Mejia-Gutierrez v. Comcast of California
III, Inc.















Filed 1/28/13 Mejia-Gutierrez v. Comcast of California III,
Inc. CA1/2

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
TWO




>

BERNARDINO MEJIA-GUTIERREZ et al., Plaintiffs, SEABRIGHT INSURANCE COMPANY, Intervener and Appellant, v. COMCAST OF CALIFORNIA III, INC., Defendant and Respondent.

A132933 (City & County of San Francisco Super. Ct. No. CGC-09-489055)

Seabright
Insurance Company (Seabright) intervened in a negligence action brought by
Bernardino Mejia-Gutierrez and his wife Elvira Vasquez against
Comcast of California III, Inc. (Comcast) for on-the-job injuries
Mejia-Gutierrez sustained while working for AC Square, a cable company hired as a
subcontractor by Comcast. Seabright
appeals the trial court’s grant of summary
judgment in favor of Comcast, contending the court erroneously found that
Seabright had not submitted any evidence raising a triable issue of material
fact as to Comcast’s liability for Mejia-Gutierrez’s injuries. Because we agree with the trial court that
Seabright did not raise a triable issue of material fact with respect to
Comcast having either negligently exercised retained control of jobsite safety
or breached a relevant nondelegable duty, we shall affirm the judgment.

>PROCEDURAL BACKGROUND

Mejia-Gutierrez
and Vasquez filed a complaint for damages
against Comcast on June 4, 2009. Mejia-Gutierrez alleged general negligence
and Vasquez alleged loss of consortium.
Thereafter, Seabright Insurance Company filed a complaint in
intervention against Comcast.

On March 18, 2010, Vasquez dismissed her claim and, on April 5, 2011, Mejia-Gutierrez dismissed his claim with
prejudice.

On April 13, 2011, Comcast filed a motion
for summary judgment. On June 12, 2011, the trial court granted Comcast’s summary judgment
motion, ruling that Seabright had not raised a triable issue of material fact
as to Comcast “either having negligently exercised retained control, or having
breached a relevant non-delegable duty.”
Notice of entry of order was filed on July 19,
2011.

On August 5, 2011, Seabright filed a href="http://www.fearnotlaw.com/">notice of appeal.

>FACTUAL BACKGROUND

Bernardino Mejia-Gutierrez
began working for AC Square in 2001. AC Square was hired by Comcast to
install, maintain, repair, and replace cable utility lines (drop lines), which
run from a utility pole to a customer’s building.

On June 11, 2007, Mejia-Gutierrez, a lead technician for AC Square, was at a residence on 34th Avenue in San Francisco to replace a drop
line. As he testified at his deposition,
he had previously examined the line, which was about 26 feet above ground and
connected to the residence, and determined that it was an old wire that needed
replacement. The wire was putting out a
low signal and, based on his examination, appeared to be crystallizing. As an AC Square employee, it was his
responsibility to decide whether an old drop line needed to be replaced. He believed that he was qualified to replace
the drop line and that the job was a simple one.

Mejia-Gutierrez
was in charge of safety at the jobsite.
He relied on himself and AC Square supervisors, not Comcast,
to determine whether a particular jobsite was safe. He never received instruction directly from
Comcast regarding how to make repairs, including how to perform a drop line
repair or how to use a ladder. AC Square provided all such
instruction. Upon arriving at a jobsite,
employees of AC Square were supposed to look at
the quality of the wire, to “read the levels of the signal that was there and
what the condition of the wire was, whether it had to be replaced or not.” Before his fall, Mejia-Gutierrez had received
a written guide on the use of ladders from AC Square.

Mejia-Gutierrez
would contact a Comcast “leader” for his area only when an installation
required use of a bucket truck or was extremely high. He also remembered a Comcast employee giving
out information sheets after there had been a problem, with topics such as how
to put out cones, how to put on your helmet, or how to work with a
customer.

