Voigts v. Brutoco Engineering & Construction Co

• Decision Date: 16 September 1996
• Docket Number: No. G015462,G015462
• Citation: 57 Cal.Rptr.2d 87,49 Cal.App.4th 354
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 49 Cal.App.4th 354 49 Cal.App.4th 354, 61 Cal. Comp. Cases 1027, 96 Cal. Daily Op. Serv. 6953, 96 Daily Journal D.A.R. 11,313 Scott VOIGTS, Plaintiff and Appellant, v. BRUTOCO ENGINEERING and CONSTRUCTION COMPANY, INC., Defendant, Cross-complainant and Respondent; Miguel Construction, Inc., Cross-defendant and Respondent.

Page 87

57 Cal.Rptr.2d 87

Previously published at 49 Cal.App.4th 354

49 Cal.App.4th 354, 61 Cal. Comp. Cases 1027,

96 Cal. Daily Op. Serv. 6953,

96 Daily Journal D.A.R. 11,313

Scott VOIGTS, Plaintiff and Appellant, v. BRUTOCO ENGINEERING and CONSTRUCTION COMPANY, INC., Defendant, Cross-complainant and Respondent; Miguel Construction, Inc., Cross-defendant and Respondent.

No. G015462.

Court of Appeal, Fourth District, Division 3, California.

Sept. 16, 1996.

Review Granted Dec. 11, 1996.

Review Dismissed Sept. 23, 1998.

Nordstrom, Steele, Nicolette and Jefferson, Russell E. Nordstrom, Los Angeles and Charlotte E. Costan, Burbank, for Plaintiff and Appellant.

Morgan & Wenzel, Patrick C. Quinlivan and John C. Manly, Irvine, for Defendant, Cross-complainant and Respondent.

Luna, Brownwood & Rice, James P. Zurawski, Procopio, Cory, Hargreaves & Savitch, David A. Niddrie and Gerald P. Kennedy, San Diego, for Cross-defendant and Respondent.

SILLS, Presiding Justice.

I. INTRODUCTION

The question of whether, after Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721, a subcontractor's employee can have a cause of action for direct liability against a general contractor or developer is now before the California Supreme Court. ¹ The case before us here forces us to confront the boundaries of the Privette decision in the narrow situation where a subcontractor's employee is injured by a hazard created solely by the subcontractor. In such a case, as we explain below, Privette requires that the general contractor should not incur tort liability to the subcontractor's employee. As in Privette itself, tort liability advances "no societal interest that is not already served by the workers' compensation system." (Id. at p. 692, 21 Cal.Rptr.2d 72, 854 P.2d 721.)

II. FACTS

On October 25, 1991, Scott Voigts was severely injured when he fell 12 feet from unsafe scaffolding during the construction of a bridge road over a creek. The scaffolding was built by his employer, a subcontractor, Miguel Construction, Inc. (Miguel) which had undertaken to erect a concrete abutment wall on the project for Brutoco Engineering and Construction Company, Inc. (Brutoco), the general contractor. The scaffolding was too narrow and lacked safety rails. After the accident, the subcontractor was cited by CAL-OSHA for violating California regulations regarding scaffold construction.

Voigts obtained workers' compensation benefits for his injuries and sued the general contractor on the project for having failed to provide him with a safe workplace. ² The contract between Brutoco and Miguel provided that Brutoco was to have "complete control of the premises on which the work [was] to be performed" as well as "all matters representing the timely and orderly conduct of the work of Subcontractor on the premises."

In November 1993 Brutoco requested summary judgment based on the recent Privette decision. In addition to the facts already mentioned, the opposition papers established that Brutoco kept a superintendent on duty at the work site who took a job tour at least once a day, whose inspections would include looking at any scaffolding or other "apparatuses" being used, and who was aware of normal safety rules for scaffolds, including the need for safety railing. The opposition papers also presented some evidence that the scaffolding might have been built "a couple, maybe three days" prior to the accident. From this evidence we draw the inference that the superintendent prior to the accident was aware of the particular scaffold from which Voigts fell, even though he denied any such knowledge at his deposition.

The trial court granted the summary judgment motion and this appeal ensued.

III. DISCUSSION

In Privette v. Superior Court, supra, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721, the owner of a rental duplex hired a roofing contractor to install a new tar and gravel roof. After the gravel was deposited on the roof, the contractor's foreman directed an employee to carry 10 five-gallon buckets of hot tar up the ladder to the roof. The employee fell off the ladder and was burned. The Supreme Court held that the employee could not recover in tort against the owner under the doctrine of peculiar risk, which, as the court defined it, is the idea that "a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor's negligent performance of the work causes injuries to others." (Id. at p. 691, 21 Cal.Rptr.2d 72, 854 P.2d 721.) The court declared that liability under the peculiar risk doctrine does not extend, in light of the existence of the workers' compensation system, to employees of an independent contractor hired to do dangerous work. (See id. at pp. 691-693, 702, 21 Cal.Rptr.2d 72, 854 P.2d 721.)

