Sheeler v. Greystone Homes, Inc.

• Decision Date: 26 November 2003
• Docket Number: No. B162614,B162614
• Citation: 113 Cal.App.4th 908,6 Cal.Rptr.3d 683
• Court: California Court of Appeals Court of Appeals
• Parties: Jimmy SHEELER et al., Plaintiffs and Appellants, v. GREYSTONE HOMES, INC., Defendant and Respondent.

6 Cal.Rptr.3d 683

113 Cal.App.4th 908

Jimmy SHEELER et al., Plaintiffs and Appellants, v. GREYSTONE HOMES, INC., Defendant and Respondent.

No. B162614

Court of Appeal, Second District, Division Four

November 26, 2003

Rose, Klein & Marias, Richard G. Barone, David A. Rosen, and Arlyn M. Latin, Los Angeles, for Plaintiffs and Appellants.

Jones, Hirsch, Connor & Bull, Michael B. Magloff, New York, NY and Pamela Sirkin, N. Hollywood, for Defendant and Respondent.

CURRY, J.

Summary judgment was granted in favor of defendant and respondent Greystone Industries, Inc. (Greystone) and against plaintiffs and appellants Jimmy and Esther Sheeler. We affirm.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The following facts are not in dispute: In February 2000, Jimmy Sheeler was an experienced masonry and tile worker with 30 years of experience. At the time, he was an employee of Roy Gerbitz Tile, a subcontractor at a construction site in Stevenson Ranch. Greystone was the general contractor at the site. On February 2, 2000, Sheeler was injured at the site. As a result of his injuries, he received workers' compensation benefits.

On September 29, 2000, the Sheelers filed a complaint against Greystone, containing a negligence claim by Jimmy Sheeler, and a claim for loss of consortium by Esther Sheeler. The complaint alleged that Greystone negligently failed to "coordinate, construct, inspect, maintain, clean, protect, manage, control, and supervise the job site by allowing construction debris and other material to remain on" a staircase, and as a result, Sheeler tripped on debris while climbing the staircase.

On April 8, 2002, Greystone filed a motion for summary judgment, contending that Greystone was not liable for Jimmy Sheeler's injuries under any theory of negligence permitted under Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 (Privette) and its progeny, and thus Esther Sheeler's claim for loss of consortium also failed as a matter of law. Following a hearing, the trial court granted Greystone's motion, and judgment was entered on September 25, 2002.

DISCUSSION

The Sheelers contend that the trial court erred in granting summary judgment.

A. Standard of Review

Summary judgment is reviewed de novo. (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819, 44 Cal.Rptr.2d 56.)

"A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. [Citation.]" (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) In moving for summary judgment, "all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action — for example, that the plaintiff cannot prove element X." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, 107 Cal.Rptr.2d 841, 24 P.3d 493, fn. omitted.) Nonetheless, all doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562, 42 Cal.Rptr.2d 697.)

Here, the Sheelers contend that there are triable issues of fact as to whether Greystone is liable for Jimmy Sheeler's injuries under theories of direct negligence and premises liability.¹ They argue that Greystone had a direct or nondelegable duty to ensure the safety of his worksite, and there is evidence that Greystone affirmatively breached this duty, thereby causing his injuries. As we explain below, they are mistaken.

B. Privette And Its Progeny

In Privette and subsequent cases, our Supreme Court has clarified the theories under which an employee of an independent contractor may assert a claim sounding in negligence against the independent contractor's hirer when, as here, the employee has recovered workers' compensation benefits for the injuries in question. We therefore begin with a discussion of these cases.

"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." (Privette, supra, 5 Cal.4th at p. 693, 21 Cal.Rptr.2d 72, 854 P.2d 721.) Nonetheless, prior to Privette, the courts had developed numerous exceptions to this rule. (Ibid.)

Privette addressed the exception founded on the doctrine of "peculiar risk,"² which permits parties injured by an independent contractor's inherently dangerous work to seek tort damages from the independent contractor's hirer. (Rest.2d Torts, §§ 413, 416.) Under this doctrine, when the hirer fails to ensure by contract or other means that special precautions will be taken, the hirer may be directly liable for injuries arising from the inherently dangerous work. (Rest.2d Torts, § 413.) Furthermore, even if the hirer provides for special precautions by contract or otherwise, the doctrine holds that the hirer may be vicariously liable for injuries arising from the independent contractor's negligent failure to take these precautions. (Rest.2d Torts, § 416.)

