(San Mateo County Super. Ct. No. CIV-450974). Hon. George A. Miram.
The opinion of the court was delivered by: Ruvolo, P. J.
CERTIFIED FOR PUBLICATION
A subcontractor's employee, while working at a multiemployer construction site, was slightly injured by a pre-existing, nonobvious hazard that had not been created in the course of the subcontractor's work. The employee told his foreman about the incident, but the foreman did not report it to the general contractor. Shortly thereafter, two employees of the general contractor were severely injured by the same hazard.
Can the injured employees of the general contractor sue the subcontractor for negligence, based on the subcontractor's failure to warn the general contractor about the hazard? We hold that neither the common law nor the applicable construction contract created a duty on the part of the subcontractor to take affirmative steps to protect those working for other employers from hazards not created by the subcontractor.
However, we conclude that the subcontractor did have a statutory duty of care, created by applicable workplace safety statutes and regulations requiring the subcontractor to report hazards to which its employees were exposed. Under California Supreme Court case law, one who breaches such a duty is liable in tort. Accordingly, we reverse the trial court's grant of summary judgment to the subcontractor.
II. FACTUAL AND PROCEDURAL BACKGROUND
In January 2005, appellants Miguel Suarez and Luis Avila were working for a construction company called All Bay Contractors, Inc. (All Bay). All Bay was the general contractor on a tenant improvement project on which appellants were working (the project). All Bay hired respondent Pacific Northstar Mechanical, Inc. (PNM) as a subcontractor to install only the heating, ventilation, and air conditioning (HVAC) components of the project.
Before appellants began working on the project, an unguarded electrical circuit, to which an ungrounded light fixture (the ungrounded fixture) was wired, was installed on the premises on which appellants were working. Neither All Bay nor any of the subcontractors on the project, including PNM, had been hired to do any work with the ungrounded fixture, and PNM did not install it.
On January 14, 2005, during the course of appellants' work on the project, Suarez climbed to the top of a ladder inside the building that was being remodeled, so as to make some marks on the ceiling, and grabbed an I-bolt to steady himself while on the ladder. Meanwhile, Avila was standing on the floor holding the ladder. Unbeknownst to Suarez, the light fixture that was hanging from the I-bolt he grabbed was the ungrounded fixture. When Suarez grabbed the I-bolt, he immediately received an electric shock, fell off the ladder, and landed on Avila, resulting in injuries to both men.
On November 18, 2005, appellants filed a complaint in San Mateo County Superior Court against the owner of the property on which the project was located. The complaint alleged two causes of action: one for premises liability, and one for general negligence.
On March 5, 2007, appellants filed an amendment to their complaint substituting PNM for a fictitious defendant. On May 21, 2007, appellants filed an amended complaint alleging that the ungrounded fixture that caused their injuries was installed by the previous owners of the property, who had failed to disclose the latent hazard to the defendant that owned the property at the time of the project. The amended complaint also alleged that before appellants were injured, a PNM employee encountered the ungrounded fixture and failed to report the problem to other contractors or to the property owner.
On August 23, 2007, PNM filed a motion for summary judgment, or, in the alternative, for summary adjudication of issues. In support of its motion, PNM relied on the following facts: PNM did not own, lease, occupy or control the property where the accident occurred; PNM's work on the HVAC installation did not create any dangerous conditions at the project; PNM was not hired to inspect or work on the ungrounded fixture; and PNM did not work on or use the ungrounded fixture.
In their opposition to the motion, appellants did not dispute these facts. However, appellants introduced evidence that approximately three weeks before they were injured, PNM's employees were working in the room where the ungrounded fixture was located, and that PNM learned of the dangerous condition at this time, and did not warn anyone about it or correct the problem. Specifically, appellants produced evidence that a PNM employee named Rafael Campos, Jr. (Campos Jr.) suffered an electric shock from the ungrounded fixture while PNM's workers were in the location, receiving only minor injuries. Appellants also produced evidence that a PNM foreman (who happened also to be Campos Jr.'s father, Juan Rafael Campos (Campos Sr.)) knew about Campos Jr.'s injury before appellants were injured.*fn1
In their opposition to the summary judgment motion, appellants introduced evidence supporting the contention that before appellants were injured, no one at PNM informed All Bay, or anyone else in authority at the project, about any injury to Campos Jr., or about the existence of the ungrounded fixture. In its reply papers, PNM contended that these facts were irrelevant, but did not dispute them.
Appellants also relied on deposition testimony from Campos Jr., Campos Sr., and PNM's owner to the effect that they each had an obligation to report the existence of safety hazards at the jobsite to All Bay. PNM's owner testified that one purpose of PNM's policy of requiring such reports was ...