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Stephany L. Kramer v. Turner Construction Company

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR


December 13, 2010

STEPHANY L. KRAMER, PLAINTIFF AND APPELLANT,
v.
TURNER CONSTRUCTION COMPANY, DEFENDANT AND RESPONDENT.

(San Francisco County Super. Ct. No. CGC-09-486162)

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

Kramer v. Turner Construction Co. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Stephany L. Kramer is an electrician who was employed by a subcontractor on a construction project managed by defendant Turner Construction Company (Turner) as the general contractor. Kramer was walking across the construction site when she fell on loose gravel and broke her leg. Kramer collected workers' compensation, which is her exclusive remedy against her employer, Rosendin Electric, Inc. (Rosendin). (Lab. Code, § 3200 et seq.) Kramer also sued Turner for her injury upon allegations that the general contractor's acts and omissions affirmatively contributed to the accident. The trial court granted summary judgment to Turner. We affirm the judgment.

I. facts

The statement of facts is drawn from the pleadings, the parties' separate statements of undisputed facts, and supporting evidence submitted on the motion for summary judgment. (Code Civ. Proc., § 437c, subds. (b)(1), (b)(3).) We have disregarded portions of the declaration of plaintiff's expert, John Donley, to which objections were properly sustained. Specifically, Donley's opinions that Turner had a duty to maintain safety on the construction site, acted negligently, and affirmatively contributed to the accident are inadmissible legal conclusions. (Evid. Code, § 310, subd. (a); Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 529-532; Towns v. Davidson (2007) 147 Cal.App.4th 461, 472-473; Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1179.) We now turn to a summary of the admissible evidence relevant to disposition of the summary judgment motion.

Turner was the general contractor on a construction project at Laguna Honda Hospital in San Francisco. Turner hired Rosendin as an independent electrical subcontractor. In the written agreement between Turner and Rosendin, Rosendin promised to perform and furnish all the work, labor, materials, equipment, tools, and other things necessary for the contracted electrical work. Rosendin agreed that the prevention of accidents to workers was its responsibility. Turner was given the right to stop any work that it deemed unsafe but "[f]ailure on the part of Turner to stop unsafe practices shall in no way relieve [Rosendin] from its responsibility" for those practices.

The construction site included a courtyard that was used by Turner and its subcontractors for access to the building under construction and for storage and staging of materials and equipment. Rosendin had a large storage container in the courtyard--called a gang box or production box--containing personal protective equipment for its employees, like hardhats, safety vests, and eye glasses. Rosendin workers would go to the gang box each morning to gather their safety equipment before entering the building and starting work. The gang box and safety equipment were Rosendin's property, not Turner's. Turner did not provide Rosendin with any materials or equipment necessary to accomplish Rosendin's work.

On the afternoon of Wednesday, May 7, 2008, Turner sent an electronic message to Rosendin and its other subcontractors asking them to clear the courtyard of their equipment by the end of the day Friday, May 9, 2008, because a large crane was being brought into the courtyard over the weekend and would be operating in the courtyard the next week delivering construction materials to the roof. Turner did not tell Rosendin where to place the gang box, nor did Turner make any suggestions about its placement.

A Rosendin employee, Craig Cathcart, used a forklift to move the gang box on Friday, May 9, 2008. Cathcart was a materials handler for Rosendin. Cathcart placed the gang box near the new entrance to the building. Rosendin was the first of the subcontractors to move their gang boxes out of the courtyard. The other subcontractors placed their boxes near Rosendin's. At Cathcart's deposition, he was asked why he chose the location he did for Rosendin's gang box, and he said "common sense dictated that's where the box went" given the unavailability of most of the courtyard and the close proximity of the location to the building entrance. It appears from Cathcart's declaration and an accompanying photograph of the site that the gang box was "down an incline in an area of loose gravel." The gang box itself was on level ground and very near an entrance to the building. Turner did not establish a path for Rosendin employees to use to and from the gang box, nor dictate the route used. Rosendin employees, like plaintiff Kramer, made their way through the construction site by evaluating the circumstances and choosing a route with the least obstruction.

The relocated gang box was used by Rosendin employees without incident for several days, through Tuesday, May 13, 2008. The accident injuring plaintiff Kramer occurred on the morning of Wednesday, May 14, 2008. Kramer was employed by Rosendin as an electrician, and she had worked on the Laguna Honda construction project for two months prior to the accident. On the day of the accident, she walked to the gang box, retrieved her safety equipment, and started walking up the gravel incline to begin work. Kramer heard a noise or voice and paused. The ground under her right foot shifted or gave way, her ankle twisted, and she fell down. She suffered a broken leg, which continues to discomfort her.