On
the day of his accident, Mejia-Gutierrez was at the jobsite with fellow-AC
Square employee Joeldo DeSantos; Mejia-Gutierrez was DeSantos’s supervisor
that day. Mejia-Gutierrez had already
determined that he would use a ladder rather than a bucket truck to do the job
when he saw a Comcast employee driving by.
He asked the employee for his opinion and the employee opined that a bucket
truck was not necessary. Mejia-Gutierrez
relied on his own experience in the field to decide that it was safe to replace
this line without a bucket truck. He did
not rely on any Comcast employee to determine the safety of the jobsite because
he had already made that determination. >

To replace the drop line, Mejia-Gutierrez hung his
ladder from the mid-span wire. It was
not his practice to cut the drop line at the house before ascending the ladder
on the mid-span, and he did not do so that day.
After he ascended the ladder, the wire he was going to replace snapped
where there was a knot in it, which made the ladder rock back and forth. Then another wire, which was attached to an
adjacent house, snapped, which made the ladder rock even more. Mejia-Gutierrez lost his balance and fell some
26 feet to the ground. As a result of
the injuries he sustained in the fall, Mejia-Gutierrez received workers’
compensation benefits.

Andrew Bahmanyar,
AC Square’s managing director since
2005, testified at his deposition that AC Square had many strict rules to
follow, including General Order No. 95 of the Public Utilities
Commission. The company’s compliance
department provided all technicians with safety trainings, weekly meetings, and
yearly certifications, including ladder certification. AC Square, not Comcast, instructed AC Square employees on how to use a
ladder when replacing a drop line.
Comcast was not in any way directing AC Square employees at the time of
Mejia-Gutierrez’s accident. Bahmanyar
investigated the accident and concluded that “proper safety procedures that [AC Square] had in place were not
followed.” In particular, the mid-span
ladder was supposed to be placed facing the house so that tension is released
on the cable. Mejia-Gutierrez, however,
had placed it facing the street.

Gilbert Jaquez
had been AC Square’s safety and training
manager at the time of Mejia-Gutierrez’s accident. He testified at his deposition that he was
responsible for ensuring that all AC Square employees followed safety
practices. An AC Square safety manual entitled
“Working With Ladders,” which is given to all new hires at the company,
instructs employees who are replacing a drop line to cut it at the house before
ascending a ladder attached to the mid-span wire. The reason for this rule is to avoid a drop
line snapping or detaching while the technician is on the ladder. AC Square records showed that
Mejia-Gutierrez received a copy of “Working with Ladders” at a safety meeting
in 2005.

Darren Eaton,
described by Comcast as AC Square’s “Safety/Trainer” at the
time of the accident, further explained during his deposition that
disconnecting the drop line from the house before ascending a ladder on a
mid-span is safer because, if you cut the drop line from the mid-span, “it will
cause the ladder to spring back.” He
also testified that, in 2007, Comcast did not in any way control the means and
methods used by AC Square employees in replacing drop lines.href="#_ftn1" name="_ftnref1" title="">[1]

John Winn,
described by Seabright as Comcast’s “person most knowledgeable,” testified at
his deposition that Comcast employees install and repair cable lines in San
Francisco and that Comcast also use subcontractors, including AC Square, for
overflow work. Subcontractors are held
to the same safety standards as Comcast employees. Comcast provides supplies to its
subcontractors that are necessary to perform cable installations and requires
that subcontractors follow Comcast’s guidelines regarding installation
procedures. Comcast has a system of
cable wire inspection, the purpose of which is “safety for everyone,” including
employees and subcontractors. All
Comcast technicians perform daily inspections of wires at the jobsites at which
they work, and also are required to observe the wires in the general area in
which they are working.

Jonathan Kramer,
a consultant in the field of cable television telecommunications technology and
plant construction, submitted a declaration on behalf of Seabright. In his opinion, given various special
conditions affecting the cable system in San Francisco, Comcast should have
provided safety training to everyone it directed to work on that system. He also opined that Comcast did not
frequently and thoroughly inspects its overhead lines as required by
rule 31.2 of Public Utilities Commission General Order No. 95. Kramer believed that, on the day of his
accident, Mejia-Gutierrez placed the ladder in the safest possible location,
given the factors he faced. Finally,
Kramer believed that, had Mejia-Gutierrez not been advised by a Comcast
employee that no bucket truck was necessary to perform the cable drop
replacement and had Mejia-Gutierrez used a bucket truck, he would not have
fallen to the ground when the cable sprang back.

