Opinion
A101066.
10-31-2003
MIGUEL PADILLA, Plaintiff and Appellant, v. TURNER CONSTRUCTION COMPANY, Defendant and Respondent.
Appellant Miguel Padilla, an employee of an independent contractor, sued general contractor Turner Construction Company (Turner) in a personal injury action for injuries sustained in the course of his employment. The trial court granted Turners motion for summary judgment. We conclude that Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and its progeny bars Padillas recovery. Notwithstanding Padillas characterization of disputed material facts, a thorough review of the record reveals that much of Padillas evidence does not pertain to the facts, which it purports to address.
In his separate statement of undisputed and disputed material facts, Padilla purports to dispute Turners facts. However, Padilla references portions of his deposition testimony which are not responsive to the issues raised by Turner.
We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Padilla was employed as a cement mixer laborer by subcontractor Wagner Construction (Wagner) when he sustained cement burns to his left foot. Turner was the general contractor at the job site for the 560 Mission Street project. Wagners primary job on this project was to build the foundations, work which was generally described as "Soil Mix Shoring." Wagner supplied its own drilling equipment. Wagners scope of work included furnishing "all engineering, submittals, shop drawings, labor, materials, apparatus, tools, equipment, transportation, temporary construction, and special services as required for the Soil Mixing Shoring Work . . . ." Under the subheading "Accident Prevention," article XXII of the subcontract provides: "The Subcontractor agrees that the prevention of accidents to workmen engaged upon or in the vicinity of the Work is its responsibility. The Subcontractor agrees to comply with all Federal, State, Municipal and local laws, ordinances, rules, regulations, codes, standards, orders, notices and requirements concerning safety as shall be applicable to the Work . . . ."
The subcontract was between Trevi Icos Corporation and Turner. Turner provides competent evidence that Trevi Icos and Wagner entered into a joint venture to perform work at the 560 Mission Street project where Padilla was allegedly injured. In his opposition to Turners motion for summary judgment, Padilla purported to object to this evidence. However, Padilla never secured a ruling on the objection. As such, the issue is waived on appeal. (See Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1 [in order to preserve evidentiary objections on appeal, court must rule on them].)
Padilla reported directly to Roland Mayes, the foreman who was running the job for Wagner. Roland Mayes directed Padilla on how to go about doing his job. Turners on-site person did not tell Padilla how to do his work. Padilla did not have any conversations with the person in charge for Turner during the nine to 10 days he was on the job.
On the day of the accident, Padilla was working on the foundation of the building. He was "chuck-tending" or putting the steel into the machine so they could keep drilling. Padilla knew how to do his job, and needed no instruction. Whatever tools he had were his own. It was raining quite heavily on the day of the accident. Padilla alleges that due to lack of proper rain gear, he sustained cement burns on his left foot.
At his deposition, Padilla testified he did not know if it was Turners or Wagners responsibility to provide rain gear at the Mission Street project, but on other jobs his own employer would supply such gear. Padilla was wearing his own rubber boots and overalls at the time of the accident. The rubber boots came up to his knees. Padilla asked Roland Mayes for rain gear on the first day of the job, but never got it during the nine days he was on the job. Padilla testified that he asked Roland Mayes for rain gear almost every day.
On January 9, 2001, Padilla was working in mud up to his knees. Padilla was allegedly injured when cement mixed with mud got inside his boot and he felt something burning. Appellant was allegedly hurt by being exposed to the concrete that went inside his boot.
Padilla brought this action against Turner on January 2, 2002, alleging causes of action for negligence and premises liability. Among other things, the premises liability cause of action alleged liability under Labor Code sections 6400 (safe employment and place of employment) and 6304.5 (negligence per se) for purported violations of occupational safety regulations (Cal/OSHA). Turner moved for summary judgment. The trial court granted Turners motion, finding there were no triable issues of material fact regarding whether Turner owed Padilla a duty of care to provide safety gear. It further found that the Cal/OSHA regulation violations were merely evidence of the standard of care, and did not raise any triable issue of fact as to whether Turner owed Padilla a duty to comply with them. This timely appeal followed.
