Sedlak v. Bradigan
Filed 7/3/12 Sedlak v.
Bradigan CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
>
MICHAEL G. SEDLAK, JR., Plaintiff and Appellant, v. NEVA WILLIAMS BRADIGAN, Defendant and Respondent. | 2d Civil No. B232239 (Super. Ct. No. 56-2007- 00285342-CU-PO-VTA) (Ventura County) |
Appellant
Michael G. Sedlak, a subcontractor's employee, was injured when a trench he was
excavating collapsed and partially buried him.
He received workers' compensation through his employer. He filed a complaint against multiple
parties, including respondent Neva Williams Bradigan (Williams). The operative complaint alleges a cause of
action for negligence, including
negligence per se, against Williams in her capacity as a member of the
homeowner's association which hired Sedlak's employer and as signator of an
agreement with Ojai Valley Sanitary District on behalf of the association as
project manager.
Williams
sought summary judgment on the
grounds that the Privette
workers' compensation. The trial court
agreed and granted the motion.
On
appeal, Sedlak asserts that the trial court erred in granting summary judgment
because issues of material fact exist as to whether Williams retained control
over the worksite and affirmatively contributed to his injury by failing to
ensure that the trench was shored to prevent its collapse and failing to warn
of a concealed dangerous condition. He
also asserts liability based on Williams's failure to enforce OSHA regulations
and under a joint enterprise theory. We
affirm.
FACTUAL AND PROCEDURAL HISTORY
Arbolada Sewer Association (Association)
was formed by several Ojai property owners to convert from septic tanks to a
sewer system owned and operated by the Ojai Valley Sanitary District
(District). The District and the
Association entered into a contract which provided, inter alia, that the
District would inspect the work to ensure compliance with the District's
requirements. The Association agreed to
(1) pay all project-related fees, including District inspection fees; (2)
create plans; (3) acquire necessary easements; and (4) assume all risk of
loss and liability prior to project completion.
Williams signed the agreement on behalf of the Association as
"Project Manager." As project
manager, she was involved with providing information to the other homeowners in
the Association and was responsible for project finances. She testified that she was generally aware of
trench safety regulations but that the engineering, construction and inspection
of the project were the responsibility of others.
The
original contractor hired for the project, Dial Construction (Dial), mistakenly
trenched and installed 200 feet of sewer pipe outside an easement granted for
that purpose. Frank's Rooter (Frank's)
was hired by Williams on behalf of the Association to dig a new trench and
install sewer pipes within the easement.
Sedlak was employed by Frank's.
Frank's
began working on the project on June 12, 2006. Sedlak observed Williams at the site on June
15 and heard her orally approve the removal of an oak tree so that the trench
could continue in a straight line. On
Friday, June 16, Frank's employees were digging a trench within the
easement owned by the Association.
During an inspection that day, the District's inspector observed that
the trench needed shoring. He advised
Frank's onsite supervisor, Tom Rutherford, to stop all work until the shoring
was installed. Rutherford agreed. He called Frank's owner, Frank Sheltren, to
discuss the need for shoring. Sheltren
ordered Rutherford to stop work and tell Frank's employees to stay out of the
trench until it was shored. He told
Rutherford to order shoring materials for delivery the following Monday, June
19. Later that day, Sheltren came to the
construction site and personally instructed his employees, including Sedlak, to
stay out of the trench until shoring was in place.
The
District inspector returned to the job site at 8:00 a.m. on Monday,
June 19, expecting to see a shored trench.
Instead, he saw Sedlak in the trench partially buried in dirt. Sheltren arrived about five minutes later and
explained that the shoring had not yet arrived because of an ordering error. Williams was not at the construction site
when the trench collapsed.
Sedlak
filed a complaint for damages against
the Association, the District, the homeowners, including Williams, and Dial.
