Minster v. Contadina Foods, Inc.

• Decision Date: 27 October 2000
• Docket Number: No. A089857.,A089857.
• Citation: 84 Cal.App.4th 442,100 Cal.Rptr.2d 871
• Court: California Court of Appeals Court of Appeals
• Parties: John MINSTER, Plaintiff and Appellant, v. CONTADINA FOODS, INC., Defendant and Respondent.

100 Cal.Rptr.2d 871

84 Cal.App.4th 442

John MINSTER, Plaintiff and Appellant, v. CONTADINA FOODS, INC., Defendant and Respondent.

No. A089857.

Court of Appeal, First District, Division 3.

October 27, 2000.

As Modified November 7, 2000.

Review Granted January 17, 2001.

Brayton, Purcell, Curtis & Geagan, Alan R. Brayton, Gilbert L. Purcell, James Geagan, Novato, Joanne E.K. Larson, San Francisco, and Lloyd F. LeRoy, Counsel for plaintiff and appellant.

Scadden, Hamilton & Ryan, James G. Scadden, Vincent C. Milani, and Robert J. Ryan, San Francisco, Counsel for defendant and respondent.

WALKER, J.

In this opinion we consider whether, under Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 (Privette ) and Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504 (Toland ), an employee of an independent contractor may pursue a claim for negligent hiring against a hirer of the independent contractor. For the same policy reasons expressed in Privette and Toland, we hold that the employee may not pursue such a claim because a hirer's duty to exercise reasonable care in employing a competent and careful independent contractor with the skills necessary to perform the work without creating an unreasonable risk of injury to others does not extend to an employee of the independent contractor.

In the matter before us, John Minster, an employee of an independent contractor allegedly hired by respondent Contadina Foods, Inc. (Contadina),¹ filed a complaint seeking damages from numerous defendants for asbestos-related injuries. As against Contadina, he alleged he had been exposed to asbestos while doing insulation work as an employee of Plant Asbestos (Plant) at the Contadina Cannery in 1965. Minster sought to hold Contadina liable for his injuries under a premises owner/contractor liability theory. Contadina moved for summary judgment or summary adjudication of issues on two grounds.² First, it asserted that it did not retain sufficient control over the work being performed by Minster, an employee of an independent contractor, to create a duty upon it to exercise reasonable care to prevent the claimed injury. Second, it contended Minster possessed no evidence to support his claim that it hired Plant as an independent contractor or that, if it did hire Plant, it did so negligently. The trial court concurred and entered judgment for Contadina on the ground Minster had failed to present evidence sufficient to create any triable issue of material fact.

With regard to the issue of Contadina's control over the work performed by Minster's employer, we agree with the trial court that no evidence was presented to create a triable issue of material fact. We also agree that judgment was proper for Contadina on Minster's claim for negligent hiring, but for a different reason than that stated by the trial court. We hold that under Privette and Toland, an employee of an independent contractor may not pursue a claim for negligent hiring against a hirer of the independent contractor because a hirer's duty to exercise reasonable care in employing a competent and careful independent contractor with the skills necessary to perform the work without creating an unreasonable risk of injury to others does not extend to an employee of the independent contractor.³

I. Facts and Procedural History

In support of its motion for summary judgment, respondent relied on eight factual statements set forth in its separate statement of undisputed facts. In supporting these factual statements, Contadina relied solely on attachments to Minster's complaint, his answers to interrogatories, and excerpts from his deposition testimony. According to appellant's interrogatory responses, in 1965 he was employed as a journeyman insulator by Plant, an insulation subcontractor. For two to three weeks in 1965 appellant, employed by Plant, worked on a boiler plant project at a Contadina facility in Riverbank, California. At his deposition, appellant testified that with the exception of a mud box supplied by Plant, he used all of his own tools in performing his work for Plant at Contadina and that all of the materials he used on the job were supplied by Plant. Appellant also testified that he received no job instructions from Contadina, and had no contact with any of its employees while working there. When asked, appellant responded that he did not know who the general contractor on the boiler plant project was, and did not know who employed any of the other contractors or tradesmen at the jobsite.

