Valdez v. Cillessen & Son, Inc.

• Decision Date: 25 February 1987
• Docket Number: No. 16617,16617
• Parties: Archie VALDEZ, Plaintiff-Appellant, v. CILLESSEN & SON, INC., a New Mexico corporation, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 1258

734 P.2d 1258

105 N.M. 575

Archie VALDEZ, Plaintiff-Appellant, v. CILLESSEN & SON, INC., a New Mexico corporation Defendant-Appellee.

No. 16617.

Supreme Court of New Mexico.

Feb. 25, 1987.

Rehearing Denied April 10, 1987.

[105 NM 576] Simon and Oppenheimer, Morton Simon, Melinda J. Silver, Santa Fe, for plaintiff-appellant.

Donald D. Montoya, Montoya, Murphy, Kauffman & Garcia, Santa Fe, for defendant-appellee.

OPINION

WALTERS, Justice.

This case was certified to us on interlocutory appeal to determine the propriety of summary judgments granted in favor of defendant on certain of plaintiff's claimed causes of action, and the denial of summary judgment on a remaining count. Both parties appeal. We affirm in part and reverse in part.

Facts

Defendant Cillessen and Son, Inc. contracted with the Indian Housing Authority to construct housing at Picuris Pueblo, Cillessen subcontracting the lathing and plastering work to All State Lathing and Plastering. All State hired plaintiff Archie Valdez as a lather and plasterer, and on May 2, 1984, a lean-to scaffolding, which was owned and had been erected by All State, collapsed beneath Valdez and he was injured. All State did not carry workmen's compensation insurance. After All State had filed a petition in bankruptcy, Valdez amended his complaint against Cillessen and other defendants to name only Cillessen as defendant, and alleged the following six counts:

Count I: Alleges that Cillessen, as the general contractor, knew or should have known of dangerous construction of the scaffolding, and failed to warn plaintiff or to take any other steps to prevent exposure to danger and is, therefore, liable in compensatory and punitive damages.

Count II: Alleges that Cillessen was negligent per se, predicating the claim on Cillessen's alleged violation of state and federal regulations concerning the type of scaffolding that should have been used, and claims compensatory and punitive damages for Cillessen's gross negligence.

Count III: Alleging that Cillessen retained the right of control over All State, plaintiff claims All State was Cillessen's agent and, therefore, is vicariously liable in compensatory and punitive damages.

Count IV: Asserts that Cillessen negligently hired All State, and is liable for compensatory and punitive damages.

Count V: Alleges that Valdez was a third party beneficiary of the contract between Cillessen and Indian Housing Authority requiring workmen's compensation coverage, and Cillessen breached the contract.

Count VI: Alleges that Valdez was a third party beneficiary of the contract between Cillessen and All State requiring workmen's compensation coverage, and Cillessen breached the contract.

The trial court granted defendant's motion for summary judgment on Counts II-VI and on the issue of punitive damages in Count I. These judgments were certified for interlocutory appeal. Accordingly, Valdez appeals the summary judgments granted, and Cillessen cross-appeals denial of the summary judgment on the remainder of Count I.

I.

With respect to Count II, Valdez contends that genuine issues of fact and law exist regarding violations of OSHA regulations. He argues that the alleged violations constitute negligence per se; therefore, it was error for the trial court to grant summary judgment on Count II of the complaint.

Citing Archibeque v. Homrich, 88 N.M. 527, 543 P.2d 820 (1975), Valdez says that negligence per se is "easily applicable" to this case, because all of the elements are present. In Archibeque we stated the test for finding negligence per se:

(1) there must be a statute which prescribes certain actions or defines a standard of conduct, either explicity or implicitly, (2) the defendant must violate the statute, (3) the plaintiff must be in the class of persons sought to be protected by the statute, and (4) the harm or injury to the plaintiff must generally be of the type the legislature through the statute sought to prevent.

Id. at 532, 543 P.2d at 825.

Cillessen, claiming it has never conceded there was a violation of the New Mexico Occupational Health and Safety Act, NMSA 1978, Sections 50-9-1 to -25 (Orig.Pamp. and Cum.Supp.1985), or The Federal Occupational Safety and Health Act (OSHA), 29 U.S.C. Sections 651 to 678 (1982), argues that if there were OSHA violations, it was All State who violated them, not Cillessen. Cillessen contends that violations of regulations promulgated under federal authority may not be used to create civil liability, and that the New Mexico codification of OSHA does not allow the creation of civil liability based upon our act. See NMSA 1978, Sec. 50-9-21.

