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Jeffrey Tverberg et al v. Fillner Construction

January 26, 2012

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



(Solano County Super. Ct. No. FCS028210)

The opinion of the court was delivered by: Reardon, Acting P.J.

CERTIFIED FOR PUBLICATION

The trial court granted summary judgment to respondent Fillner Construction, Inc. (Fillner), and dismissed the personal injury action of appellants Jeffrey and Catherine Tverberg.*fn1 The Tverbergs appeal the judgment against them, contending that Fillner is liable for their injuries because of its (1) breach of a non-delegable regulatory duty and (2) negligent exercise of retained control. We conclude that a recent California Supreme Court opinion precludes liability on the first theory, but reverse the judgment on the Tverbergs' negligent exercise of retained control cause of action.

I. FACTS*fn2

This case came to us after the trial court granted Fillner's motion for summary judgment. Thus, we take the facts from the trial court record at the time that it ruled on that motion, and we review the decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. We liberally construe the evidence in support of the Tverbergs--the parties opposing summary judgment--and resolve doubts concerning the evidence in their favor. (See Tverberg, supra, 49 Cal.4th at p. 522.)

In 2006, Fillner was the general contractor on a project to expand a commercial fuel facility in Dixon. The project required construction of a metal canopy over some fuel-pumping units. Fillner contracted with subcontractor Lane Supply, which delegated the work to subcontractor Perry Construction Company (Perry). Perry hired Tverberg--an independent contractor--as foreperson of Perry's two-person crew to construct the canopy. Tverberg had more than 20 years' experience in structural steel construction and held a state contractor's license under the name of J.T. Construction--a sole proprietorship consisting exclusively of Tverberg.

Fillner also 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--Tverberg's first day on the job--Alexander Concrete 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--in fact, Tverberg had never seen bollard holes at a canopy installation site.

Tverberg asked Steve Richardson--Fillner's "lead man"--to cover the holes with large metal plates that were on site, but Richardson said that he did not have the necessary equipment to do so that day. Richardson did have his crew use a tractor to flatten dirt that had been piled around the holes. Tverberg removed three or four stakes that marked the edges of some of the bollard holes.

The next day, with the bollard holes still uncovered, Tverberg began work 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. His injuries also affected his relationship with his wife, appellant Catherine Tverberg.*fn3

In July 2006, the Tverbergs filed a personal injury action against Fillner and Perry.*fn4 Tverberg alleged causes of action for negligence and premises liability; Catherine Tverberg pled a cause of action for loss of consortium. They sought recovery for physical and mental injuries and lost income under negligence and premises liability theories. It is not clear whether the complaint sought recovery under a peculiar risk theory. That theory became an issue in July 2007, when Fillner moved for summary judgment, asserting that it could not be held vicariously liable for Tverberg's injuries based on Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette). Fillner also asserted that it could not be held directly liable for negligence in failing to provide a safe workplace. The Tverbergs opposed the motion, contending only that Fillner had retained control over safety conditions at the jobsite and should be held directly liable for its failure to eradicate a known danger--the open bollard holes.

The trial court granted the motion for summary judgment, finding that Tverberg--as an independent contractor--could not hold general contractor Fillner vicariously liable on a peculiar risk theory.*fn5 It also rejected the Tverbergs' contention that Fillner could be held directly liable for failing to cover the bollard holes. The trial court found that Tverberg had been aware of the danger that the open bollard holes posed, that he did not refuse to work around them, and that Fillner had never promised to cover the holes. Finding that Fillner had established a complete defense to the Tverbergs' action, the trial court entered judgment for Fillner in November 2007.

In 2008, we reversed the trial court's ruling, reasoning that the Privette doctrine did not bar recovery because Tverberg was an independent contractor rather than an employee covered by the state workers' compensation system. In 2010, the California Supreme Court reversed our decision, holding that an independent contractor hired by a subcontractor may not hold the general contractor vicariously liable on a peculiar risk theory for injuries arising from risks inherent in the nature of the location of the hired work over which the independent contractor has been granted control. (Tverberg, supra, 49 Cal.4th at pp. 521-522, 528-529.) The Supreme Court found that "[b]ecause the bollard holes were located next to the area where Tverberg was to erect the metal canopy, the possibility of falling into one of those holes constituted an inherent risk of the canopy work." (Id. at p. 529.) Although it reversed our earlier ruling, the court remanded the case to us to resolve issues that we did not reach in our 2008 decision, "notably whether [Fillner] could be held directly liable on a theory that it retained control over safety conditions at the jobsite." (Ibid.)

In 2011, we issued our second decision in this matter, concluding that the Tverbergs were entitled to go to trial on their negligent exercise of retained control and breach of a non-delegable regulatory duty theories. (Tverberg v. Fillner Construction, Inc. (2011) 193 Cal.App.4th 1121, review granted July 13, 2011, S192804.) The California Supreme Court--which was in the midst of deciding another breach of regulatory duty case--granted review of our second decision, too. Once it ruled in the pending case, the court transferred our case back to us with directions to vacate our 2011 decision and reconsider it in light of its new decision. (See SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590 (SeaBright).) Accordingly, we now vacate our earlier ...


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