Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. S-1500-CV-253175-SPC. Sidney P. Chapin, Judge.
Erickson, Arbuthnot, Kilduff, Day & Lindstrom and Michael D. Ott for Defendant and Appellant.
Chain, Younger, Cohn & Stiles, David K. Cohn and Brian P. Azemika for Plaintiffs and Respondents.
OPINION
HILL, J.
This is an appeal from the judgment after trial in a wrongful death action by the parents of the decedent. The action was brought pursuant to Labor Code section 3706, which permits dependents of a deceased employee to bring a civil action for damages for the death of the decedent, caused by an employment related injury, against the employer of the decedent when the employer lacks workers’ compensation insurance. Defendant and appellant, Capco Resource Corporation, contends there was insufficient evidence to support the jury’s findings that respondents were dependents of decedent and that appellant’s conduct was a cause of decedent’s death. Appellant also contends the trial court abused its discretion in (1) permitting respondents to reopen their case after appellant’s motion for nonsuit was granted, to introduce evidence that respondents were dependents of decedent; (2) excluding evidence of contracts appellant contends made decedent and his supervisor independent contractors rather than employees; (3) excluding evidence that decedent was under the influence of marijuana at the time of the incident resulting in his death; and (4) permitting the use of a special verdict form that required the jury to find whether appellant’s conduct was “a cause” of the incident resulting in decedent’s death, rather than “a substantial factor” in that incident.
Further statutory references are to the Labor Code unless otherwise specified.
FACTS AND PROCEEDINGS
Plaintiffs and respondents are the parents of James Osborne, who was killed in incident at an oilfield operated by appellant (the Kern Bluffs Lease). Decedent worked at the lease, supervised by Robert White. The trial was conducted in two phases. At the first phase, the jury determined that Robert White and decedent were employees of appellant. It was stipulated that appellant carried no workers’ compensation insurance covering decedent.
In the second phase of the trial, after respondents rested their case, appellant moved for nonsuit. It asserted that section 3706 permitted “dependents” of decedent to sue the employer in a civil action, but respondents had not proved they were dependents under the statute. The court granted the motion, and respondents’ counsel immediately requested permission to reopen their case to present evidence on the issue of dependency. The court granted the request to reopen, and respondents testified regarding decedent’s financial contributions to them. Appellant then presented its case.
The jury found appellant liable for decedent’s death and awarded respondents $750,000 in noneconomic damages.
DISCUSSION
I. Reopening of Plaintiffs’ Case for Introduction of Evidence of Dependency
Generally, compensation under the workers’ compensation statutes is the exclusive remedy against the employer for an injury to its employee, or the death of an employee resulting from the injury, when the injury occurred in the course of the employee’s employment. (§§ 3600, 3602.) There is an express exception: “If any employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages,” as if the workers’ compensation statutes did not apply. (§§ 3706, 3602, subd. (a).) In such a civil action, “it is presumed that the injury to the employee was a direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer, to rebut the presumption of negligence.” (§ 3708.) Additionally, “[i]t is not a defense … that the employee was guilty of contributory negligence, or assumed the risk of the hazard complained of, or that the injury was caused by the negligence of a fellow servant.” (Ibid.)
Section 3706 permits a civil action by “dependents” of a deceased employee injured on the job. During the second phase of trial, after presentation of respondents’ case, the court granted appellant’s motion for nonsuit, on the grounds respondents had not shown they were dependents of decedent and they did not have standing to sue under the wrongful death statute. (Code Civ. Proc., § 377.60.) The court then granted respondents’ request to be permitted to reopen their case to put on evidence of dependency. Appellant contends the court abused its discretion in permitting respondents to reopen their case, because they had not made a proper showing in support of that request.
The trial court may reopen a case any time before decision to permit the introduction of further evidence; so long as the power is exercised with due regard to the adverse party’s right to fully present its side of the case, there can be no prejudice of which it has the right to complain on appeal. (Estate of Cesare (1955) 130 Cal.App.2d 557, 561.) “Trial courts have broad discretion in deciding whether to reopen the evidence;” their decisions on that issue are reviewed for abuse of discretion. (Horning v. Shilberg (2005) 130 Cal.App.4th 197, 208.) “The appropriate test for abuse of discretion is whether the trial court’s decision exceeded the bounds of reason.” (Id. at pp. 208-209.)
