Woolen v. Aerojet General Corp.

• Citation: 57 Cal.2d 407,20 Cal.Rptr. 12,369 P.2d 708
• Parties: , 369 P.2d 708 Elsie WOOLEN et al., Plaintiffs and Respondents, v. AEROJET GENERAL CORPORATION, Defendant and Appellant. Sac. 340
• Decision Date: 15 March 1962
• Court: United States State Supreme Court (California)

Page 12

20 Cal.Rptr. 12

57 Cal.2d 407, 369 P.2d 708

Elsie WOOLEN et al., Plaintiffs and Respondents, v. AEROJET GENERAL CORPORATION, Defendant and Appellant.

Sac. 340.

Supreme Court of California

March 15, 1962.

Wm. A. Sitton and Johnson, Davies & Greve, Sacramento, for defendant and appellant.

Desmond & Miller, Melvin & Desmond, Hugh F. Melvin, Jr., and E. Vayne Miller, Sacramento, for plaintiffs and respondents.

GIBSON, Chief Justice.

Otto Woolen, an employee of an independent contractor, D. Zelinsky & Sons, was killed by an explosion while painting a tank owned by defendant corporation. His wife and children brought this action to recover damages for his wrongful death and the jury found in their favor. Defendant has appealed from the ensuing judgment and the denial of its motion for judgment notwithstanding the verdict.

Defendant entered into a contract with Zelinsky, which specified that Zelinsky would paint the inner surface of defendant's tank with a product called 'Amercoat 23' and would furnish all labor, material, and equipment. There was no provision in the contract for the taking of precautions by Zelinsky in doing the work, and defendant did not supply a fan for circulation of air in the tank, or any safety equipment, and did not give Zelinsky information or instructions concerning precautions to be taken.

The tank was 30 feet in diameter and 24 feet high and was equipped with a lid. There was an opening in the side, measuring about two feet by three feet, through which the painters entered and left. The explosion occurred while Woolen and another painter employed by Zelinsky were in the tank applying Amercoat 23. No fan for the circulation of air in the tank was used, and the equipment which had been supplied by Zelinsky, including the electric lighting equipment, was not 'explosion-proof.' As far as appears defendant did not give orders to Zelinsky's employees or otherwise assume to direct the painting of the tank, and Zelinsky was in full control of the operative details of the work.

Amercoat 23 contains volatile and inflammable solvents which vaporize and mix with air when the paint is applied, and, being heavier than air, the mixture floats downward. When the paint is used in a confined space such as defendant's tank, a continuous supply of fresh air must be provided or an explosive concentration of vapors will be formed which can be ignited in various ways, including sparks from electric lighting equipment. An expert testified that air circulation is the 'best and only truly complete precaution.' A circular published by the manufacturer of Amercoat 23 stated in part that in using the paint an exhaust fan of sufficient capacity to keep the fumes below 1% by volume of air should be provided if the painting is to be done in a closely confined area, that air circulation must be maintained continuously during application and drying of the paint, and that explosion-proof equipment should be used. The label on cans of Amercoat 23 stated in part, 'WARNING: The solvents in this coating are volatile and inflammable. * * * In closely confined areas, adequate continuous circulation of fresh air must be provided during application and drying * * *; explosion-proof equipment should be used.'

Amercoat 23 had previously been used by defendant several times at its plant. About a week prior to the explosion defendant supervised the painting of a pit inside one of its buildings with Amercoat 23 pursuant to an agreement providing for defendant to furnish all the equipment and material, including paint, and for a painting contractor to supply the men to do the work. Defendant furnished 'explosion-proof' lights, a blower to eliminate the fumes, and a fireman and a fire truck. Defendant's representative inspected the work on that job while it was in progress.

An engineer of defendant, who was in charge of the department that supervised the painting of the tank involved in the accident, testified that before the work was commenced an employee in his department had obtained the manufacturer's circular referred to above and that the product had been tested at defendant's plant. The engineer stated further that although at the time of the accident he was not familiar in detail with the properties of Amercoat 23, he was aware that it would form combustible vapors, that an explosion could result in the event of a sufficient concentration of such vapors, and that where such vapors were present in a confined space ventilation should be provided. There was uncontroverted testimony, including that of a safety engineer of defendant, that the explosion would not have occurred if an adequate fan for the circulation of air had been used.

