Walker v. Capistrano Saddle Club

• Decision Date: 09 November 1970
• Citation: 90 Cal.Rptr. 912,12 Cal.App.3d 894
• Court: California Court of Appeals Court of Appeals
• Parties: George WALKER, Plaintiff and Appellant, v. CAPISTRANO SADDLE CLUB et al., Defendants and Respondents. Civ. 36640.

Page 912

90 Cal.Rptr. 912

12 Cal.App.3d 894

George WALKER, Plaintiff and Appellant, v. CAPISTRANO SADDLE CLUB et al., Defendants and Respondents.

Civ. 36640.

Court of Appeal, Second District, Division 1, California.

Nov. 9, 1970.

Hearing Denied Jan. 6, 1971.

Wilson & Dunn and G. William Dunn, Long Beach, for plaintiff and appellant.

W. Mike McCray & Associates and W. Mike McCray, Santa Ana, for defendants and respondents.

GUSTAFSON, Associate Justice.

At the conclusion of the opening statement by counsel for plaintiff in a nonjury trial, defendant Capistrano Saddle Club (hereinafter Capistrano) successfully moved for a judgment of nonsuit. (Code Civ.Proc. § 581c; Gonsalves v. City of Dairy Valley (1968) 265 Cal.App.2d 400, 71 Cal.Rptr. 255.) Plaintiff appeals.

We recite the evidence which plaintiff intended to present as revealed by the opening statement of counsel.

Capistrano was developing a subdivision tract and desired to provide access to the subdivision by means of a bridge over a public highway. High voltage electric wires owned and maintained by San Diego Gas & Electric Company spanned the eastern end of the bridge site. Apparently the poles carrying the wires were located on Capistrano's land, although what, if any, property interest Capistrano had in the bridge or in the land over which it was being constructed is not revealed.

Capistrano contracted with Griffith Construction Company, an independent contractor, to construct the bridge. The independent contractor engaged another person to furnish a crane and operating personnel to do the crane work which was required in constructing the bridge.

On December 9, 1964, the crane was on the job site. The crane operator was aware of the existence of the electric wires and had mentally noted the area beyond which the crane should not be operated because of the danger of touching the electric wires. The crane operator operated the crane beyond that area as a consequence of which the boom came in contact with the electric wires causing electricity to travel through the crane. Plaintiff, an employee of the general contractor, was a laborer who was pouring cement and had his hands on a bucket hanging from a cable attached to the crane. Plaintiff received severe burns and other serious injuries.

At an earlier stage in the construction of the bridge, it was necessary to use a pile driver to install the piers on which the east end of the bridge would be supported. Capistrano contracted with San Diego Gas & Electric Company to temporarily reroute the electric wires so that the pile driver could operate without touching the electric wires. When that work was completed the electric wires were replaced in essentially the same location from which they had been removed except that they were at a greater height than they previously were because taller poles were used.

The opening statement did not reveal that Capistrano required the general contractor, in the contract or otherwise, to take special precautions against the risk of harm from contact by a crane or other equipment with the electric wires.

At the time of the injury, Capistrano knew where the electric wires were located, knew the high voltage of the wires, knew that the general contractor's personnel would be working near those wires and knew the crane work was yet to be done to complete the bridge. Capistrano did not warn plaintiff of the dangers involved, did not provide a flagman to alert to crane operator when the crane reached the outer limits of the safety area, did not arrange for temporary removal of the electric wires and did nothing else to avoid the risk of harm which came to the plaintiff.

Capistrano recognizes that we must assume as true all of the facts stated in the opening statement and that the judgment cannot stand unless proof of all of those facts would entitle defendant to judgment as a matter of law.

The general rule is that an 'employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.' (Rest.2d Torts, § 409.) But as acknowledged in the comment to section 409 there are so many exceptions to the 'general rule' that it is applied only 'where no good reason is found for departing from it.' The question we face is whether a judgment in favor of plaintiff would have been supported by one of the recognized exceptions to the general rule.

One such exception is: 'One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer (a) fails to provide in the contract that the contractor shall take such precautions, or (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.' (Rest. 2d Torts, § 413.) The identical concept of work which, unless special precautions are taken, is likely to create during its progress a peculiar risk of physical harm to others is the basis for liability under section 416 of the Restatement Second of Torts. ¹ One basis for liability of the employer of an independent contractor stated in the former section is the failure of the employer to provide in the contract that the contractor shall take the requisite special precautions, whereas the latter section imposes liability on the employer, notwithstanding that he has so provided in the contract, if in fact the independent contractor fails to exercise reasonable care to take such precautions. Section 413 makes the employer of the independent contractor directly liable for the employer's own failure, whereas section 416 makes the employer vicariously liable for the negligence of the independent contractor. An employee of an independent contractor is one to whom a duty is owed under section 413 (Woolen v. Aerojet General Corp. (1962) 57 Cal.2d 407, 20 Cal.Rptr. 12, 369 P.2d 708) and section 416 (Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 66 Cal.Rptr. 20, 437 P.2d 508) by the employer of the independent contractor.

Whether the particular work which the independent contractor is to perform is likely to create during its progress a peculiar unreasonable risk of physical harm to others unless special precautions are taken is ordinarily a question of fact to be resolved by the trier of fact. The comment to section 413 states that the section 'is concerned with special risks, peculiar to the work to be done, and arising out of its character, or out of the place where it is to be done, against which a reasonable man would recognize the necessity of taking special precautions. The situation is one in which a risk is created which is not a normal, routine matter of customary human activity, such as driving an automobile, but is rather a special danger to those in the vicinity,...