After “a motion for nonsuit is made in a jury trial, it is the trial court’s duty, if so requested, to permit the plaintiff to reopen his case and introduce further evidence, since one of the objects served by the motion is to point out the oversights and defects in the plaintiff’s proof so that [plaintiff] may supply, if possible, the specified deficiencies.” (Abreu v. Svenhard's Swedish Bakery (1989) 208 Cal.App.3d 1446, 1457.) “It is error to refuse plaintiff this privilege and [then] grant a motion for nonsuit.” (Ibid.)
The trial court found a defect in respondents’ case and granted appellant’s motion for nonsuit; it then permitted respondents to introduce further evidence to address the deficiency in their case. Appellant thereafter had an opportunity to present its case in full. The trial court’s decision did not exceed the bounds of reason.
In Westerholm v. 20th Century Ins. Co. (1976) 58 Cal.App.3d 628, 634-635, the court observed that a motion to reopen must state what the moving party expects to prove, the character of the evidence the party proposes to introduce, the diligence exercised to introduce the evidence during the trial, and the reasons justifying the failure to offer the evidence at that time. Appellant asserts respondents failed to make that showing, so granting the motion was an abuse of discretion.
Respondents’ counsel asked to reopen the case to allow respondents to testify regarding their dependency on decedent; he expressed his belief that he could produce enough evidence to allow the issue to go to the jury. There was a discussion of what was required to show dependency; the court mentioned evidence of income, expenses, and payments received from decedent for necessities, and respondents’ counsel indicated he thought he could produce that evidence. The court noted that any documentation of respondents’ SSI income that had been requested by appellant but not produced would not be allowed. Thus, respondents made a showing of what they expected to prove if they reopened their case and the character of the evidence they proposed to introduce.
In opposition to the motion for nonsuit, respondents’ counsel unsuccessfully argued that the provision in section 3706 for a civil action against the employer as “if this division did not apply” meant that respondents could sue for wrongful death under Code of Civil Procedure section 377.60, which permits an action by heirs of decedent, regardless of whether they are dependents of decedent. In support of his motion to reopen, respondents’ counsel stated that he did not realize dependency was going to be an issue, because he was “operating perhaps misguidedly under 377.60.” Thus, he explained the failure to offer the evidence during respondents’ case-in-chief.
The court did not abuse its discretion in granting respondents’ motion to reopen their case.
II. Sufficiency of Evidence of Dependency
A. Deposition Testimony
Appellant contends that respondents’ trial testimony concerning their dependency on decedent for financial support contradicted their deposition testimony, was therefore “perjured” or “invented,” should not have been allowed, and could not constitute substantial evidence supporting the jury’s finding that respondents were dependents of decedent. Appellant argues that the rule applicable to summary judgments – that a party opposing the motion cannot rely on a declaration that contradicts the declarant’s prior deposition testimony – should apply at trial to prevent a testifying witness from contradicting testimony given by the same witness at deposition. (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22.)
“Any party may use a deposition for the purpose of contradicting or impeaching the testimony of the deponent as a witness.” (Code Civ. Proc. § 2025.620, subd. (a).) Deposition answers do not constitute incontrovertible judicial admissions, as do answers to requests for admissions. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522.) Consequently, if a witness at trial gives testimony that conflicts with his or her deposition testimony, the deposition may be used to impeach the trial testimony.
The rule set out in D’Amico is based on the rule that, on motion for summary judgment, the moving party's papers are strictly construed, while the opposing party's papers are liberally construed, accepting all facts therein as true. (D’Amico v. Board of Medical Examiners, supra, 11 Cal.3d at pp. 21-22; Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1498.)
“Where a plaintiff's admissions in a deposition contradict statements in the plaintiff's affidavits opposing the summary judgment, ‘the rule of liberal construction loses its efficacy and the granting or denial of the motion for summary judgment depends upon the issues of credibility. Accordingly, when a defendant can establish his defense with the plaintiff's admissions sufficient to pass the strict construction test imposed on the moving party…, the credibility of the admissions are valued so highly that the controverting affidavits may be disregarded as irrelevant, inadmissible or evasive.’ [Citation.]” (Niederer v. Ferreira, supra, 189 Cal.App.3d at p. 1503.)
