Batton v. Alten
Construction, Inc.
Filed 4/8/13
Batton v. Alten Construction, Inc. CA1/5
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opinion has not been certified for publication or ordered published for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 FIVE
RON BATTON,
Plaintiff and
Appellant,
v.
ALTEN CONSTRUCTION, INC.,
Defendant and Respondent.
A135146
(
Super.
I. INTRODUCTION
Plaintiff
Ron Batton, an employee of a construction subcontractor, alleges he sustained
injuries while descending an unfinished stairway on a construction
jobsite. Batton sued the general
contractor, defendant Alten Construction, Inc. (Alten), for damages, asserting
claims for negligence, negligence per se, and breach of contract (on a third
party beneficiary theory). The trial
court entered summary judgment for
Alten, holding that Privette v. Superior
Court (1993) 5 Cal.4th 689 (Privette)
and its progeny barred Batton’s negligence claims, and that Batton lacked
standing to pursue his contract claim.
Batton appeals. We conclude
to Batton’s negligence claims, but not as to his contract claim. We affirm in part and reverse in part.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The
Contracts
On
October 2, 2008, Alten
entered a contract with the City of Sausalito
(City) to construct a public safety building that would include police and fire
stations. The contract incorporates a
document designated “Section 00700[,] General Conditions.â€
Among
other matters, Section 00700 addresses the relationships among City, Alten, and
other contractors or utility owners.
(¶ 6.2.) Alten must “afford
all other contractors, utility owners and City . . . proper and safe
access to the Site . . . .â€
(¶ 6.2.A.) Alten also must
“coordinate its Work with the work of other separate contractors, City
. . . , and utility owners.â€
(¶ 6.2.B.) Paragraph 6.2.D.
specifies: “[Alten’s] duties and
responsibilities under paragraph [sic]
of this Section 00700 are for the benefit of City . . . and also for
the benefit of such other contractors and utility owners working at the Site to
the extent that there are comparable provisions for the benefit of [Alten] in
the direct contracts between City . . . and such other contractors
and utility owners.â€
Other
portions of Section 00700 provide for Alten’s control and supervision over the
jobsite. Alten must “supervise, inspect,
and direct Work competently and efficiently†(¶ 8.1.B.), and “shall have
sole care, custody, and control of the Site and its Work areasâ€
(¶ 8.3). Alten is responsible “for
initiating, maintaining and supervising all safety precautions and programs in
connection with the Work†(¶ 16.2.A.), and must comply with applicable
safety laws and regulations (¶ 16.2.B.).
Alten is “fully responsible for the safety of its and its
Subcontractors’ employees, agents and invitees on the Site.†(¶ 16.3.B.) Within designated work areas, and with the
exception of “routes for ingress and egress over which [Alten] has no right of
control,†Alten must “provide safe means of access to all places at which
persons may at any time have occasion to be present.†(¶ 16.3.C.)
On
October 16, 2008, Alten entered a subcontract with Galletti & Sons, Inc.
(Galletti). The subcontract required
Galletti to provide concrete reinforcement (rebar) for the project. Section 22 of the subcontract specifies
Galletti is an independent contractor and must comply with applicable laws and
regulations. Section 18 of the
subcontract, entitled “Safety Practices,†provides: “Subcontractor shall comply fully with all
laws, orders, citations, rules, regulations, standards, and statutes with
respect to occupational health and safety, the handling and storage of
hazardous materials, accident prevention, safety equipment and practices
including the accident prevention and safety program of Owner and
Contractor. Subcontractor shall conduct
inspections to determine that sage [sic]
working conditions and equipment exist and accepts sole responsibility for
providing a safe place to work for its employees and for employees of its
subcontractors and suppliers of material and equipment, for adequacy of and
required use of all safety equipment and for full compliance with the aforesaid
laws, orders, citations, rules, regulations, standards and statutes.†Galletti’s subcontract was solely with Alten;
Galletti had no direct contract with City.
On
December 1, 2008, Alten entered a subcontract with Kwan Wo Ironworks, Inc.
(Kwan Wo). Kwan Wo was to install
interior stairways in the project.
During
the course of construction, Alten exercised general control over the worksite
and the project.