After summary judgment was granted to the District,
Sedlak was granted permission to amend the cause of action against
Williams. The amendment alleges that
Williams was liable for Sedlak's injuries because she retained control over the
project, affirmatively contributed to Sedlak's injuries, and violated a
nondelegable duty to enforce OSHA regulations.
Williams
filed an answer denying the allegations and, subsequently, filed a motion for
summary judgment on the grounds that Privette
and its progeny precluded liability.
Sedlak opposed the motion, arguing that summary judgment was inappropriate
because triable issues of fact existed regarding (1) whether Williams
negligently exercised retained control over the project and affirmatively
contributed to Sedlak's injuries, (2) whether Williams failed to provide notice
of a concealed dangerous condition, (3) whether Williams breached a
nondelegable duty owed to Sedlak to shut down the project as provided in OSHA
regulations, and (4) whether District was in a joint enterprise with the
other defendants, making Williams liable for the other defendants'
negligence. The trial court granted
Williams's motion for summary judgment and this appeal followed.
"The
purpose of the law of summary judgment is to provide courts with a mechanism to
cut through the parties' pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Summary judgment is appropriate "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 Civ. Proc., § 437c,
subd. (c).) A defendant who moves for
summary judgment or summary adjudication bears the initial burden to show that
the action or cause of action has no merit-that is, "that one or more
elements of the cause of action, even if not separately pleaded, cannot be
established, or that there is a complete defense to that cause of action." (Id.
at subds. (a), (p)(2).)
On
appeal, we conduct a de novo review of the record to "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.
[Citations.]" (
Cal.4th 317, 334.) We apply the same
procedure used by the trial court: We
examine the pleadings to ascertain the elements of the plaintiff's claim; the
moving papers to determine whether the defendant has established facts
justifying judgment in its favor; and, if the defendant did meet this burden,
plaintiff's opposition to decide whether he or she has demonstrated the
existence of a triable issue of material fact.
(Knapp v. Doherty (2004) 123
Cal.App.4th 76, 84-85.)
Doctrine
In
Inc. (2011) 52 Cal.4th 590, our Supreme Court recently reviewed the
evolution of the Privette doctrine. In Privette v. Superior Court, supra, 5 Cal.4th, page 697,
the court held that the Worker's Compensation Act provided the exclusive remedy
for injury or death of an employee against an employer who obtains workers'
compensation insurance coverage. In
light of that limitation on the independent contractor's liability to its
injured employee, Privette concluded that it would be unfair to permit
the injured employee to obtain full tort damages from the hirer of the
independent contractor.
In Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th
253, 267, the court held that the hirer of an
to specify the precautions an independent hired contractor should take for the
safety of the contractor's employees
and absent an obligation, there can be no liability in tort.
These principles were further refined in Hooker v. Department of Transportation (2002) 27 Cal.4th 198,
holding that an independent contractor's employee can sometimes recover in tort
from the contractor's hirer if the hirer retained control of the contracted
work and failed to exercise control with reasonable care. (Id. at p. 206.) The court held that the hirer cannot be
liable merely because it retained the ability to exercise control over safety
at the worksite, but that a hirer is liable if it exercised the control that was retained in a manner that affirmatively contributed to the
injury of the contractor's employee. (Id.
at p. 210.)
In Kinsman v. Unocal Corporation (2005) 37 Cal.4th 659, the Supreme Court further explained its
holdings in Privette, Toland, and Hooker. Those decisions, the Court observed, were
grounded on a common law principle that when a hirer delegated a task to an
independent contractor, it in effect delegated responsibility for performing
that task safely, and assignment of liability to the contractor followed that
delegation. (Id. at p. 671.) The court concluded that a hirer is presumed
to delegate to an independent contractor the duty to provide the contractor's
employees with a safe working environment.
(Ibid.)
In Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th
518, the Court again focused on delegation of duty as an important principle
underlying Privette and its progeny.