The rationale for the D’Amico rule does not apply in the trial context. Appellant was able to, and did, introduce respondents’ prior deposition testimony in evidence to cast doubt on their trial testimony. The credibility of their testimony was a matter for the jury’s determination. (Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167, 170.) Respondents’ testimony was properly admitted.
B. Substantial Evidence of Dependency
Appellant next contends that, even considering respondents’ testimony at trial, the evidence was insufficient to support a finding that they were decedent’s dependents. Appellant contends that, while respondents presented evidence of their income and the value of money and goods provided to them by decedent, neither appellant presented any evidence of their expenses; without that information, appellant asserts, it is impossible to determine the dependency issue.
“When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) “‘Substantial evidence’ is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) “The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.” (Id. at p. 652.)
A dependent is one who relies on another for support; “‘[d]ependency is a present, existing relation between two persons where the one is sustained by, or relies on, the aid of the other for his means of living.’” (Industrial Indem. Co. v. Industrial Acci. Com. (1966) 243 Cal.App.2d 700, 705.) “‘This does not mean absolute dependency for the necessities of life, but rather that the dependent looks to and relies upon the contributions of the injured employee in whole or in part as a means of supporting and maintaining [the] dependent in accordance with his accustomed mode of life.’” (Id. at pp. 705-706.) Parents claiming dependency must show they were actually dependent, to some extent, upon the decedent for the necessaries of life, not just for niceties of life the parent might not otherwise be able to afford. (Perry v. Medina (1987) 192 Cal.App.3d 603, 610.) “Dependency should be determined on a case-by-case basis.” (Ibid.)
Decedent was killed on August 7, 2003. Respondent, Sherry Coleman, testified to decedent’s living arrangements and financial contributions to her from 2000 to 2003.
For clarity, respondent Sherry White will be referred to as “Sherry Coleman” or “Coleman,” the name she used when testifying at trial, and Robert White will be referred to as “White.”
She testified she was receiving SSI disability benefits at the time of trial, and had received them since the latter part of the 1980s because she has seizures. She received approximately $570 per month in 2001, and approximately $580 per month in 2002.
Coleman testified that, in 2000, she was living with White, who was making $1600 or $1700 a month. Decedent would give Coleman $20 or $30 per week for groceries and would take her to the canned food store and spend $80 to $100 on groceries. Decedent would also take her to her doctor appointments. In 2001, decedent gave her cash – “20, 50, $60 a week;” she would sometimes lend decedent money, but not as much as he gave her. In 2002, decedent continued to buy groceries for her and go to the canned food warehouse.
In 2003, decedent was living in an RV on the Kern Bluff lease, paying rent of $50 per week to Coleman, although Coleman never gave him a receipt for the rent. Decedent still bought groceries, went to the canned food warehouse, and took her to her doctor appointments in 2003. Coleman admitted she testified in deposition that decedent paid rent of $100 per month, but stated that was a mistake. On cross-examination, when asked why she had not mentioned in her deposition that decedent had bought $80 to $100 worth of groceries at the canned food store for decedent, White, and Coleman to consume every month from 2000 to 2003, Coleman testified appellant’s attorney did not ask her that in her deposition.
Gordon Osborne testified that he received Social Security disability benefits of about $770 per month in 2003. Decedent would take him to the store two or three times a month and buy some groceries, just enough to get through. Decedent would also put money in Osborne’s shirt pocket after paying for the groceries, “for toiletries and such.” The groceries and cash amounted to about $100 per month. Decedent also took Osborne to his various doctor appointments and took care of his yard work. When decedent was out of work, Osborne sometimes gave him $5 for gas.
Appellant read excerpts from Coleman’s deposition, in which she stated that decedent paid $100 a month rent for living in White’s RV, which he paid to White. Coleman stated when she needed money toward the end of the month, decedent would give her money; when she had money at the beginning of the month, she would help decedent out before he got his check. Pretty much every month, decedent would give her $20 to $50, depending on how much she needed; at the end of the month she was pretty broke. She tried to pay decedent back; she gave him money on a regular basis, about the same amount, $20 to $50, if she had it.
Appellant also read from Osborne’s deposition. Osborne stated decedent would take him to the store, buy groceries, and “stuff a 20 in [his] pocket.” It was the same as with Coleman – who sometimes gave decedent a little money, and sometimes was given a little money.