>DISCUSSION

I. Summary
Judgment Rules and Standard of Review

A
motion for summary judgment “shall be granted if all the papers submitted show
that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter
of law.” (Code of Civ. Proc.
§ 437c, subd. (c).)href="#_ftn2"
name="_ftnref2" title="">^[2] A defendant moving for summary judgment has
the initial burden of showing either that one or more elements of the cause of
action cannot be established or that there is a complete defense. (§ 437c, subd. (p)(2).) If that initial burden is met, the burden
shifts to the plaintiff to show the existence of a href="http://www.mcmillanlaw.com/">triable issue of fact with respect to
that cause of action or defense.
(§ 437c, subd. (p)(2); see Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-853.)

“ ‘ “[W]e
take the facts from the record that was before the trial court when it ruled on
that motion,” ’ and ‘ “ ‘ “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.” ’ ” ’
[Citations.]” (>Hughes v. Pair (2009) 46 Cal.4th
1035, 1039.) “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.’ ” ’ [Citations.]” (Tverberg
v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 522 (>Tverberg).)

II. The Privette> Line of Cases

“Under
the peculiar risk doctrine, a person who hires an independent contractor to
perform work that is inherently dangerous can be held liable for tort damages
when the contractor’s negligent performance of the work causes injuries to
others.” (Privette v. Superior Court (1993) 5 Cal.4th 689, 691 (>Privette).) In Privette,
the California Supreme Court for the first time “addressed the potential
conflict between the peculiar risk doctrine, as applied in favor of the
contractor’s employees, and the system of workers’ compensation.” (Ibid.) As the Privette
court explained: “When an employee of
the independent contractor hired to do dangerous work suffers a work-related
injury, the employee is entitled to recovery under the state’s workers’
compensation system. That statutory
scheme, which affords compensation regardless of fault, advances the same
policies that underlie the doctrine of peculiar risk. Thus, when the contractor’s failure to
provide safe working conditions results in injury to the contractor’s employee,
additional recovery from the person who hired the contractor—a nonnegligent
party—advances no societal interest that is not already served by the workers’
compensation system.” (>Id. at p. 692.) The Court therefore joined “the majority of
jurisdictions in precluding such recovery under the doctrine of peculiar
risk.” (Ibid.)

Thereafter,
in Toland v. Sunland Housing Group, Inc.
(1998) 18 Cal.4th 253, 267 (Toland),
our Supreme Court further held that the hirer of an independent contractor “has
no obligation to specify [in the
contract] the precautions an independent hired contractor should take for the
safety of the contractor’s employees.” The court reasoned that subjecting hirers “to
peculiar risk liability in such circumstances would negate their ‘right to
delegate to independent contractors the responsibility of ensuring the safety
of their own workers.’ [Citation.]” (SeaBright
Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 599 (>SeaBright), quoting Toland, at p. 269.)

Our
Supreme Court further developed the principles discussed in >Privette and Toland in Hooker v. Department
of Transportation (2002) 27 Cal.4th 198, 202 (Hooker), holding that an independent contractor’s employee can
recover in tort from the contractor’s hirer if the hirer retained control of
safety conditions at a worksite and its negligent exercise of that retained
control “affirmatively contributed to
the employee’s injuries.”

Subsequently,
in Kinsman v. Unocal Corp. (2005)
37 Cal.4th 659, 671 (Kinsman),
the Court stated: “[I]n >Privette and its progeny, we have
concluded that, principally because of the availability of workers’
compensation, [the] policy reasons for limiting delegation do not apply to the
hirer’s ability to delegate to an independent contractor the duty to provide
the contractor’s employees with a safe working environment.” Hence, a hirer is presumed to delegate such a
duty to the contractor. (>Kinsman, at p. 671; see also >Tverberg, supra, 49 Cal.4th at pp. 527-528
[claim against hirer by independent contractor himself (rather than
contractor’s employee) also failed, even though contractor was not entitled to
workers’ compensation benefits, because of hirer’s presumed delegation to
contractor of responsibility for performing work safely].)