Recognizing that the Privette decision precludes liability under the peculiar risk doctrine, Voigts stresses the possibility that Brutoco, as general contractor on the creek bridge project, may be found liable in its own right for Voigts' injuries, even though there is no question that his employer, not the general contractor, built the scaffold, he was injured in the course and scope of his employment, and his employer provided workers' compensation benefits. Specifically, Voigts argues that he may still seek tort damages against Brutoco on the basis of Brutoco's "nondelegable" duty to prevent hazardous conditions on property it occupied and controlled, and the fact its contract with the subcontractor Miguel gave it "complete control" over the premises and over the "conduct" of the subcontractor's "work."

After Privette, various panels of the Court of Appeal have dealt with cases which raised the question of whether, or under what circumstances, general contractors or other persons who (in Privette's phrase) "hire" independent (or sub) contractors could be held liable to the employees of the independent (or sub) contractors for the hirer's own negligence. What is remarkable is not that there is some doctrinal tension in these decisions, ³ but the degree to which panels purporting to allow the possibility of liability against parties who hired the independent contractor employer of the injured worker did so either (a) in dicta, or (b) in a nonpublished portion of the decision. Indeed, the decision which dealt with the problem most squarely was handed down by the Ninth Circuit interpreting California law, and there in a dissenting opinion. (The majority made no attempt to answer the points raised by the dissent.) As we will now show, no rationale for limiting Privette to just peculiar risk has emerged from any of the cases.

A. No Rationale Has Emerged From The Cases After Privette to Limit the Privette Decision to Just the Peculiar Risk Doctrine

The first published decision to mention Privette was Srithong v. Total Investment Co., supra, 23 Cal.App.4th 721, 28 Cal.Rptr.2d 672. Like Privette, it was another hot tar case. Srithong, however, did not deal with whether or how the person who hires an independent contractor may be liable to that contractor's employee, but with the scope of liability under Proposition 51. ⁴ Srithong is notable, for our purposes, for its observation that the essence of nondelegable duty is rooted in status, not fault.

In Srithong, a landowner of a mini-mall contracted with a roofing company to repair roof leaks. Hot tar seeped through the roof and fell on a restaurant operator working below. The restaurant operator sued both the roofing contractor and the landowner; the case went to trial prior to the Privette decision. The jury found the roofing contractor 95 percent at fault and the landowner 5 percent at fault. There was a very small amount of economic damages (less than $3,000), but a very large amount of noneconomic damages ($83,000). The landowner requested entry of a separate judgment under Proposition 51, which would have the effect of limiting its total liability to less than $7,000. The motion was granted and the injured restaurant operator appealed. The appellate court modified the judgment to make the landowner jointly and severally liable.

The Srithong court reasoned that the landowner had a duty to maintain its property in reasonably safe condition, and that it could not escape liability for a failure to maintain property in a safe condition by delegating that duty to an independent contractor. The court then characterized this "nondelegable" duty as "vicarious," because it was not based on the personal fault of the landowner. (Id. at p. 727, 28 Cal.Rptr.2d 672.) The Srithong court relied on a passage from Maloney v. Rath (1968) 69 Cal.2d 442, 446, 71 Cal.Rptr. 897, 445 P.2d 513, which compared and contrasted nondelegable duty with strict liability. The Maloney passage made the point that nondelegable duty exists to assure compensation from a party who may be properly "held liable for the negligence of his agent, whether his agent was an employee or an independent contractor." ⁵ Accordingly, the Srithong court concluded the very vicariousness of the landowner's liability meant that Proposition 51 did not apply. Vicarious liability is based on status, a consideration independent of joint and several liability, which is based on fault. Because the landowner's liability was vicarious, there was no fault to apportion and it was therefore error to grant the landowner a separate judgment. (See id. at pp. 726-728, 28 Cal.Rptr.2d 672.)

A month after Srithong was decided, the scope of the Privette decision was addressed more directly in Owens v. Giannetta-Heinrich Construction Co., supra, 23 Cal.App.4th 1662, 29 Cal.Rptr.2d 11. The court there implied that Privette should be limited to "only" situations where the third party liability "is vicarious rather than direct," but did not support that idea with any more analysis beyond the ipse dixit, "It is plain...." ⁶

The Owens opinion does not tell the...