Privette confronted an issue at the intersection of the peculiar risk doctrine and the statutory scheme governing worker's compensation, namely, whether the doctrine permits an independent contractor's employee to bring an action against the independent contractor's hirer. (Privette, supra, 5 Cal.4th at pp. 693-702, 21 Cal.Rptr.2d 72, 854 P.2d 721.) In Privette, the employee of an independent contractor injured himself while he was carrying hot tar to a duplex's roof. (Id. at p. 692, 21 Cal.Rptr.2d 72, 854 P.2d 721.) The employee sought workers' compensation benefits, and also sued the duplex owner under the peculiar risk doctrine. (Ibid.)

The court in Privette held that employees may not recover under this doctrine for injuries subject to worker's compensation coverage. (Privette, supra, 5 Cal.4th at pp. 696-702, 21 Cal.Rptr.2d 72, 854 P.2d 721.) It observed that the workers' compensation scheme precludes a tort action by the employee against the independent contractor. (Id. at pp. 696-698, 21 Cal.Rptr.2d 72, 854 P.2d 721.) Moreover, it reasoned that peculiar risk "is in effect a form of vicarious liability," notwithstanding "the characterization of the doctrine as `direct' liability" in some situations. (Id. at p. 695 & fn. 2, 21 Cal.Rptr.2d 72, 854 P.2d 721.) Accordingly, it concluded that permitting the employee to recover damages from the duplex owner would unfairly expose a non-negligent party that had hired an independent contractor to greater liability for damages than the negligent independent contractor. (Id. at pp. 695, fn. 2, 696-702, 21 Cal.Rptr.2d 72, 854 P.2d 721.)

Subsequently, in Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 269-270, 74 Cal.Rptr.2d 878, 955 P.2d 504 (Toland), the Supreme Court clarified that Privette bars all actions against a hirer by an independent contractor's employee under the peculiar risk doctrine, provided that the relevant injuries are subject to workers' compensation coverage. In Toland, a subcontractor's employee was injured at a construction site when a large wall collapsed on him. (Id. at p. 257, 74 Cal.Rptr.2d 878, 955 P.2d 504.) The employee brought a negligence action against the general contractor under the peculiar risk doctrine, alleging that the general contractor was directly liable for his injuries through a failure to require special safety precautions. (Ibid.)

The court in Toland held that Privette precludes peculiar risk claims against the hirer, regardless of whether they rest on direct or vicarious liability under the doctrine. (Toland, supra, 18 Cal.4th at pp. 269-270, 74 Cal.Rptr.2d 878, 955 P.2d 504.) It reasoned that within this doctrine, each form of liability "is in essence `vicarious' or `derivative' in the sense that it derives from the `act or omission' of the hired contractor, because it is the hired contractor who has caused the injury by failing to use reasonable care in performing the work." (Id. at p. 265, 74 Cal.Rptr.2d 878, 955 P.2d 504.) The Toland court thus concluded that under either alternative, "it would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for the worker's on-the-job injuries, is limited to providing workers' compensation coverage." (Id. at p. 267, 74 Cal.Rptr.2d 878, 955 P.2d 504.)

In Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 108 Cal.Rptr.2d 617, 25 P.3d 1096 (Camargo), the Supreme Court extended Privette and Toland to claims of negligent hiring by the hirer. (Rest.2d Torts, § 411). In Camargo, an employee of an independent contractor hired to remove manure from a dairy's corrals died when his tractor overturned as he scraped manure. (Camargo, supra, 25 Cal.4th at p. 1238, 108 Cal.Rptr.2d 617, 25 P.3d 1096.) The employee's relatives sued the dairy on the theory that it was negligent in hiring the independent contractor, alleging that the dairy had failed to determine the decedent's competence to drive a tractor. (Ibid.)

The court in Camargo noted that the theory of negligent hiring involves an assertion of direct liability, but nonetheless held that the employee's claim failed under the rationale in Privette and Toland. (Camargo, supra, 25 Cal.4th at pp. 1244-1245, 108 Cal.Rptr.2d 617, 25 P.3d 1096.) It reasoned that the hirer's direct liability under the theory of negligent hiring, like the hirer's direct liability under the peculiar risk doctrine, is effectively vicarious or derivative because it derives from an act or omission by the independent contractor. (Id. at p. 1244, 108 Cal.Rptr.2d 617, 25 P.3d 1096.)

In Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081 (Hooker) and McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 115 Cal.Rptr.2d 868, 38 P.3d 1094 (McKown), the Supreme Court limited the reach of Privette, Toland, and Cama...