Finally,
in SeaBright, supra, 52 Cal.4th 590, 594, the Court addressed the
applicability of the Privette rule to
the nondelegable duties doctrine, and held that the Privette rule applies when employees of independent contractors are
injured as a consequence of the hirer’s failure to comply with workplace safety
requirements concerning the precise subject matter of the contract. In such a situation, any duty the hirer owes
to the contractor’s employees to comply with applicable statutory or regulatory
safety requirements is delegated to the contractor. (Ibid.)

In
sum, the Privette line of cases
“establishes that an independent contractor’s hirer presumptively delegates to
that contractor its tort law duty to provide a safe workplace for the
contractor’s employees.” (>SeaBright, supra, 52 Cal.4th at p. 600.)

In
the present case, Seabright contends the evidence raised triable issues of
material fact as to whether Comcast retained control of the jobsite and
affirmatively contributed to Mejia-Gutierrez’s injuries. It also contends the evidence raised a triable
issue of material fact as to whether Comcast breached a nondelegable regulatory
duty to provide Mejia-Gutierrez with a safe workplace.

III. Retained
Control and Affirmative Contribution

Seabright
contends it submitted sufficient evidence to raise triable issues of material
fact as to whether Comcast negligently exercised retained control over safety
at the jobsite at which Mejia-Gutierrez was injured. (See Kinsman,
supra, 37 Cal.4th 659, 671
[“when the hirer does not fully delegate the task of providing a safe working
environment, but in some manner actively participates in how the job is done,
and that participation affirmatively contributes to the employee’s injury, the
hirer may be liable in tort to the employee”].)


A. Retained
Control

First,
with respect to the claim that Comcast retained control over workplace safety,
Seabright argues that it has introduced evidence showing that AC Square was
merely an “extension” of Comcast in that it performed overflow work assigned by
Comcast, using Comcast’s procedures and supplies. Seabright also notes that AC Square was
contractually subject to quality control inspections by Comcast to ensure
compliance with Comcast’s installation guidelines. Seabright also refers to evidence that
Comcast employees on occasion provided AC Square employees with safety-related
handouts and that AC Square technicians were required to report to a Comcast
supervisor in the field when they believed a job required a bucket truck.

Comcast,
on the other hand, notes that AC Square’s managing director, Andrew Bahmanyar,
testified during his deposition that AC Square, not Comcast, instructed AC
Square employees on how to replace a drop line, including how to use a ladder
when replacing a drop line, and that Comcast was in no way directing AC Square
employees at the time of Mejia-Gutierrez’s accident. Bahmanyar also testified that he had
concluded that, at the time of his accident, Mejia-Gutierrez had failed to
follow the safety procedures AC Square had in place regarding placement of the
ladder when replacing a drop line.

In
addition, Mejia-Gutierrez testified during his deposition that, as a lead
technician, he was in charge of safety at the jobsite and that he relied on
himself and AC Square supervisors, not Comcast, to determine whether a
particular jobsite was safe. He also
testified that AC Square, not Comcast, provided him with all instructions
regarding how to make repairs, including how to perform a drop line repair and
how to use a ladder. Mejia-Gutierrez
also acknowledged that he did not rely on the opinion of the Comcast employee
who was driving by the jobsite to decide whether to use a bucket truck because
he had already determined that a bucket truck was unnecessary.href="#_ftn3" name="_ftnref3" title="">[3]