It held that the independent contractor had authority to determine the
manner in which inherently dangerous work was to be performed, and thus assumed
legal responsibility for carrying out the contracted work, including the taking
of workplace safety precautions. (Id.
at p. 522.)
In sum, "[t]he Privette line of decisions discussed
above 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."
name="_ftnref3" title="">[3] (SeaBright
Ins. Co. v. U.S. Airways, Inc., supra,
Sedlak
contends that triable issues of material fact exist regarding the
provisions in the agreement between the Association and the District and
Williams's status as project manager.
The agreement provisions relied on by Sedlak state: "Owner shall perform all of its
obligations hereunder and shall conduct all operations with respect to the
construction of the System in a good, workmanlike and commercially reasonable manner,
with the standard of diligence and care normally employed by duly qualified
persons utilizing their best efforts in the performance of comparable work and
in accordance with generally acceptable practices appropriate to the activities
undertaken. Owner shall employ at all
times consultants with the requisite experience necessary to administer and
coordinate all work related to the design, engineering, acquisition,
construction and installation of the System."
Sedlak's
argument was considered in Kinney v. CSB
Construction, Inc. (2001) 87 Cal.App.4th 28. In that case, the appellate court held
similar contractual provisions giving a general contractor authority to ensure
that safe working conditions existed were sufficient to at least raise a
triable issue of fact as to retention of control of workplace safety. (Id.
at p. 33.) Nonetheless, the court
affirmed summary judgment for the general contractor because it interpreted
the injury in addition to retained control. (Id. at
p. 39.)
Sedlak
contends that Williams affirmatively contributed to his injury by failing to
stop the work until shoring was provided and failing to warn Sedlak of an
alleged dangerous unstable soil condition created by proximity of Frank's
trench to the trench Dial had excavated.
He relies on the fact that Williams was at the job site four days prior
to the accident and, at that time, approved the removal of an oak tree so that
the new trench could continue in a straight line and remain within the
easement.
An
affirmative contribution occurs when the hirer "'. . . is actively
involved in, or asserts control over, the manner of performance of the
contracted work. . . .
Such an assertion of control occurs, for example, when the [hirer] directs that the contracted work be
done by use of a certain mode or otherwise interferes with the means and
methods by which the work is to be accomplished. . . .' [Citation.]" (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 215.)
An "affirmative contribution need not always be in the form of
actively directing a contractor or contractor's employee. There will be times when a hirer will be liable
for its omissions, [such as when] the hirer promises to undertake a particular
safety measure, then [fails] to do so . . . ." (Id.
at p. 212, fn. 3.) The Court concluded
that there was no affirmative contribution and no tort liability where the
evidence established at most that the contractor's safety personnel were aware
of an unsafe practice and failed to exercise the authority they retained to
correct it. (Id. at p. 202.)
The
hirer of an independent contractor assumes no liability to employees of the
contractor by retaining the right to assure satisfactory completion of the work. There must be "direct management over
the means and methods of the independent contractor's work" and control
over the operative details of the work.
(Zamudio v. City and County of San
Francisco (1999) 70 Cal.App.4th 445, 453.)
It is not enough if the hirer only has a "general right to order
the work stopped or resumed, to inspect its progress or to receive reports, to
make suggestions or recommendations which need not necessarily be followed, or
to prescribe alterations and deviations.
Such a general right is usually reserved to employers, but it does not
mean that the contractor is controlled as to his methods of work, or as to
operative detail. There must be such a
retention of a right of supervision that the contractor is not entirely free to
do the work in his own way."
(Rest.2d Torts, § 414, com. c.)
Here,
the undisputed evidence shows that Frank's employed its own onsite
supervisor. In addition, the District
inspector performed daily inspections of the excavation, and Williams was not
at the site at the time of the accident.
The record shows that Frank's provided all equipment and materials for
the work, and only Frank's employees were involved in excavating the trench. There is no evidence that Williams retained
authority to direct work through means and methods different than those
selected by Sedlak's employer.
name="_ftnref4" title="">[4] (See, e.g., Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1348
[general contractor not liable where it did not control means or methods of
subcontractor's work and general contractor's employee was not at worksite when
accident occurred]; and see Michael v.
