Stalnaker v. Boeing Co.

• Decision Date: 06 November 1986
• Citation: 186 Cal.App.3d 1291,231 Cal.Rptr. 323
• Court: California Court of Appeals Court of Appeals
• Parties: Janet Lynn STALNAKER, et al., Plaintiffs and Appellants, v. The BOEING COMPANY, et al., Defendants and Respondents. E002339.

Page 323

231 Cal.Rptr. 323

186 Cal.App.3d 1291

Janet Lynn STALNAKER, et al., Plaintiffs and Appellants, v. The BOEING COMPANY, et al., Defendants and Respondents.

E002339.

Court of Appeal, Fourth District, Division 2, California.

Nov. 6, 1986.

David M. Harney, Harney, Wolfe, Pagliuso, Shaller & Carr, Los Angeles, Horvitz & Levy, Barry R. Levy, Frederic D O'Melveny & Myers, Scott H. Dunham, Cliff Fonstein, Los Angeles, for defendants and respondents.

Cohen, Encino, Michael A. Nava, Los Angeles, for plaintiffs and appellants.

CAMPBELL, Presiding Justice.

In this appeal, following defendants' successful motion for summary judgment, plaintiffs present two issues. First, they contend that similar to Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 165 Cal.Rptr. 858, 612 P.2d 948 and its progeny, the trial court erred in ruling that Labor Code sections 3600 and 3601 precluded judicial relief. Second, they contend that the court erred in ruling that they could not maintain a constitutional tort action modeled on Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619. We reject both contentions and affirm.

FACTS

Plaintiffs Janet Lynn, Amy and Andrew Stalnaker are, respectively, the widow and minor children of Stephen Stalnaker (Stalnaker). Stalnaker was hired in September 1981 by defendant Boeing Services International, Inc. (BSI) as a Range Inspector "A." As listed in his job description, Stalnaker's duties, among others, included locating and identifying unexploded ordnance on firing ranges.

BSI is a signatory to a contract with the United States Army under which BSI is responsible for the general operation and maintenance of the Army's military installation at Fort Irwin, California. BSI's responsibilities include the maintenance and clearance of Fort Irwin's firing ranges. BSI is a wholly-owned subsidiary of defendant The Boeing Company (Boeing).

On October 6, 1982, Stalnaker and four other range inspectors employed by BSI were assigned to help clear unexploded ordnance and other debris from former hand grenade range 29. The BSI employees were supervised by an Army Explosive Ordnance Disposal Officer, Lt. David White, who directed them to walk five abreast looking for debris and unexploded ordnance. The team made two passes through the range and located both non-explosive ordnance fragments and two explosive artillery booster charges, the latter of which Lt. White identified and collected.

An explosion interrupted the team's third pass through the range. One of the BSI employees had stepped on an unexploded hand grenade lying beneath the surface of the range. The explosion injured all of the BSI employees and Stalnaker died from his wounds.

Plaintiffs survived Stalnaker's death. On December 20, 1982, the Workers' Compensation Appeals Board approved an agreement between Mrs. Stalnaker and BSI's insurance carrier settling in full all workers' compensation benefits BSI owed to plaintiffs as a result of Stalnaker's death. Under the agreement, BSI agreed to pay $75,000 in death benefits and $1,500 in burial benefits. The parties exempted from the settlement any claim based on BSI's "serious and willful" misconduct impliedly arising under Labor Code section 4553. ¹ Plaintiffs later filed an additional On July 7, 1983, plaintiffs filed a complaint for personal injuries against BSI, Boeing, the State of California, and 100 Doe defendants. The complaint alleged wrongful death, negligence, ultrahazardous substance and activity, and fraud for which both compensatory and punitive damages were sought. The complaint's factual allegations were to the effect that BSI knew that unexploded ordnance lay beneath the range's surface, and that despite that knowledge and its awareness of the potential for death or injury, it sent Stalnaker onto the range, without any special training or protective clothing or apparatus that would prevent death or injury. The complaint also alleged that Stalnaker was not warned of the potential hazards of the range, and that BSI withheld this warning because it feared that if informed of the risk, no employee would have performed the work.

workers' compensation claim under this section. ²

In February 1985, BSI and Boeing moved for summary judgment. BSI argued that plaintiffs' sole and exclusive remedy was workers' compensation; Boeing argued that it was not liable for the torts of BSI, a separately capitalized subsidiary corporation. In their opposition, plaintiffs argued BSI's intentional misconduct in sending Stalnaker onto a range that it suspected contained unexploded ordnance rose to the level of an assault for which plaintiffs could maintain a tort action. Further, plaintiffs represented that they would seek leave of court to amend their complaint to allege a cause of action for violation of Stalnaker's constitutional rights, and that this ground also prevented summary judgment.