In opposing Contadina's motion, Minster filed his declaration stating that during the two to three weeks he worked at the Contadina facility there were Contadina employees present who periodically checked on the work performed by Plant and by the other subcontractors on the job, and directed them where to do their work. He further stated that in his more than 30 years working in commercial and industrial construction, it was his experience that the owner of the premises controlled the safety on the premises, such that if any of its employees observed an unsafe work practice or condition, the premises owner had the ability and authority to stop work and insist on corrective measures. He could not recall that this had ever been done at Contadina, despite the fact that he and his fellow insulators were regularly generating visible airborne dust. Finally, Minster declared as follows: "At the conclusion of each day, it was our general practice to clean the area in which we worked at the Contadina boiler plant. Although Plant Asbestos provided the insulation materials and some of our tools (the remainder of the tools were generally owned by the insulator), we were never provided, to my recollection, with push brooms, dust pans, and/or any other implements so as to perform clean-up of insulation debris and dust at any worksite during the period in question. I do not recall ever being provided push brooms, dust pans, and/or any other cleaning implements by my employer while I worked at Contadina Foods in 1965, and generally recall that Contadina Foods made available said items so that I and my crew could clean the boiler plant at the conclusion of each day. The clean up of the debris from our insulation work resulted in the generation of airborne asbestos dust. I specifically recall the floor around our work at Contadina would be covered with a white dust the following morning. Upon completing our work at Contadina, it is my recollection that we used water sprayed from hoses provided by Contadina Foods to clean up our insulation debris."

At the hearing on the motion for summary judgment, the trial court informed the parties that pursuant to D'Amico v. Board of Medical Examiners, it would disregard the evidence presented by Minster in his declaration.⁴ After oral argument, the court granted Contadina's motion for summary judgment. It found that Contadina had met its burden of showing that it had not directed or controlled Minster's work nor supplied the tools or materials that caused his injuries, and that it had not been negligent in hiring its independent contractors. The trial court further held that Minster had failed to produce competent evidence to create any triable issue of material fact on these points. Minster filed this timely appeal.

II. Standard of Review

In reviewing a trial court's order granting summary judgment, we are limited to the facts shown in the supporting and opposing affidavits and declarations, as well as those in admissions, answers to interrogatories, depositions, and matters of which judicial notice may be taken. Because of strong public policy favoring a trial on the merits, we are bound by the same principles governing the trial court's determination on summary judgment. We therefore strictly construe the moving party's papers and liberally construe the opposing party's papers. All doubts as to the propriety of granting the motion are to be resolved in favor of the party opposing the motion. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal. App.3d 1061, 1064-1065, 225 Cal.Rptr. 203; Code Civ. Proc., § 437c, subd. (b).) While we review a summary judgment ruling under the same general principles applicable to the trial court, we do so de novo, independently determining whether, under the facts as presented, there exists a triable issue of material fact. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60, 65 Cal. Rptr.2d 366, 939 P.2d 766; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal. App.3d 1505, 1511-1515, 285 Cal.Rptr. 385.) Upon our independent review, we may affirm a summary judgment for reasons different from the trial court's reasons for granting it. (Bunnell v. Department of Corrections (1998) 64 Cal.App.4th 1360,1367, 76 Cal.Rptr.2d 58.)

In moving for summary judgment, the defendant has the initial burden of showing that, as to each cause of action alleged in the complaint, the plaintiff cannot establish one or more of the elements of the cause of action. (Code Civ. Proc., § 437c, subd. (o).) If such a showing is made, the burden shifts to the plaintiff, who must respond by presenting admissible evidence in the form of specific facts that create a triable issue of material fact as to the attacked element. (Ibid.) Summary judgment is warranted if no triable issue is established. (Id., subd. (c).)

III. Discussion

A. Negligent Hiring

1) Sufficiency of the Evidence on Summary Judgment

Minster contends that Contadina was liable for injuries he sustained from exposure to asbestos during the two to three weeks he worked at Contadina's facility in Riverbank, California, because Contadina had negligently hired Plant to do work it was not competent to complete safely. This theory of liability, often referred as a claim for negligent hiring, is the subject of section 411 of the Restatement Second of Torts,⁵ which states: "An employer is subject to liability...