Rodriguez v. McDonnel Douglas Corp.

Decision Date21 December 1978
PartiesRichard RODRIGUEZ and Mary Anne Rodriguez, Plaintiffs and Appellants, v. McDONNELL DOUGLAS CORPORATION and Cox Brothers Crane Service, Defendants and Respondents. Richard RODRIGUEZ and Mary Anne Rodriguez, Plaintiffs and Respondents, v. NORMAN ENGINEERING COMPANY and Bethlehem Steel Corporation, Defendants and Appellants. STATE COMPENSATION INSURANCE FUND, Plaintiff in Intervention and Respondent, v. NORMAN ENGINEERING COMPANY and Bethlehem Steel Corporation, Defendants in Intervention and Appellants. NORMAN ENGINEERING COMPANY, Cross-Complainant and Respondent, v. BETHLEHEM STEEL CORPORATION and Orvin Engineering Company, Cross-Defendants and Appellants. Civ. 51350.
CourtCalifornia Court of Appeals Court of Appeals

Law Offices of Ned Good by Ned Good, Los Angeles, for plaintiffs, appellants and respondents Richard Rodriguez and Mary Anne Rodriguez.

Waters, McCluskey & Corcoran by Gerald E. McCluskey, Los Angeles, for defendant and respondent McDonnell Douglas Corporation.

Bolton, Hemer & Dunn by Bruce H. Dunn, Los Angeles, for defendant and respondent Cox Brothers Crane Service.

LaFollette, Johnson, Schroeter & DeHaas by Daren T. Johnson and Alfred W. Gerisch, Jr., Los Angeles, for defendant and appellant, and cross-complainant and respondent Norman Engineering Company.

Lillick, McHose & Charles, Gordon K. Wright, Daniel C. Minteer, and Baker O. Terry, Jr., Los Angeles, for defendant and appellant Bethlehem Steel Corp.

Groezinger, Vonk, Hershenson & Bjorsen, Fresno by Steven Helfend, Los Angeles, for plaintiff in intervention and respondent State Compensation Insurance Fund.

Henry J. Bogust, Toni Rae Bruno, Chase, Rotchford, Drukker & Bogust and James E. Cusick, Los Angeles, for cross-defendant and appellant Orvin Engineering Co.

JEFFERSON, Associate Justice.

By an amended complaint, plaintiff Richard Rodriguez sought recovery for personal injuries sustained while he was working on the premises of McDonnell Douglas Corporation (hereinafter, McDonnell). Named as defendants were McDonnell, its general contractor Norman Engineering Company (hereinafter Norman), a subcontractor Bethlehem Steel Corporation (hereinafter Bethlehem), Cox Brothers Crane Service (hereinafter Cox) and H. H. Robertson Company (hereinafter Robertson).

Joined with Richard Rodriguez as a plaintiff was his wife, Mary Anne, suing for her damages for loss of consortium. 1

Defendants answered the complaint, denying the material allegations of negligence 2 and raising the defense of contributory negligence on the part of both plaintiff Richard Rodriguez and his employer, Orvin Engineering Company (hereinafter Orvin).

McDonnell cross-complained for indemnity against Norman, Orvin, Bethlehem, Cox, Twining Laboratories of Southern California, Inc. (hereinafter Twining) and Robertson.

Norman cross-complained for express indemnity against Bethlehem and Orvin.

The State Compensation Insurance Fund (hereinafter State Fund) intervened in the action to secure reimbursement for workmen's compensation benefits provided to plaintiff Richard Rodriguez.

Trial was by jury, commencing in November 1975. During trial, plaintiffs and intervenor State Fund dismissed their complaints against Robertson. McDonnell dismissed its cross-complaint against Robertson and Twining.

After approximately three months of trial, the jury returned a special verdict or special findings. 3 Thus, liability was imposed by the jury on Norman and Bethlehem; Orvin, not named a defendant by plaintiffs due to its status as plaintiff Richard's employer, was found by the jury to have contributed 10 percent to plaintiff's injuries.

Pursuant to a prior stipulation of the parties, the trial court, sitting without a jury, heard the issues relating to the various cross-complaints. On its cross-complaint against Norman, McDonnell was awarded $52,142.50 with interest.

Norman was awarded judgment on its cross-complaints for express contractual indemnity against both Bethlehem and Orvin in the sum of $4,723,708.62, 4 plus attorney fees of $69,341.94 on the ground that Norman's negligence was "passive," while Bethlehem's and Orvin's negligence was "active."