“The trier of the facts is the exclusive judge of the credibility of the witnesses.” (Ortzman v. Van Der Waal, supra, 114 Cal.App.2d at p. 170.) Thus, it was for the jury to decide whether the testimony of respondents was credible; when trial testimony differed from deposition testimony, it was for the jury to decide which testimony to believe and the weight to give it. “[T]he testimony of a witness offered in support of a judgment may not be rejected on appeal unless it is physically impossible or inherently improbable and such inherent improbability plainly appears.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.) “Similarly, the testimony of a witness in derogation of the judgment may not be credited on appeal simply because it contradicts the plaintiff's evidence, regardless how ‘overwhelming’ it is claimed to be. [Citation.]” (Ibid.) Although there were some inconsistencies in the testimony of the respondents, the testimony supporting the judgment was not “impossible” or “inherently improbable.” (Ibid.)
Osborne testified he had a fixed income, and decedent provided him with groceries and small amounts of cash monthly. Coleman testified she had a fixed income, plus the income of her husband, and at the end of each month, she was “pretty broke.” She testified decedent bought her groceries, which they shared, and gave her money for groceries. Although she testified in her deposition that she also gave decedent money, about as much as he gave her, at trial she qualified this statement by saying she did so when decedent was not working. The evidence presented constituted “substantial evidence, contradicted or uncontradicted,” supporting the jury’s determination of dependency. (Bowers v. Bernards, supra, 150 Cal.App.3d at pp. 873-874.)
Appellant also asserts dependency cannot be determined without evidence of respondents’ expenses, as well as their income. Appellant cites no authority requiring a showing of all of the alleged dependent’s expenses.
In Perry v. Medina (1987) 192 Cal.App.3d 603, a wrongful death case, the court reversed a summary judgment in favor of defendant, finding there was a triable issue of fact regarding whether plaintiff, the mother of decedent, was dependent on decedent. Decedent had lived with his mother for three or four months, then moved into his own apartment. (Id. at p. 606.) At the time of decedent’s death, plaintiff had a “meager” income of $400 per month (SSI and disability) and paid $200 in rent. (Id. at pp. 606, 610.) She lived with another son, who paid the phone bill and sometimes bought groceries. Decedent would buy $50 worth of groceries twice a month and bring them to plaintiff; and they would share them. Decedent also gave her $50 a month to save for surgery, but she spent it and did not have the surgery. (Id. at p. 606.) The court noted: “Although in this day and time $50 a month and some food to eat may seem like a very small amount, its value is greatly increased when viewed in the perspective that appellant lived on $400 a month, $200 of which paid her rent.” On these facts, the court found there was a triable issue of fact regarding whether plaintiff was a dependent of decedent. (Id. at p. 610.)
In Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, another action for wrongful death, the court reversed summary judgment in favor of defendant, finding there was a triable issue of material fact regarding whether plaintiffs were dependent parents. There was evidence decedent paid his parents $100 per week to help defray the cost of housing and utilities, regularly provided groceries and grocery money, and contributed services to the household, including cleaning windows, maintaining plaintiffs’ four cars, and doing yard work. (Id. at p. 1447.) Defendant argued the contributions decedent made were merely compensation for living with his parents, and plaintiffs’ own income was sufficient to support them without decedent's assistance. The court concluded the evidence supported an inference that plaintiffs relied on decedent's contributions for necessities. There was still a disputed fact question regarding whether plaintiffs were actually dependent, to some extent, upon the decedent for the necessaries of life. (Ibid.)
Although these cases arose in the context of summary judgment motions, and did not finally determine the issue of dependency, they indicate the type of evidence that may be considered in determining the issue of dependency and suggest that a complete accounting of the alleged dependent’s expenses is not necessary, particularly when the alleged dependent’s income is low.
Citing Owl Drug Co. v. Industrial Acci. Com. (1925) 71 Cal.App. 303, appellant argues that the parent of a deceased employee is not considered to be a dependent of the employee when, although the employee sent money to the parent regularly, the parent earned enough to be self supporting. In Owl Drug, plaintiff was the mother of the deceased employee, and presented evidence she had received specified amounts from decedent during the year before his death. The evidence also showed, however, that plaintiff was employed, lived with her daughter or her other son and paid no rent, paid her own expenses, which were less than her income, and used the money she had received from decedent to buy two postal savings certificates. (Id. at pp. 303-304.) Under those circumstances, the court concluded decedent was not contributing to plaintiff’s “support.” (Id. at p. 306.)