Denbeste Transportation, Inc.,
failed to intervene in subcontractor's working methods, such failure was not
affirmative contribution required to impose liability on general
contractor].) And, even if Williams
retained authority to control the work or impose safety measures or shut down
the project because unsafe conditions existed, there is no evidence that she
exercised that retained control in any manner that affirmatively contributed to
Sedlak's injury. (See, e.g.,
no evidence that hirer retained exclusive control over work site safety,
failure to exercise retained control is not a negligent exercise of control].)
Sedlak
asserts that triable issues of fact exist as to whether Williams failed to warn
of a concealed dangerous condition which caused the trench to collapse, i.e.,
the proximity of Frank's trench to the trench previously excavated by
Dial. There is no merit in this
contention.
In
observed that "when there is a known safety hazard on a hirer's premises
that can be addressed through reasonable safety precautions on the part of the
independent contractor, . . . the hirer generally delegates the
responsibility to take such precautions to the contractor, and is not liable to
the contractor's employee if the contractor fails to do so." (Id.
at pp. 673-674.) Kinsman goes on to hold that "the hirer as landowner may be
independently liable to the contractor's employee, even if it does not retain
control over the work, if (1) it knows or reasonably should know of a
concealed, pre-existing hazardous condition on its premises; (2) the
contractor does not know and could not reasonably ascertain the condition; and
(3) the landowner fails to warn the contractor. [Fn. omitted.]" (Id.
at p. 675.) The facts here do not fall
within Kinsman. In that case, the landowner "conceded it
was aware of the hazards of asbestos dust by the 1950's." (Id. at
p. 665.)
In
Cal.App.4th 1209, 1214, the court explained:
"The general rule that a contractor and its employees may not
recover tort damages from the contractor's hirer has few exceptions. [¶]. . .[¶]
[A] hirer [is not] liable if the hazard is apparent, or becomes
apparent, and the 'contractor nonetheless failed to take appropriate safety
precautions.' [Citation.] An example is where a worker continued
excavations despite increasing ground saturation and was injured when the
oil-saturated ditch caved in.
[Citations.] A hirer is also not
liable where a worker is injured because the contractor 'has failed to engage
in inspections of the premises implicitly or explicitly delegated to it.' [Citation.]
Although '[a] landowner's duty generally includes a duty to inspect for
concealed hazards,' the 'responsibility for job safety delegated to independent
contractors may and generally does include explicitly or implicitly a limited
duty to inspect the premises as well.'
[Citation.] 'Thus, for example,
an employee of a roofing contractor sent to repair a defective roof would
generally not be able to sue the hirer if injured when he fell through the same
roof due to a structural defect, inasmuch as inspection for such defects could
reasonably be implied to be within the scope of the contractor's employment. .
. .' [Citation.]" (Citing Kinsman
v. Unocal Corp., supra,
37 Cal.4th at pp. 675-677 &
Abrons v. Richfield Oil Corp. (1961) 190 Cal.App.2d 640, 646.)
Here
there is no admissible evidence that the Dial trench was a concealed hazard or
that Williams knew or should have known the Dial trench made Frank's trench
unsafe.
reasonable inference can be drawn that Frank's was unaware of the Dial
trench. To the contrary, the evidence
establishes the Dial trench was excavated outside the easement because oak
trees blocked the easement. Instead of
cutting down the trees, Dial decided to excavate around them. The evidence establishes that Frank's was hired
to excavate a second trench within the easement next to the one that Dial had
excavated. Under these circumstances,
the only reasonable inference that can be drawn was that Frank's knew or should
have known of the presence of the Dial trench and the Privette rule of nonliability applies.
