Zeiger v. State of California, 3

• Decision Date: 25 September 1997
• Docket Number: No. 3,3
• Citation: 68 Cal.Rptr.2d 39,58 Cal.App.4th 532
• Court: California Court of Appeals Court of Appeals
• Parties: , 62 Cal. Comp. Cases 1424, 97 Cal. Daily Op. Serv. 7925, 97 Daily Journal D.A.R. 12,725 Perry ZEIGER, Plaintiff and Appellant, v. STATE of California et al., Defendants and Respondents. Civ. C019828.

Page 39

68 Cal.Rptr.2d 39

58 Cal.App.4th 532, 62 Cal. Comp. Cases 1424,

97 Cal. Daily Op. Serv. 7925,

97 Daily Journal D.A.R. 12,725

Perry ZEIGER, Plaintiff and Appellant, v. STATE of California et al., Defendants and Respondents.

No. 3 Civ. C019828.

Court of Appeal, Third District, California.

Sept. 25, 1997.

As Modified Oct. 17, 1997.

Review Granted Dec. 17, 1997.

Review Dismissed Sept. 23, 1998.

Law Offices of Winchell & Truett, Harold J. Truett, III, San Francisco, for Plaintiff and Appellant.

Law Office of Lea & Arruti, Robert Lea and Daniel S. Glass, Sacramento, for Defendants and Respondents.

RAYE, Associate Justice.

The State of California and its general contractor, John Otto, Inc., were granted summary judgments in the negligence action filed by a subcontractor's employee, Perry Zeiger. It is undisputed that plaintiff complained repeatedly to the project manager for the state, the superintendent for the general contractor, the subcontractor's foremen, and even the safety hygienist for the job about the dangerous condition of the scaffolding set up by the subcontractor to perform asbestos abatement. Plaintiff sustained personal injuries when a plank on the scaffold gave away.

On appeal, defendants maintain the plaintiff's action is barred by Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 wherein the Supreme Court abrogated the peculiar risk doctrine insofar as it imposed liability on a non-negligent landowner who retained no control over the work of an independent contractor and was without fault for injuries sustained by the contractor's employee. In the trial court, plaintiff conceded that Privette doomed the first cause of action based on peculiar risk.

The issue presented by this appeal is whether the rationale of Privette and its progeny precludes any claims of negligence by a subcontractor's employee against an owner or general contractor if the employee has received workers compensation benefits. We conclude it does not and shall reverse the summary judgment herein.

Factual Background

We extract the pertinent facts from the moving and opposing papers and the documents and deposition transcripts incorporated into those papers.

The State of California contracted with John Otto, Inc. to renovate the Veterans Affairs Building in Sacramento. Otto assumed sole responsibility for supervising "all construction means, methods, techniques, sequences and procedures." Otto also agreed to initiate, maintain, and supervise all safety precautions and programs and to provide reasonable protection to prevent injury to all employees on the job and all other persons who may be affected thereby. Otto was obligated to comply with all safety laws, ordinances, rules, and regulations. It had an affirmative contractual obligation to attempt to prevent accidents.

During the renovation, asbestos was discovered. Otto subcontracted with Jerry Eaton, Inc. to remove the asbestos on the first, second, fourth, and fifth floors. Eaton agreed to comply with all health and safety laws and regulations as well as the accident prevention and safety programs of the State and Otto. It assumed sole responsibility for providing a safe place to work for its employees.

Dennis Hazelton, the superintendent for Otto, described Otto's broad responsibility for safety on the job site. Although he personally bore the ultimate responsibility for safety, his foremen were also trained to provide a safe working environment and his assistant, Eric Alward, conducted weekly safety meetings. He believed he was responsible for the safety of the subcontractors and their employees on the job site and if he saw a subcontractor create a risk of harm he had the authority to demand alterations or stop work. Either he or Alward inspected the premises on a daily basis. Both were certified to enter the asbestos containment areas.

Eaton assembled scaffolding within the containment areas. Otto did not supply the scaffolding nor assist in the assembly. Orlando Martinez, the hygienist on the project, monitored the safety of the asbestos work. He expressed to Dan Maffuccio, the project manager for the state, his concerns about the dangerous condition of the scaffolding. According to Hazelton, Maffuccio chastised Martinez, contending the safety in the containment areas was none of his business. Maffuccio insisted that Otto and Eaton shared responsibility for the safety of the workers inside the containment areas.