In Owl Drug, plaintiff had used the money provided by decedent for investment, rather than for necessities. Here, in contrast, there was evidence that decedent regularly provided both respondents with food, a necessity, and money for food. There was no evidence respondents used any portion of the money provided by decedent for investment.
Substantial evidence supports the jury’s determination that respondents were dependent on decedent to some extent.
III. Sufficiency of Evidence of Causation
Appellant contends respondents presented three theories of negligence at trial: (1) appellant failed to require that decedent wear a hard hat at the time of the incident; (2) appellant had no “lock-out/tag-out” procedures in place at the time of the incident; and (3) appellant had no injury and illness prevention program (IIPP) in place at the time of the incident. The jury was instructed that a violation of regulations requiring these things had been established, but the jury was to determine whether the violation was a substantial factor in decedent’s death. Appellant contends the evidence shows that none of these failings was a substantial factor in the death of decedent, because: (1) the uncontradicted evidence of appellant’s expert was that a hard hat would not have prevented decedent’s death; (2) a lock-out/tag-out program would have prevented only inadvertent energization of machinery, and decedent intentionally energized the unit; and (3) respondents’ expert testified that IIPPs reduce accidents by only 25 to 33 percent, so the probability was that this incident would have occurred even if appellant had had an IIPP.
In this case, it is presumed that decedent’s injury was a direct result and grew out of the negligence of appellant, and the burden of proof is on appellant to rebut this presumption. (§ 3708.) Thus, appellant was required to rebut the presumption of negligence on all of respondents’ theories in order to prevail. The evidence was sufficient to support the verdict of the jury that appellant failed to do so.
David Madruga was an electrical contractor who was present at the time of decedent’s death. He was at the site to change the motor in the pumping unit. With help from White and decedent, he disconnected the motor from another unit, and took it to the subject pumping unit to install. There was a main circuit breaker on a pole, and a push button on the unit to start the unit. Madruga had disconnected the power at the circuit breaker and the wiring at the motor. After the three installed the motor, Madruga reconnected the wires to the circuit breaker; at that point, his work was done.
When White and decedent were ready to run the unit, Madruga turned the power on at the pole and White or decedent started it with the switch, but the counterweight was hitting the belt guard. Madruga turned off the breaker so White and decedent could adjust the belt guard. White and decedent tried hitting the belt guard with a sledgehammer; when they were clear of the unit, Madruga turned the unit back on at the breaker and someone released the brake and activated the power switch. The weight was still hitting the belt guard, so White and decedent tried to fix it with bailing wire. When they got ready to run the unit again, they turned it on at the back of the unit, but the counterweight was still hitting the guard. They stopped the unit. Then, while Madruga was in the back of his truck putting things away, he saw White walk past toward the power pole; he saw decedent go to the back of the unit, release the brake, and push the button that started the unit. Decedent then walked back around to the side of the unit, where it appeared he was trying to do something with the bailing wire. Decedent was killed when he was struck on the head by the counterweight.
Appellant asserts both parties’ experts testified that the purpose of a lock-out/tag-out procedure was to prevent the inadvertent energization of machinery; appellant concludes that, since decedent intentionally energized the pumping unit, such a procedure would not have prevented the injury and therefore the lack of such a procedure could not have been a substantial factor in decedent’s death. Appellant mischaracterizes the testimony of respondents’ expert.
Respondents’ expert, Gerald Fulghum, testified that industry custom and practice, and the California Occupational Safety and Health Act (Cal-OSHA) regulations, require an employer to have an IIPP. Part of the plan is evaluating the work process to identify hazards, implementing the means to correct hazardous conditions, communicating this to employees, having a training program to identify the training needed and impart information to the employees, and enforcing the program to ensure employees are following the rules. Additionally, when an employee is assigned to a new task he has not performed before, the hazards involved in that task should be identified, the employee should be trained, and the employee’s acts should be monitored to ensure the training was effective. Appellant did not have an IIPP written, effective or implemented.
