Widman v. Rossmoor Sanitation, Inc.

• Decision Date: 27 August 1971
• Citation: 19 Cal.App.3d 734,97 Cal.Rptr. 52
• Court: California Court of Appeals
• Parties: George E. WIDMAN et al., Plaintiffs and Respondents, v. ROSSMOOR SANITATION, INC., Defendant and Appellant. Civ. 10704.

Page 52

97 Cal.Rptr. 52

19 Cal.App.3d 734

George E. WIDMAN et al., Plaintiffs and Respondents, v.ROSSMOOR SANITATION, INC., Defendant and Appellant.

Civ. 10704.

Court of Appeal, Fourth District, Division 2, California.

Aug. 27, 1971.

Hearing Denied Oct. 21, 1971.

[19 Cal.App.3d 738] McCray & Murphy, Santa Ana, and A. P. G. Steffes, Beverly Hills, for defendant and appellant.

Jaffee & Mallery, and Arthur J. Jaffee, Pomona, for plaintiffs and respondents.

OPINION

KERRIGAN, Acting Presiding Justice.

This lawsuit was initiated by plaintiff, George E. Widman, for the purpose of recovering damages for personal injuries sustained on October 29, 1965 at Leisure World in Laguna Hills, Orange County, California.He was joined in the action by the plaintiff, Marguerite Cagigas, the surviving wife of Henry J. Cagigas, deceased, who was killed in the same accident.The widow initiated the wrongful death action individually and as guardian ad litem of the four minor children of said decedent.Widman's injuries and Cagigas' death occurred when the unsupported wall of a deep trench caved in on them while the two men were shoveling dirt in the bottom of the excavation, acting as employees of an independent contractor.

At the institution of the lawsuit, the following were named as principal defendants: Rossmoor Corporation, which was in the process of developing a large tract of land known as The Leisure World Retirement Center in Laguna Hills; Rossmoor Sanitation, Inc., a subsidiary of Rossmoor Corporation, which was installing the sanitation facilities for the project, and was also the record owner of the land where the cave-in occurred; Toups Engineering, Inc., a firm retained by Rossmoor Sanitation to perform the planning and engineering services necessary for installation of sewer facilities for the entire project; and Elmer Olson, doing business as Elmer Olson, Inc., the owner and operator of a tractor being utilized in digging the particular trench where the cave-in occurred.Pylon, Inc., the contractor engaged to do the excavation work and install the sewer lines, was the employer of Widman and Cagigas, but was not designated as a defendant inasmuch as both men (or their dependents) were entitled to the benefits of the Workmen's Compensation Act(Lab.Code, §§ 3201--6002.)However, Pylon, Inc. was brought into the lawsuit by way of a cross- complaint for indemnification under a hold-harmless agreement filed by Toups Engineering.Pylon retaliated by filing a cross-complaint against Toups Eingineering for indemnity and declaratory relief.

During trial, Toups Engineering settled with plaintiffs and Pylon.Plaintiffs also compromised and settled their claims against Olson, leaving Rossmoor Corporation and Rossmoor Sanitation as the remaining defendants.

The jury awarded Widman $30,000 and the Cagigas heirs $275,000 against Rossmoor Sanitation.The jury also answered special interrogatories in the following manner: (1)Rossmoor Corporation Was not the owner of the land where the cave-in occurred; (2) Rossmoor Sanitation Was the owner of said land; (3)Rossmoor Corporation Was not negligent; (4) Rossmoor Sanitation Was negligent in proximately causing the accident; and (5)Pylon, Inc., the excavation contractor, Was concurrently negligent in proximately causing the accident.

Following rendition of the judgment, the parties agreed that the sums plaintiffs received in the form of compensation insurance payments and in settlement of their claims against Toups Engineering and Olson, be deducted or set-off from their respective awards.An order was entered accordingly.Rossmoor Sanitation's motion for a new trial was denied and it appeals from the judgment entered against it.

In early 1964, Rossmoor Corporation undertook a substantial land project in Laguna Hills known as the Leisure World Senior Citizens' Development.It was similar in nature and scope to Rossmoor communities in Seal Beach and Walnut Creek.The Laguna enterprise was to consist of homes and apartments, commercial buildings, commercial shopping centers, hospitals, churches, and recreational facilities.Rossmoor Corporation executed unrecorded deeds to certain portions of the Laguna Hills land to its subsidiary, Rossmoor Sanitation, Inc. One of the parcels deeded by the parent company to Rossmoor Sanitation embraced the site where this accident occurred.The apparent purpose of this deed was to enable Rossmoor Sanitation to construct the sewage pump station and the lines necessary to service the lots within the development.