BSI's and Boeing's motions were granted and on May 7, 1985, a judgment of dismissal was entered. This appeal followed.

I. Standard of Review

At the outset, we note the procedural posture of this case. This is an appeal from a successful motion for summary judgment. BSI and Boeing, as moving parties, introduced declarations in support of their motion, while plaintiffs relied solely on their pleadings, defendants' declarations and argument derived therefrom.

The rules governing summary judgment are well established. Because summary judgment is a drastic remedy which eliminates the right to a trial on the merits, it must be granted with caution and only after the trial court determines "that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ.Proc., § 437c, subd. (c); see Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851-852, 94 Cal.Rptr. 785, 484 P.2d 953; Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.) Further, " '[T]he party moving for summary judgment has the burden of showing by declarations or affidavits setting forth facts admissible as evidence in a trial that the claims or defenses of the adverse party are entirely without merit on any legal theory....' [Citation.] Although the affidavits must be directed to the issues raised by the pleadings, 'a motion for summary judgment is not a substitute for a demurrer and ... if the affidavits contain factual averments within the general area of the issues framed by the pleadings, they are sufficient to make out a prima facie case' [citation]." (Mason v. Superior Court (1985) 163 Cal.App.3d 989, 996, 210 Cal.Rptr. 63.)

However, where "the defendants' declarations in support of a motion for summary judgment establish a complete defense to plaintiff's action or demonstrate an absence of an essential element of plaintiff's case, and the plaintiff's declaration in reply does not show that a triable issue of fact with respect to that defense or that essential element exists, no amount of factual The gravamen of BSI and Boeing's motion and supporting declarations was that inasmuch as Stalnaker's injuries arose out of and in the course of his employment, the provisions under workers' compensation law provided his sole and exclusive remedy. ³ (See Lab.Code, §§ 3600, 3601.)

conflicts upon other aspects of the case will affect the result and the motion for summary judgment should be granted." (Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell (1977) 70 Cal.App.3d 331, 338, 138 Cal.Rptr. 670.)

In light of these principles, the issue before this court is whether the causes of action which plaintiffs have stated or can state are supported by the facts as stated in defendants' declarations. Plaintiffs contend that two such independent theories exist. We disagree.

II. "Exceptional Circumstances"

Plaintiffs contend that notwithstanding the exclusive remedy provisions of Labor Code sections 3601 and 4553 for work-related injuries and deaths, the "uncontroverted allegations" of their complaint give rise to a cause of action independent of a workers' compensation claim. ⁴ Plaintiffs argue that the "exceptional circumstances" of intentional misconduct alleged in this case constitute an exception from the exclusivity rule such as that recognized by the California Supreme Court in Johns-Manville Products Corp. v. Superior Court, supra, 27 Cal.3d 465, 165 Cal.Rptr. 858, 612 P.2d 948. Plaintiffs urge this court to recognize a new exception to the rule of exclusivity, and to apply it to this case. Because we find the contended "exceptional circumstance" unsanctioned in law and contrary to public policy, we refuse to create it. Below we explain the contended exception and our reasons for its rejection.

Plaintiffs' prime reliance is on language contained in Johns-Manville. In that case the court was confronted with a situation in which an plaintiff-employee had worked for Johns-Manville for 29 years and was continuously exposed to asbestos in his work. Plaintiff developed pneumoconiosis and lung cancer, and subsequently died from these ailments. The plaintiff filed a complaint for fraud and conspiracy, alleging that "the defendant corporation had known since 1924 that long exposure to asbestos or the ingestion of that substance is dangerous to health, yet it concealed this knowledge from plaintiff, and advised him that it was safe to work in close proximity to asbestos." The plaintiff also alleged Johns-Manville had willfully failed to inform state health officials and its own doctors of the origins and nature of his asbestos-related diseases. The complaint sought compensatory and punitive damages. (Id., at pp. 469-470, 165 Cal.Rptr. 858, 612 P.2d 948.)

The central question in reviewing the propriety of the trial court's denial of the defendant's motion for judgment on the pleadings, the high court conside...