Opinion
B156913.
7-22-2003
KELIKUPA TUIONE, Plaintiff and Respondent, v. ROGER ONEAL, Defendant, Cross-complainant, Cross-defendant and Appellant; MICHAEL POHJOLA, Defendant, Cross-defendant, Cross-complainant and Respondent; WILLIAM ROBERTS, Cross-defendant, Cross-complainant and Respondent.
Wesierski & Zurek, Thomas W. Ely and G. Brent Sims for Defendant, Cross-complainant, Cross-defendant and Appellant Roger ONeal. Law Offices of Larry Rabineau, Larry Rabineau and Wendy Rossi for Plaintiff and Respondent. No appearance for Defendant, Cross-defendant, Cross-complainant and Respondent Michael Pohjola. No appearance for Cross-defendant, Cross-complainant and Respondent William Roberts.
INTRODUCTION
In this premises liability and negligence action, defendant Roger ONeal appeals from the December 19, 2001 judgment entered in favor of plaintiff Kelikupa Tuione. We reverse in part.
FACTS$
Additional facts will be incorporated into the discussion where relevant.
Defendant Roger ONeal (ONeal), a real estate developer, decided to build his home on property he owned in Playa Del Rey. He set out to hire architects, soil engineers and construction personnel. ONeal, who is not a licensed contractor, was very involved in the planning and building phases of construction.
ONeal hired Michael Pohjola (Pohjola), a licensed general contractor since 1976, to provide assistance in various ways during construction. Pohjola did business as The Creative Group (TCG). Pohjola was present on the construction site daily.
ONeal also hired William Roberts (Roberts), an unlicensed plumber, to complete the rough plumbing. Roberts bid the project at a lump sum of $ 18,000 and entered into a written contract with ONeal. Roberts, in turn, hired his uncle, plaintiff Kelikupa Tuione (Tuione), to help with the rough plumbing.
A temporary wooden bridge connecting the sidewalk to the garage provided one means of access to the hillside home being constructed. Pohjola designed the bridge and directed its construction. Virtually everyone at the construction site utilized this bridge, which Pohjola described as safe. The bridge was 8 to 10 feet long and 4 feet wide. The bridge was nailed down on both ends.
On March 17, 2000, Tuione was walking across the bridge. When he got to the middle of the bridge, it tipped over. Tuione fell into the hole below and was injured seriously. The bridge had been unfastened at both ends earlier that morning, in that it was to be replaced by a permanent bridge. ONeal, who was out of town, knew that the bridge was to be taken down, having been so apprised by Pohjola the previous day.
The evidence was conflicting as to whether the bridge had handrails.
On the day of the accident, Pohjola had instructed workers to move the bridge but did not tell them how to do so. Pohjola also told the workers to make sure everyone at the site knew it had been moved. Evidence as to whether the workers, including Tuione, received the warning was conflicting. After the bridge was unfastened, it was moved sideways in a southerly direction from its original position, rather than being removed altogether.
Roberts had used the bridge safely only 15 minutes prior to Tuiones accident. At that point, the bridge had been in its proper place. A welder noted that "everyone" had used the bridge that morning.
There was conflicting evidence regarding the presence of caution tape near the bridge.
PROCEDURAL BACKGROUND
Following his accident, Tuione filed this action against ONeal and numerous Doe defendants, alleging causes of action for premises liability, negligent supervision and negligent construction of the bridge. Tuione later filed amendments to the complaint (Code Civ. Proc., § 474), substituting Pohjola and Pohjola doing business as TCG in place and stead of various Doe defendants. Tuione did not sue Roberts, his uncle.
ONeal filed a cross-complaint against Roberts, seeking various forms of indemnity and declaratory relief. ONeal later amended his cross-complaint (Code Civ. Proc., § 474), by substituting TCG and Pohjola as cross-defendants in place of Roe 1 and Roe 2, respectively.
Roberts cross-complained against ONeal and Pohjola, alleging causes of action for indemnity, declaratory relief and negligent misrepresentation. Roberts later filed amendments to his cross-complaint, substituting Pohjola, doing business as TCG, and TCG for Does 1 and 2, respectively.
Pohjola, individually and doing business as TCG, and TCG filed a cross-complaint against ONeal and Roberts, seeking indemnification, apportionment of fault and declaratory relief. Pohjola and TCG amended the cross-complaint to substitute Roberts for Doe defendant 1.
