Solgaard v. Guy F. Atkinson Co.

• Decision Date: 27 December 1971
• Docket Number: S.F. 22825
• Parties: , 491 P.2d 821 A. L. SOLGAARD, Plaintiff and Respondent, v. GUY F. ATKINSON COMPANY, Defendant and Appellant
• Court: California Supreme Court

Page 29

99 Cal.Rptr. 29

6 Cal.3d 361, 491 P.2d 821

A. L. SOLGAARD, Plaintiff and Respondent, v. GUY F. ATKINSON COMPANY, Defendant and Appellant.

S.F. 22825.

Supreme Court of California

Dec. 27, 1971.

William J. Connolly and Jay R. Mayhall, San Francisco, for defendant and appellant.

Walkup, Downing, Sterns & Poore, San Francisco, D. Oliver Germino, Los Banos, and William B. Boone, Santa Rosa, for plaintiff and respondent.

BURKE, Justice.

Defendant, a building contractor appeals from a judgment entered by the Merced County Superior Court following a jury verdict in plaintiff's favor for $78,212 in a personal injury action. The principal issue involved in this case is the applicability of the so-called 'rescue doctrine' to plaintiff, a medical doctor injured while attempting to reach and treat two of defendant's employees trapped in a landslide at a construction site. We have concluded that under the evidence in this case plaintiff was a rescuer, entitled to the benefit of certain special rules applicable to such persons, and that the judgment in his favor should be affirmed.

Plaintiff was one of several doctors who had agreed to provide emergency medical care and treatment to employees injured during the course of building the Los Banos Creek Detention Dam. Defendant, general contractor for the Federal Bureau of Reclamation, was engaged in constructing an 88-foot long spillway to handle overflow from the dam. The spillway was to be built by ripping out a natural hill with earthmoving equipment, through layers of hard shale, down to the desired depth of approximately 50 feet. Since loss of moisture or weathering causes shale to crack and peel, one foot of earth was left in place above the shale until defendant was ready to pour the concrete foundation. Shale, when left moist, is quite slippery and has a tendency to part within itself on a plane; some evidence was introduced that a rainfall had recently occurred at the site of the accident.

The concrete foundation of the spillway was laid in 35-foot sections, each containing a 'cut-off trench' approximately 30 inches deep, running at right angles to the spillway slope. These trenches help to anchor the concrete on the spillway; after each trench is dug, the final one-foot layer of earth is removed and the concrete poured. A month before the accident in question took place, a small slide had occurred during excavation of a cut-off trench; a chunk of material had fallen upon one of defendant's employees. As a result of this slide, the Bureau of Reclamation recommended that anchor bolts or bars be placed on the entire spillway slope, to prevent further slippage within the shale. Although one of defendant's employees had agreed with the Bureau to install anchor bolts, this was never done.

On December 21, 1964, defendant's employees Thorne and Parsons were digging a cut-off trench on the bottom of the spillway when a mass of shale broke off of the slope and pinned them in the trench. ¹ Defendant's representatives called plaintiff at his home and requested his aid. Plaintiff hurried to the site, and was escorted by one of defendant's employees to the scene of the accident. The injured men were located about 15 to 20 feet down a very steep incline, and about 10 to 15 feet out on the spillway floor. According to the evidence, and unknown to plaintiff, there were several alternative means of reaching these men, namely, a pathway used by defendant's personnel, step-like notches cut into the spillway bank, ropes anchored at the top of the slope, a ladder (eventually used to carry the injured men from the spillway floor), and finally, simply scrambling over the side of the steep embankment. Defendant's 'safety man,' Molesworth, directed another employee to lead plaintiff over the side and down the slope; the route taken ran over the top of the steep embankment and was very 'pebbly and gravely.' Plaintiff kept slipping and sliding and, about half way down, he slipped and fell, injurying his back. Despite his injury, plaintiff continued down the embankment and treated the injured men, amputating Parsons' leg in order to extricate him from the rocks.

As noted above, the jury returned a verdict for plaintiff for $78,212 in his personal injury action against defendant. On appeal, defendant contends that the trial court committed prejudicial error in instructing the jury regarding the law applicable to plaintiff's theories of recovery.

