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Seabright Insurance Co. v. U.S. Airways

March 29, 2010

SEABRIGHT INSURANCE COMPANY PLAINTIFF AND APPELLANT,
v.
U.S. AIRWAYS, INC., DEFENDANT AND RESPONDENT;
ANTHONY VERDON LUJAN, INTERVENOR AND APPELLANT.



(San Francisco City & County Super. Ct. No. CGC-06-458707). Trial Judge: Honorable Peter J. Busch.

The opinion of the court was delivered by: Rivera, J.

CERTIFIED FOR PUBLICATION

Plaintiff Seabright Insurance (Seabright) and intervenor Anthony Verdon Lujan (Verdon) (collectively appellants) appeal after the trial court granted summary judgment in favor of defendant U.S. Airways, Inc., in this personal injury action. They contend on appeal that the trial court erroneously applied the rule of the Privette-Toland line of cases to conclude that the hirer of Verdon's employer could not be liable for Verdon's injuries. (Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette); Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 (Toland).) We agree and reverse.

I. BACKGROUND

Seabright brought this action for subrogation against the City and County of San Francisco/San Francisco International Airport (the Airport), America West Airlines, Inc.,*fn1 and others, alleging that it was the workers' compensation carrier for Verdon's employer, the Lloyd W. Aubry Co., Inc. (Aubry), that Verdon was injured when his arm became caught in a conveyor at the Airport, and that defendants breached their duty of care to provide a safe working environment and to provide adequate warnings and safety devices.*fn2 Verdon intervened, alleging causes of action against U.S. Airways for negligent failure to install safety and warning devices and premises liability.

U.S. Airways moved for summary judgment or summary adjudication against Seabright and Verdon, contending it had a complete defense under Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 200-201 (Hooker), one of the Privette-Toland progeny. The trial court granted the motions, concluding that appellants had presented no evidence U.S. Airways's affirmative conduct contributed to Verdon's accident, and had not presented admissible evidence concerning the cause of Verdon's injuries.

The undisputed evidence shows that Verdon was employed by Aubry, an independent contractor working under a contract with U.S. Airways to provide "[p]reventive maintenance and repair" services at the Airport.*fn3 The Airport owned the conveyor belts, and U.S. Airways used them under a space or use permit. Neither U.S. Airways nor its predecessor had manufactured, distributed, or sold conveyor belt systems. Verdon alleged he was injured in the course and scope of his work on a conveyor belt at the Airport on November 3, 2005, when his arm became caught in a moving conveyor that had no shields or cover. At the time, no U.S. Airways employees were working with Aubry on the conveyor belt, and none were present at the time of Verdon's injury. Aubry employees received their training from Aubry, not from U.S. Airways employees, and Verdon had received all of his safety training from Aubry or from the millwright union where he learned his trade.

Evidence submitted in support of the motions for summary judgment indicated that U.S. Airways used the conveyor system to deliver bags to and from airplanes, and relied entirely on Aubry for the maintenance and upkeep of the system.*fn4 Aubry would seek authorization from U.S. Airways before performing repairs that involved shutting the conveyors down. If U.S. Airways became aware of a problem with the conveyor system, it would contact Aubry to make the necessary repairs. It appears that the morning of the incident in question, Verdon attended a safety meeting, and signed a "Daily Safe Plan of Action," which identified hazards in the work he would be doing, including moving parts, low lighting, pinch points, and debris buildup. The "safe plan/control" for these hazards included observing moving parts from a distance, using flashlights, and shutting power off before working on any system.

In a declaration submitted in opposition to the motions for summary judgment, Verdon stated that at the time of the incident, he was performing routine maintenance on the conveyor. The first phase involved observing the conveyor and its moving parts. Although the conveyor would be shut down before performing any actual maintenance or repairs, the initial visual inspection required the conveyor to be running so the inspector could look and listen for certain problems. To do this inspection, Verdon had to work "in a poorly lighted, tight/cramped space close to the conveyor's moving parts," and the conditions limited his available range of body movements and positions. While Verdon was carrying out this inspection, his arm became caught in the moving parts. He averred that he did not reach into the conveyor's moving parts, and that consistent with his training, he had never reached into or knowingly placed his hand or arm into or unreasonably close to the conveyor's exposed moving parts while it was running.*fn5

Appellants also submitted a declaration of Matthew T. Wilson, an expert in accident reconstruction as it applies to industrial hazards. Wilson testified that the "head pulley and several tension and take-up pulleys on the subject conveyor were not guarded. This caused the nip points to be fully exposed and a hazard to anyone who worked or passed through the area." He pointed to standards of the American Society of Mechanical Engineers (ASME), which produces and promulgates national standards for conveyor systems, specifying that " `nip and shear points' " should be guarded, as well as California Code of Regulations, title 8, section 4002, which required guarding on certain machines, and section 3999, which required guarding on belt conveyor head pulleys, tail pulleys, single tension pulleys, and dip take-up pulleys.*fn6 According to Wilson, "[t]he subject conveyor did not have guard(s) covering the nip points located at the bottom of the incline area at the point where Anthony Verdon's arm became entrapped. The lack of such guarding constituted a violation of California Title 8 (Cal OSHA) regulations §3999 and §4002," and the lack of proper guarding failed to meet the standard for conveyor safety as promulgated by the ASME. Wilson also stated that he had reviewed the transcript of Verdon's deposition, and opined that had the conveyor been properly guarded as the regulations and standards required, the accident would not have occurred, and if the lighting conditions had met the regulation requirements, the probability of the accident would have been reduced. The trial court sustained U.S. Airways's objections to Wilson's testimony to the extent Wilson opined on the cause of Verdon's injury, but ruled he could properly express an opinion that conditions were unsafe.

II. DISCUSSION

A. Standard of Review

The standard of review after a motion for summary judgment has been granted is well established. "[W]e review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.] Under California's traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law. [Citations.]" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334-335.) In doing so, we "view the evidence in a light favorable to plaintiff [and intervenor] as the losing part[ies] [citation], liberally construing [their] evidentiary submission while strictly scrutinizing defendant['s] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's [and intervenor's] favor. [Citations.]" (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769 (Saelzler).) A moving defendant need not conclusively negate an element of a cause of action; it is sufficient to " `show[] that one or more elements of the cause of action . . . cannot be established' by the plaintiff. (Code Civ. Proc., ยง 437c, subd. ...


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