Trial in this matter was bifurcated. In the first phase of the trial, the jury, by way of a special verdict, decided independent contractor and agency issues. The jury found that on March 17, 2001, the date of Tuiones injury, Roberts was an independent contractor, as opposed to an agent, of ONeal. The jury further determined that Roberts was not a licensed plumbing contractor; that Roberts had represented to ONeal that he was a licensed plumbing contractor when or before he signed the contract; that Pohjola was an agent of ONeal; that Tuione was an agent of Roberts; and that Tuione was not an agent of ONeal.
The judgment on jury verdict in the clerks transcript contains no answer to the question, "Was Mr. Tuione an agent of Mr. ONeal on March 17, 2000?" The reporters transcript, however, reflects that the jury answered this inquiry, "No."
In the second phase of the trial, the jury determined the liability and damages issues. In its special verdict, the jury found that ONeal, Pohjola and Roberts were negligent and that their negligence was a cause of Tuiones injury. The jury also found Tuione to have been a cause of his own injury. The jury calculated Tuiones contributory negligence to be 10 percent. The jury found Pohjola, ONeal and Roberts to be responsible for 40 percent, 30 percent and 20 percent, respectively, of Tuiones injuries. Finally, the jury determined Tuiones economic damages to be $ 160,000 and his non-economic damages to be $ 175,000.
In the third and final phase of the trial pertaining to the cross-complaints, the parties waived their right to a jury trial. With regard to ONeals cross-complaint against Roberts, the trial court determined that under the terms of the parties written contract, Roberts was under a duty to indemnify ONeal for the judgment rendered against him in the main action, entitling ONeal to recover from Roberts the sum of $ 266,500.
As noted below, in the main action, judgment was entered in favor of Tuione and against ONeal in the sum of $ 266,500, consisting of $ 144,000 in economic damages and $ 122,500 in noneconomic damages. The jury determined that Tuione suffered economic damages in the amount of $ 160,000. The trial court reduced this amount by 10 percent, the amount of fault attributed to Tuione. This resulted in an economic damages award of $ 144,000.
With respect to noneconomic damages, the jury apportioned ONeals liability at 30 percent and Pohjolas at 40 percent. Since the jury found that Pohjola was ONeals agent, ONeal was responsible for a total of 70 percent of Tuiones noneconomic damages. The jury determined Tuiones noneconomic damages to be $ 175,000. Seventy percent of this amount is $ 122,500.
As to Robertss cross-complaint against ONeal, the court found that under equitable principles, Roberts was entitled to a $ 134,000 credit to be applied against the judgment in favor of ONeal, such that ONeal was to recover the net amount of $ 132,500 from Roberts.
With regard to ONeals cross-complaint against Pohjola and Pohjolas cross-complaint against ONeal, the court found that ONeal was entitled to recover from Pohjola $ 134,000 under principles of equitable implied indemnity. The court further found that Pohjola was entitled to recover from ONeal $ 100,500 for equitable indemnity and that, therefore, ONeal was entitled to judgment against Pohjola in the sum of $ 33,500.
With respect to Pohjolas cross-complaint against Roberts, the court found that Pohjola was entitled to total express indemnity pursuant to contract, entitling Pohjola to recover $ 266,500 from Roberts. Finally, with regard to Robertss cross-complaint against Pohjola, the court determined that Roberts was entitled to a $ 100,500 credit toward Pohjolas judgment against him such that Pohjola was entitled to judgment from Roberts in the amount of $ 166,000.
The judgment on jury verdict was entered on December 19, 2001. It provided that ONeal and Pohjola were jointly and severally liable to Tuione for $ 266,500. In addition, ONeal and Pohjola each were awarded $ 132,500 against Roberts. On January 3, 2002, ONeal filed his notice of intention to move for a new trial. On January 8, 2003, ONeal filed a notice of motion for judgment notwithstanding the verdict, motion to vacate the judgment and motion for a new trial.
On February 14, 2002, the trial court denied ONeals motions for new trial and judgment notwithstanding the verdict. It treated the motion to vacate the judgment as a motion to amend the judgment and ruled "that the judgment as it pertains to cross-complainant/cross-defendant Michael Pojola [sic] is acceptable" but "that the judgment as to the cross-complaint of William Roberts shall be amended" to reflect that Roberts take nothing from ONeal.
