Van Arsdale v. Hollinger

• Citation: 66 Cal.Rptr. 20,437 P.2d 508,68 Cal.2d 245
• Court: United States State Supreme Court (California)
• Decision Date: 21 February 1968
• Parties: , 437 P.2d 508 Olis P. VAN ARSDALE, Plaintiff and Appellant, v. Joan HOLLINGER et al., Defendants and Respondents. L.A. 29475.

Page 20

66 Cal.Rptr. 20

68 Cal.2d 245, 437 P.2d 508

Olis P. VAN ARSDALE, Plaintiff and Appellant, v. Joan HOLLINGER et al., Defendants and Respondents.

L.A. 29475.

Supreme Court of California In Bank.

Feb. 21, 1968.

Rose, Klein and Marias and Robert B. Steinberg, Los Angeles, for plaintiff and appellant.

Roger Arnebergh, City Atty., Victor P. Spero, Deputy City Atty., Murchison, Cumming, Baker & Velpmen, Howard C. Velpmen, Henry F. Walker, Spray, Gould & Bowers and Bob T. Hight, Los Angeles, for defendants and respondents.

Harry S. Fenton, Robert F. Carlson and Kenneth G. Nellis, Sacramento, as amici curiae on behalf of defendants and respondents.

PETERS, Justice.

In this action to recover for personal injuries, plaintiff appeals from a judgment in favor of defendants Hollinger and the City of Los Angeles.

Plaintiff's employer, Savala Paving Company, entered into a contract with the City of Los Angeles relating to improvements on Century Boulevard, which has three eastbound lanes. On the morning of the accident, barricades were placed across the two outer lanes, leaving the center lane open for traffic, and smaller barricades were placed along the lane lines. Plaintiff and his foreman first eradicated the line between the center and the northerly lane. At the time of the accident they were eradicating the line between the center lane and the southerly (curb) lane. The foreman was applying tar on the line proceeding easterly, and plaintiff was following in a bent over position with his back toward the traffic and putting sand on the tar.

Defendant Hollinger testified that she drove south on Sepulveda Boulevard, that she turned left (east) into the center lane on Century Boulevard behind a truck, that their speed was 15 to 20 miles per hour, that the truck swerved to the left, that she then saw plaintiff bent over in front of her but was unable to stop, and that she hit him with her right front headlight. Plaintiff also testified that he was bent over at the time of the accident. There is another witness who testified that plaintiff was standing at the lane line at the time of the accident. As a result of the impact, plaintiff was knocked into the air and came to rest about 40 feet from the point of impact.

The investigating officer placed the point of impact at 207 feet east of the intersection of Sepulveda. Other witnesses estimated the distance at from 150 to 190 feet, but all witnesses agreed that the accident occurred at a point beyond the easternmost of the barricades which had been placed along the lane lines. Along the line where plaintiff was working, those barricades extended approximately 140 feet easterly from Sepulveda. Similar barricades along the line plaintiff had worked earlier in the morning extended 178 feet from the intersection.

In the contract between the city and Savala, the contractor was required to furnish fences, barriers, lights and warning signs as necessary to warn the public of dangerous conditions resulting from the contractor's operations. The contractor was also required to provide flagmen wearing red coats and equipped with a red flag or sign. If the contractor failed to so provide, the city could do so at the contractor's expense. The contractor was also required to furnish safety devices and safeguards to protect the public and workmen from injury, and, in addition to those prescribed by the contract and by law, to provide such further safeguards as would be employed by a diligent and prudent contractor.

At the time of the accident, there was no flagman provided, and plaintiff was wearing a red and black shirt with grey pants and was not wearing a flaming red or orange jacket.

There was a city inspector on duty at all times to see that the work was being performed according to the plans and specifications and to call departures therefrom to the attention of the contractor's foreman. The inspectors understood that they could tell the contractor to correct any dangerous condition due to the lack of proper barricades and could see that such conditions were corrected. The senior inspector said that apart from such duties, he had no right to tell, and did not tell, the Savala employees how 'to do things.'

The inspectors testified that, because busy streets were involved, at least one lane had to be kept open, and that the barricades along the line between the lanes where plaintiff was working extended only 140 feet from the intersection because if extended further they would interfere with traffic turning right. There is also evidence that the city inspectors, in consultation with plaintiff's foreman, had decided how far east of the intersection the lane line should be obliterated, and had led plaintiff, while working, beyond the barricades without warning him of the danger.

