Pauly v. King

• Citation: 44 Cal.2d 649,284 P.2d 487
• Court: California Supreme Court
• Decision Date: 10 June 1955
• Parties: Robert Carl PAULY, Plaintiff and Appellant, v. Owen KING and Scott King, doing business as Travelodge Company, and O. H. Logan and E. Lindquist, doing business as General Sheet Metal Company, Defendants and Respondents. L. A. 23538

Page 487

284 P.2d 487

44 Cal.2d 649

Robert Carl PAULY, Plaintiff and Appellant, v. Owen KING and Scott King, doing business as Travelodge Company, and O. H. Logan and E. Lindquist, doing business as General Sheet Metal Company, Defendants and Respondents.

L. A. 23538.

Supreme Court of California

June 10, 1955.

Victor C. Rose, Alfred M. Klein and Robert P. Dockeray, Los Angeles, for appellant.

Betts, Ely & Loomis, James A. Williams, Tripp & Callaway and Hulen C. Callaway, Los Angeles, for respondents.

EDMONDS, Justice.

While working as an employee of a roofing subcontractor, Robert Carl Pauly sustained injuries in a fall from a building. He sued the general contractor and another subcontractor, charging negligence. Upon his appeal from a judgment in favor of both defendants, Pauly challenges instructions which define the duties owed to him and rulings upon the admission of evidence.

There is no dispute as to the condition of the premises and the manner in which the injury occurred.

Travelodge Company, as owner and general contractor, constructed the framework of a two story motel building. On the south end of the structure, the lower story extended several feet beyond the upper one so as to form a deck or balcony. The deck, made of wooden sheathing, was to be surfaced with roofing material.

O. H. Logan, the proprietor of the General Sheet Metal Company, subcontracted to supply and install flashing. For this purpose, strips of narrow gauge sheet steel, about 12 inches wide, are formed somewhat like a trough and nailed to the roof's edge. The edges are then bonded to the roofing material. Ordinarily, flashing is installed so that it protrudes about one-half or three-quarters of an inch beyond the completed side wall, in order to give protection from the weather. In accordance with plans and specifications furnished by the contractor, Logan attached the flashing so that it extended some five and one-half inches beyond the edge of the deck. It was so placed in order to cover a brick veneer wall, subsequently to be erected, which would extend upward close to the bottom of the flashing and outward to about one-half inch from the edge.

On the morning of the accident, Pauly and another employee of the roofing subcontractor parked their truck on the south side of the building and began carrying roofing materials to the deck. Their path took them below the overhanging flashing and next to the footing which had been placed in readiness for the veneer wall. After making four trips, they started their work on the roof. Pauly unrolled some paper in preparation for affixing it to the deck. During this operation he stepped backward onto the flashing, which collapsed beneath him.

In his complaint, Pauly charged that Logan and Travelodge were negligent in fastening the flashing without adequate support and failing to warn him of the danger of such construction. The defendants denied generally the allegations of the complaint and, as affirmative defenses, pleaded contributory negligence and assumption of risk. The jury returned a verdict for the defendants.

An employee of a subcontractor occupies the relationship of an invitee to the main contractor. Dingman v. A. F Mattock Co., 15 Cal.2d 622, 624, 104 P.2d 26; Hill v. Eaton & Smith, 65 Cal.App.2d 11, 13, 149 P.2d 762. 'The applicable general principle is that the owner of property, insofar as an invitee is concerned, is not an insurer of safety but must use reasonable care to keep his premises in a reasonably safe condition and give warning of latent or concealed perils. He is not liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care.' Brown v. San Francisco Ball Club, 99 Cal.App.2d 484, 486, 222 P.2d 19, 20; Blodgett v. B. H. Dyas Co., 4 Cal.2d 511, 512, 50 P.2d 801; Jones v. Bridges, 38 Cal.App.2d 341, 345, 101 P.2d 91.

Ample evidence supports the implied finding that the order of construction here followed is consistent with due care. One witness testified that it is the accepted standard of practice in the building industry to construct the structural framework and roof, and to install flashing and roofing materials, before erecting a veneer wall in order to protect it from damage during roofing operations. Another witness, a structural engineer who qualified as an expert, stated that this order of construction is necessary under existing city ordinances to allow compliance with the requirements for building inspection. There is no testimony to the contrary.