We
conclude that the fact that Comcast’s contract with AC Square specified that AC
Square was to comply with Comcast’s service specifications and use Comcast’s
supplies, as well as that Comcast had the right to perform quality control
inspections, plainly does not raise a triable issue of fact regarding whether
Comcast retained control over the safety practices of AC Square’s
employees. Rather, the undisputed facts
show that AC Square was responsible for its employees’ safe performance of
their job. (See SeaBright, supra,
52 Cal.4th at p. 600 [under Privette
line of cases, hirer presumptively delegates to independent contractor its tort
law duty to provide a safe workplace for contractor’s employees]; accord, >Kinsman, supra, 37 Cal.4th at p. 671;
compare Hooker, supra, 27 Cal.4th 198, 202, 215
[where hirer retained responsibility for obtaining contractor’s compliance with
all safety laws and had authority to monitor and ensure correction of any
dangerous conditions—and in fact had a representative at jobsite partly for
that purpose—plaintiff raised triable issues of material fact as to whether
hirer retained control over safety conditions at worksite].)href="#_ftn4" name="_ftnref4" title="">[4]

In
sum, Seabright has not raised a triable issue of material fact as to whether
Comcast retained control of safety conditions at the jobsite where
Mejia-Gutierrez was injured. (See § 437c,
subd. (p)(2).)

B. Affirmative
Contribution

Second,
even were there a triable issue of fact as to whether Comcast retained control
over safety at the jobsite, we find that Seabright has not met its burden of
showing that Comcast negligently exercised any retained control and
affirmatively contributed to Mejia-Gutierrez’s injuries. (See § 437c, subd. (p)(2).)

Our
Supreme Court has explained that, since the liability of an independent
contractor is limited to providing worker’s compensation coverage, “it would be
unfair to impose tort liability on the hirer of the contractor merely because
the hirer retained the ability to exercise control over safety at the
worksite. In
fairness, . . . the imposition of tort liability on a hirer
should depend on whether the hirer exercised
the control that was retained in a manner that affirmatively contributed to the injury of the contractor’s
employee.” (Hooker, supra, 27 Cal.4th
at p. 210.)

In >Hooker, Caltrans had hired a contractor
to construct an overpass. Caltrans’s
construction manual stated that it was responsible for obtaining the
contractor’s compliance with all safety laws and regulations and gave it
authority to monitor and ensure correction of dangerous conditions at the
jobsite. (Hooker, supra,
27 Cal.4th at p. 202.)
Caltrans also had a representative at the jobsite whose responsibilities
included safety. During the
construction, a crane operator for the contractor retracted the outriggers on
his crane to let traffic pass, but failed to reextend the outriggers before
swinging the boom. (Ibid.) This caused his crane
to tip over, throwing him to the pavement and killing him. (Ibid.) The Caltrans representative acknowledged
having previously observed crane operators retract their outriggers to let
other vehicles pass. (>Id. at pp. 202-203.) The crane operator’s widow sued Caltrans on
the theory that it had negligently exercised control it had retained over
safety conditions at the jobsite, and the trial court granted Caltrans’ summary
judgment motion. (Id. at p. 203.)

Our
Supreme Court found that summary judgment was appropriate in that the widow had
raised triable issues of material fact as to whether Caltrans retained control
over safety conditions at the worksite, but had failed to raise triable issues
of fact as to whether Caltrans had actually exercised its retained control so
as to affirmatively contribute to the crane operator’s death. (Hooker,
supra, 27 Cal.4th at
p. 215.) As the Court
explained: “[T]here was no evidence
Caltrans’s exercise of retained control over safety conditions at the worksite
affirmatively contributed to the adoption of [the dangerous] practice by the
crane operator. There was, at most,
evidence that Caltrans’s safety personnel were aware of an unsafe practice and
failed to exercise the authority they retained to correct it.” (Ibid.;
accord Kinney v. CSB Construction, Inc.
(2001) 87 Cal.App.4th 28, 30 [concluding that “a general contractor who
claims the power to control all safety procedures on the worksite [is not]
liable to the injured employee of a subcontractor for failing to direct the
subcontractor to take safety precautions where there is no evidence that any
conduct by the general contractor contributed affirmatively to the injuries”].)