On February 25, 2002, ONeal filed his notice of appeal. On March 5, 2002, an amended judgment on jury verdict was entered. As amended, the judgment provided, among other things, that ONeal and Pohjola were jointly and severally liable to Tuione for $ 266,500. ONeal was awarded $ 266,500 against Roberts, Pohjola was awarded $ 166,000 against Roberts, and Roberts was to take nothing by way of his cross-complaint against ONeal.
Neither Roberts nor Pohjola has appealed.
CONTENTIONS
ONeal contends the evidence is insufficient to support the jurys finding that Pohjola was his employee. We disagree. Substantial evidence supports the jurys determination in this regard.
ONeal also contends the evidence is insufficient to demonstrate any negligence or causation flowing from any action or inaction on his part. We agree that the jurys finding that ONeal was directly liable for 30 percent of Tuiones injuries must be reversed. ONeal remains vicariously liable for the negligence of Pohjola, however.
Finally, ONeal asserts that the trial court committed an error of law when it awarded Pohjola equitable implied indemnity credits against ONeal. This portion of the judgment must be reversed in light of our conclusion that insufficient evidence supports the jurys determination that ONeal is a direct tortfeasor.
DISCUSSION
Independent Contractor v. Employee
When the evidence is disputed, as it was in this case, the determination of whether a person is an employee or an independent contractor is a question of fact. The trier of facts finding must be upheld if supported by substantial evidence. (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349, 256 Cal. Rptr. 543, 769 P.2d 399.) Substantial evidence is evidence of ponderable legal significance. (Bowers v . Bernards (1984) 150 Cal. App. 3d 870, 873, 197 Cal. Rptr. 925.)
On appeal, this court views the entire record to determine if there is substantial evidence, contradicted or uncontradicted, which supports the findings. (Bowers v. Bernards, supra, 150 Cal. App. 3d at pp. 873-874.) The trier of fact has the duty to weigh and interpret the evidence and draw inferences therefrom. (In re Cheryl E. (1984) 161 Cal. App. 3d 587, 598, 207 Cal. Rptr. 728.) The trier of fact also determines the credibility of the witnesses. (McAllister v. George (1977) 73 Cal. App. 3d 258, 265, 140 Cal. Rptr. 702.) This court has no power to reweigh the evidence, and thus must view the evidence in the light most favorable to the judgment, accepting as true all evidence tending to establish the correctness of the judgment; all conflicts in the evidence must be resolved and all reasonable inferences drawn in favor of the judgment. (Board of Education v. Jack M. (1977) 19 Cal.3d 691, 697, 139 Cal. Rptr. 700, 566 P.2d 602; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926, 101 Cal. Rptr. 568, 496 P.2d 480.) Not "even testimony which is subject to justifiable suspicion . . . justifies the reversal of a judgment, for it is the exclusive province of the . . . jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends." (Evje v. City Title Ins. Co. (1953) 120 Cal. App. 2d 488, 492, 261 P.2d 279.) This court may reject evidence only if it is ""so inherently improbable and impossible of belief as in effect to constitute no evidence at all"" (People v. Maxwell (1979) 94 Cal. App. 3d 562, 577, 156 Cal. Rptr. 630), i.e., if it is "unbelievable per se," physically impossible or "wholly unacceptable to reasonable minds" (Evje, supra, at p. 492).
The most important factor in ascertaining the existence of an employment relationship is whether the person for whom the work is done has the right to control the manner and means in which the result is to be accomplished. (S. G. Borello & Sons, Inc. v. Department of Industrial Relations, supra, 48 Cal.3d at p. 349.) Secondary factors, which are derived primarily from the Restatement Second of Agency, also are relevant to the employment/independent contractor inquiry. These secondary factors "include (a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee." (Id. at p. 351; BAJI No. 13.20.)
In addition to the evidence previously detailed, the evidence in this case further discloses that ONeal hired Pohjola for a finite period of time to aid with the construction of his home. Pohjola understood that he was not working for ONeal in his normal business operations. There was no written contract between Pohjola and ONeal. Up to this point in his profession, Pohjola had never filled out time cards for a job or worked without a contract.