Ii. discussion

A. Summary judgment standard

"On appeal after a motion for summary judgment has been granted, we 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 [properly] 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." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)

B. Liability of the hirer of an independent contractor

"At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work." (Privette v. Superior Court (1993) 5 Cal.4th 689, 693.) Numerous exceptions developed over time, including an exception pertaining to "contracted work that poses some inherent risk of injury to others" known as the doctrine of peculiar risk. (Ibid.) "The courts adopted the peculiar risk exception to the general rule of non-liability to ensure that innocent third parties injured by the negligence of an independent contractor hired by a landowner to do inherently dangerous work on the land would not have to depend on the contractor's solvency in order to receive compensation for the injuries." (Id. at p. 694.) "[I]n its original form the doctrine of peculiar risk made a landowner liable to innocent bystanders or neighboring property owners who were injured by the negligent acts of an independent contractor hired by the landowner to perform dangerous work on his or her land. . . . [¶] Gradually, the peculiar risk doctrine was expanded to allow the hired contractor's employees to seek recovery from the nonnegligent property owner for injuries caused by the negligent contractor." (Id. at p. 696.) California was among the minority of jurisdictions that adopted that view. (Ibid.) Our Supreme Court has since repudiated it. (Ibid.) In Privette, the court held that when "injuries resulting from an independent contractor's performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers' compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries." (Id. at p. 702.)

There remains a limited basis for a contractor's employee to seek recovery of tort damages from the contractor's hirer. Relevant here, an employee of a contractor may sue the hirer of the contractor where the hirer retains control over the work performed by the contractor and "exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor's employee." (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 208-210, italics omitted.) "[M]ere retention of the ability to control safety conditions is not enough. '[A] general contractor owes no duty of care to an employee of a subcontractor to prevent or correct unsafe procedures or practices to which the contractor did not contribute by direction, induced reliance, or other affirmative conduct.' " (Id. at p. 209.) Where "the plaintiff fails to present a triable issue as to whether the defendant's exercise of retained control affirmatively contributed to the employee's injuries, summary judgment is appropriate." (Id. at p. 212.)

C. Plaintiff failed to present evidence that Turner affirmatively contributed to her injury

On its motion for summary judgment, Turner established that it hired Rosendin as an independent contractor and that plaintiff Kramer was injured in the course and scope of her employment with Rosendin at the Laguna Honda Hospital construction site when she fell walking from her gang box to a building entrance. Rosendin had agreed, in its contract with Turner, that the prevention of accidents to its workers was its responsibility. Turner also established that Rosendin placed the gang box at the bottom of the gravelly incline and that Turner did not direct the placement of the gang box, nor consult with Rosendin on the matter. It was also established that Turner did not dictate Kramer's route to or from her employer's gang box.

In opposition to the summary judgment motion, plaintiff showed that Turner established and enforced safety rules for all of its subcontractors and had a project safety manager who oversaw the safe operation of the project and coordinated safety activities for all work. Plaintiff also established that the courtyard, where the accident happened, was used by employees of Turner, Rosendin, and other subcontractors. From these facts, plaintiff argued that it was Turner's responsibility to maintain the common courtyard in a reasonably safe condition, which it failed to do by not providing a safe location for Rosendin's gang box.

Plaintiff's evidence fails to create a triable issue of fact as to Turner's liability. Turner's enforcement of safety rules and appointment of a project safety manager on the construction site did not obligate Turner to oversee and correct Rosendin's placement of its gang box. " '[A] general contractor owes no duty of care to an employee of a subcontractor to prevent or correct unsafe procedures or practices to which the contractor did not contribute by direction, induced reliance, or other affirmative conduct.' " (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 209.) The relevant question is whether Turner, as the hirer of an independent contractor, retained control over the work performed by the contractor and "exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor's employee." (Id. at pp. 208-210.)

Turner did not retain control over the work performed by Rosendin and, specifically, did not control where Rosendin placed its gang box. Turner did have general control over the courtyard, as shown by the fact that it ordered Rosendin and other subcontractors to move their equipment to permit entry and operation of a crane. But any control Turner exercised over the courtyard did not affirmatively contribute to Kramer's injury. Turner simply told Rosendin to move its gang box of equipment. It was Rosendin that selected the location and relocated the gang box. Responsibility for providing safe access to Rosendin's gang box rested with Rosendin, not Turner.

Iii. disposition

The judgment is affirmed.

We concur: Ruvolo, P. J. Rivera, J.

20101213

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