II. DISCUSSION
Padilla contends there are triable issues of material fact as to Turners affirmative conduct and control of the job site as it related to the chuck-tending process. A general contractor is not liable to an independent contractors employee merely because it retains general control over safety conditions at a work site. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 207 (Hooker).) Rather, a general contractor is liable to an employee of an independent contractor insofar as the general contractors exercise of retained control affirmatively contributed to the employees injuries. (Ibid.)
In this case, Padilla fails to raise a triable issue of material fact as to whether Turner retained control over the chuck-tending process. However, even if we were to accept Padillas assertion that Turner retained control over the chuck-tending process, Padilla has failed to establish that this retained control affirmatively contributed to his injury. Finally, we conclude Padilla has abandoned the issue of whether Turners alleged Cal/OSHA violations are admissible under Labor Code section 6304.5.
A. Standard of Review
We review the trial courts grant of summary judgment de novo, applying the same standards that governed the trial court. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.) We consider all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.) The purpose of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, a trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)
In the trial court, once a moving defendant has "shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established" (Code Civ. Proc., § 437c, subd. (p)(2)), the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff "may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action" (ibid.; see also Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855).
B. Privette and Its Progeny
Padilla contends he may seek tort damages from Turner, the general contractor that hired his employer Wagner. In a series of cases, our Supreme Court has considered, and limited, the circumstances in which an independent contractors employee may recover in tort from the hirer of the contractor.
The general rule at common law is that the hirer of an independent contractor is not liable to third parties for physical injuries caused by the contractors negligence in performing the work. (Rest.2d Torts, § 409; Privette, supra, 5 Cal.4th at p. 693.) However, the courts have "created so many exceptions to this general rule of nonliability that `"`the rule is now primarily important as a preamble to the catalog of its exceptions." [Citations.]" (Privette, supra, 5 Cal.4th at p. 693.)
In Privette, supra, 5 Cal.4th 689, the Supreme Court addressed the exception that allows liability to be extended to a hirer when the contracted work poses a "peculiar risk" of injury to others. (Id. at p. 694.) The court observed that the original purpose of the peculiar risk doctrine was to ensure that one who initiated activities posing a special hazard to third parties could not evade liability by hiring an insolvent contractor. (Ibid.) The court further noted that as between two innocent parties—the person who contracted for the work and the hapless victim of the contractors negligence—the risk of loss was more fairly allocated to the person for whose benefit the job was undertaken. (Ibid.) The court explained that the policy reasons behind the peculiar risk doctrine lost most of its force when the claimant is injured while employed by the contactor to perform the contracted-for work. (Id. at p. 696.) The court held that when the person injured by negligently performed contracted work is one of the contractors own employees, the injury is already compensable under the workers compensation scheme and therefore the doctrine of peculiar risk should provide no tort remedy, for those same injuries, against the person who hired the independent contractor. (Ibid.)
The doctrine of peculiar risk is described in sections 413 and 416 of the Restatement Second of Torts. (Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 256.) Under section 413, a hiring person is liable for failing to provide for special precautions to avert peculiar risks if the independent contractors negligence causes injury to others. (Ibid.) Under section 416, a hiring person is liable for a contractors negligence in spite of providing that the contractor take special precautions. (Toland v. Sunland Housing Group, Inc., supra, 18 Cal.4th p. 257.)
In Toland v. Sunland Housing Group, Inc., supra, 18 Cal.4th 253, the Supreme Court reaffirmed and clarified its holding in Privette. There, a subcontractors employee sued the general contractor for on-the-job injuries he sustained after a wall fell on him. (Id. at p. 257.) Rejecting the plaintiffs argument that Privette only applies to claims brought under section 416 of the Restatement Second of Torts, the court held that the Privette rationale also precludes liability under section 413 of the Restatement. The court reasoned that "[i]n either situation, it would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for the workers on-the-job injuries, is limited to providing workers compensation coverage." (Toland v. Sunland Housing Group, Inc., supra, 18 Cal.4th at p. 267.)
In Hooker, the court addressed the issue of whether an injured employee of a contractor could sue the hirer of the contractor for the tort of negligent exercise of retained control. (Hooker, supra, 27 Cal.4th at p. 200.) There, the widow of a deceased crane operator sued the California Department of Transportation (Caltrans), which had hired the decedents employer to construct an overpass. (Id. at p. 203.) The widow alleged that Caltrans was liable because it negligently exercised control it had retained over the safety conditions at the job site. (Ibid.) Specifically, Caltrans permitted other vehicles to use the overpass where the decedent operated his crane, and he had to retract the cranes outriggers to let the traffic pass. (Id. at p. 202.) When the decedent attempted to swing the boom on the crane with the outriggers retracted, the weight of the boom caused the crane to tip over, and he fell to his death. (Ibid.)
