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Stephany L. Kramer v. Turner Construction Company

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...


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