Pohjola was hired to supervise the project and personnel. Pohjola bid the project at an hourly rate, plus burden. He also negotiated for the right to "self perform" any of the trades at or below the bid price previously accepted. Among the services Pohjola chose to provide was framing and general labor. Pohjola hired people to do framing, general labor and build a retaining wall. With respect to framers that Pohjola hired, Pohjola was required to fill out time cards and submit them to ONeal. ONeal would review the time cards and write a check to Pohjola. Pohjola, in turn, would pay his framers.
As best as we can discern, the term "burden" refers to a percentage of compensation over and above the cost of labor, which is paid to cover the cost of workers compensation insurance.
ONeal utilized the services of 25 to 35 subcontractors, most of whom he hired himself. Pohjola did not recall hiring any of them. Pohjola "never received one dime above the subcontractors cost to [ONeal]." Pohjola did not know the cost of the subcontracts that ONeal negotiated directly.
Although Pohjola had contact with every subcontractor, "[he] was not [in] the ultimate position of authority because Mr. ONeal gave most of the instructions." Pohjolas duty was to ensure that the construction was performed correctly as ONeal directed. In fact, on almost a daily basis, ONeal gave Pohjola a "punch list . . . of things that needed to be looked at or attended to or taken care of." ONeal left it up to Pohjola as to how to accomplish these things. If halfway through the punch list ONeal directed Pohjola not to take care of certain matters on the punch list, Pohjola would follow what ONeal asked him to do."
In the beginning of the job, ONeal "was there continuously." Pohjola was under his direction at all times and followed his instructions. ONeal "was very very concerned." He wanted his "dream house . . . to be built his way and thats why he maintained control of it." Pohjola stated that "ONeal was involved in this project more than any other project [he] ever worked on in [his] entire life." In Pohjolas eyes, ONeal had far greater knowledge and background in the area of development and construction than he had.
Indeed, Pohjola did not have a firm understanding as to what his duties and responsibilities were. He described his understanding with ONeal as "a living agreement that changed as necessary as the project progressed." According to Pohjola, ONeal was at the job site "more often five days a week."
While Pohjola acknowledged that most owners are involved emotionally when it comes to the building of their homes, they "do not come around and direct and instruct subcontractors or anybody what to do and how to do it" like ONeal. In Pohjolas view, at the time of Tuiones accident he was acting as an owners agent, not a general contractor. He also could have called himself a superintendent. Pohjola explained that a general contractor can be a superintendent, but a superintendent does not have to be a general contractor. Pohjola also testified that at no time did he act as a general contractor for ONeal. Rather, he was merely his agent and "under his control at all times."
ONeal did not withhold any money from Pohjolas pay for social security, FICA, etcetera. ONeals checks to Pohjola indicated that payment was for general contracting.
Although Pohjola used his own tools and had flexible hours, ONeal paid for most of the materials. Pohjola did purchase supplies and equipment with his own money, check and credit cards, however. Pohjola then would give the invoices to ONeal to be reimbursed. If Pohjola had purchased materials for the benefit of a subcontractor, he worked that out with the subcontractor directly. Pohjola explained that when he purchased materials, he did so because ONeal was unable to do so. ONeal "paid for most of everything."
Tuiones construction expert, Brad Avrit, opined that "Mr. ONeal . . . hired Mr. Pohjola as his agent or as a consultant to help [him] coordinate the work of the independent contractors" hired by ONeal. Avrit further described Pohjola as an "independent contractor who did actual trade work and who assisted and coordinated work onsite between some of the subcontractors and ONeal. Thus, in Arvits view, Pohjola "had a dual responsibility on the job." In both roles, however, Avrit opined that Pohjola worked as an independent contractor. Avrit noted that there was no general contractor on the ONeal project because there was no one contractor who contracted separately with the specialty trade contractors.
ONeals construction expert was Steven Bro, a licensed general contractor. According to Bro, there was a three-tier understanding between ONeal and Pohjola. In the initial or planning stages of the project, Pohjola acted as ONeals owner agent. In the construction phase, Pohjola acted as general contractor "on the portions that he and his crew provided and did for the job." Pohjola further acted as a general contractor "when he was involved in the supervising or the superintending . . . of the major subcontractors." In Bros view, at the time of Tuiones accident, Pohjola "was an independent contractor of ONeal."
We acknowledge the existence of numerous secondary factors indicative of independent contractor status. Pohjola was an general contractor with his own business. He hired some of his own employees. He contracted to work with ONeal only for the project, and the project was not part of ONeals regular business. He used his own tools and had flexible hours. He had no withholding taken from his pay.
