West v. Guy F. Atkinson Const. Co.

• Decision Date: 23 May 1967
• Citation: 251 Cal.App.2d 296,59 Cal.Rptr. 286
• Court: California Court of Appeals Court of Appeals
• Parties: Robert R. WEST, Plaintiff and Appellant, v. GUY F. ATKINSON CONSTRUCTION CO., Respondent, Bigge Drayage Co. et al., Defendants. Civ. 11400.

Page 286

59 Cal.Rptr. 286

251 Cal.App.2d 296

Robert R. WEST, Plaintiff and Appellant, v. GUY F. ATKINSON CONSTRUCTION CO., Respondent Bigge Drayage Co. et al., Defendants.

Civ. 11400.

Court of Appeal, Third District, California.

May 23, 1967.

Rehearing Denied June 22, 1967.

J. Adrian Palmquist, Alameda, Kenneth B. Cayocca, Sacramento, and Robert Hall, Alameda, for appellant.

Fitzwilliam, Memering, Stumbos & Demers, by M. H. Pothoven, Sacramento, for respondent.

PIERCE, Presiding Justice.

Plaintiff appeals from a summary judgment granted defendant Guy F. Atkinson Construction Co. in a personal injury action. ¹

Atkinson was the general contractor under a contract with the state to build a section of a freeway (U.S. Highway 80) in Placer and Nevada Counties. Included in the contracted work was an overpass or bridge where the highway crosses railroad tracks and a county road. American Bridge Company division of United States Steel Corporation was the subcontractor to build and install the girders of this overpass. Plaintiff was an ironworker employed by U.S. Steel. He was injured from a fall from a 'float' or hanging scaffolding.

The question is whether, under facts not in dispute, Atkinson owed a duty of care to plaintiff. Plaintiff contends it did (1) under common-law principles and (2) under special provisions of the contract between the state and Atkinson for the benefit of a class of which plaintiff was a member. We agree with the ruling of the trial court that no duty was owed and that summary judgment was properly granted.

Before the accident the piers supporting the girders, the girders themselves, and the hinge plates attached to the girders for purposes of expansion were all in place. Upon orders from the state inspector, however, two of the hinge plates were required to be turned around. This involved prying them loose, rearranging and reinstalling them. Two cranes rented from Bigge were being used on this work. Plaintiff and a coemployee, Maxie, were standing on the suspended 'float' described, with Maxie prying the hinge plate and plaintiff steadying it so that its threads would not be stripped. For a reason not made clear to us but involving either the rigging of the sling or operation of the crane, the hinge plate up, its sling slipped off and the plate cut the plywood 'float' in two, plaintiff fell 30 feet or more to the ground. Plaintiff, equipped with a safety belt, was not wearing it at the time. He stated he was unable to adjust it before the accident for reasons unimportant to this decision. None of Atkinson's personnel took any part in this work; nor had they contributed in the installation of the girders originally, either by way of supervision or otherwise. One of the cranes had been leased from Bigge by U.S. Steel with an operator, the other was leased 'bare' and was operated by a U.S. Steel employee. U.S. Steel foremen, supervisors and workmen, working under its resident engineer, were exclusively doing the job.

The rules governing summary judgments have been stated by this and many other appellate courts many times. Motions therefor are properly granted when, and only when, affidavits, declarations and depositions, supplementing (or contradicting) pleadings, show that no triable issue of fact exists. The moving party has the burden of proving this. All evidence will be strictly construed against him, and the function of the court is only to determine the existence of triable facts, not to decide them. Nevertheless, the purposes of the summary judgment statute are salutary since through its proper application the congestion of our overloaded courts is lightened, unnecessary expense to litigants is avoided, and our creaky wheels of justice are lubricated. The summary judgment process is ideally applied when it is disclosed there are only issues of law upon uncontested, untriable facts, a situation we find in the appeal before us. (Code Civ.Proc., sec. 437c; Walsh v. Walsh, 18 Cal.2d 439, 442, 116 P.2d 62; Premo v. Griggs, 237 Cal.App.2d 192, 195, 46 Cal.Rptr. 683; Canifax v. Hercules Powder Co., 237 Cal.App.2d 44, 49, 46 Cal.Rptr. 552; Saporta v. Barbagelata, 220 Cal.App.2d 463, 468, 33 Cal.Rptr. 661; Pacific Inter-Club Yacht Assn. v. Richards, 192 Cal.App.2d 616, 620, 13 Cal.Rptr. 730.)