Judgment was entered for the plaintiffs in the amount of $4,113,122.25 for plaintiff Rodriguez, the trial court deducting from the jury award the total amount of workmen's compensation benefits, $122,873.75, which had been provided by State Fund. In entering judgment for State Fund against Norman and Bethlehem, the trial court deducted 10 percent from the total of $122,873.75 because of the jury finding that Orvin was 10 percent negligent, making the net judgment amount $110,586.37.

Norman, Bethlehem, Orvin and the plaintiffs made motions for new trial. 5 Bethlehem also made a motion to set aside the judgment and sought judgment notwithstanding the verdict. All the motions were denied.

Bethlehem has appealed from the judgment rendered against it in favor of the plaintiffs, and from the judgment on the cross-complaint rendered against it in favor of Norman. In addition, Bethlehem has appealed from the denial of its motion to vacate judgment; from the denial of its motion for judgment notwithstanding the verdict; and from the denial of its motion for new trial. 6 Norman has appealed from plaintiffs' judgment against it.

Plaintiffs have filed a protective appeal from the judgment rendered in favor of McDonnell and Cox.

I The Factual Background
A. Introduction

In 1969, McDonnell decided to modify Building 85, a 50-foot high steel hangar located at its facility in Long Beach, in order to accommodate its new larger DC-10 aircraft.

McDonnell hired Norman as architect and engineer to draw the requisite plans and specifications. McDonnell then hired Norman as general contractor for the project. The contract between McDonnell and Norman imposed broad responsibility on Norman to supervise the entire remodeling effort, whether performed by Norman personnel or by subcontractors. Included in Norman's responsibility was the maintenance of safe conditions on the job.

The modification plans contemplated demolition of portions of the south wall of Building 85, so that there would be an opening 17 feet high and 45 feet wide. Norman employees commenced demolition activities in April 1970, using acetylene torches and other tools to accomplish their task.

Norman subcontracted certain structural steel work to Bethlehem and, pursuant to its contract with McDonnell, hired a licensed fire protection engineer, Orvin, to modify the existing fire sprinkler system of Building 85.

McDonnell engineers visited the project often, to see that work was progressing according to plan and on schedule. McDonnell employee Bowers, a project engineer, was at the site of modification daily, checking on personnel and enforcing safety regulations. To meet certain requirements of the City of Long Beach, McDonnell retained the responsibility of inspecting the structural steel work, and hired Twining for this purpose; a Twining employee, Barnes, was on the job daily to inspect steel as it was installed to monitor its strength, and to see that the welding was done properly. Barnes reported to Bowers.

During the modification, Norman had no specifically designated safety engineer on duty. However, its job superintendent, Podratz, was on the scene providing overall supervision. Podratz testified that he did not inspect the structural steel work, relying on the Twining inspector to perform that assignment. Podratz did not inspect the work performed by the fire protection engineer, Orvin, either, because Norman was not licensed in this area; both the McDonnell-Norman contract and applicable law required that the fire protection work be done by a licensed fire protection engineer.

Bethlehem commenced the structural steel work on June 8, 1970. Its plans showed that Bethlehem workers were to remove from the south wall a horizontal steel member some 30 feet in length, known as a girt or channel iron. The girt was located slightly more than 17 feet above the ground, within inches of the opening in the wall. The girt's flat unchanneled side was up and its "legs," i. e., the channeled portion, was down. It was attached to a similar structure, and was bolted to steel columns at both ends with steel clip angles. Siding and insulation material were attached to the girts.

The plans further showed that the girt in question was to be lowered to the ground, "dressed," and inverted; it was then to be raised, with the "legs" up, into its former position, where it would help form the framework for some louvers which were to be installed above it. In order to invert the girt, it was necessary for Bethlehem workers to free the girt completely of all attachments, before it could be lowered to the ground.

One such attachment was an angle iron, also known as an earthquake sway brace, approximately 32 inches long, which had been welded to the flat side of the girt near the west end of the wall. The welding of the angle iron to the girt provided the angle iron with its inner support; the angle iron extended through an opening in the steel siding to the outside, where its u-bolt attachment encircled a large vertical metal pipe. The purpose of the angle iron was to provide strong lateral support for the pipe, a part of the fire protection system, so that the pipe would not fall, even during a major earthquake.

Sometime in June 1970, Bethlehem steel workers freed the girt of attachments, using acetylene torches to melt the steel. The girt was lowered, inverted and reinstalled. No one made a detailed inspection after completion of this project. The angle iron had been freed from the girt at some point in time, but had not been rewelded to it. The angle iron remained in position, however, with its u-bolt encircling the vertical metal pipe...

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