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Tverberg v. Fillner Construction

June 28, 2010

JEFFREY TVERBERG ET AL., PLAINTIFFS AND APPELLANTS,
v.
FILLNER CONSTRUCTION, INC., DEFENDANT AND RESPONDENT.



Ct.App. 1/4 A120050 Solano County Super. Ct. No. FCS028210. Judge: Paul Lloyd Beeman.

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

We granted review to resolve a conflict in the Courts of Appeal regarding the implications of our decision in Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette). That case holds that the hirer of an independent contractor is not vicariously liable to the contractor's employee who sustains on-the-job injuries resulting from a special or peculiar risk inherent in the work. Those injuries, Privette explained, are covered by workers' compensation insurance, the cost of which is generally included in the contract price for the project. (Id. at pp. 697-698.)

Here, after getting injured at a construction jobsite, an independent contractor hired by a subcontractor sued the general contractor. The trial court granted summary judgment for defendant general contractor. The Court of Appeal reversed. It held that Privette, supra, 5 Cal.4th 689, precludes recovery only when jobsite injuries are subject to mandatory coverage under California's workers' compensation system, which is not the case when the injured person is an independent contractor. The court expressly disagreed with the Court of Appeal in Michael v. Denbeste Transp., Inc. (2006) 137 Cal.App.4th 1082 (Michael), which concluded that Privette's holding -- that the peculiar risk doctrine does not make one who hires a contractor vicariously liable for workplace injuries sustained by the hired contractor's employees -- also operates to bar peculiar risk liability for workplace injuries of an independent contractor. We agree with Michael that the peculiar risk doctrine does not make a hiring party liable for the workplace injuries of an independent contractor. But we do not agree with Michael that Privette's holding applies directly in this situation. Nor do we agree with the Court of Appeal here that the presence or absence of workers' compensation coverage is the key to resolving this case. Rather, the reason underlying our holding is this: Unlike a mere employee, an independent contractor, by virtue of the contract, has authority to determine the manner in which inherently dangerous construction work is to be performed, and thus assumes legal responsibility for carrying out the contracted work, including the taking of workplace safety precautions. Having assumed responsibility for workplace safety, an independent contractor may not hold a hiring party vicariously liable for injuries resulting from the contractor's own failure to effectively guard against risks inherent in the contracted work.

I.

Because this case comes before us after the trial court's grant of summary judgment, we apply these well-established rules: " ' "[W]e take the facts from the record that was before the trial court when it ruled on that motion," ' " and we " ' " ' "review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained." ' " ' " (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039, quoting Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 206.) We also " ' "liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." ' " (Ibid.)

In April and May 2006, defendant Fillner Construction Company was the general contractor for the expansion of a commercial-fuel facility operated by Ramos Oil Company in Dixon, Solano County, California. The project required construction of a metal canopy over some fuel-pumping units. To do that work, Fillner hired subcontractor Lane Supply, which delegated the work to subcontractor Perry Construction Company, which then hired plaintiff independent contractor Jeffrey Tverberg as foreman of Perry's two-man canopy-construction crew. Tverberg, who had more than 20 years' experience in structural steel construction, held a state contractor's license under the name J.T. Construction, a sole proprietorship consisting exclusively of Tverberg. Although subcontractor Perry paid Tverberg on an hourly basis, it is undisputed that Tverberg was not Perry's employee but an independent contractor.

As part of the entire commercial-fuel facility project, defendant general contractor Fillner hired subcontractor Alexander Concrete Company to erect eight "bollards," concrete posts intended to prevent vehicles from colliding with the fuel dispensers. On May 1, 2006, which was plaintiff Tverberg's first day on the job, subcontractor Alexander had already dug eight holes for the bollard footings; each hole was four feet wide and four feet deep. The holes, marked with stakes and safety ribbon, were next to the area where Tverberg was to erect the metal canopy. The bollards had no connection to the building of the metal canopy, and Tverberg had never before seen bollard holes at a canopy installation.

Plaintiff Tverberg asked Steve Richardson, the "lead man" for defendant general contractor Fillner, to cover the holes with large metal plates that were on the site, but Richardson said that he did not have the necessary equipment that day. Richardson did, however, have his crew use a tractor to flatten dirt that was piled around the holes. And Tverberg himself removed three or four stakes that were marking the edges of some of the bollard holes.

The next day, with the bollard holes still uncovered, Tverberg began working on the canopy. He again asked Richardson to cover the holes, but Richardson did not do so. A short while later, as Tverberg walked from his truck toward the canopy, he fell into a bollard hole and was injured.

Tverberg then sued general contractor Fillner and subcontractor Perry, which had hired Tverberg, seeking damages for physical and mental injuries and lost income under theories of negligence and premises liability. It is not clear whether Tverberg's complaint sought recovery under a peculiar risk theory. That theory became an issue when defendant general contractor Fillner's motion for summary judgment asserted that under this court's decision in Privette, supra, 5 Cal.4th 689, Fillner could not be held vicariously liable for plaintiff's injuries. Fillner also asserted that it could not be held directly liable for negligence in failing to provide a safe workplace.*fn1 Tverberg opposed the motion, contending only that Fillner had retained control over safety conditions at the jobsite and thus could be held directly liable for its failure to eradicate a known danger, namely, the open bollard holes.

The trial court entered summary judgment for defendant general contractor. Citing the Court of Appeal's decision in Michael, supra, 137 Cal.App.4th 1082, the trial court ruled that plaintiff independent contractor could not hold the general contractor vicariously liable on a theory of peculiar risk. The court also rejected plaintiff's contention that defendant general contractor could be held directly liable for failing to cover the bollard holes, noting that plaintiff had been "aware of the danger posed by the bollard holes" but "did not refuse to work around" them, and that defendant had never promised to cover the holes.

On appeal, plaintiff independent contractor argued for the first time that Privette, supra, 5 Cal.4th 689, did not bar him from holding the general contractor vicariously liable on a theory of peculiar risk. The Court of Appeal agreed, and it reversed the trial court's summary judgment for defendant general contractor. The Court of Appeal held that Privette's rule of not imposing vicarious liability against a hiring party for jobsite injuries sustained by an employee of an independent contractor does not apply when the person injured is the independent contractor himself, because unlike the employee, the contractor is not subject to mandatory workers' compensation coverage. The court expressly disagreed with the Court of Appeal in Michael, supra, 137 Cal.App.4th 1082, 1086, that Privette's "policies and rationale" would not permit an independent contractor to hold a hiring party vicariously liable for workplace injuries.

We granted defendant general contractor's ...


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