The evidence is in substantial conflict as to whether reasonable care required the extended flashing to be supported during roofing operations. According to Pauly, custom and usage required that it be supported; no different manner of construction had been followed 'in years.' A safety engineer also testified that the flashing should have been supported and described a type of support sometimes used. But he qualified his testimony by stating that the primary purpose of support was to avoid distortion of the flashing from other building operations, and admitted that he had never seen such an arrangement used where a veneer wall was to be erected.

The testimony of these witnesses was quite different from that given on behalf of the defendants. An expert in sheet metal work stated that there is no custom or usage requiring temporary support for flashing. He said 'it all depends upon the job,' and told the jury he could not recall having seen extended flashing which was supported. A construction engineer testified that there is no standard of practice requiring temporary support for flashing, because it 'has no structural value; therefore there is no intention that it would ever bear any structural weight.' According to this witness, the 'set up' here used complied with standard practice 'for this type of construction.' The jury was free to, and impliedly did, resolve this conflict in evidence against Pauly.

As Pauly evaluates the evidence, it shows without contradition that a roofer customarily works 'all over the roof,' flashing being considered a part of it. For that reason, he argues, the defendants should have warned him that the flashing was unsupported. The defendants reply that the evidence concerning the place where a roofer would work is in conflict. In any event, it is said, there is substantial evidence which would support a finding that any danger arising from unsupported flashing would be obvious to an experienced roofer.

Even if the evidence conclusively established a custom and usage of roofers to stand upon all parts of the flashing, Pauly would not be entitled to rely upon it unless to do so is consonant with due care. Cf. Polk v. City of Los Angeles, 26 Cal.2d 519, 529, 159 P.2d 931; Mehollin v. Ysuchiyama, 11 Cal.2d 53, 57, 77 P.2d 855. 'Failure to observe custom may be evidence of negligence, but the standard is not fixed by custom. The standard is always due care. The presence or absence of custom does not alter that standard. Custom may assist in the determination of what constitutes due care. What others do is some evidence of what should be done, but custom is never a substitute for due care.' Owen v. Rheem Mfg. Co., 83 Cal.App.2d 42, 45, 187 P.2d 785, 786.

The evidence as to the practice customarily followed by a roofer is not without conflict. Although Pauly and others stated that it was customary for the roofer to stand upon all parts of the roof, including the flashing, other witnesses testified that there is no custom or standard of practice as to where he should stand, but he should choose a footing which is structurally sound. According to these witnesses, that choice depends upon the circumstances of the case. From this testimony, the jury was warranted in concluding that no custom or usage required Pauly to stand upon the flashing and it would not be consistent with due care for him to do so if the danger arising from its being without support should be known to him.

There is abundant evidence from which the jury reasonably might conclude that the danger arising from the unsupported flashing would be apparent to an experienced roofer. It is without dispute that the flashing here installed was equipped with a 'crimp' or 'gravel stop,' described as an 'inverted 'V" rising from one-eighth to three-eighths of an inch above the surface of the flashing, which marked the edge of the supporting roof below it. Pauly, himself, testified that from the appearance of the gravel stop he knew the location of the edge of the roof. There was also evidence that the nails by which the flashing was attached to the roof were visible from above and extended only from the gravel stop inward. From these facts, an expert testified, an experienced roofer would assume that the extended flashing was without support. Furthermore, photographs of the overhanging flashing were shown to the jury, and both Pauly and his co-worker testified that it was 'obvious' from the ground. Pauly made several trips before the accident through a point from which he might have observed the unsupported flashing, and although he stated he did not do so because his attention was directed elsewhere, the jury reasonably might have concluded that a prudent person should have seen it. In these circumstances, there is substantial evidence to support the implied finding that the danger which might arise from unsupported flashing was so obvious as to require no warning to Pauly from the defendants.

Pauly complains, however, that the following instruction removed that factual determination from the jurors:

'There is nothing inherently dangerous in doing roofing work on a flat deck surface, such as that which was here involved, and therefore it was not encumbent upon either of the defendants to advise plaintiff concerning any apparent condition or conditions which, being plainly observable, would advise a reasonable and prudent man to...