Two employees of Zelinsky who did some of the painting in the tank prior to the accident testified that they did not know there was a danger of explosion from the use of Amercoat 23. A business representative of the painters' union, who had been a painter for many years, testified to the same effect.

The evidence is sufficient to support the judgment. The applicable rule is set forth in section 413 of the Restatement of Torts as follows: 'One who employs an independent contractor to do work which the employer should recognize as necessarily creating, during its progress, conditions containing an unreasonable risk of bodily harm to others unless special precautions are taken, is subject to liability for bodily 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 (as to which see § 416), or (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.' This is the law in California. (Courtell v. McEachen, 51 Cal.2d 448, 456, 334 P.2d 870.)

We have held that employees of an independent contractor come within the word 'others' in sections 414 and 428 of the Restatement of Torts which, like section 413, set forth rules relating to the liability of one hiring an independent contractor (Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 232-234, 282 P.2d 69; Snyder v. Southern California Edison Co. (1955) 44 Cal.2d 793, 798 et seq., 285 P.2d 912.) There is no reason to hold otherwise with respect to section 413. The liability imposed upon one who hires an independent contractor to do dangerous work has been extended to the employees of the contractor in other jurisdictions (e. g., Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617, 623-627; International Harvester Co. v. Sartain, 32 Tenn.App. 425, 222 S.W.2d 854, 865-868; see 23 A.L.R. 1084, 1129-1135).

Bedford v. Bechtel Corp. (1959) 172 Cal.App.2d 401, 414, 342 P.2d 495, contains a statement, unnecessary to the decision, that the word 'others' as used in sections 414 and 416 of the Restatement of Torts does not include employees of an independent contractor. However, the court in Bedford failed to consider Austin v. Riverside Portland Cement Co., supra, 44 Cal.2d 225, 282 P.2d 69, and Snyder v. Southern California Edison Co., supra, 44 Cal.2d 793, 285 P.2d 912, and relied instead on three decisions from other jurisdictions, one of which (Salmon v. Kansas City, 241 Mo. 14, 145 S.W. 16, 39 L.R.A., N.S., 328) has in effect been overruled so far as the problem before us is concerned (Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617, 625-627). The statement made in Bedford v. Bechtel Corp., 172 Cal.App.2d 401, 414, 342 P.2d 495, is disapproved.

McDonald v. Shell Oil Co., 44 Cal.2d 785, 788-791, 285 P.2d 902, relied on by defendant, does not hold that the rule in question is inapplicable to employees of an independent contractor. That decision, in affirming a judgment against the plaintiff, distinguishes various situations in which an owner has been held liable to employees of an independent contractor, but the opinion does not state that the situations referred to are the only ones in which liability may be imposed, and the rule under consideration here is not mentioned.

The trial court properly denied the motion for judgment in defendant's favor notwithstanding the verdict for plaintiffs. The question remains whether certain instructions given by the court were prejudicially erroneous.

The jury was instructed that if defendant was an invitor of Woolen, it had the duty to make reasonable inspections to see that the tank remained a reasonably safe place for him to work. This instruction, in making a duty to inspect mandatory without qualification, failed to take into consideration the elements required for liability under the rule of section 413 of the Restatement of Torts, such as whether the work was necessarily dangerous in the absence of special precautions. It also failed to take into consideration whether or not defendant had such control over the premises and the work as would give rise to a duty to inspect apart from the rule of section 413. The instruction was therefore erroneous.

The jury was also given a number of instructions relative to the applicability of provisions of the Labor Code imposing upon an 'employer' duties concerning safety in employment and places of employment. Several of these provisions were read to the jury, including sections 6400 and 6401, which provide that every 'employer' shall furnish employment and a place of employment which are safe for employees and shall do...