Morehouse v. Taubman Co.

Citation85 Cal.Rptr. 308,5 Cal.App.3d 548
CourtCalifornia Court of Appeals
Decision Date18 March 1970
PartiesJohn MOREHOUSE, Plaintiff and Respondent, v. TAUBMAN COMPANY, Inc., Defendant and Appellant. Civ. 25750.

Page 308

85 Cal.Rptr. 308
5 Cal.App.3d 548
John MOREHOUSE, Plaintiff and Respondent,
TAUBMAN COMPANY, Inc., Defendant and Appellant.
Civ. 25750.
Court of Appeal, First District, Division 2, California.
March 18, 1970.

Page 311

[5 Cal.App.3d 552] Hanna & Brophy, Donald R. Brophy, Norman H. Abreu, San Francisco, for appellant.

Lew M. Warden, Jr., San Leandro, for respondent.

DAVID, Associate Justice pro tem. *

Defendant Taubman Company, Inc. (herein referred to as 'Taubman') appeals from a judgment entered upon a verdict [5 Cal.App.3d 553] of $62,763 awarded laborer John Morehouse for serious personal injuries. The principal issues relate to defendant's relationship to him and its duties of care toward him at the construction site of the Southland shopping center in Hayward, where his injuries occurred.

On May 4, 1964, a concrete floor was being poured at the mall level of the building, above the basement level. An outside wall had already been constructed which rose adjacent to and approximately to the level of the slab being poured. A trench had been excavated outside the wall which extended out about three feet from the bottom of the wall at its base, then sloped upward and outward. The depth to which this had been back-filled was disputed at the trial, but there is adequate evidence from which the jury could validly conclude the wall at the situs of the accident was 10 feet or more in height.

Professor Francis Moffitt's analysis of shadows on aerial photographs to establish the height of the wall was equivocal. While produced by plaintiff the testimony at best produced a conflict in plaintiff's evidence, to be resolved by the jury. The issue was not a matter to be determined by expert testimony. Though the analysis of the aerial photos, as a method, might require an expert (Bellus v . Peters (1913) 165 Cal. 112, 117, 119, 130 P. 1186; Martinelli v. Poley (1930) 210 Cal. 450, 455, 292 P. 451), the rule asserted by appellant is abrogated by Evidence Code, section 785. The wall did not have a railing, as was required of walls 10 feet in height or over by the applicable safety orders. 1

Page 312

[5 Cal.App.3d 554] Appellant vigorously contends that as the general contractor for the construction, its liability here was limited to the Labor Code and safety code provisions. It asserts it was prejudicial error to allow the jury to consider the question of duty based upon general tort doctrine. We disagree.

Morehouse was standing on top of the wall, his back toward the outside excavated trench, facing the area where the concrete slab was being poured. His job was to spread and level concrete after it was dumped into place by a concrete power buggy and then to scrape out the buggy's bucket.

Xavier Wanzo operated a concrete buggy bringing a load of concrete. As the buggy was 'creeping along' it suddenly 'lurched forward' grazing Morehouse, causing him to fall backwards over the top of the wall and down to the ground below, sustaining serious personal injuries. The entire load of concrete was dumped on Morehouse. A judgment dismissing plaintiff's complaint against Wanzo was reversed (Morehouse v. Wanzo (1968) 266 Cal.App.2d 846, 72 Cal.Rptr. 607). A cross-complaint by the insurance carrier of Morehouse's employer was dismissed. Such piecemeal determination in advance of the trial of the principal action was inappropriate.

Appellant does not question on this appeal either the injuries sustained or the amount awarded by the jury.

[5 Cal.App.3d 555] The primary issue on this appeal concerns the status of the defendant and appellant to Morehouse. Taubman Company, Inc. was the general contractor for construction of the Southland shopping center. It subcontracted the concrete work to Conco (Conco Cement Corporation, Division of Gonsalves & Santucci, Inc.), which was to pour, place and finish concrete furnished at the jobsite by Taubman, which it was doing when Morehouse was injured. Morehouse was employed by Conco. Wanzo was an employee of Taubman, working that day for Conco on loan from Taubman by agreement. Such 'loans' were under authority of Schirrmacher, Taubman's general labor foreman.