Here,
Seabright has raised no triable issue of fact remotely suggesting either that
Comcast claimed the power to control any safety procedures at the jobsite (see
pt. III, A, ante), or that its
actions in any way affirmatively contributed to Mejia-Gutierrez’s injuries. Instead, the undisputed facts show only that
AC Square was responsible for safety instructions and workplace safety and that
Mejia-Gutierrez had failed to follow required safety procedures related to
ladder use and cutting a drop line at the time of his accident. Thus, even if Comcast retained control of
certain aspects of AC Square’s activities, it plainly has no liability for its
failure to direct AC Square or Mejia-Gutierrez to take particular safety precautions,
or for Mejia-Gutierrez’s actions, which the evidence shows caused his
accident. (See Hooker, supra,
27 Cal.4th at p. 211.)href="#_ftn5"
name="_ftnref5" title="">[5]

“As
[our Supreme Court] stressed in Kinsman, . . .
when the hirer of an independent name="citeas((Cite_as:_49_Cal.4th_518,_*528,_2">contractor delegates
control over the work to the contractor, the hirer also delegates
‘responsibility for performing [the] task safely.’ [Citations.]
Therefore, a hired independent contractor who suffers injury resulting
from risks inherent in the hired work, after having assumed responsibility for
all safety precautions reasonably necessary to prevent precisely those sorts of
injuries, is not, in the words of Privette, . . .
a ‘hapless victim’ of someone else’s misconduct. In that situation, the reason for imposing
vicarious liability on a hirer—compensating an innocent third party for injury caused by the risks inherent in
the hired work—is missing.” (>Tverberg, supra, 49 Cal.4th at p. 528.)

In
sum, Seabright has not raised any triable issues of material fact either as to
whether Comcast retained control of workplace safety or whether it
affirmatively contributed to plaintiff’s injury. (See Hooker,
supra, 27 Cal.4th
at p. 210.) The trial court
properly granted Comcast’s motion for summary judgment. (See § 437c, subd. (p)(2).)

IV. Nondelegable
Duty

Seabright
contends that, even if Comcast did not otherwise retain control of safety
conditions at the jobsite, it breached a nondelegable duty to provide
Mejia-Gutierrez with a safe workplace.

Our
Supreme Court’s “decisions recognize a presumptive delegation of responsibility
for workplace safety from the hirer to the independent contractor, and a
concomitant delegation of duty.” (>SeaBright, supra, 52 Cal.4th at p. 597.)
Under the nondelegable duties doctrine, however, there are certain
duties that may not be delegated to an independent contractor. (Ibid.) The nondelegable duties doctrine “prevents a
party that owes a duty to others from evading responsibility by claiming to
have delegated that duty to an independent contractor hired to do the necessary
work. The doctrine applies when the duty
preexists and does not arise from the contract with the independent
contractor. [Citations.]” (Id.
at pp. 600-601; see also Rest.2d Torts, § 424.)href="#_ftn6" name="_ftnref6" title="">[6] Even if a duty is found to be nondelegable,
however, a plaintiff must still show that the hirer’s conduct affirmatively
contributed to his or her injury. (Padilla
v. Pomona College (2008) 166 Cal.App.4th 661, 673; >Park v. Burlington Northern Santa Fe Railway
Co. (2003) 108 Cal.App.4th 595, 610.)


Here,
Seabright argues that Comcast’s safety duty, pursuant to rule 31.2 of General Order No. 95 of the Public
Utilities Commission,href="#_ftn7"
name="_ftnref7" title="">[7] to
“frequently and thoroughly” inspect the lines was not delegable to AC
Square. It also argues that whether
Comcast’s failure to perform this duty at Mejia-Gutierrez’s jobsite
affirmatively contributed to his injuries remained a triable issue of fact,
which precluded summary judgment.

The
purpose of General Order No. 95, which contains rules for overhead
electric line construction, “is to formulate, for the State of California,
requirements for overhead line design, construction, and maintenance, the
application of which will ensure adequate service and secure safety to persons
engaged in the construction, maintenance, operation or use of overhead lines
and to the public in general.” (Rule
11.)