Among other things, the jury was instructed that in order to recover plaintiff was required to prove that defendant was negligent and that such negligence was a proximate cause of plaintiff's injury. The instructions properly defined negligence and proximate cause in general terms and presented the jury with various bases for finding that defendant was engligent by finding (1) that defendant breached its duty of reasonable care to protect persons invited upon the premises to work or perform services in the construction area, (2) that defendant breached its statutory duty as an employer to furnish a safe place to work and to furnish, use and adopt safety devices, safeguards and practices (Lab.Code, §§ 6400--6401), or (3) that defendant breached its duty under certain safety orders (Nos. 1540 and 1546) setting forth certain specified duties of care to its employees. ²

Defendant concedes that the court properly instructed the jury regarding defendant's duty of reasonable care to persons, such as plaintiff, who are invited upon the premises. Moreover, defendant agrees that plaintiff was entitled to have the jury instructed on those statutory provisions and safety orders which were enacted for the benefit and protection of persons in his position. (See Vesely v. Sager, 5 Cal.3d 153, 164, 95 Cal.Rptr. 623, 486 P.2d 151; Nunneley v. Edgar Hotel, 36 Cal.2d 493, 497, 225 P.2d 497; Evid.Code, § 669.) The instructions given on Labor Code sections 6400 and 6401 and safety order 1540, subdivision (1) (requiring an employer to furnish a safe means for workmen to enter and leave the evacuated area) were therefore proper. (See De Cruz v. Reid, 69 Cal.2d 217, 227--229, 70 Cal.Rptr. 550, 444 P.2d 342; Markley v. Beagle, 66 Cal.2d 951, 956--957, 59 Cal.Rptr. 809, 429 P.2d 129; Porter v. Montgomery Ward & Co., Inc., 48 Cal.2d 846, 848--849, 313 P.2d 854; Williams v. Pacific Gas & Elec. Co., 181 Cal.App.2d 691, 708--709, 5 Cal.Rptr. 585; Lokey v. Pine Mountain Lbr. Co., 205 Cal.App.2d 522, 531--532, 23 Cal.Rptr. 293; Gaw v. McKanna, 228 Cal.App.2d 348, 353, 39 Cal.Rptr. 428.)

Defendant contends, however, that the remaining safety orders were inapplicable to persons such as plaintiff and were not intended to prevent the type of injury which he suffered. ³ According to defendant, these orders by their terms were intended to apply only to 'employees' working in an excavation site, and to protect those employees from excavation hazards such as landslides and moving ground. Thus, defendant argues, although breach of these orders might have afforded a basis for finding that defendant was negligent Toward its employees, Parsons and Thorne, that breach would not constitute negligence Toward plaintiff himself. (See Crain v. Sestak, 262 Cal.App.2d 478, 486, 68 Cal.Rptr. 849.) Yet the court's instructions permitted the jury to find defendant negligent (and base an award to plaintiff upon such finding) if the jury found that defendant had breached such an order.

We may assume, arguendo, that safety orders 1540, subdivisions (a) and (b), and 1546 were inapplicable to plaintiff and were not intended to protect against the type of injury suffered by him. The question remains whether the trial court properly instructed the jury that a finding of defendant's negligence could be based upon its violation of a safety order or orders applicable only to its employees, including Parsons and Thorne.

Plaintiff proceeded to trial under Two theories of recovery. First, plaintiff alleged that defendant was negligent Toward him in breaching the common law and statutory duties described above. Second, plaintiff alleged that defendant was negligent Toward its employees, and that plaintiff, as a rescuer, was entitled to recover for injury he incurred in the course of rescuing those employees from their peril. We shall see that since plaintiff was a rescuer as a matter of law, the trial court properly instructed the jury regarding defendant's negligence toward Parsons and Thorne.

The cases have developed the rule that persons injured in the course of undertaking a necessary rescue may, absent rash or reckless conduct on their part, recover from the person whose negligence created the peril which necessitated the rescue. (Pierce v. United Gas and Electric Co., 161 Cal. 176, 188, 118 P. 700; Henshaw v. Belyea, 220 Cal. 458, 31 P.2d 348; Scott v. Texaco, Inc., 239 Cal.App.2d 431, 48 Cal.Rptr. 785; Bilyeu v. Standard Freight Lines, 182 Cal.App.2d 536, 6 Cal.Rptr. 65; Petersen v. Lang Transp. Co., 32 Cal.App.2d 462, 467, 90 P.2d 94; see generally 57 Am.Jur.2d, Negligence, §§ 227--229; Prosser, Torts (4th ed.) § 43, pp. 258--259, § 44, pp. 277--278; Tiley, The Rescue Principle, 30 Modern L.Rev. 25.)

Although its precise limits are not yet fully developed, the rescue doctrine varies the ordinary rules of negligence in two important respects: (1) it permits the rescuer to sue on the basis of defendant's initial negligence toward the party rescued, without the necessity of proving negligence toward the rescuer, ⁴ and (2) it substantially restricts the availability of the defense of contributory negligence by requiring defendant to prove that the rescuer acted rashly or recklessly under the circumstances. ⁵

The theory which underlies the rescue rule is, in essence, that 'rescuers, as a class, are always foreseeable when the defendant's negligence endangers anyone.' (Prosser, Torts, Supra, at p. 258, discussing Justice Cardozo's rationale of the doctrine.) Thus, if defendant...