Rodgers v. Kemper Constr. Co.

Citation124 Cal.Rptr. 143,50 Cal.App.3d 608
CourtCalifornia Court of Appeals
Decision Date12 August 1975
PartiesJohnnie A. RODGERS and Billy E. Kelley, Plaintiffs and Respondents, v. KEMPER CONSTRUCTION CO., a corp., Defendant and Appellant. Civ. 13962.
King & Mussell and Joseph Arias, San Bernardino, for defendant and appellant
OPINION

TAMURA, Associate Justice.

A subcontractor on a construction project appeals from a judgment entered on a jury verdict holding it liable for injuries sustained by two employees of the general contractor as a result of an assault committed upon them by employees of the subcontractor.

The assault occurred at the site of the state's Cedar Springs Dam project. Plaintiffs (Rodgers and Kelley) were employed as heavy equipment operators by the general contractor for the project. Defendant Kemper Construction Co. (Kemper) was a subcontractor on the same job. Defendants Herd and O'Brien were employees of Kemper.

Kemper maintained its office in a movable trailer on the job site. Near the office trailer was a 'dry house' trailer equipped with a shower room and lockers for Kemper's employees. Kemper's subcontract involved construction of tunnels and other work under the spillway. Its employees wore special clothing which they kept in the dry house lockers. After work Kemper's employees usually showered before putting on their own clothing.

Work on the Cedar Springs project continued around the clock during the week but no work was performed on Saturday or Sunday. Kemper's employees worked in three shifts, the day shift from 8 a.m. to 4 p.m., the swing shift from 4 p.m. to 12 midnight, and the night shift from 12 midnight to 8 a.m. When in need of extra help, Kemper's supervisors would sometimes look in the dry house to see whether any of the men who had just completed a shift would be willing to work overtime.

Although the dry house had a sign prohibiting alcohol, it was not unusual for the men to drink beer there after a shift. Particularly on Friday nights there was usually beer in the dry house. Kemper's supervisors made no effort to stop the drinking and in fact they frequently joined in.

On Friday, July 18, 1969, Herd and O'Brien worked the day shift for Kemper, ending at 4 p.m. After work they went to the dry house, changed clothes, and then worked on O'Brien's pickup in the Kemper parking area adjacent to the dry house. There was beer in a styrofoam chest in the dry house and Herd and O'Brien had three or four beers each. Dieffenbauch, Kemper's office manager, was present and also drank beer.

About 8 p.m. Herd and O'Brien set out on foot across the job site to look for a friend from whom they planned to borrow money to continue drinking in a nearby town. Herd and O'Brien approached Rodgers who was operating a bulldozer on the spillway and signaled him to stop. O'Brien climbed on the tractor and asked Rodgers for a ride which Rodgers refused because it was against regulations. Both Herd and O'Brien then fell on Rodgers, beating him with their fists and with rocks.

When the two men left, Rodgers drove to where Kelly was working and asked for help in obtaining the identities of the assailants. Rodgers and Kelley proceeded to the Kemper parking area where they saw Herd and O'Brien getting into O'Brien's pickup. As Rodgers began to write down the license number of the pickup, O'Brien got out and hit Kelley knocking him down. Rodgers threw a rock at O'Brien which missed and cracked the windshield of the pickup. Herd got out and began fighting with Rodgers. At this point Dieffenbauch entered the scene and hit Rodgers from behind rendering him unconscious. Herd beat Kelley about the head with a hard hat and Dieffenbauch jumped on Kelley's legs and kicked them. The fight ended when another employee of the general contractor arrived and managed to remove Rodgers and Kelley.

Rodgers sustained serious multiple injuries to his right hip, left shoulder and low back necessitating numerous surgeries. He has been permanently disabled from working as a heavy equipment operator. Kelley sustained a permanent diplopia (double vision) requiring corrective lenses. The jury returned a verdict in favor of Rodgers and against Kemper, Herd and O'Brien in the sum of $220,442.07, and in favor of Kelley and against the same defendants in the sum of $1,500. Kemper appeals from the judgment on the jury verdict. 1

Kemper's numerous contentions on appeal may be classified as follows: (1) Insufficient evidence that Herd and O'Brien were the aggressors; (2) insufficient evidence to establish Kemper's liability for the acts of Herd and O'Brien; (3) prejudicial misconduct by counsel for plaintiffs; (4) erroneous rulings relating to admissibility of evidence; (5) erroneous rulings relating to a complaint in intervention by the general contractor's workers' compensation insurer; and (6) errors relating to jury instructions. We have concluded that the contentions lack merit and that the judgment should be affirmed.