Sedlak
argues that Williams is chargeable with negligence per se because she had a
nondelegable duty imposed by statute and regulation obligating her to ensure
that the excavation work was performed safely.
(See Felmlee v. Falcon Cable TV
(1995) 36 Cal.App.4th 1032, 1038-1039 ["Nondelegable duties may arise when
a statute provides specific safeguards or precautions to insure the safety of
others"].) Sedlak relies on
numerous OSHA regulations regarding trench safety and the opinion of its
expert, Jerry Hildreth, that Williams violated OSHA by not ordering that the
trench be shored. The argument is
without merit.
In SeaBright Insurance Company
v. U.S. Airways, supra,
to rest the uncertainty created by appellate court decisions concerning the
nondelegable duty rule. In that case,
our Supreme Court held that the Privette rule
applies when the party that hired the contractor failed to comply with
workplace safety requirements imposed by OSHA.
The Court concluded: "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. [Fn.
omitted.]" (Id. at p. 594; see also Tverberg
v. Fillner Construction, Inc, supra,
49 Cal.4th at p. 522 [the independent contractor "has authority to
determine the manner in which inherently dangerous . . . work is to be
performed, and thus assumes legal responsibility for carrying out the
contracted work, including the taking of workplace safety precautions"].)
Sedlak cannot recover in tort from Williams on a theory that his
workplace injury resulted from Williams's breach of what Sedlak describes as a
nondelegable duty under OSHA regulations to take safety measures to prevent a
trench collapse.
Sedlak
asserts that a triable issue of material fact exists as to whether Williams is
liable because she was in a joint enterprise with the Association and the
District. Again, the argument is without
merit.
"'A
joint venture . . . is an undertaking by two or more persons jointly to carry
out a single business enterprise for profit.'
[Citation.] 'There are three
basic elements of a joint venture: the
members must have joint control over the venture (even though they may delegate
it), they must share the profits of the undertaking, and the members must each
have an ownership interest in the enterprise. . . .' [Citation.]" (Unruh-Haxton
v. Regents of University of California (2008) 162 Cal.App.4th 343, 370;
(2002) 105 Cal.App.4th 182, 193.)
Here,
as in Ramirez, there was no joint
venture because "[t]he facts before us do not involve a for profit
enterprise." (Ramirez v. Long Beach Unified School Dist., supra, 105 Cal.App.4th
the Association nor the District retained control over the project--therefore,
there was no actionable negligence of others to be imputed to Williams.
here fall directly within the Privette doctrine. A hirer cannot be placed at greater risk for
tort liability than the independent contractor.
The uncontroverted evidence is that Sedlak sustained substantial and
severe injuries in the collapse of the trench.
He has received compensation under the Worker's Compensation Act. He has sought a greater recovery by recourse
to the general tort law. In order to do
so, it was incumbent upon him to demonstrate that Williams was more than the
Association's representative for the project or that she hired Sedlak's
employer in that capacity. Under the
relevant case law, Williams is deemed to have delegated responsibility for
workplace safety to Frank's when she hired the contractor to do remedial work
on the sewer line. The record is devoid
of evidence that she exercised any control over the site to override that
delegation of authority. Worker's
compensation is the exclusive remedy under the circumstances presented here.
The judgment is
affirmed. Respondent shall recover costs
on appeal.
NOT
TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT,
P.J.
YEGAN,
J.
>
Kent M. Kellegrew, Judge
Superior Court County of Ventura
______________________________
Law
Offices of Richard R. Bredlau and Richard R. Bredlau for Plaintiff and
Appellant.
Hanger,
Steinberg, Shapiro & Ash and John A. Demarest for Defendant and Respondent.
name="_ftn1" title=""> [1] Privette v. Superior Court (1993) 5 Cal.4th
689.
judgment in favor of the District in a prior opinion. (Sedlak
v. Ojai Valley Sanitary Dist. (Aug. 3, 2011, B222509 [nonpub. opn.].)
