Park v. Burlington

• Decision Date: 09 May 2003
• Docket Number: No. E029908.,E029908.
• Citation: 108 Cal.App.4th 595,133 Cal.Rptr.2d 757
• Parties: Michael PARK, Plaintiff and Respondent, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

133 Cal.Rptr.2d 757

108 Cal.App.4th 595

Michael PARK, Plaintiff and Respondent, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant and Appellant.

No. E029908.

Court of Appeal, Fourth District, Division 2.

May 9, 2003.

Review Denied July 30, 2003.^*

Haight, Brown & Bonesteel, Roy G. Weatherup, Los Angeles, Jon M. Kasimov and J. Alan Warfield; Kinkle, Rodiger and Spriggs and Bruce E. Disenhouse, Riverside, for Defendant and Appellant.

Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, David J. Cooper, Ned E. Dunphy and Catherine E. Bennett, Bakersfield; Law Offices of John C. Hall and John C. Hall, Bakersfield, for Plaintiff and Respondent.

OPINION

HOLLENHORST, Acting P.J.

Plaintiff Michael Park, an employee of Consolidated Waste Industries, Inc. (Consolidated), was seriously injured when a 55-gallon drum exploded. The drum contained used nickel iron batteries from defendant Burlington Northern Santa Fe

Railway Company (Burlington). Burlington had employed Consolidated, a hazardous waste disposal company, to dispose of the batteries. After a lengthy jury trial, the jury found against Burlington and awarded plaintiff Park $1,250,000 in economic damages and $500,000 in noneconomic damages.

Burlington appeals, contending the judgment violates California law as stated in Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72 854 P.2d 721, Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504, and related cases. Alternatively, it contends that the trial court erred in the admission of evidence, and the jury awarded damages that are not supported by substantial evidence.

We agree with Burlington's first contention and reverse the judgment.

FACTS

Consolidated is in the business of transporting hazardous waste to a disposal site. Plaintiff Park was employed by Consolidated as a truck driver. On April 27, 1998, he was in the process of unloading plastic 55-gallon drums at Consolidated's yard in Montclair when a drum exploded, causing serious personal injuries. The drum that exploded contained waste signal batteries that had been collected several days earlier from a Burlington site in Merced.

On April 28, 1994, Consolidated and Burlington entered into a contract that provided that Consolidated would remove hazardous materials from locations specified by Burlington's predecessor company. Generally, Burlington employees would remove the batteries from signal boxes by cutting the battery cables. Burlington employees would then stack the batteries in containers or on pallets at various Burlington yard locations. Pursuant to the contract, Consolidated would send a crew to those locations to pick up hazardous material, including used batteries.

On April 21, 1998, a Consolidated employee, Dennis McEntee, went to Burlington's Merced yard, picked up batteries packed in plastic totes and repacked them into 55-gallon drums. He and his crew did not remove the leads from the batteries.¹ Consolidated then transported the drums of hazardous material to its yard in Montclair for processing and further transportation to hazardous waste disposal facilities.

Mr. McEntee signed a hazardous waste manifest on behalf of Burlington when he picked up the batteries. It was his understanding that the railroad had authorized him to do so. Burlington was the generator of the hazardous waste, and the manifest was the required certification that everything had been done for the proper packing and shipping of the hazardous material. Thus, when Mr. McEntee signed the manifest, he signed it as an agent for Burlington, and he was certifying that the drums were safe for transport on the highway. Consolidated's truck driver then signed the form as the transporter of the hazardous waste.

The parties stipulated that (1) the batteries were packaged on April 21,1998; (2) they were then transported to Consolidated's yard, arriving on April 23, 1998; and (3) they sat in the trailer until the accident occurred on April 27,1998.

Mr. Park was moving a barrel when it exploded. Mr. Park's jaw was broken in four places and his chin was blown off. A dentist specializing in jaw injuries testified as to the nature and extent of Mr. Park's injuries and his needs for future treatment. A vocational rehabilitation counselor also testified concerning his injuries and job prognosis. The parties stipulated that Mr. Park was paid $93,366.44 in worker's compensation benefits.

The jury rendered a special verdict. It found that Burlington was 33 percent responsible for Mr. Park's injuries, Consolidated was 67 percent responsible, Mr. Park's economic damages were $1,250,000 and his noneconomic damages were $500,000, for a total of $1,750,000. Since Consolidated's liability is limited to workers' compensation benefits, the entire burden of the judgment falls on Burlington.