In response to special interrogatories, the jury found that the city and defendant Hollinger were not negligent, that plaintiff was not contributorily negligent and that plaintiff's employer was negligent.

Section 815.4 of the Government Code provides: 'A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person. * * *' ¹ The language of section 815.4 of the Government Code is clear, and the conclusion is inescapable that it requires that we look to the city's undertaking and determine whether a private person engaged in such an undertaking would have been liable for the tortious acts and omissions of an independent contractor.

Section 815.4 of the Government Code was adopted as proposed by the California Law Revision Commission without change. (See 1 Cal.Law Revision Com.Rep. 839.) The commission's comment to the section in its entirety states: 'The California courts have held that public entities--and private persons, too--may at times be liable for the acts of their independent contractors. Snyder v. Southern Cal. Edison Co., 44 Cal.2d 793, 285 P.2d 912 (1955) (discussing general rule); Los Angeles County Flood Control Dist. v. Southern Cal. Bldg. & Loan Assn., 188 Cal.App.2d 850, 10 Cal.Rptr. 811 (1961). This section retains that liability. Under the terms of this section, though, a public entity cannot be held liable for an independent contractor's act if the entity would have been immune had the act been that of a public employee.'

Reports of commissions which have proposed statutes that are subsequently adopted are entitled to substantial weight in construing the statutes. (See e.g., United States v. Nat. City Lines, 337 U.S. 78, 80--84, 69 S.Ct. 955, 93 L.Ed. 1226; United States v. Baldi, 195 F.2d 815, 821, fn. 19; Stauffer v. Exley, 9 Cir., 184 F.2d 962, 964; Institute of Living v. Town & City of Hartford, 133 Conn. 258, 50 A.2d 822, 825; Lewis v. Smith's Estate, 130 Ind.App. 390, 162 N.E.2d 457, 458; Harris v. Shanahan, 192 Kan. 629, 390 P.2d 772, 778; State v. Johnson, 273 Minn. 394, 141 N.W.2d 517, 520; Fifth Ave. Bank v. Colgate, 120 N.Y. 381, 24 N.E. 799, 802, 8 L.R.A. 712; State ex rel. Olson v. Shoemaker (S.D.), 39 N.W.2d 524, 527--528; 82 C.J.S. Statutes § 356, p. 757.) This is particularly true where the statute proposed by the commission is adopted by the Legislature without any change whatsoever and where the commission's comment is brief, because in such a situation there is ordinarily strong reason to believe that the legislators' votes were based in large measure upon the explanation of the commission proposing the bill.

The commission has cited Snyder v. Southern Cal. Edison Co., supra, 44 Cal.2d 793, 285 P.2d 912, as 'discussing general rule,' and we must look to the case as the point where we must commence our analysis of the liability of a public entity for torts of an independent contractor. ²

After setting forth the rule that a party is not liable for the torts of an independent contractor and a few of the exceptions, the court in Snyder discussed the status of the law in this area:

'The matter is discussed by Harper (Law of Torts (1933)), as follows: '* * * one who employs an independent contractor is, as a general rule, not liable for the misconduct of the latter or of his servants while acting within the scope of the contract. The idea responsible for this general rule of nonliability is the want of control and authority of the employer over the work, and the consequent apparent harshness of a rule which would hold one responsible for the manner of conducting an enterprise over which he wants the authority to direct the operations. Again, so far as the activity immediately causing the injury is concerned, it is the contractor rather than the contractee who is the entrepreneur and who should ordinarily carry the risk. * * *

"(There are) certain exceptions and apparent exceptions which, with increasing tendency, seem likely to overshadow in importance and scope the rule itself. * * * A number of situations exist, however, which are actual cases of vicarious liability, that is, liability for the misconduct of the independent contractor and his servants although the contractee has himself been free from personal fault. A number of factors concur to constitute the grounds of policy for such allocation of risk from the immediate to the general entrepreneur. These considerations, in fact, constitute such a powerful argument for the liability of the employer of an independent contractor that it would seem highly desirable for the courts to adopt the rule of liability and confine nonliability to a few exceptional cases. This, the American courts, at least, have not yet done, but there is every reason to believe that sound social policy will induce the courts to make further inroads upon the rule of nonliability in this class of cases.

"The first genuine case of liability for misconduct of an independent contractor or his employees is the case of the so-called 'nondelega...