B. Batton’s
Injury
Batton,
an ironworker, was employed by Galletti as a foreman. Batton alleges in his complaint that, on
August 20, 2009, he “twisted and fell†while descending an unfinished stairway
on the construction site and sustained injuries. Batton and his supervisor, Steve Wheeler,
completed reports about Batton’s injury.
The reports state the bottom step of the stairway was 18-24 inches off
the ground, and Batton fell when stepping from the bottom step to the ground. Batton received workers’ compensation
benefits through Galletti.
C. Proceedings
1. Alten’s Motion
After
Batton filed suit, Alten moved for summary judgment or summary
adjudication. Alten contended Batton’s
negligence causes of action failed because Alten “owed no duty of care to
[Batton] having contractually and impliedly delegated that duty to [Batton’s]
employer, [Galletti].†Relying on the
liability of a hirer of an independent contractor for injuries to the
contractor’s employees, Alten argued its exercise of “general control over the
workplace†was insufficient to support liability. As to the breach
of contract cause of action, Alten argued Batton lacked standing to pursue
third party beneficiary recovery.
In
support of its motion, Alten submitted excerpts of the relevant contracts, as
well as discovery responses showing Batton knew the stairway was under
construction and was aware he needed to use caution when using it, and Galletti
did not advise Batton to use caution on or around the stairway. Alten also submitted declarations from Paul
Fitzgerald, Alten’s project supervisor, and Trevor Simon, the acting supervisor
in Fitzgerald’s absence on the date of Batton’s injury. Fitzgerald and Simon stated they did not
control or direct the work of Galletti or Kwan Wo.
2. Batton’s Evidence in Opposition
In
his opposition, Batton argued that, under Hooker
v. Department of Transportation (2002) 27 Cal.4th 198 (Hooker), the hirer of an independent contractor may be liable for
injuries sustained by an employee of the contractor if the hirer retains
control over safety conditions at a worksite and exercises that control in a
way that affirmatively contributes to the employee’s injuries. Batton argued Alten was liable under the negligent
exercise of retained control theory outlined in Hooker.
Batton
submitted excerpts of deposition
testimony by employees of Alten and Kwan Wo about the construction of the
stairway and other matters. According to
this testimony, after Kwan Wo installed the steel stairway, the stairway still
required concrete treads to be poured in the step pans, and a concrete landing
to be poured beneath the bottom step, which were outside Kwan Wo’s scope of
work and fell within Alten’s scope of work.
No handrail had yet been installed.
Kwan Wo employee Wen Situ testified Kwan Wo used caution tape to close
off the top and bottom of the stairway, and Situ told Alten the stairs could
not be used yet.
Pending
completion of the stairway, Alten placed temporary wood blocks in the stair
pans and a temporary guardrail on the steps.
The wood blocks in the stair pans did not completely fill the pans;
there were gaps on the right-hand side of the steps (facing up the stairs). Alten supervisors testified the guardrail and
the blocks in the pans were routine safety practices for unfinished
stairways. Alten took these measures
because Galletti’s ironworkers were working off the stairway, using it as
“scaffolding†to install rebar on the shear wall adjacent to the stairs. Alten supervisor Fitzgerald testified
Galletti was allowed to use the stairway for that purpose, but not as a means
to gain access to the second floor.