There also is ample evidence negating independent contractor status, however. This evidence includes ONeals hiring of the majority of the subcontractors and his purchasing of most of the materials needed for the construction. Most relevant is the evidence establishing the actual control exercised by ONeal over Pohjola in the performance of his work. In addition, ONeal was present at the job site a substantial portion of the time. Pohjola was under ONeals direction at all times and followed his instructions. ONeal also communicated directly with subcontractors and told them what to do and how to do it. ONeal maintained control of the construction because he wanted his "dream house . . . to be built his way." Pohjola stated that "ONeal was involved in this project more than any other project [he] ever worked on in [his] entire life." In Pohjolas eyes, ONeal had far greater knowledge and background in the area of development and construction than he had.
On one occasion, when ONeal was dealing directly with the subcontractors, Pohjola told him he was not letting him do his job. Pohjola further told ONeal that he would be happy to leave if ONeal did not need him in that capacity. ONeal backed off and allowed Pohjola to do his job. Toward the end of the job, however, Pohjola "just let [ONeal] go and he dealt with most of the subcontractors himself."
After assessing the conflicting evidence in light of the applicable factors relevant to the employee versus independent contractor inquiry, the jury determined that Pohjola was ONeals agent-i.e., employee-not an independent contractor. In so doing, it rejected the evidence to the contrary given by the experts, ONeal and others, as it was entitled to do, and credited the testimony of Pohjola that he was not a general contractor and that ONeal asserted control over him specifically and the project generally.
ONeal challenges the sufficiency of the evidence supporting the jurys determination that Pohjola was his employee yet acknowledges the existence of evidence in the record establishing his complete control over Pohjola. Despite this evidence, and in reliance on conflicting evidence, ONeal urges us to conclude that Pohjola was not his employee but rather was an independent contractor. In essence, ONeal invites us to reweigh the evidence and reach a result contrary to the result reached by the jury. We are without power to do so. (Board of Education v. Jack M. , supra, 19 Cal.3d at p. 697; Nestle v. City of Santa Monica, supra, 6 Cal.3d at pp. 925-926; McAllister v. George, supra, 73 Cal. App. 3d at p. 265.) Inasmuch as substantial evidence supports the jurys finding that Pohjola was ONeals agent, it is unassailable.
The numerous cases relied upon by ONeal (see, e.g., McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 285 P.2d 902; Automatic Canteen Co. v. State Board of Equalization (1965) 238 Cal. App. 2d 372, 47 Cal. Rptr. 848) do not compel a contrary conclusion.
ONeals Direct Liability for Negligence
In order to prevail on a cause of action for negligence, plaintiff must be able to establish that defendant owed him a legal duty of care, breached that duty, and the breach of duty proximately caused injury to plaintiff. (Brunelle v. Signore (1989) 215 Cal. App. 3d 122, 127, 263 Cal. Rptr. 415.) ONeal challenges the jurys determination that he was directly liable for 30 percent of Tuiones injuries. He argues that the transcript is devoid of evidence establishing any negligent act or omission on his part that led to Tuiones injuries. We agree.
The evidence adduced during trial established that ONeal was not at the job site at the time of Tuiones accident and had not been at the job site for several days. Although the night before the accident ONeal and Pohjola discussed the removal of the temporary bridge, which was to be replaced by a permanent one, ONeal did not direct the manner in which the bridge was to be removed. He could not recall if he told Pohjola to make sure everybody on the jobsite was informed that the bridge would be moved, however.
The temporary bridge had been in place for about two to three weeks prior to the accident. It had been used daily by workers without incident and was the most convenient and widely used method of access to the property. On the morning of the accident, Pohjola instructed his own framers to remove the bridge but did not give specific instructions. One of the framers detached the bridge on the street and garage sides but did not remove it completely. Rather, he just moved the bridge. Tuione then used the bridge and fell. The evidence as to whether Pohjola warned Tuione not to use the bridge is conflicting. ONeal had no knowledge of the dangerous condition that had been created by the detachment and movement of the bridge.