Fulghum testified that the lock-out/tag-out standard in the Cal-OSHA regulations required that, when working on equipment that could be energized or had moving parts, it must be brought to a zero mechanical state – a safe state – before performing any maintenance, adjustments, repair, or testing on the unit. The lock-out/tag-out standard must be written and specific to the equipment and activities the employer is engaged in, and the employees must be trained in it. In this case, while working on the belt guard in proximity to the counterweight arms, the machine had to be brought to a safe energy point, the control switches had to be disconnected and locked out or physically controlled, so the power would have to be turned off. The counterweight would have to be brought to the bottom and chained down, and the hand brake set. Then it could be safely worked on.
Fulghum stated that the activity of White and decedent – turning the machine on and off while trying to realign the belt guard – is anticipated by the lock-out/tag-out standard; when it is necessary to move the machinery to do adjustments or repairs, that operation must be under the control of an authorized employee, who must ensure that everyone is in a safe position and communicate when he will energize the machinery. If someone approaches the zone of danger, “you have to go to full lockdown.” The zone of danger in this case would include the swinging counterweight.
Fulghum observed there was no communication between White and decedent regarding how their task was going to be accomplished, and no training for decedent, for whom this was a new job assignment. Fulghum would have expected White to discuss with decedent how they would try to realign the belt guard safely; they might have looked at the alternative of loosening the four bolts and moving the guard.
Fulghum opined that, for the job they were doing, White and decedent could have turned the machine on and off at the back of the unit, as long as there was somebody at that switch at all times and given that specific assignment. The safe way to accomplish their task was to do it incrementally; White and decedent should have determined what the clearance was, identified the problem, taken the unit to a zero energy state, done the adjustment, released from the zero energy state, made sure everyone was in the clear, started it up, and seen if the repair was effectuated. Otherwise, it might have been prudent to bring in somebody else to perform the repairs, such as a welder.
In Fulghum’s opinion, if appellant had implemented a comprehensive IIPP, it was more likely than not this accident would not have occurred.
Thus, contrary to appellant’s characterization, Fulghum did not state that a lock-out/tag-out procedure would have protected only against inadvertent energization of the machinery. It was Fulghum’s opinion that, if appellant had not only written, but implemented and enforced a proper safety plan, which included a lock-out/tag-out procedure, the control switch would have been disconnected and locked out while work was being done on the unit or there would have been someone specifically assigned to monitor the power switch while the power was being turned on and off during adjustment, and that person would have made sure the power was not turned on while someone was in the zone of danger. The jury could have accepted Fulghum’s testimony, and rejected appellant’s argument that its failure to have an IIPP with a lock-out/tag-out procedure was not a substantial factor in causing decedent’s death.
Fulghum testified that companies that have an IIPP have 25 to 33 percent fewer accidents than companies that do not. He conceded that companies with IIPPs still have accidents. Appellant argues that, statistically, there was only a possibility, not a probability, that having an IIPP would have prevented this incident. Because 66 to 75 percent of accidents would still occur even with a valid IIPP in place, appellant contends the statistical probability was that this incident would have occurred in any event. Appellant also asserts that “Mr. Fulghum provided no testimony specific to Capco, the work of Robert White or James Osborne, or this incident in particular, which would have taken this case out of the statistical ranges stated by Mr. Fulghum.” On the contrary, Fulghum testified specifically what appellant’s IIPP should have contained and how the elements of such a plan would have applied to the work being done by White and decedent at the time of decedent’s death. He suggested specific safety measures that should have been implemented and could have prevented decedent’s death. Thus, his testimony was sufficient to support the jury’s apparent conclusion that this incident was one that could have been prevented with a properly implemented IIPP.
The burden of proof was on appellant to rebut the presumption that decedent’s injury and death were a direct result and grew out of the negligence of appellant. There was substantial evidence to support the jury’s conclusion that appellant did not meet its burden of proof.
IV. Evidence of Marijuana Use
In a civil action by an employee against an employer who failed to secure the payment of compensation under the workers’ compensation statutes, “[i]t is not a defense to the employer that the employee was guilty of contributory negligence.” (§§ 3708, 3706.) In accordance with section 3708, the trial court excluded evidence proffered by appellant that decedent used marijuana on the day of the incident that caused his death. Appellant does not contend that section 3708 was misapplied. Rather, it contends that the evidence should have been admitted pursuant to section 3600, subdivision (a)(4), which appellant asserts would have precluded any recovery by respondents.