The court found the trial court properly granted summary judgment for the hirer, because the decedents widow failed to present a triable issue of material act as to whether the hirers exercise of retained control affirmatively contributed to the decedents injuries. (Hooker, supra, 27 Cal.4th at p. 215.) Quoting Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28, 39, an opinion from this division, the court found that: "`[A] general contractor owes no duty of care to an employee of a subcontractor to prevent or correct unsafe procedures or practices to which the contractor did not contribute by direction, induced reliance, or other affirmative conduct. The mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff." (Hooker, supra, 27 Cal.4th at p. 209.) The court concluded that by merely permitting traffic to use the overpass, Caltrans did not affirmatively contribute to the decedents death. (Id. at pp. 214-215.)
In McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, a companion to the Hooker case, the court confronted the issue of whether an employee of an independent contractor is barred from suing a hirer of the independent contractor for negligently providing unsafe equipment to be used in the contracted-for work. There, the plaintiff was injured using a forklift supplied by Wal-Mart. (Id. at p. 223.) The court held that a hirer is liable to an employee of an independent contractor insofar as the hirers provision of unsafe equipment affirmatively contributes to the employees injury. (Id. at pp. 222-223.) The court reasoned that when the hiring party actively contributes to the injury by supplying defective equipment, it is the hiring partys own negligence that renders it liable, not that of the contractor. (Id. at p. 225.)
C. The Trial Court Properly Granted Summary Judgment
1. Application of Privette and its Progeny
Padilla contends material issues of fact exist as to Turners affirmative conduct and control of the job site as it pertained to the chuck-tending process. Padilla further contends that Turner engaged in an unsafe work process and should have stopped the work due to rainy, muddy job conditions and provided him with proper weather gear, or discontinued working with inadequate water pumps. We disagree.
Padillas arguments presuppose a finding that Turner retained control over the chuck-tending process. However, the only evidence to support this assertion is a brief passage from Padillas deposition testimony where he states that two Turner employees were pumping water in connection with the chuck-tending process. Padilla argues that this testimony demonstrates that Turner was involved in the chuck-tending process and that by pumping water while he was chuck-tending, Turner was involved in and in control of the details of the chuck-tending work.
Padillas testimony is as follows:
"Q. Did you see anybody from Turner there that day?
"A. Yes.
"Q. Who did you see from Turner [there that day]?
"A. The contractor, the black female, and some other formans [sic] from Turner.
"Q. And what were they doing?
"A. They were pumping water and—you know, because it was raining hard. So they had to pump the water out, and there was some other—another company soil piling.
"Q. Were they doing anything in connection with your chuck-tending?
"A. Can you repeat that?
"Q. Was anybody from Turner involved in the work that you were doing which was the chuck-tending?
"A. There [sic] were pumping—they were pumping the water for us.
"Q. And thats the water that was around the—
"A. Where we were working.
"Q. Where you were working?
"How were they pumping it?
"A. With a pump, a water pump. A big—kind of big pumps.
"Q. Who was doing that from Turner?
"A. It was two Hispanic guys.
"Q. Were they laborers?
"A. They were laborers.
"Q. Who was supervising them, if anybody?
"A. The contractor."
We note that Padilla raised this "fact" in his opening brief, as well as in his opposition to Turners motion for summary judgment; however, it was not listed in his separate statement of undisputed and disputed material facts. Setting aside this procedural defect, we find there is no evidence to support Padillas assertion that Turner retained control over operative details of the chuck-tending process. (Toland, supra, 18 Cal.4th at p. 264.) At most, Padillas evidence establishes that Turner was involved in the chuck-tending process to the extent that two of its workers pumped water in the area where Padilla was working.
See Code of Civil Procedure section 437c, subdivision (b); see also Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116 (in opposing defendants motion for summary judgment, plaintiff must submit separate statement setting forth specific facts showing that triable issue of material fact exists. Without separate statement of undisputed facts with references to supporting evidence, it is impossible for plaintiff to demonstrate existence of disputed facts).