In September 1964, Rossmoor Sanitation entered into a contract with Toups Engineering wherein the latter firm agreed to provide the engineering and surveying plans required for installation of the sewer and sanitation facilities to service the entire project.In the contract, Toups Engineering agreed not only to prepare the surveys, plans and specifications, but to inspect the installation and construction of all sewer and sanitation facilities.In June 1965, Toups completed the plans and specifications for the construction of the Aliso Creek Sewage Pump Station and invited bids.

In July 1965, Pylon, Inc., the successful bidder, contracted with Rossmoor Sanitation to furnish the labor, materials and equipment necessary to construct the pump station and the sewer lines leading to and from the station.Pylon also agreed to indemnify Rossmoor Sanitation and its agents against any loss for damages to perons or property arising out of the construction.The contract also contained a proviso to the effect that Rossmoor Sanitation's engineer (Toups) would have the right to supervise and direct Pylon's work.

Pylon, Inc., commenced construction of the pump station and connecting lines.The construction of the pump station constituted only one part of multiple activities in progress at Leisure World.Rossmoor Corporation, the parent company, had a general superintendent, a foreman, and seven inspectors working within the development, as well as a safety director, whose responsibilities included supervision of Rossmoor Sanitation's construction activities.This safety inspector also had the function of inspecting ditches within the project for general safety.Additionally, Rossmoor Sanitation employed several persons on the project, including a field superintendent, whose responsibility was to supervise the grading, excavation, and installation of sewer and water lines.

Similarly, Toups Engineering had at least two engineers or inspectors on the premises regularly in conformity with the aforesaid provision in the Rossmoor-Pylon contract specifying that '* * * (T)he Engineer shall have general supervision and direction of the work.'Toups provided daily inspection and progress reports to Rossmoor Sanitation's superintendent.One of the Toups' inspectors was at or near the trench site when the cave-in occurred.

On the day of the accident, Pylon had a superintendent, a foreman, three laborers (including Widman) and one apprentice pipefitter (Cagigas) on the job.

The erection of the concrete pump station in a deep, open pit had been substantially completed prior to the accident.The plans called for the construction of two parallel vertical wall trenches contiguous to the station.These trenches were to be 18 inches apart and were to extend in a generally westerly direction from the station.The plans indicated that the two trenches were to be 30--35 feet in length, over 14 feet in depth, and 30 inches wide Large sewer pipes were to be laid in both trenches.

Under California law, any excavation over five feet in depth is to be braced or shored.Consequently, bracing would be required once excavation operations reached five feet in depth.

Prior to the accident, the first trench had already been dug, the pipe laid, and the trench back-filled and compacted.The tractor operator Olson had nothing whatsoever to do with the digging of the first trench and the work on the first trench had been completed the day prior to his appearance at the pump house site.

Pylon had contracted with Olson to dig the second trench.Olson appeared on October 29 with a machine called a 'back-hoe'--a heavy tractor used to dig trenches.Attached to the front end of Olson's tractor was a movable hollow metal boom, 15 feet in length, together with a movable scoop shovel, 30 inches in width.Unlike a steam shovel, a back-hoe scoops the earth towards the operator instead of away from him.To support and maintain the equilibrium of the back-hoe during operation, there is attached to the sides of the tractor and extending laterally certain metal extensions or 'outriggers' which are adjusted hydraulically to rest firmly on the ground.

Although Olson's boom was only 15 feet long, the overall reach of the boom, with the scoop shovel attached, was 16 feet, 10 inches.However, for some inexplicable reason, Olson was unable to excavate to the required depth of 14 feet, 2 inches, as required by the specifications.By noon he had dug a trench 30--35 feet in length but slightly less than 14 feet in depth.

During the morning hours, the plaintiff, Widman, was not present at the trench site.Cagigas (who was later killed) and a fellow-employee worked in the bottom of the trench, digging with shovels to reach the required depth of 14 feet, 2 inches, while Olson worked the tractor on the surface, removing the shoveled dirt.The sides of the trench were never shored before the accident.Pursuant to Pylon's instructions, Olson had deposited all the earth removed from the second trench on the north bank of the trench.In addition to the excess soil removed from trench No. 2, there was also situated on the north bank of the excavation a pile of dirt apparently left over from the excavation of trench No. 1.

Olson and Pylon's employees went to lunch.Afterwards, the men returned to the excavation site.TrenchNo. 2 was still slightly less than 14 feet in depth and the east end of...