Burlington appeals.

ISSUES

As noted above, Burlington's primary contention is that it is entitled to judgment in its favor as a matter of law because, under Privette and its progeny, it cannot be held liable for injuries to an employee of its independent contractor.

Second, Burlington contends that the judgment cannot be upheld on an agency theory. Under this heading, Burlington argues that plaintiff Park failed to allege an agency theory in his complaint, failed to move to amend to conform to proof, and that the jury's special findings on the agency issue do not support the judgment.

Third, Burlington argues that the trial court erred in upholding the jury's verdict on the basis of the nondelegable duty doctrine. Burlington points out the trial court had rejected this theory of liability during trial and had refused to submit it to the jury. However, after trial, the trial court accepted the theory in support of the judgment.

Fourth, Burlington contends that the jury's finding that Burlington's negligence caused plaintiffs injuries is unsupported by substantial evidence.

Fifth, Burlington contends it is entitled to judgment as a matter of law by application of the doctrine of primary assumption of risk.

Sixth, Burlington argues several errors were made in the admission of certain testimony of plaintiffs expert witness, Richard Casagrande.

Seventh, Burlington argues the trial court erred in admitting evidence of a similar prior incident in which another Consolidated employee, Jesus Garcia, was injured.

Eighth, Burlington argues that the trial court erred in allowing plaintiffs nondesignated dental expert to give opinions regarding the need for future medical and dental care.

Ninth, Burlington contends the special verdict form was defective and that it led to vague, ambiguous and inconsistent findings.

Tenth, Burlington argues that the jury's award of more than $1.1 million in compensatory damages is excessive, speculative, and not based on the evidence.

Mr. Park asserts that, "[a]t every stage, the essence of the parties' dispute centered upon the nature, scope, and propriety of [Burlington's] asserted `delegation' of duties to [Consolidated]." We agree, and focus on the question of whether Mr. Park has shown that his case comes within an exception to Privette.

PRIVETTE, TOLAND AND THEIR PROGENY

Privette begins by stating the common law rule: "At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work. [Citations.]" (Privette v. Superior Court, supra, 5 Cal.4th 689, 693, 21 Cal.Rptr.2d 72, 854 P.2d 721.) The court explained the development of the rule: "Over time, the courts have, for policy reasons, created so many exceptions to this general rule of nonliability that `"`the rule is now primarily important as a preamble to the catalog of its exceptions.' "` [Citations.] One of these exceptions pertains to contracted work that poses some inherent risk of injury to others. This exception is commonly referred to as the doctrine of peculiar risk." (Id. at p. 693, 21 Cal.Rptr .2d 72, 854 P.2d 721.)

The court then described the development of the peculiar risk doctrine. It concluded by saying: "[I]n its original form the doctrine of peculiar risk made a landowner liable to innocent bystanders or neighboring property owners who were injured by the negligent acts of an independent contractor hired by the landowner to perform dangerous work on his or her land. In turn, the landowner could sue the contractor for equitable indemnity. [¶] Gradually, the peculiar risk doctrine was expanded to allow the hired contractor's employees to seek recovery from the non-negligent property owner for injuries caused by the negligent contractor." (Privette v. Superior Court, supra, 5 Cal.4th 689, 696, 21 Cal.Rptr.2d 72, 854 P.2d 721.)

Mr. Privette was a homeowner who hired a roofing company to install a new roof on his duplex. An employee of the roofing company, Jesus Contreras, fell off a ladder and was burned by hot tar. He obtained workers' compensation benefits and sued Mr. Privette. Mr. Contreras alleged Mr. Privette was liable either for negligently selecting the roofing company or that Mr. Privette was liable under the peculiar risk doctrine for the injuries to Mr. Contreras that resulted from the roofing company's negligence. Mr. Privette sought writ relief.

The Supreme Court granted a petition for review and agreed with Mr. Privette's argument that "when the person injured by negligently performed contracted work is one of the contractor's own employees, the injury is already compensable under the workers' compensation scheme and therefore the doctrine of peculiar risk should provide no tort remedy, for those same injuries, against the person who hired the independent contractor." (Privette v. Superior Court, supra, 5 Cal.4th 689, 696, 21 Cal.Rptr.2d 72, 854 P.2d 721.)

In another passage that is potentially significant here, the court said: "A person held liable under the doctrine of peculiar risk is entitled to...