During trial, conflicting testimony was adduced as to whether the temporary bridge had handrails, which Avrit testified were mandated by Cal OSHA regulations when a temporary bridge or ramp is in use. Even if it were assumed for the sake of argument that the bridge when properly anchored did not have the requisite handrails and therefore contravened OSHA regulations, there is no evidence that the absence of handrails was a cause of Tuiones accident. Tuione himself testified that he did not lose his balance. Rather, the bridge tipped over. Indeed, Tuiones own expert testified handrails would not prevent an unfastened bridge from tipping over. In addition, if the entire bridge fell because it was unfastened, handrails would be useless.
Pohjola surmised that when the bridge was detached and moved, it was angled in such a way that it was not connected at all four corners. Pohjola admitted that he did not instruct his workers to remove the bridge completely and that he made a mistake by not giving specific instructions.
Tuione argues that ONeal retained sufficient control at the project site such that liability could be premised on Hooker v. Department of Transportation (2002) 27 Cal.4th 198. For the first time at oral argument, Tuione also cited to Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120 in support of his position that ONeal was negligent under a direct liability theory. Tuiones reliance on these decisions is misplaced.
In Hooker, the California Department of Transportation (Caltrans) hired a general contractor to construct an overpass. Paul Hooker, a crane operator, was an employee of the general contractor. Inasmuch as the overpass was 25 feet wide and the crane with extended outriggers was 18 feet wide, Hooker would retract the outriggers to allow construction and Caltrans vehicles to pass. On one occasion, Hooker retracted the outriggers and left the crane. Upon his return, he proceeded to swing the boom without first re-extending the outriggers. Without the outriggers extended, the weight of the boom caused the crane to tip over. Hooker was killed when he was thrown to pavement. (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 202.)
Hookers widow, the plaintiff, received workers compensation benefits from the general contractor for her husbands death. She further sued Caltrans for its negligence in exercising the control it had retained over jobsite safety conditions. Caltrans successfully moved for summary judgment, arguing that the plaintiffs action was barred by Privette v. Superior Court (1993) 5 Cal.4th 689, 854 P.2d 721 and Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 955 P.2d 504. (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 203.)
In Privette and Toland, the Supreme Court "held that an employee of a contractor may not sue the hirer of the contractor under either of the alternative versions of the peculiar risk doctrine set forth in sections 413 and 416 [of the Restatement Second of Torts]. Under section 413, a person who hires an independent contractor to do inherently dangerous work, but who fails to provide in the contract or in some other manner that special precautions be taken to avert the peculiar risks of that work, can be liable if the contractors negligent performance of the work causes injury to others. Under section 416, even if the hirer has provided for special precautions in the contract or otherwise, the hirer can nevertheless be liable if the contractor fails to exercise reasonable care to take such precautions and the contractors performance of the work causes injury to others." (Hooker v. Department of Transportation , supra, 27 Cal.4th at pp. 200-201.)
Subsequently, in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, the Supreme Court "held that an employee of a contractor may not sue the hirer of the contractor under the negligent hiring theory set forth in section 411. Under section 411, a hirer is liable for physical harm to third persons caused by the hirers failure to exercise reasonable care to employ a competent contractor to perform work which will involve a risk of physical harm unless it is skillfully and carefully done, or to perform any duty which the hirer owes to third persons." (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 201, italics omitted.)
In McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, the Supreme Court "considered whether, under [the] decisions in Privette and Toland, an employee of an independent contractor is barred from pursuing a lawsuit against the hirer of the independent contractor on the theory the hirer negligently provided unsafe equipment. [Citation.] The court answered that question in the negative and affirmed the decision of the appellate court holding a hirer liable for negligently providing an unsafe forklift for use by an independent contractor on the hirers premises. Citing the reasoning of Hooker, the court in McKown summed up by stating: Imposing tort liability on a hirer of an independent contractor when the hirers conduct has affirmatively contributed to the injuries of the contractors employee is consistent with the rationale of our decisions in Privette, Toland and Camargo, because the liability of the hirer in such a case is not in essence vicarious or derivative in the sense that it derives from the act or omission of the hired contractor. . . . [P] For the same reason, when a hirer of an independent contractor, by negligently furnishing unsafe equipment to the contractor, affirmatively contributes to the injury of an employee of the contractor, the hirer should be liable to the employee for the consequences of the hirers own negligence. [Citation.]" (Ray v. Silverado Constructors, supra, 98 Cal.App.4th at pp. 1127-1128.)
