Short v. State Compensation Ins. Fund

• Decision Date: 10 October 1975
• Citation: 52 Cal.App.3d 104,125 Cal.Rptr. 15
• Court: California Court of Appeals Court of Appeals
• Parties: Lawrence R. SHORT, Plaintiff and Appellant, v. STATE COMPENSATION INSURANCE FUND, Plaintiff in Intervention and Respondent. Civ. 2150.

Page 15

125 Cal.Rptr. 15

52 Cal.App.3d 104

Lawrence R. SHORT, Plaintiff and Appellant, v. STATE COMPENSATION INSURANCE FUND, Plaintiff in Intervention and Respondent.

Civ. 2150.

Court of Appeal, Fifth District, California.

Oct. 10, 1975.

Kane, Canelo & Walker, Merced, and Cyril Viadro, San Francisco, for plaintiff and appellant.

[52 Cal.App.3d 106] T. Groezinger, James J. Vonk andGeorge S. Bjornsen, San Francisco, for plaintiff in interventionand respondent.

OPINION

GINSBURG, Associate Justice. ^*

Appellant, plaintiff below, was a roofer employed by Zerbe Roofing Company. On September 28, 1970, while working on the roof of an unfinished building, appellant and another employee moved a sheet of plywood which was lying on the unfinished roof. Unknown to them, it covered an otherwise unguarded hole in the roof. After picking up one end of the board, appellant walked toward the hole and fell through it, sustaining personal injuries. These were the basis of this action wherein appellant recovered a judgment, based upon a verdict of the jury against the general contractor on the job, as well as against the owner and the architect. This judgment has not been appealed, and the defendants below are not parties to this appeal.

Respondent was the workmen's compensation carrier for appellant's employer, Zerbe Roofing Company, at the time of the accident. As such, it intervened in the third party action to defend against the Witt v. Jackson (1961) 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641 claim. It was successful in obtaining a special finding free of concurrent negligence. Appellant free of concrrent negligence. Appellant appeals from the judgment as to this special finding only, a motion for judgment notwithstanding the verdict having been denied by the trial court.

Two issues are presented by this appeal: (1) whether appellant may, as an employee, prosecute this appeal as against his employer, in whose place the respondent stands; and (2) whether appellant's employer was guilty of negligence as a matter of law so that the motion for judgment notwithstanding the verdict should have been granted.

I. Appellant's Standing.

Respondent contends that, in prosecuting this appeal, the appellant, as an employee, is in fact suing his employer; and that under the provisions of section 5300 of the Labor Code, enacted pursuant to article XX, section 21 of the California Constitution as part of the Workmen's Compensation Act, exclusive jurisdiction to determine employer-employee disputes is vested in the Workmen's Compensation Appeals Board. ¹

Clearly the appellant, an employee, has substantial rights which would be affected by a determination in the civil action that his employer, Zerbe, was free of concurrent negligence; his claim for future benefits in the Workmen's Compensation Appeals Board proceeding from the employer after recovery from a third party tortfeasor may be affected thereby. (Roe v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 884, 889, 117 Cal.Rptr. 683, 528 P.2d 771, see also Slayton v. Wright (1969) 271 Cal.App.2d 219, 232, 76 Cal.Rptr. 494, and cases cited therein.) In the civil action, the rights of the employer are represented by its insurance carrier, the respondent herein. (See Brandon v. Santa Rita Technology, Inc. (1972) 25 Cal.App.3d 838, 844, 102 Cal.Rptr. 225.) Because of this privity between the employer and respondents a finding in that action that appellant's employer was not negligent would be res judicata in a subsequent action between appellant and his employer before the Workmen's Compensation Appeals Board. (Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967, 972--978, 104 Cal.Rptr. 42, 500 P.2d 1386.)