The federal regulations and the New Mexico regulations contain substantially the same language. Section 50-9-21 of the New Mexico Act reads:

Nothing in the Occupational Health and Safety Act shall be construed or held to * * * enlarge or diminish or affect in any other manner the common law or statutory rights, duties or liabilities of employers and employees under the laws of this state with respect to injuries, occupational or other diseases, or death of employees arising out of or in the course of employment. (Citations omitted.)

In similar language, 29 U.S.C. Section 653(b)(4) of the Federal Act provides:

Nothing in this chapter shall be construed to * * * enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

In support of its argument, Cillessen relies on Gutierrez v. Kent Nowlin Construction Co., 99 N.M. 394, 658 P.2d 1121 (Ct.App.1981), rev'd on other grounds, 99 N.M. 389, 658 P.2d 1116 (1982) (jury instruction permissible which instructs the jury that it may consider a violation of federal OSHA standards as evidence of negligence). "[T]he instruction did not, by any stretch of the imagination, tell the jury that violation of the standards was in and of itself negligence." Id. at 402, 658 P.2d at 1129); Casillas v. S.W.I.G., 96 N.M. 84, 628 P.2d 329 (Ct.App.), cert. denied, 96 N.M. 116, 628 P.2d 686 (1981) (violation of the New Mexico Occupational Health and Safety Act cannot serve as the basis of an increase in benefits under the Workmen's Compensation Act); Arvas v. Feather's Jewelers, 92 N.M. 89, 582 P.2d 1302 (Ct.App.1978) (in dicta, the court noted that there was no legislative intent to allow civil actions based on violations of New Mexico OSHA standards).

Valdez distinguishes Arvas v. Feather's Jewelers on the basis that plaintiff there claimed negligence per se on "the general language in OSHA" whereas Valdez has "presented specific OSHA violations."

The courts are not in agreement on the question whether OSHA violations constitute negligence per se. Compare Kelley v. Howard S. Wright Construction Co., 90 Wash.2d 323, 582 P.2d 500 (1978); with Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 439 A.2d 954 (1981). We believe the better reasoned view to be, however, that OSHA violations do not constitute a basis for assigning negligence as a matter of law.

In Wendland, the Connecticut Supreme Court declared that a negligence per se theory of liability "operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles * * *." Id. at 178, 439 A.2d at 956. An instruction on negligence per se would affect the standard of care and thus affect "common law rights, duties and liabilities of employers * * *." Id. at 178-79, 439 A.2d at 956-57. Although the Wendland court refused to allow a claim of negligence per se to rest upon the alleged violation of OSHA regulations, it did hold that evidence of violation of OSHA regulations could be considered in determining the required standard of care.

To negate the defendant's general standard of care and impose negligence as a matter of law in a case such as this, cf. Silva v. City of Albuquerque, 94 N.M. 332, 610 P.2d 219 (Ct.App.1980), based upon an OSHA violation, would "affect ... the common law * * * duties * * * or liabilities of employers" and would be contrary to the clear intent of Congress. See 29 U.S.C. Sec. 653(b)(4) (1982).

Even though OSHA violations would be admissible against Cillessen as evidence on the question of negligence under both the federal and state Acts, summary judgment on the theory pleaded in Count II was not improper. Wendland v. Ridgefield Construction Services, Inc.

II.

The allegations of Count I and Count III effectively state the same claim. The trial court, however, denied summary judgment on Count I and granted summary judgment on Count III.

Valdez's theory under Count I was that Cillessen, having general contractor control over the project, should have been aware that the lean-to scaffolding was in violation of state and federal OSHA regulations, and that Cillessen should have warned Valdez of the hazard. In Count III, Valdez alleged that Cillessen's right of control over All State made All State Cillessen's agent, implying that negligence of All State was therefore negligence of Cillessen.

With respect to Count I, Valdez notes the general rule that a general contractor is not liable for an injury sustained by a subcontractor's employee, Tipton v. Texaco, 103 N.M. 689, 712 P.2d 1351 (1985), but asserts exceptions to the rule upon which to claim Cillessen's liability. See Fresquez v. Southwestern Industrial Contractors and Riggers, Inc., 89 N.M. 525, 554 P.2d 986 (Ct.App.), cert. denied, 90 N.M. 8, 558 P.2d 620 (1976). Two of the exceptions are found in the Restatement (Second) of Torts Sections 414 and 424 (1965).

Section 414 provides:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care,...