In
addition to the wooden step blocks and the handrail, Kwan Wo employee Situ
testified Alten’s workers placed wooden planks below the bottom step. Situ testified Alten’s workers removed the
caution tape Kwan Wo had placed at the top and bottom of the stairway, because
Alten’s workers needed to use the stairs to put the wood blocks in the
steps. When asked on cross-examination
whether he personally saw Alten’s workers “take off the tape and place it on
the ground,†Situ responded: “I’m not
sure. I cannot be positive.â€
Batton
submitted a declaration in which he stated his employment required him to carry
tools and materials and to ascend and descend the unfinished stairway. Batton stated the stairway and one other
stairway in the same general condition provided the only means of access to the
second floor where Galletti ironworkers were placing rebar. Batton had little experience on this jobsite
and had only used the stairway on a few occasions. He “could see that with some wood, someone
had attempted to make [the stairway] available for use by all trades on the
job.†Batton stated: “The stairway where I received my injuries
had no caution tape or other warning indicating it was not to be used, I had
seen it used by the other trades, and given lack of other access took this as
an invitation to use it for access to my work.â€
Batton described his accident:
“The stairway was not equipped with a landing, but rather with a plank;
its unfinished stair riser pans were not filled with concrete, its riser height
and tread depth was therefore not uniform, and it had unprotected sides and
edges. While I have no specific
recollection, I was probably carrying hand tools or possibly a short piece of
rebar. While descending the unfinished
stair riser pans which were partially filled with plywood and not with
concrete, my foot snagged the edge of the pan causing me to land awkwardly on
the plank, much lower than would have been a landing, caused my full weight of
about 245 pounds to twist my knee, and causing me to sustain the injuries which
have so far led to two surgeries and kept me from returning to my trade.â€
Batton
also submitted an expert declaration from Gerald Fulghum, a safety engineer and
certified safety professional. Fulghum
opined the stairway was unsafe and did not comply with applicable safety regulations or
industry custom and practice. The court overruled Alten’s objection Nos. 1,
4, 5, 8, 16 and 17, which related to Fulghum’s (1) description of the
research he conducted into applicable codes and regulations, as well as
construction industry practices (¶ 5), (2) opinions as to the scope
of Alten’s responsibilities based on industry custom and practice and safety
regulations (¶¶ 8-9, 12), and (3) opinion the stairway was unsafe and
violated the construction industry’s custom and practice for worker safety and
applicable regulations (¶¶ 20-21).
The court sustained objection Nos. 10 through 15, which related to
Fulghum’s description of the content of codes and safety regulations
(¶¶ 14-19), ruling “[i]t is the judge’s duty to declare what the
applicable law is.†The court also
sustained objection No. 17, which related to Fulghum’s opinion Alten’s
violations were “a substantial factor in causing . . . Batton’s
accident†(¶ 21), ruling this was “a factual question for the jury.â€
In
reply, Alten submitted additional deposition excerpts from Kwan Wo employee
Situ, who testified he and others used ladders to gain access to the roof of
the building.
3. The Trial Court’s Order
After
hearing argument, the trial court entered a written
order granting summary judgment for Alten.
The court ruled Batton’s negligence causes of action were barred by the
not undertake to exercise control over the safety of the workplace in a manner
that affirmatively contributed to [Batton’s] injuries.†The court stated “[n]one of the temporary
safety measures taken by [Alten] are claimed to have contributed to [Batton’s]
fall,†and “[t]he unfinished nature of the stairway was obvious and was not a
latent hazardous condition.†Although
there was “testimony that [Alten’s] employees might have removed the caution
tape . . . , that conduct was consistent with use of the stairs
as scaffolding, it did not create a latent hazardous condition, and it did not
relieve Galletti of the duty to ensure its employees had a safe workplace while
they were using the stairs to install the rebar, or while accessing the second
floor. Galletti could have instructed
its employees to use ladders between the first and second floors instead of the
unfinished stairway.†The court
stated: “Under Privette and its progeny, [Alten] has no tort liability for its
passive conduct, and nothing [Alten] did relieved Galletti of its ‘duty to
identify the absence of the safety guards required by Cal-OSHA regulations and
to take reasonable steps to address that hazard.’ [Citation.]â€
The court also concluded Batton was not an intended third party
beneficiary of the contract between Alten and City.
The
court entered judgment for Alten. Batton
appealed.
III. DISCUSSION
A. Standard
of Review
“The rules of review are well
established. If no triable issue as to
any material fact exists, the defendant is entitled to a judgment as a
In ruling on the motion, the court must view the evidence in the light
most favorable to the opposing party.