Martinez also reported his concerns about the rolling scaffolding and the absence of hand rails to Eaton's supervisor on September 24 and 30, on October 6 and 8, and to Dennis Hazelton about one week before the accident. Hazelton informed Martinez the rails were not compelled because the scaffolding was under seven feet, below the OSHA (California Occupational Safety and Health Administration) minimum standards for hand rails. Martinez believed there was an exception to the rule cited by Hazelton compelling rails when scaffolding was placed on an unlevel surface.

Plaintiff, at 6-feet 4-inches tall, claims the scaffolding was about 8 feet. During the two weeks he worked in containment before the fall, he complained repeatedly to Eaton foremen, Otto foremen and the job superintendent, the hygienist, and the project manager from the state. Plaintiff observed an Eaton foreman take tie wire hanging out of the ceiling, wrap it around the edge of the scaffolding, and hang the plank. The result His many complaints were fruitless. In response to his warnings about the danger of the scaffolding an Eaton foreman "told me to get the F off the scaffolding and go home if I didn't like it. And I told him, 'I don't have a job anywhere else but here.' " The foreman told him to shut his mouth and get to work. Other foremen issued similar threats.

according to plaintiff, was a rickety and unsafe scaffolding.

Plaintiff then complained to Otto's foreman, Eric Alward, about one week before the accident but nothing was done to remedy the danger. Reviewing pictures plaintiff took of the scaffolding the day following the fall, Hazelton testified at his deposition the configuration was unsafe because it was not set up properly. Had he seen the scaffolding, he would have immediately stopped all work on the scaffold and he would have ordered it dismantled and erected properly. Hazelton recounted it was a hazard because of the potential for collapse.

Plaintiff, recognizing the same dangers, attempted to stabilize the scaffolding. Every time he changed the configuration, Eaton personnel changed it back. A supervisor finally admonished him that "if [he] kept screwing around with adjusting the scaffolding ... he was just going to send [him] down the road."

On the morning of October 2, 1992, plaintiff was standing on a tie-wired plank attempting to take down false ceilings above him. The plank fell out from under him and he fell to the floor.

DISCUSSION

A motion for summary judgment is properly granted only if the papers submitted show there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Since the summary judgment motion raises only questions of law regarding the construction and effect of the supporting and opposing papers, we independently review such papers to determine whether the moving party's papers establish facts to justify a judgment on the issues framed by the pleadings and whether the opposition demonstrates the existence of a triable, material factual issue. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203.)

Since plaintiff concedes his first cause of action based on peculiar risk no longer remains viable, the second cause of action for negligence frames the issues. Plaintiff alleges in pertinent part: "That at such time and place and prior thereto Defendants, and each of them, so negligently and carelessly owned, possessed, operated, constructed, inspected, maintained, contracted, subcontracted, supervised, controlled, engineered, designed, performed, and planned said remodeling and demolition work and supplied men and materials for the remodeling and construction so as to cause plaintiff to fall and to sustain the injuries and damages complained of."

A construction worker injured on the job site is entitled to compensation under the workers compensation system. By statute, receipt of these benefits comprises the victim's exclusive remedy against his employer, the subcontractor. Does the availability of workers compensation benefits also immunize the landowner and general contractor for their personal negligence? The general rule is that when work is turned over to an independent contractor, neither the owner nor general contractor is liable to the contractor's employees for the independent contractor's negligence. (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 725, 28 Cal.Rptr.2d 672; Caswell v. Lynch (1972) 23 Cal.App.3d 87, 90, 99 Cal.Rptr. 880.) The general rule, however, has been eroded by exceptions. Numerous cases, as well as the Restatement of Torts 2d, raise multiple theories of liability against landowners and general contractors for injuries to employees of independent contractors. (Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1035, 1040, 43 Cal.Rptr.2d 158; Whitford v. Swinerton & Walberg Co. (1995) 34 Cal.App.4th 1054, 1055-1058, 40 Cal.Rptr.2d 688; Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77, 94, 37 Cal.Rptr.2d 457; Owens v. Giannetta-Heinrich Const. Co. (1994) 23 Cal.App.4th 1662, 1666, 29 Cal.Rptr.2d 11; Srithong v. Total Investment Co., supra, 23 Cal.App.4th at p. 725, 28 Cal.Rptr.2d 672; Johnson v. Tosco Corp. (1991) 1 Cal.App.4th 123, 139, 1 Cal.Rptr.2d 747; Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 273 Cal.Rptr. 457; West v. Guy F. Atkinson Const. Co. (1967) 251 Cal.App.2d 296, 297-300, 59 Cal.Rptr. 286.)

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