Rule 31.2
provides: “Lines shall be inspected frequently and thoroughly for the purpose
of ensuring that they are in good condition so as to conform with these
rules. Lines temporarily out of service
shall be inspected and maintained in such condition as not to create a
hazard.” (Italics added.)href="#_ftn8" name="_ftnref8" title="">[8]

In >SeaBright, supra, 52 Cal.4th 590, 594, decided after the trial court’s
ruling in the present case, our Supreme Court considered whether the >Privette rule applies when the hirer
“failed to comply with workplace safety requirements [under Cal-OSHA
regulations] concerning the precise subject matter of the contract, and the
injury is alleged to have occurred as a consequence of that failure.”href="#_ftn9" name="_ftnref9" title="">[9] The Court concluded that the >Privette rule does apply in such a
circumstance: “By hiring an independent
contractor, the hirer implicitly delegates to the contractor any tort law duty
it owes to the contractor’s employees
to ensure the safety of the specific workplace that is the subject of the
contract. That implicit delegation
includes any tort law duty the hirer owes to the contractor’s employees to
comply with applicable statutory or regulatory safety requirements.” (Ibid.,
fn. omitted.) The Court further
explained that, “under the definition of ‘employer’ that applies to
California’s workplace safety laws (see Lab. Code, § 6304), the employees
of an independent contractor are not considered to be the hirer’s own employees.” (Ibid.,
fn. omitted.)

Seabright
argues that the SeaBright holding is
a narrow one, not applicable to the present case because (1) unlike in >SeaBright, Comcast’s duty under
rule 31.2, related to line inspection, predated the contract with AC Square;
(2) unlike the Cal-OSHA safety requirements at issue in >SeaBright, General Order No. 95
does not arise from the workplace safety laws set forth in the California Labor
Code, under which employees of an independent contractor are not considered to
be the hirer’s own employees; and (3) the duties set forth in General
Order No. 95 exist—regardless of contracts—to protect all “persons engaged
in the construction, maintenance, operation or use of overhead lines and to the
public in general.” (Rule 11.) (See SeaBright,
supra, 52 Cal.4th at
pp. 601-603.)

Assuming,
as Seabright claims, that these distinctions render the SeaBright holding inapplicable to the present case, we nonetheless
conclude that rule 31.2’s mandate that utility companies must “frequently
and thoroughly” inspect the lines was not the kind of specific, well-defined
nondelegable duty that could give rise to liability.

>Felmlee v. Falcon Cable TV (1995)
36 Cal.App.4th 1032 (Felmlee),
which has facts quite similar to those in the present case, is
instructive. In Felmlee, a cable company hired a contractor to perform maintenance
and repairs on its cable lines. (>Id. at p. 1035.) The plaintiff, an employee of the contractor,
was sent out to replace a drop line at a customer’s home. (Ibid.)
He hooked his ladder onto a mid-span
cable, climbed about 25 feet, and cut the messenger cable. (Ibid.) When he cut the messenger cable, the change
in tension on the mid-span wire caused it to rock back and forth. (Ibid.) This caused the plaintiff to be thrown off
the ladder to the ground. (>Ibid.)


In
his lawsuit, the plaintiff alleged that the cable company was responsible for
his injuries because it had improperly allowed overtension of the line and had
failed to assure that he was properly instructed on safety precautions. (Felmlee,
supra, 36 Cal.App.4th at
p. 1036.) He asserted at trial that
the cable company had certain nondelegable duties pursuant to, inter alia,
several rules of General Order No. 95, including rules 31.1 and 31.2. (Felmlee,
at p. 1036.) The trial court
refused to instruct on nondelegable duties and the case went to the jury on href="http://www.fearnotlaw.com/">general negligence principles, ultimately
resulting in a verdict in favor of the cable company. (Ibid.)
The appellate court agreed that the
rules in question were not specific enough to constitute a nondelegable duty to
insure the safety of others. (>Id. at pp. 1038-1039.)