[Citation.] We review the record
and the determination of the trial court de novo.†(Shin
v. Ahn (2007) 42 Cal.4th 482, 499; accord, Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 860.) The trial court’s
stated reasons for granting summary relief are not binding on the reviewing
court, which reviews the trial court’s ruling, not its rationale. (Kids’
Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
B. Negligence
1. The Privette
Doctrine and Liability under Hooker
Our Supreme
Court has summarized the Privette
doctrine as follows: “Generally, when
employees of independent contractors are injured in the workplace, they cannot
sue the party that hired the contractor to do the work. . . . [¶] 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.†(SeaBright Ins. Co. v. US
Airways, Inc. (2011) 52 Cal.4th 590, 594 (SeaBright), italics omitted; see Privette, supra, 5 Cal.4th
at p. 696; Toland v. Sunland
Housing Group, Inc. (1998) 18 Cal.4th 253, 256.) Accordingly,
“subject to certain exceptions, when a general contractor hires a
subcontractor, the general contractor is not liable for injuries that occur to
the subcontractor’s employees.†(
Inc. (2012) 206 Cal.App.4th 1170, 1176 (Brannan);
accord, Zamudio v. City and County of San Francisco (1999) 70
Cal.App.4th 445, 450.)
The Supreme
Court described one such exception in Hooker. The Hooker
court considered
whether the hirer of an independent
contractor could be held liable for injuries to the contractor’s employee
based on the hirer’s “negligent exercise
of retained control†over safety conditions at a worksite. (Hooker,
supra, 27 Cal.4th at
p. 201.) The court held that “a
hirer of an independent contractor is not liable to an employee of the
contractor merely because the hirer retained control over safety conditions at
a worksite, but that a hirer is liable to an employee of a contractor insofar
as a hirer’s exercise of retained control affirmatively contributed to
the employee’s injuries.†(
not “ ‘ “ ‘vicarious’ or ‘derivative’ in the sense that it
derives from the ‘act or omission’ of the hired contractor,†’ †but
is direct. (Id. at p. 212; see also McKown v. Wal‑Mart Stores,
Inc. (2002) 27 Cal.4th 219, 222, 225 [hirer is directly liable to employee
of independent contractor when hirer’s provision of unsafe equipment
affirmatively contributes to employee’s injury].)
Imposing
liability based on a hirer’s negligent exercise of retained control is
consistent with the “ ‘framework of delegation’ †underlying the
Cal.4th 659, 671.) “If a hirer entrusts work to
an independent contractor, but retains control over safety conditions at
a jobsite and then negligently exercises that control in a manner that
affirmatively contributes to an employee’s injuries, the hirer is liable for
those injuries, based on its own negligent exercise of that retained
control. [Citations.] Because the hirer actively retains
control, it cannot logically be said to have delegated that
authority.†(Tverberg v. Fillner Construction,
Inc. (2012) 202 Cal.App.4th 1439, 1446 (Tverberg).)
In
operator who had been employed by a general contractor hired by the California
Department of Transportation (Caltrans) to construct an overpass, sued Caltrans
for negligently exercising its retained control over safety conditions at the
jobsite. (Hooker, supra, 27 Cal.4th
at p. 202.) The Caltrans
construction manual provided Caltrans was responsible for obtaining the
contractor’s compliance with safety laws and regulations, and Caltrans’s onsite
engineer had the power to shut the project down because of safety conditions
and to remove employees of the contractor for failing to comply with safety
regulations. (Id. at pp. 202-203.)
The crane operator retracted the crane’s outriggers to allow Caltrans
vehicles and other construction vehicles to use the narrow overpass. (Id.
at pp. 202, 214.) When the crane
operator then attempted to operate the crane without reextending the
outriggers, the crane tipped over and the operator was killed. (Id.
at p. 202.) The plaintiff alleged
Caltrans was negligent in permitting traffic to use the overpass while the
crane was being operated. (
The Supreme
Court found the plaintiff in Hooker
had raised triable issues of material fact as to whether Caltrans retained
control over safety conditions at the worksite, but not as to whether Caltrans
actually exercised the retained control so as to affirmatively contribute to
the death of the plaintiff’s husband. (
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.
The mere failure to exercise a power to compel the subcontractor to
adopt safer procedures does not, without more, violate any duty owed to the
plaintiff. . . .’