Even assuming that Turner did retain control over the chuck-tending process, Padilla fails to establish that triable issues of material fact exist as to Turners affirmative conduct. As discussed above, the Privette line of cases recognizes an exception to the rule of workers compensation exclusivity where "a hirer does retain control over safety conditions at a worksite and negligently exercises that control in a manner that affirmatively contributes to an employees injuries . . . ." (Hooker, supra, 27 Cal.4th at p. 213, italics added.)
In Hooker, even though the plaintiff raised triable issues of material fact as to whether the defendant retained control over safety conditions at the job site, the plaintiff failed to raise triable issues of material fact as to whether the defendant actually exercised that retained control so as to affirmatively contribute to the death of the plaintiffs husband. (Hooker, supra, 27 Cal.4th at p. 215.) The Hooker court refused to hold Caltrans liable for its retained control because it had merely permitted traffic to use the overpass, which required the decedent to perform the operations that ultimately led to his death. (Id. at pp. 214-215.)
The instant case provides an even clearer case for affirmance. Turners conduct is further attenuated from the resulting injury than the situation in Hooker. All we have is testimony that two Turner employees pumped water near where Padilla was working. There is simply no evidence that pumping water where Padilla was working affirmatively contributed to his cement burns. Unlike McKown, there is no evidence that Turner supplied unsafe equipment to Wagner, which resulted in Padillas injury.
We find Padillas assertion that Turner was part of an unsafe working process, and the corollary arguments that Turner should have stopped work or provided him with proper rain gear, equally unavailing. By this argument, Padilla appears to make a general argument that Turner retained control over safety at the work site. We disagree with Padillas overbroad reading of Hooker and McKown as demonstrating that contractors who hire others must exercise control over the work process in a safe and appropriate manner. Hooker and McKown do not require a general contractor to retain control over the safety process. Rather, Hooker and McKown hold that a general contractor will be liable to a subcontractors employee if it retains control and it exercises this control in a manner that affirmatively contributes to the employees injury.
With respect to Padillas claim that Turner failed to provide rain gear, we note that Hooker includes omissions in its definition of "affirmative conduct": "[A]ffirmative contribution need not always be in the form of actively directing a contractor or contractors employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirers negligent failure to do so should result in liability if such negligence leads to an employee injury." (Hooker, supra, 27 Cal.4th at p. 212, fn. 3.) Here, however, Padilla fails to present triable issues of material fact regarding Turners involvement in safety procedures at the work site.
Padilla argues that the trial court erred in granting summary judgment because his deposition testimony disputed several of Turners material facts. However, a careful review of the record reveals that much of Padillas evidence does not pertain to the facts it purports to dispute. Also, in purporting to dispute Turners facts, Padilla frequently cites to his complaint. A party, however, cannot rely on its own pleadings as evidence to support or oppose a motion for summary judgment. (See Code Civ. Proc., § 437c, subd. (b); College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 720, fn. 7.)
We note that as to one of Turners material facts, Padilla also lodged an evidentiary objection. However, Padilla did not secure a ruling on the objection. As such, the issue is waived on appeal. (See Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 670, fn. 1.)
In support of its motion for summary judgment, Turner presented undisputed material facts that Padilla dealt only with Wagner on the subject job. Turner also presented undisputed material facts that Turner was not involved in the operative details of Wagners work relating to the foundation building. Moreover, the subcontract for the subject work expressly provides that the subcontractor is responsible for accident prevention. Accordingly, we find the record on appeal supports summary judgment.
2. Cal/OSHA Claims
Turner devotes a significant portion of its brief arguing that it is not liable for any alleged Cal/OSHA violations. Padilla has not developed any argument on appeal as to these alleged violations. Rather, he submits the issue based on arguments made on the record below. It is an appellants job to affirmatively demonstrate error, providing analysis and argument to support his or her assertions. (See Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2.) We will not develop Padillas arguments for him and therefore deem his claim abandoned for lack of argument. (See McGettigan v. Bay Area Rapid Transit Dist. (1997) 57 Cal.App.4th 1011, 1016, fn. 4.)
III. DISPOSITION
The judgment is affirmed.
We concur: Kay, P.J. and Rivera, J.