As
the Felmlee court explained: “[T]he ordinances and rules at issue here do
not specifically require a cable operator to insure that its independent
contractor’s employees wear safety belts or
harnesses. . . . The rule
of the general order of the Public Utilities Commission speaks to a general
duty of a cable operator to maintain safe conditions for its employees. These broad provisions do not give rise to an
action for breach of a nondelegable duty.”
(Felmlee, supra, 36 Cal.App.4th at p. 1039; see also >Padilla v. Pomona College, supra, 166 Cal.App.4th at p. 673
[nothing in Cal-OSHA regulation requiring that pipes in a demolition work area
first be depressurized “mandates that it imposes safety precautions that cannot
be delegated from the landowner to the general contractor to subcontractors”];
compare Evard v. Southern California Edison
(2007) 153 Cal.App.4th 137, [hirer billboard owner had nondelegable duty
with respect to regulation requiring owners of outdoor advertising structures
to take one of three specific safety precautions]; Barclay v. Jesse M. Lange Distributor, Inc. (2005)
129 Cal.App.4th 281, 298 [hirer’s specific regulatory duty, to provide
fire extinguishers within 75 feet of fuel tanks on its property, was
nondelegable].)

We
find Felmlee persuasive and find that
rule 31.2’s mandate to “frequently and thoroughly” inspect the cable lines to
ensure that they are in good condition constitutes a general duty to maintain
safe conditions, to which the nondelegable duties doctrine is
inapplicable. (See Felmlee, supra,
36 Cal.App.4th at pp. 1039-1040; see also Rest.2d Torts, § 424.>)
Instead, the undisputed evidence shows that AC Square was responsible
for maintaining the lines in good condition on the jobs Comcast assigned> to
it.href="#_ftn10" name="_ftnref10" title="">[10] Furthermore, it is also undisputed both that
it was Mejia-Gutierrez’s job to examine the lines for the cause of the problem
in service and to follow AC Square’s safety procedures and practices in making
any repairs, and that Mejia-Gutierrez was not in fact following AC Square’s
safety practices at the time of his accident.


Seabright
observes that the Felmlee court
approved of the trial court’s decision to permit the case to go to the jury on
direct negligence principles. Seabright
is correct that the appellate court in Felmlee
concluded that there was sufficient evidence of negligence on the part of the
cable company to permit that issue to go to the jury. (Felmlee,
supra, 36 Cal.App.4th at
p. 1037.) Although the rules in
question were not the type of specific safeguards or precautions that could
give rise to liability under the doctrine of nondelegable duties, the jury in >Felmlee was free to consider whether the
cable company “was directly negligent in failing to correct any foreseeable,
dangerous condition of the cables which may have contributed to the cause of
[the plaintiff’s] injuries.” (>Id. at p. 1040.) The court did not describe the evidence that
was sufficient to show possible negligence liability there and, as we have
already explained, the evidence here is not
sufficient to raise a triable issue of fact as to Comcast’s direct negligence. (See pt. III, A, >ante.)
Thus, for purposes of this case, the relevant holding in >Felmlee relates to the inapplicability
of the nondelegable duties doctrine to rule 31.2.

Accordingly,
we conclude that, regardless of whether there were problems with either of the
wires that snapped, such as crystallization or a knot, which played a part in
its snapping, the general duty of rule 31.2—to “frequently and thoroughly”
inspect lines to ensure they are in good condition—is not a basis for holding Comcast
liable for Mejia-Gutierrez’s injuries.href="#_ftn11" name="_ftnref11" title="">[11] This is particularly so, given that
Mejia-Gutierrez, on behalf of AC Square, was specifically responsible for
discerning and addressing problems with drop lines and ensuing job site safety. (See Felmlee,
supra, 36 Cal.App.4th at
p. 1039.) Summary judgment was
proper on this ground as well. (See
§ 437c, subd. (p)(2).)href="#_ftn12"
name="_ftnref12" title="">[12]

>DISPOSITION

The
judgment is affirmed. Costs on appeal
are awarded to respondent, Comcast of California III, Inc.







_________________________

Kline,
P.J.





We concur:





_________________________

Lambden, J.





_________________________

Richman, J.