The foregoing recital of facts shows Atkinson was a general contractor: U.S. Steel was an independent subcontractor. Ordinarily where an owner or general contractor does nothing more with respect to the portion of the construction job done by an independent subcontractor than exercise general supervision to bring about the satisfactory completion of the job the general contractor owes no duty to assure the safety of the subcontractor's employees and is not liable therefore for the subcontractor's torts. In short, there is no vicarious liability. Labor Code sections 6400 and 6401, requiring employers to provide a safe place to work, do not change the rule. (Kuntz v. Del E. Webb Constr. Co., 57 Cal.2d 100, 106, 18 Cal.Rptr. 527, 368 P.2d 127; McDonald v. Shell Oil Co., 44 Cal.2d 785, 285 P.2d 902; Johnson v. Cal-West Constr. Co., 204 Cal.App.2d 610, 613, 22 Cal.Rptr. 492; Rest.2d Torts, sec. 409; Hard v. Hollywood Turf Club, 112 Cal.App.2d 263, 266, 246 P.2d 716; Prosser, Law of Torts (3d ed.) p. 480.)

This does not mean that where the general contractor himself is negligent he is not liable. The contrary is true. (Prosser, op. cit., p. 481.) But a necessary element of legal negligence is a duty of care. Therefore the general contractor is liable only when he has assumed and has violated such a duty. We will discuss this below.

There are various situations in which a duty of care does exist. E.g., where an owner-general contractor employs an independent subcontractor to do work Which the general contractor should recognize as likely to create, during its progress, a peculiar, unreasonable risk of physical harm to others, including employees of the independent subcontractor Unless special precautions are taken, the general contractor owes a duty of care to see that such precautions are taken by the subcontractor. (Woolen v. Aerojet General Corp., 57 Cal.2d 407, 410 et seq., 20 Cal.Rptr. 12, 369 P.2d 708; Rest.2d Torts, secs. 413, 416, 427.) Plaintiff's reliance upon this rule is misplaced. There was here no unreasonable risk of physical harm nor need of special precautions within the meaning of the rule. It is stated by Prosser (op. cit., p. 486) 'the principle (of inherently dangerous activities--unreasonable risk of physical harm--need for special precautions) seems to be limited to work in which here is a high degree of risk in relation to the particular surroundings, or some rather specific risk or set of risks to those in the vicinity, Recognizable in advance as calling for definite precautions. The emphasis is upon the 'peculiar' character of the risk, and The need for special, unusual care. One who hires a trucker to transport his goods must, as a reasonable man, always realize that if the truck is driven at an excessive speed, or with defective brakes, some collision or other harm to persons on the highway is likely to occur. But this is not 'inherent danger,' as the courts have used the term; and for such more or less usual negligence the employer will not be liable.' (Emphasis supplied.) We are not informed and plaintiff does not attempt to enlighten us just what or whose negligence was involved in the jerking up of the hinge plate and the cutting of the plywood 'float.' That it was an ordinary act of negligence, one for which some employee or employees of the subcontractor was responsible, one arising during the course of the job and not recognizable in advance by Atkinson as a casualty inherent to the work subcontracted for, we have no doubt.

Plaintiff also relies upon a rule sometimes referred to as the 'non-delegable duty' rule under which a general contractor is sometimes held liable to injured third parties or to employees of his subcontractors Under special situations for the negligence of the subcontractor. The special situations sometimes arise by statute, by common law, by franchise and by contract. Regarding the rationale of this rule, it is stated by Prosser (op. cit.) at page 484: 'It is difficult to suggest any criterion by which the...