[Citation.]†(
court stated, however, that an omission may constitute an affirmative
contribution in some circumstances:
“[A]ffirmative 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. For example,
if the hirer promises to undertake a particular safety measure, then the
hirer’s negligent failure to do so should result in liability if such negligence
leads to an employee injury.†(
Applying
these standards, the Hooker court
found that, although Caltrans permitted
vehicles to use the overpass while the crane was being operated, and the
operator had a practice of retracting the outriggers to permit traffic to pass,
Caltrans did not direct the crane
operator to adopt that practice. (
there was no evidence Caltrans affirmatively contributed to the crane
operator’s death. (Id. at p. 215.)
Instead, “[t]here 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.†(
2. Triable Issues of Material Fact Preclude
Summary Judgment
a. Retention of Control Over Safety
Conditions
Batton
raised triable issues of material fact as to whether Alten retained control
over the safety of the unfinished stairway.
(See Hooker,
215.) Batton presented evidence that,
after Kwan Wo installed the steel stairway, closed it off with caution tape,
and told Alten the unfinished stairway was not to be used, Alten took what the
trial court referred to as “temporary safety measures†on the unfinished
stairway and permitted its use at least for some purposes. There was evidence Alten installed a
temporary guardrail, put temporary wood blocks in the stair pans, and placed
wooden planks at the bottom of the stairs.
Alten’s workers may have removed the caution tape.
Alten
managers testified the guardrail and the blocks in the pans were routine safety
practices for unfinished stairways.
Alten took the measures because Galletti’s ironworkers were working off
the stairway, using it as “scaffolding†to install rebar on the adjacent
wall. Alten’s supervisor, Fitzgerald,
testified the guardrail also was to protect “other trades, you know, just in
case someone went up there. It’s not a
completed stairwell. If they fell off,
or whatever. It’s basically just for
safety purposes because you’re going to need it.â€
This
evidence allows an inference Alten retained control over the safety of the
unfinished stairway, took measures to make it usable or available at least for
some purposes, and permitted its use at least for those purposes. (See Tverberg,
supra, 202 Cal.App.4th at
p. 1448 [general contractor’s determination that certain temporary safety
measures were sufficient allowed inference that general contractor
“affirmatively assumed the responsibility for the safety†of workers in that
portion of the worksite].)
Alten
asserts SeaBright establishes a
to Galletti all responsibility for the workplace safety of Galletti’s
employees. To the extent Alten suggests
seeking to hold a hirer liable under a theory of negligent exercise of retained
control, we disagree. The
delegates†to an independent contractor the hirer’s tort law duty to provide a safe workplace for the
contractor’s employees, including any tort law duty owed to the contractor’s
employees to comply with safety statutes and regulations. (SeaBright, supra, 52 Cal.4th at
pp. 600, 601, 603.) But the
Hooker rule that a hirer may be
liable to a contractor’s employee if the hirer retains control over safety
conditions and negligently exercises that control in a manner that
affirmatively contributes to the plaintiff’s injury. (SeaBright, at pp. 599, 601.)
b. Affirmative Contribution to Injury
Batton
also raised triable issues of material fact as to whether Alten exercised its
retained control so as to affirmatively contribute to Batton’s injury. (See Hooker,
supra, 27 Cal.4th at pp. 202,
215.) A jury could find that Alten, by
installing temporary safety measures, exercised control over safety
conditions. The evidence also permits an
inference Alten exercised its control in a negligent manner, by implementing
measures that were inadequate for the safe temporary use of the unfinished
stairway. Batton’s expert, Fulghum,
opined the unfinished stairway was unsafe and violated industry custom and
practice for worker safety. Alten’s
supervisor, Fitzgerald, testified the stairway lacked a proper footing. Batton stated in his declaration that “[t]he
stairway was not equipped with a landing, but rather with a plank; its
unfinished stair riser pans were not filled with concrete, its riser height and
tread depth was therefore not uniform, and it had unprotected sides and edges.â€
In
our view, this evidence supports an inference of affirmative contribution in
two ways. First, by installing some
temporary safety measures and permitting use of the unfinished stairway without
additional measures (such as a temporary bottom step), Alten arguably
determined which safety measures were necessary. In Tverberg,
Division Four of this court concluded that a similar determination by a general
contractor allowed an inference of affirmative contribution. In that case, which involved an expansion
project at a commercial fuel facility, a subcontractor dug holes for
“ ‘bollards,’ concrete posts intended to prevent vehicles from colliding
with fuel dispensers.†(
deep and was marked with stakes and safety ribbon. (Ibid.) The plaintiff, an independent contractor
hired by a different subcontractor performing unrelated work near the bollard
holes, fell into one of the holes and was injured. (Id.
at pp. 1442-1443.)