I

Kemper contends that the only reasonable inference to be drawn from the evidence is that plaintiff Rodgers was the aggressor and is, therefore, barred from recovery either on the theory that he consented to the subsequent injuries or on the theory that Herd and O'Brien acted in self-defense.

Kemper apparently concedes there is substantial evidence that in the altercation at Rodgers' tractor Herd and O'Brien were the aggressors. However, it argues that thereafter Rodgers and Kelley pursued Herd and O'Brien seeking revenge and provoked a second fight by throwing a rock at the pickup. In presenting this argument, Kemper only recites the evidence favorable to it and ignores the evidence supporting the jury's implied finding. On these issues the evidence consisted of the trial testimony of Rodgers and Kelley, statements they gave to a deputy sheriff shortly after the incident, and the deposition of O'Brien. There is substantial evidence that Rodgers and Kelley were not seeking revenge. They repeatedly testified their only thought was to find out who the assailants were by obtaining a car license number. Rodgers admitted throwing the rock but consistently stated he did so only because O'Brien had gotten out of the pickup and was threatening Kelley. As there was nothing inherently improbable in plaintiffs' version of the events, under the well-known standards of appellate review, we must accept the jury's implied finding that O'Brien and Herd were the aggressors throughout the encounter.

II

At trial plaintiffs offered and the jury was instructed on three alternative theories for holding Kemper liable for the acts of Herd and O'Brien: Respondeat superior, ratification, and breach of a statutory duty to provide a safe place of employment. Kemper contends that none of these theories is supported by substantial evidence.

From the analysis which follows, we have concluded there is substantial evidence in support of Kemper's liability under the doctrine of Respondeat superior. It is therefore unnecessary to the disposition of this appeal to involve ourselves in a discussion of the novel and complex issues tendered by the other theories. (See Chabot v. Meredith, 15 Cal.App.3d 950, 958, 93 Cal.Rptr. 543, concurring opinion of Justice Friedman.) Where, as here, special verdicts were not requested or used, it may be assumed from the general verdict that the jury found in accordance with the theory supported by substantial evidence. (Codekas v. Dyna-Lift Co., 48 Cal.App.3d 20, 24--25, 121 Cal.Rptr. 121; McCloud v. Roy Riegels Chemicals, 20 Cal.App.3d 928, 935--936, 97 Cal.Rptr. 910; Jones v. Evans, 4 Cal.App.3d 115, 119, 84 Cal.Rptr. 6.) The party attacking the sufficiency of the evidence to support the verdict, in this case Kemper, is the one who should have requested special verdicts. (Codekas v. Dyna-Lift Co., supra, 48 Cal.App.3d at 25, 121 Cal.Rptr. 121; McCloud v. Roy Riegels Chemicals, supra, 20 Cal.App.3d at 937, 97 Cal.Rptr. 910.)

Under Respondeat superior, an employer is vicariously liable for the torts of his employees committed within the scope of the employment. 2 2 The doctrine, which departs from the normal tort principle that liability follows fault, is an ancient one but its scope and stated rationale have varied widely from period to period. (See 2 Harper & James, The Law of Torts, pp. 1361--1374; Prosser, Torts (4th ed., 1971) pp. 458--459.) It has been aptly stated that 'Respondeat superior has long been a rule in search of a guiding rationale.' (Note, 82 Harv.L.Rev. 1568, 1569.)

California has adopted the rationale that the employer's liability should extend beyond his actual or possible control over the employees to include risks inherent in or created by the enterprise because he, rather than the innocent injured party, is best able to spread the risk through prices, rates or liability insurance. (Hinman v. Westinghouse Elec. Co., 2 Cal.3d 956, 959--960, 88 Cal.Rptr. 188, 471 P.2d 988; Johnston v. Long, 30 Cal.2d 54, 63--64, 181 P.2d 645; Fields v. Sanders, 29 Cal.2d 834, 841, 180 P.2d 684; Carr v. Wm. C. Crowell Co., 28 Cal.2d 652, 655--656, 171 P.2d 5; Strait v. Hale Constr. Co., 26 Cal.App.3d 941, 948--949, 103 Cal.Rptr. 487.) In some respects this rationale is akin to that underlying the modern doctrine of strict tort liability for defective products. (See Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 461--462, 150 P.2d 436; concurring opinion of Traynor, J.; Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 377 P.2d 897.) But this does not mean that Respondeat superior is merely a justification for reaching a 'deep pocket' or that it is based only upon an elaborate economic theory regarding optimal resource allocation. It is grounded upon 'a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents...

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