Section 3600 provides that liability for compensation under the workers’ compensation statutes, in lieu of any other liability, “shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur: [¶ ] ... [¶ ] (4) Where the injury is not caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee.” (§ 3600, subd. (a).) With some exceptions, “[w]here the conditions of compensation set forth in Section 3600 concur, the right to recover [workers’ compensation benefits is the] exclusive remedy of the employee or his or her dependents against the employer.” (§ 3602, subd. (a).) Where the conditions of compensation do not concur, “the liability of the employer shall be the same as if this division had not been enacted.” (§ 3602, subd. (c).)
At trial, appellant made an offer of proof of decedent’s marijuana use and contended that, if use of a controlled substance was the cause of decedent’s injury, respondents’ recovery was barred. If the conditions of compensation in section 3600 are not satisfied, however, an employee may continue to pursue a common law tort action for damages against his or her employer. (Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 811.) Thus, proof of marijuana use would not have barred respondents’ civil action.
When appellant made its offer of proof, counsel for appellant conceded that the expert witness he proposed to use to prove marijuana use “was not actually willing to say [decedent] was under the influence.” By its terms, sections 3600, subdivision (a)(4) applies only if the employee was intoxicated by alcohol or a controlled substance. Appellant offered no proof that decedent was intoxicated at the time of his death. Appellant has failed to demonstrate that the trial court abused its discretion when it excluded evidence of decedent’s marijuana use.
V. Evidence of Assignment Contract and Independent Contractor Agreement
In the first phase of the trial, respondents contended decedent was an employee of appellant. Appellant contended Robert White was an independent contractor of appellant, and decedent was either an independent contractor of appellant or an employee of White. The jury found that both White and decedent were employees of appellant.
For workers’ compensation purposes, “‘[e]mployee’” is defined as “every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.” (§ 3351.) “‘Independent contractor’” is defined as “any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.” (§ 3353.) “[A]t common law the dispositive factor in determining whether an injured person was an employee [or an independent contractor] was the amount of control exercised by the alleged employer over the person.” (Gonzalez v. Workers' Comp. Appeals Bd. (1996) 46 Cal.App.4th 1584, 1589.) This is still the key test, but there are many other factors to consider, including “‘(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 worker supplies 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. 1590.) A contract between the parties which provides that the worker is an independent contractor is significant, but not dispositive. (Id. at p. 1594; S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 358.)
Appellant sought to introduce both an assignment of oil and gas lease, by which appellant’s predecessor, State Energy and Development Company, assigned to appellant all contracts relating to certain oil leases, and an independent contractor agreement between White and State Energy, which appellant contended was assigned to it pursuant to the assignment. The court permitted the independent contractor agreement to be admitted as evidence of one of the circumstances affecting the relationship between White and appellant. The court did not, however, permit appellant to argue that the independent contractor agreement was a valid existing contract between White and appellant. The court excluded the assignment on respondents’ objection.
Appellant contends the court abused its discretion by excluding the assignment and by prohibiting appellant from arguing that the independent contractor agreement was a valid, existing contract between appellant and White at the time of decedent’s death. Appellant asserts it should have been permitted to argue to the jury that, through the assignment, it had taken the legal rights to White’s performance under the independent contractor agreement, and White was bound by the terms of the agreement as an independent contractor rather than an employee.
The independent contractor agreement provides:
“TERM OF THIS AGREEMENT: This Agreement shall run and be valid for a period of Three (3) Years commencing on that date this Agreement is executed by Independent Contractor; or until that date thirty days subsequent to Independent Contractor delivering to Operator a written notice of Independent Contractor’s intent to terminate services hereunder; or until that date as Operator delivers written notice to Independent Contractor that Independent Contractor’s services are being terminated by Operator with cause.” (Underscore in original.)
White’s signature is dated April 5, 2000. The three year period terminated on April 5, 2003. Decedent’s death occurred on August 7, 2003, four months after that date. There was no evidence that the contract was extended, or that it was terminated on notice by either party.
Appellant argues that there were three alternatives for the termination date of the contract, so it did not necessarily terminate three years from the date it was executed by White. Appellant does not provide any interpretation of the agreement that would make it terminate on a date later than three years after it was executed by White. The agreement is not reasonably susceptible to an interpretation that it continued beyond the three year period, until either “Operator” or White gave notice of termination. Such an interpretation would render the three year provision meaningless and ineffective. Consequently, the only reasonable interpretation is that the contract terminated, by its own terms, on April 5, 2003, because it was not terminated earlier by notice given by either party. The court did not abuse its discretion by admitting the independent contractor agreement, but precluding appellant from arguing that it was a valid, existing contract between White and appellant at the time of decedent’s death.