Division
Four found the evidence allowed an inference of affirmative contribution in
several ways.
title="">[2] (Tverberg,
supra, 202 Cal.App.4th at
pp. 1447-1448.) One basis for
finding affirmative contribution was the general contractor’s determination
there was no need to cover or barricade the bollard holes. (Id.
at p. 1448.) The general
contractor’s employee in charge of the jobsite testified he concluded the
stakes and safety ribbon constituted sufficient protection. (Ibid.) The appellate court, noting its duty on
summary judgment to construe the evidence in favor of Tverberg, stated the
evidence “allows an inference that [the general contractor] affirmatively
assumed the responsibility for the safety of the workers near the bollard
holes, and discharged that responsibility in a negligent manner, resulting in
injury.†(Ibid.) Similarly, the
evidence in this case, construed in favor of Batton, allows an inference Alten
affirmatively assumed the responsibility for the safety of workers using the
unfinished stairway, and discharged that responsibility in a negligent manner,
resulting in Batton’s injury. (See
1345-1346 [the defendants undertook to provide safety systems and devices and
then withdrew them]; Ray v. Silverado
Constructors (2002) 98 Cal.App.4th 1120, 1128-1129, 1133-1134 [under
affirmative contribution].)
Alten
argues Tverberg is inapposite because
the plaintiff in that case asked the general contractor to cover the bollard
holes prior to his injury, while Batton did not raise with Alten any concerns
about the safety of the unfinished stairway.
But, as noted, the Tverberg court
found several grounds for a finding of affirmative contribution. (Tverberg,
supra, 202 Cal.App.4th at
pp. 1447-1448.) One of these was
based on Tverberg’s request that the general contractor cover the bollard
holes. The general contractor’s response
that the necessary equipment was not available allowed an inference that the
general contractor agreed to cover the holes and then failed to do so. (Id. at
p. 1448.) A separate potential
basis for liability in Tverberg was
the general contractor’s determination that the stakes and safety ribbons
provided sufficient protection (and therefore it was not necessary to cover or
barricade the bollard holes). (
We relied on this factor in our discussion above.
A
second basis on which a reasonable jury could find affirmative contribution in
this case is that the temporary safety measures Alten took contributed to
Batton’s injury. The wood blocks Alten
placed in the stair pans did not completely fill the pans; instead, there were
gaps on one side of the steps. Batton’s
declaration supports an inference the unfilled condition of the stair pans
contributed to his injury. Batton stated
the “unfinished stair riser pans were not filled with concrete, its riser
height and tread depth was therefore not uniform, and it had unprotected sides
and edges. . . . While
descending the unfinished stair riser pans which were partially filled with
plywood and not with concrete, my foot snagged the edge of the pan causing me
to land awkwardly on the plank . . . .†As Alten notes, Batton does not provide a
detailed explanation of precisely how his foot snagged the edge of the
pan. But his declaration, which we
construe in his favor as the party opposing summary judgment (see Shin v. Ahn,
supra, 42 Cal.4th at p. 499), is sufficient to suggest that,
because the pan was not completely filled, Batton caught his foot, tripped, or
lost his footing. This evidence allows
an inference that Alten, by placing wood blocks that only partially filled the
pans, negligently exercised its retained control over the safety of the
stairway in a manner that affirmatively contributed to Batton’s injury.
Alten
asserts Batton’s statement he snagged his foot is “simply not credible.†Alten argues this statement is inconsistent
with the injury reports prepared by Batton and his supervisor, Wheeler. The reports state the bottom step of the
unfinished stairway was 18 to 24 inches off the ground, and Batton fell when
stepping down from the bottom step to the ground; one of Wheeler’s reports states
the height of the drop “caused [Batton] to misjudge the ground causing him to
fall.†The brief descriptions in the
reports do not mention Batton snagged his foot on the stair pan.