In relation to the work then being done, Taubman furnished the concrete poured by Conco, and furnished grades to establish elevation and cambers during the pours. Through Schirrmacher, or its superintendent of physical construction, Drinkward, Taubman designated where Conco was to pour concrete and determined how much concrete was necessary and ordered it.

Taubman's carpenters built the forms for the mall level cement slab being poured, had constructed the wall on which Morehouse

Page 313

was standing and its footings, and had been responsible for excavation and backfilling along the wall. Under its contract with Conco, Taubman specified that it retained authority under certain conditions to order Conco's employees to work overtime, and to dismiss Conco employees deemed 'incompetent, improper or a hindrance to progress of any of the work on the project.'

Taubman maintained a crew of carpenters whose functions included installing guardrails at Southland; and in practice, at least, provided guardrails and safety devices. There was testimony both that it was Taubman's policy to place guardrails around openings or edges of slabs above ten feet in height, and that these were installed around the perimeter of slabs where there was a dropoff, regardless of elevation. While evidence that Taubman's carpenters installed handrails at the point where Morehouse fell following his injury was not admissible to prove negligence of Taubman (Evid.Code, § 1151) it was properly limited (Evid.Code, § 355) and received by the court, on the issue of control of the premises, and as to whose duty is was under the contract to take such safety measures. (Baldwin Contracting Co. v. Winston Steel Works, Inc. (1965) 236 Cal.App.2d 565, 573, 46 Cal.Rptr. 421.)

The duties and liabilities of Taubman are not resolved solely by the general doctrines of negligence applying to general and special employers, independent contractors, and as between master and servant or invitor-invitee. (De Cruz v. Reid (1968) 69 Cal.2d 217, 228--229, 70 Cal.Rptr. 550, 444 P.2d 342.

In 2 Restatement, Torts 2d, section 416, the rule is stated [5 Cal.App.3d 556] (p. 395): 'One 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.'

This rule was approved in Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 254, 66 Cal.Rptr. 20, 437 P.2d 508. In Woolen v. Aerojet General Corp. (1962) 57 Cal.2d 407, 20 Cal.Rptr. 12, 369 P.2d 708, it was held that although the evidence was sufficient to support the judgment, the judgment should be reversed because the liability of defendant was not limited to that of 'employer' as defined in Labor Code, sections 6400 and 6401. The court stated (at p. 413, 20 Cal.Rptr. at p. 16, 369 P.2d at p. 712): 'Although the jury could find from the evidence that defendant was under a duty to exercise reasonable care to provide in some manner for the taking of precautions as required by the rule set forth in section 413 of the Restatement of Torts, the Labor Code was not the measure of defendant's responsibility' (emphasis ours). The court (at p. 413,20 Cal.Rptr. 12, 369 P.2d 708) held that an owner of premises who only exercised general supervision and control to bring about a satisfactory completion is not an 'employer' within the meaning of the safety provisions of the Labor Code, and that it was not the responsibility of such an owner, doing no more, to assure compliance with safety provisions applicable to an independent contractor doing the work. Therefore, instructions to the effect that the owner had a duty of inspection to insure compliance were held erroneous and prejudicial.

In Ferrel v. Safway Steel Scaffolds (1962) 57 Cal.2d 651, 21 Cal .Rptr. 575, 371 P.2d 311, it was held that the owner of premises could be liable, where its employees saw the work going on under the conditions of unreasonable risk of bodily harm unless special precautions were taken which were not taken. This is based upon 2 Restatement, Torts 2d, section 413. But the comments clearly indicate (pp. 385--386), 'This Section has no reference to such a general anticipation of the possibility that the contractor may in some way be negligent. It is not concerned with the taking of routine

Page 314

precautions, of a kind which any careful contractor could reasonably be expected to take, against all of the ordinary and customary dangers which may arise in the course of the contemplated work. * * * It has reference only to a special, recognizable danger arising out of the work itself.'

Subdivision (e) of the comments (supra, at p. 386) states, '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 [5 Cal.App.3d 557] the employer from liability, since he may be liable under the rule stated in § 416.'

In 2 Restatement, Torts 2d, it is provided (p. 387): ' § 414 Negligence in Exercising Control Retained by Employer

'One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.'

Comment b to this section is applicable here: 'b. The rule stated in this Section is usually, though not exclusively, applicable when a principal contractor entrusts a part of...

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