Appellant also sought to introduce the assignment to show that it had a valid, existing contract with White at the time of decedent’s death, which made White an independent contractor rather than an employee. Because the independent contractor agreement terminated prior to decedent’s death, however, even if the assignment had been admitted, it would not have shown that appellant had a valid independent contractor agreement with White at the time of decedent’s death. The most appellant could have argued concerning the independent contractor agreement was that White had entered into an agreement which specified that he was an independent contractor, that White continued to work for appellant without change even after the independent contractor agreement terminated, and therefore White was still working as an independent contractor for appellant at the time of decedent’s death. This essentially is what appellant did argue.
A judgment may not be reversed on appeal absent prejudicial error. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) Because the exclusion of the assignment did not prevent appellant from arguing that the parties were still operating in accordance with the independent contractor agreement at the time of decedent’s death, appellant has not demonstrated that any error in excluding the assignment was prejudicial.
VI. Special Verdict Form
The use of a special verdict form and the questions included in it are reviewed for abuse of discretion. (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 364.) Appellant contends the court abused its discretion by permitting the causation question in the special verdict form to be phrased in terms of “a cause” of the harm, rather than “a substantial factor” in causing the harm.
Question 4 of the special verdict form for the second phase of the trial asked: “Was defendant CAPCO Resource Corp./Jovian Energy Corp.’s negligence a cause of the death of James Osborne?” The jury was instructed that one of the essential elements of respondents’ case was that appellant’s negligence “was a substantial factor in causing plaintiffs’ harm.” The jury instruction on causation stated: “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.” The court instructed the jury that it was to follow the court’s instructions on the law in answering the questions in the special verdict form. Additionally, in his closing argument, counsel for appellant directly related the “substantial factor” instruction to question four of the special verdict form. He informed the jury that the instruction was “how … you determine if something is a cause of the death of Mr. Osborne.”
Implicit in appellant’s argument is a notion that “a cause” of harm is a lower standard than “a substantial factor in causing” harm. The California Supreme Court has explained the “substantial factor” test:
“California has definitively adopted the substantial factor test of the Restatement Second of Torts for cause-in-fact determinations. [Citation.] Under that standard, a cause in fact is something that is a substantial factor in bringing about the injury. [Citations.] The substantial factor standard generally produces the same results as does the ‘but for’ rule of causation which states that a defendant’s conduct is a cause of the injury if the injury would not have occurred ‘but for’ that conduct. [Citations.] The substantial factor standard, however, has been embraced as a clearer rule of causation – one which subsumes the ‘but for’ test while reaching beyond it to satisfactorily address other situations, such as those involving independent or concurrent causes in fact. [Citations.]” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968-969.)
A force that plays only an infinitesimal or theoretical part in bringing about the harm is not a substantial factor. (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 969.) But “[u]ndue emphasis should not be placed on the term ‘substantial.’” (Ibid.)
“[T]he substantial factor standard, formulated to aid plaintiffs as a broader rule of causality than the ‘but for’ test, has been invoked by defendants whose conduct is clearly a ‘but for’ cause of plaintiff’s injury but is nevertheless urged as an insubstantial contribution to the injury. [Citation.] Misused in this way, the substantial factor test ‘undermines the principles of comparative negligence, under which a party is responsible for his or her share of negligence and the harm caused thereby.’ [Citation.]” (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 969.)
Thus, the “substantial factor” language in the jury instructions is another way of describing “but for” causation. It was not intended to differentiate between degrees of causation, i.e., between “substantial” and “insubstantial” causes. Appellant’s contention that the use of the term “a cause” in the verdict form exposed it to application of a lower standard of causation lacks merit.
In light of the instructions given, which used the term “a substantial factor” and required the jury to apply the law given in the instructions in answering the questions in the special verdict form, it was neither an abuse of discretion nor a prejudicial error to use the term “a cause” in the special verdict form.
DISPOSITION
The judgment is affirmed. Respondents are awarded costs on appeal.
WE CONCUR: DAWSON, Acting P.J., KANE, J.