarp over the trailer. Michael sustained a broken spine, which rendered him permanently paralyzed from his chest to his feet.

Michael owned a road tractor and operated a sole proprietorship under the name David Michael Trucking. Michael had many years of experience as a truck driver of end dump trucks and held a hazardous materials certificate.

Filtrol Corporation (not a party herein) owned property improved with an old plant. On May 1, 2000, Filtrol entered into a written contract with Aman to act as the general contractor to provide "decontamination, demolition and remediation services" for the Filtrol facility. In its contract with Filtrol, Aman agreed to assume "sole responsibility for providing to [its] employees and the employees of [its] subcontractors a safe place to work ... and safe ladders, scaffolding and other equipment to work upon...."

Aman prepared for Filtrol a "Site Specific Health & Safety Plan" (SSP) and assumed the responsibility to implement it. The SSP provided that "[t]he Subcontractor Field Supervisor is responsible for implementing the Plan for his/her own employees," and that "[c]onsistent with contractual obligations, subcontractors will be responsible for the following: [¶] ... [¶] ... Providing a safe and healthful working environment for their personnel on the project." Under the SSP, each subcontractor was required to appoint a "Subcontractor Safety Representative" whose duties included "the responsibility for the administration of the subcontractor Health and Safety Program."

In addition, the SSP contained detailed fall protection procedures, including the requirement that "one or more of the fall protection/prevention systems outlined in this procedure [shall be] provided at all locations where fall hazards of 6 feet (2 meters) or greater exist. These locations include, but are not limited to, excavations, unprotected elevations, ladders, scaffolds, floor holes, wall openings, formwork, rebar tying, and all other locations and operations where potential fall hazards exist."

Filtrol also entered into a contract with Secor in which Secor agreed to be Filtrol's "Oversight Contractor" to "provide technical oversight of the decontamination, demolition and remediation of the Filtrol facility," but Secor "will not `arrange' ... for the disposal of, accept title to, sign manifests for, or take control of any `wastes.'" Secor was not hired to perform any transportation or disposal of wastes, and it did not do so or hire anyone to do so.

Aman hired CWM to provide transportation and disposal of the waste materials from the site.² CWM then hired Denbeste.³ On July 16, 2001 Denbeste and Michael entered into a "Subhaul Agreement" under which Michael provided his own tractor to pull a Denbeste-owned trailer, an end dump trailer. The Subhaul Agreement involved the carriage of nonradioactive hazardous waste and required that the trailer be tarped after it was loaded with the waste materials and that Michael wear proper safety equipment, including a protective suit, goggles, and a breathing apparatus. The trailer had a manual roll tarp system in which the tarp, stored on the passenger side of the trailer, was unrolled over metal bows across the trailer. The ends of the bows needed to be set into the sides of the trailer. When Michael picked up the trailer, Denbeste's mechanic gave him "a few-minute instruction course on the trailer," but the mechanic did not discuss going "into or out of the bed of the trailer" or placing of the bows. Before working for Denbeste, Michael had not had occasion to place or to remove bows from the sides of a trailer.

At the time of Michael's fall, Denbeste did not own tarp racks (scaffolds with railings or standard building racks), but Denbeste rented them from time to time if requested by a customer. Before Denbeste began its work, tarp racks were used by other workers at the site to secure the tarps on trailers containing radioactive hazardous waste. Denbeste had a written health and safety program which applied to the job. One of the stated objectives of the Denbeste program was "[m]aintaining a system for prompt detection and correction of faulty procedures, unsafe practices and conditions." Management had the responsibility "to see that work is performed in a safe manner and that safety rules, regulation[s] and instructions are complied with."

Michael's Subhaul Agreement with Denbeste characterized Michael as an independent contractor. Denbeste paid Michael on a per-job basis. Michael did not receive employee benefits and he paid for the fuel, maintenance, and insurance on his tractor. At the time of the Subhaul Agreement, Michael had no employees, and he was required to notify Denbeste if he needed to hire any employees. Michael could work for other haulers if Denbeste had no work for him, but the Subhaul Agreement prohibited him from using Denbeste's trailer on other jobs. Before his accident, Michael had pulled about 10 to 15 loads from the site, which constituted only a minor percentage of his overall work. Denbeste also employed at the site its own truck drivers who performed the same work as its independent contractor truck drivers.

Denbeste's truck boss on the site, Donald Jensen, supervised the Denbeste workers, but it was Aman who directed the loading of the materials into the trucks and who directed the truckers to an area where they would tarp their loads. The tarping area varied but did not change very much during the six weeks Jensen was at the site. Jensen would check each hauler at the entrance to the site to make certain that the driver was wearing the protective equipment required by Aman, which included a Tyvek haz-mat suit and a respirator.

Jensen knew that Michael walked with a pronounced limp and had a hard time "getting around." Although Michael was able to climb up onto the load in the trailer to place the tarp over the load, it took Michael "a little time." About 30 percent of the time Jensen helped Michael tarp his trailer. On the occasions when Michael received assistance in tarping his trailer, the person assisting him always climbed onto the load in the trailer. For a two-week period, Michael stood on a ladder outside of the trailer in order to put the bows into place before unrolling the tarp, but he discontinued use of the ladder in order to save time.

In September 2001, Michael sprained his ankle when he slipped off the Denbeste trailer while one foot was on the tire and the other foot was on the fender. Although this incident did not occur at the Filtrol site, Denbeste knew about it. Sometime before January 18, 2002, Michael discussed with Denbeste the possibility of using a newer trailer on which Michael could install an automatic tarping system. According to Michael, he told Denbeste that he would pay to place on the trailer an automatic tarping system that would not require him to climb onto the trailer. According to Denbeste, Michael did not have the money to pay for an automatic tarping system, and Michael did not ask Denbeste to advance money for an automatic tarping system.

On the morning of his fall, Michael was wearing his Tyvek suit and...