The Supreme Court identified the issue before it as "whether an employee of a contractor may sue the hirer of a contractor for the tort of negligent exercise of retained control set forth in section 414 [of the Restatement Second of Torts]." (Hooker v. Department of Transportation , supra, 27 Cal.4th at p. 201, italics and fn. omitted.) That Restatement provision provides that "one who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care." (Ibid.)
In Hooker, the court concluded "that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirers exercise of retained control affirmatively contributed to the employees injuries." (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 202.) The court explained that "if an employee of an independent contractor can show that the hirer of the contractor affirmatively contributed to the employees injuries, then permitting the employee to sue the hirer for negligent exercise of retained control cannot be said to give the employee an unwarranted windfall. The tort liability of the hirer is warranted by the hirers own affirmative conduct. The rule of workers compensation exclusivity does not preclude the employee from suing anyone else whose conduct was a proximate cause of the injury [citation], and when affirmative conduct by the hirer of a contractor is a proximate cause contributing to the injuries of an employee of a contractor, the employee should not be precluded from suing the hirer." (Id. at p. 214.) The court further elucidated that "such affirmative 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." (Id. at p. 212, fn. 3.)
The court was not persuaded, however, "that Caltrans, by permitting traffic to use the overpass while the crane was being operated, affirmatively contributed to Mr. Hookers death." (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 215.) The court stressed that "Caltrans did not direct the crane operator to retract his outriggers to permit traffic to pass." (Ibid., italics omitted.) In concluding that summary judgment was appropriate, the court noted that "while the evidence suggests that the crane tipped over because the crane operator swung the boom while the outriggers were retracted, and that the crane operator had a practice of retracting the outriggers to permit construction traffic to pass the crane on the overpass, there was no evidence Caltranss exercise of retained control over safety conditions at the worksite affirmatively contributed to the adoption of that practice by the crane operator. There was, at most, evidence that Caltranss safety personnel were aware of an unsafe practice and failed to exercise the authority they retained to correct it." (Ibid .)
In Ray v. Silverado Constructors, supra, 98 Cal.App.4th 1120, a wrongful death action, decedent was the employee of Rados, Inc., a subcontractor hired to build a number of connector bridges. On the day of decedents death, severe winds caused extremely heavy construction materials to blow off one of the bridges and onto Marine Way, a roadway below. A Rados foreman directed his employees to secure the materials on the bridge. Two employees undertook to secure construction materials that already had blown off the bridge. (Id . at p. 1124.)
Decedent, who had been working at another location, was traveling on Marine Way, en route to construction headquarters. Seeing other Rados employees working, decedent stopped his truck to block traffic on Marine Way. He then proceeded to help secure construction materials that had been blown off the bridge above. While doing so, a wooden deck weighing 200 pounds struck decedent in the back of the head, killing him. (Ray v. Silverado Constructors , supra, 98 Cal.App.4th at p. 1124.)
Decedents wife sued the project owner and the general contractor, alleging, among other things, that they "were actively negligent in failing to carry out their duties of care for the work site, which included the public road." (Ray v. Silverado Constructors, supra, 98 Cal.App.4th at p. 1124.) The defendants moved for summary judgment, citing Privette and Toland to support their position that, as a matter of law, there was no basis of imposing liability. The trial court agreed and granted summary judgment for defendants.
The appellate court reversed, concluding that "the Privette/Toland rationale does not preclude all theories of liability under the particular circumstances of the case" and that plaintiffs raised material factual issues as to duty, breach and causation. (Ray v. Silverado Constructors , supra, 98 Cal.App.4th at p. 1123.) The court further concluded that with its decision in McKown v. Wal-Mart Stores, Inc., supra, "the [Supreme C]ourt eliminated any doubt that a direct negligence cause of action may be maintained against the hirer of an independent contractor without running afoul of Privette and Toland." (Id. at p. 1128.)
Relevant contractual documents imposed general safety obligations and specific traffic safety obligations on the general contractor. Most fundamentally, the general contractor was obligated to install barricades where necessary for the public safety. The general contractor utilized several traffic crews to close roadways occasionally. (Ray v. Silverado Constructors, supra, 98 Cal.App.4th at p. 1132.)