If he were prohibited from proceeding further herein, appellant would therefore suffer the inequity of being bound by the decision without any right of review. That such a result is not contemplated is evident in the language of our Supreme Court in the recent case of Gregory v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 899, 117 Cal.Rptr. 694, 528 P.2d 782, wherein it was clearly stated that where the employer's negligence has Not been adjudicated in a third party action, the applicant is entitled to have it adjudicated before the board. ² Nothing in the decision indicates that the matter Cannot be determined in the third party action.

It follows that where the matter is litigated in the third party action the injured employee must necessarily have the same right of appeal as any other litigant bound by the decision.

II. Negligence of Appellant's Employer.

Having determined that appellant has standing to bring this appeal, we take up the question of whether appellant's employer and respondent's principal, Zerbe Roofing Company, was negligent as a matter of law.

The uncontradicted evidence showed that appellant's immediate employer was Zerbe Roofing Company, that appellant was directed by his employer to work at the place where the accident occurred, and that the place where he was working at the time was the immediate area where the subcontractor-employer was proceeding with its work.

As appellant's immediate employer, Zerbe was an 'employer' under the provisions of the Labor Code and was required to provide a safe place to work or to warn his employees of dangers which were not obvious. ³ The fact that the employer was a subcontractor and that the general contractor on the job was found to have been in violation of a duty to appellant does not prevent appellant's immediate employer from having a simultaneous nondelegable duty to see to the safety of its workmen. (Conner v. Utah Constr. & Mining Co. (1964) 231 Cal.App.2d 263, 276, 41 Cal.Rptr. 728.) The statutory duty to see to the safety of workmen and to comply with the Labor Code provisions and applicable safety orders is imposed not only on the general contractor but also on the subcontractor as the immediate and direct employer. (Conner v. Utah Constr. & Mining Co., supra, at pp. 276--277, 41 Cal.Rptr. 728; Souza v. Pratico (1966) 245 Cal.App.2d 651, 657--658, 54 Cal.Rptr. 159.)

Looking further to the evidence, we find that it is uncontradicted in the record that certain safety orders were violated. ⁴ These violations included the failure to either secure a covering over the hole or fence it off and the failure to place appropriate warning lettering on the cover over the hole. Furthermore, again according to the uncontradicted testimony, Zerbe, the employer, knew by virtue of the knowledge of its foreman, Poole, that there might be holes in the roof, but no inspection was made prior to the start of work and no efforts were made to determine the safety of the employees or to warn them of the possible hazard. ⁵

An Administrative Code safety order has the same effect as a statute (Hyde v. Russell & Russell, Inc. (1959) 176 Cal.App.2d 578, 583, 1 Cal.Rptr. 631); a violation of such a safety order, like the violation of a statute, gives rise to a rebuttable presumption that the person who failed to comply with such safety order or statute was negligent. (See Evid.Code, § 669.) Here there was no rebutting evidence to show that the person violating the statute, appellant's employer through its foreman Poole, did what might reasonably be expected of a person of ordinary prudence acting under similar circumstances.

In the case of Souza v. Practico, supra, 245 Cal.App.2d at pages 661--662, 54 Cal.Rptr. 159, the court reviews the facts of three cases wherein the employer was held concurrently negligent ⁶ and says of them: 'In all of the above three cases, the employer under the uncontradicted evidence directed the injured employee to work or knew that the latter would in all likelihood work in an unsafe place. No other conclusion was reasonably deducible from the evidence than that the employer violated a duty owed to his employee to provide a safe place to work and that his negligence in this respect was concurrent with the negligence of the general contractor or owner and proximately contributed to the employee's injuries.' (245 Cal.App.2d at pp. 661--662, 54 Cal.Rptr. at p. 166.) The same language and conclusion is equally applicable to the case at bench.

We therefore find that as a matter of law the employer in this case, Zerbe Roofing Company, was concurrently negligent in connection with appellant's injuries. The trial court is directed to modify the finding of the jury to conform to this opinion, and as so modified the judgment is affirmed.

The appellant shall have his costs on appeal.

GARGANO,...