Sabin v. Union Oil Co. of Cal.
| Decision Date | 01 May 1957 |
| Citation | 310 P.2d 685,150 Cal.App.2d 606 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Charles L. SABIN, Plaintiff and Appellant, v. UNION OIL COMPANY OF CALIFORNIA, a corporation, Defendant and Respondent. Civ. 17069. |
P. H. McCarthy, J., F. Nason O'Hara, Herbert S. Johnson, San Francisco, for appellant.
Ricksen, Freeman, Hogan & Vendt, Oakland, for respondent.
Plaintiff appeals from a judgment of nonsuit. Plaintiff was an employee of Fluor Corporation, Ltd. (hereafter called Fluor). Fluor had a contract with defendant Union Oil Company of California (hereafter called Union) under which Fluor was bound to service and maintain the Chimneys and flues in Union's refinery at Oleum.
The heating unit in which the injury to plaintiff occurred had been shut down for eleven days when on April 29, 1952, plaintiff, under the direction of George Clark, the foreman in charge for Fluor, entered though a manhole to repair a damper. To reach the damper it was necessary to cross an open space 6 feet wide and 7 to 7 1/2 feet above the floor of the chamber. A board or plank 8 feet long and less than 2 feet in width had been laid across this opening over which it was necessary to pass. Clark and one O'Brien, shutdown supervisor of Union, had passed twice over this board earlier in the day when O'Brien had pointed out the damper to Clark and instructed him to repair it. In passing over the plank Clark noticed that it was loose and tipped somewhat.
Before plaintiff entered the manhole, Clark testified: 'I told him there was one plank in there that was not very steady.' Plaintiff denied hearing this. When plaintiff crawled on to the plank it titled and precipitated him to the floor below.
Plaintiff testified that when he crawled through the manhole on to the plank it was so dark that he could not see the plank or walls. There were two lights burning in the flue but they were about 22 feet from the manhole.
Clark testified that it was the practice for Fluor employees to place to planks and the lights in flues to be repaired by Fluor and there is no evidence that Union took any part in placing the plank or lights in this particular flue.
Appellant admits that it is the general rule that when property is turned over by the owner to an independent contractor to do work thereon the owner is not liable to third persons for the negligence of the independent contractor. McDonald v. Shell Oil Co., 44 Cal.2d 785, to this general rule, i. e., 1. where the employee 78 P. 337. However appellant seeks to bring this case within certain exceptions to this general rule, i. e., 1. where the employee is injured by some condition of the owner's premises over which the owner retains control (Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 282 P.2d 69), or 2. where the owner interferes with or assumes to direct the employee in the manner or method of performing the work (Revels v. Southern California Edison Co., 113 Cal.App.2d 673, 248 P.2d 986) the owner will be liable.
The evidence shows that in practice the maintenance and repair work was done by Fluor only on units that had been taken out of operation and Union did no more than indicate to Fluor that the unit was available to Fluor and the character of work to be done. It seems clear under the authorities that the activity of O'Brien in pointing out the damper to be repaired to Clark and directing him to repair it did not bring Union within either of these exceptions. In McDonald v. Shell Oil Co., supra, and court said at page 790 of 44 Cal.2d at page 904 of 285 P.2d:
'However, the owner may retain a broad general power of supervision and control as to the results of the work so as to insure satifactory performance of the independent contract--including the right to inspect [citation], the right to stop the work [citation], the right to make suggestions or recommendations as to details of the work [citation], the right to prescribe alterations or deviations in the work [citation]--without changing the relationship from that of owner and independent contractor or the duties arising from that relationship.' What O'Brien did in pointing out the damper and directing its...
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