The court in Ray distinguished Hooker, stating it "did not involve a situation where the independent contractor was barred from undertaking enumerated safety measures without the prior written consent of the general contractor, and, implicitly, the consent of the applicable public agencies with which the general contractor communicated concerning the independent contractors request." (Ray v. Silverado Constructors, supra, 98 Cal.App.4th at p. 1132.) The project owner and general contractor made "no assertion that Rados had, fortuitously, obtained prior written permission to close Marine Way on the morning in question. Therefore, [the court] assumed Rados had not done so and was contractually restrained from barricading the roadway." (Id. at p. 1134.) The court observed that "if this is correct, it would appear [the general contractor] was the party empowered by contract to close Marine Way at the critical time. This looks like retained control." (Ibid.)
The court in Ray went on to conclude there were other bases for imposition of a duty on the project owner and general contractor. With respect to the issue of duty, the court concluded that the general contractor, which was doing work on a public highway, "owed a duty to the traveling public to protect it from injury on the roadways comprising the overall 25-mile project." (Ray v. Silverado Constructors, supra, 98 Cal.App.4th at pp. 1134-1135.) Moreover, "the fact the construction activities of Rados may have affected safety conditions on Marine Way did not necessarily mean all of Silverados obligations to make the roadway safe evaporated." (Id. at p. 1135.) Besides material factual issues pertaining to the issue of duty, the court concluded that there were issues pertaining to breach and causation as well. (Id. at pp. 1136-1139.)
Assuming for the sake of argument that ONeal retained the ability to control safety conditions on the job site, Tuione cites to no evidence establishing that ONeal exercised his control in such a way as to contribute affirmatively to his fall and resultant injuries or failed to fulfill a promise to undertake a particular safety measure. That ONeal knew the temporary bridge was to be removed so that a permanent bridge could be erected in its place is not enough. ONeal was not present on the site and had no knowledge of the dangerous condition that had been created during the brief time period between the detachment and movement of the bridge and Tuiones fall. That ONeal did not specify the manner in which the bridge was to be removed does not give rise to direct liability on ONeals part, in that Tuione does not cite to any evidence establishing that ONeal knew or should have known that Pohjola would remove the bridge in a deleterious manner. Pohjola himself admitted that he simply made a mistake by failing to instruct his workers specifically to remove the bridge completely. Tuiones accident was a very unfortunate mishap for which ONeal is not directly liable. Neither Hooker v. Department of Transportation, supra, 27 Cal.4th 198 nor Ray v. Silverado Constructors, supra, 98 Cal.App.4th 1120 compels a contrary conclusion.
In summary, substantial evidence does not support the jurys determination that ONeal was responsible directly for 30 percent of Tuiones injuries. The jurys determination in this regard must therefore be set aside.
ONeal acknowledges that under the judgment, he is vicariously liable for the damages attributable to Pohjolas negligence.
Equitable Implied Indemnity
Finally, ONeal asserts that an error of law occurred when the court awarded Pohjola equitable implied indemnity credits against him. As noted in Firemans Fund Ins. Co. v. Haslam (1994) 29 Cal.App.4th 1347, 1353-1354, "the common law equitable indemnity doctrine relates to the allocation of loss among multiple tortfeasors. [Citation.] The duty to indemnify may arise and indemnity may be allowed when in equity and in good conscience the burden of a judgment should be lifted from a person seeking indemnity to one from whom indemnity is sought. The right depends on the principle that everyone is responsible for the consequences of his or her own wrong, and if others have been compelled to pay damages which ought to have been paid by the wrongdoer, they may recover from him or her. [Citations.] Under the doctrine of equitable indemnity, one tortfeasor may obtain partial indemnity from another tortfeasor on a comparative fault basis. [Citations.] Thus, liability for the injury is borne by each individual tortfeasor in direct proportion to his or her respective fault."
In light of our holding that ONeal was not a direct tortfeasor in this case, the trial courts determination that Pohjola was entitled to recover from ONeal $ 100,500 for equitable indemnity must be reversed.
The judgment is reversed insofar as it provides that ONeal is liable directly for 30 percent of Tuiones injuries. That portion of the judgment awarding Pohjola $ 100,500 for equitable indemnity on his cross-complaint against ONeal also is reversed. On remand, any retrial is limited to the reapportionment of fault amongst plaintiff, Pohjola, Roberts and Tuione. In all other respects, the judgment, which includes the jurys finding that plaintiff sustained gross economic damages in the amount of $ 160,000 and gross non- economic damages in the amount of $ 175,000, is affirmed. The parties are to bear their own costs on appeal.
We concur: ORTEGA, J., J., MALLANO, J.