A
court generally may not weigh the credibility of a declaration submitted in
opposition to summary judgment. (
Bank (1986) 179 Cal.App.3d 1061, 1065; see also Estate of Housley (1997) 56 Cal.App.4th 342, 359-360.) The short descriptions of Batton’s accident
in the reports do not establish that the more detailed account in his
declaration is “facially incredible as a matter of law†so as to justify
disregarding it on summary judgment. (
at p. 360.)
Alten
also states Batton “refused to submit to a deposition.†Whatever the merits of the parties’ dispute
on this issue (which we need not address),
it provides no basis for this court to disregard Batton’s declaration. Alten did not object to, and the trial court
did not exclude, the portion of Batton’s declaration describing his accident
(based on the deposition dispute or any other ground), so we will consider
it. (See
Cal.4th 465, 476 [reviewing court considers all evidence submitted by parties
in connection with summary judgment motion, except evidence the trial court
properly excluded].)
Alten’s
remaining arguments do not persuade us summary judgment is proper. Alten cites Brannan, but that case is
distinguishable. In Brannan, Division One of this court held a general contractor was
not liable under Hooker to a masonry
subcontractor’s employee who was injured trying to gain access to his work area
by crossing a plaster scaffold placed by another subcontractor. The general contractor did not direct the
plaintiff’s work and did not tell him to gain access the way he did. (Brannan,
supra, 206 Cal.App.4th at
pp. 1178-1179.) There also was no
evidence the general contractor knew before the plaintiff’s injury that he or
other workers were climbing over the scaffolding in the manner they did, or that
the practice posed a safety hazard. (
contractor’s acts of scheduling jobsite activities, allowing the scaffolding to
remain in place, and failing to call a rain day did not constitute affirmative
contribution under Hooker. (Brannan,
at pp. 1178-1180.) Here, in
contrast to Brannan, Alten itself
took steps to modify and make usable the stairway installed by Kwan Wo, and was
aware it was being used. We conclude
Alten’s actions and the other evidence presented raise triable issues of fact
as to whether Alten affirmatively contributed to Batton’s injury.
Alten
contends Galletti breached its tort and contractual duties by failing to
provide Batton alternative means of access to the second floor (such as
ladders), and Batton was negligent in using the conspicuously unsafe stairway.
does not preclude a finding that Alten’s negligent exercise of retained control
affirmatively contributed to Batton’s injuries.
(See McKown
v. Wal‑Mart Stores, Inc., supra, 27 Cal.4th at pp. 222-223, 225-226 [hirer liable to
employee of independent contractor when hirer’s provision of unsafe equipment
affirmatively contributed to employee’s injury; “[a]dmittedly, [hirer] was not
the only one at fault, but then the jury’s verdict reflected thatâ€].)
Alten
also notes Fitzgerald’s testimony that Galletti’s workers were allowed to use
the stairway as scaffolding, but not to gain access to the second floor. But the evidence allows an inference the use
of the stairway was not so limited.
Fitzgerald testified “we had danger tape†at the top and bottom of the
stairs, and “[n]o one was to use [the stairway] as access,†but he acknowledged
the tape had been removed and was lying on the ground. Fitzgerald also suggested others might have
used the stairway, stating the guardrail was for the protection of “other
trades . . . just in case someone went up there,†or for “[t]rades
and whoever walks onto the site.†Batton
stated in his declaration that he saw “other trades†using the stairway. Batton also presented evidence the city
inspector used the stairway to gain access to the second floor, and Alten’s
backup supervisor may have done so. A
reasonable jury could conclude use of the stairway was not limited to a
specific group of workers performing a specific task.
Batton
has raised triable issues of material fact as to whether Alten is liable on a
theory of negligent exercise of retained control.
adjudication as to Batton’s negligence causes of action.
C. Contractual
Claim as Third Party Beneficiary
Batton
argues Alten owed him a contractual duty to keep the workplace safe, contending
he was a third party beneficiary of Alten’s general contract with City. For
a third party to qualify as an intended beneficiary under a contract,
there must be evidence the contracting parties intended to benefit that third
party, “and their intent must appear from the terms of the contract. [Citations.]
While the [intended] beneficiary need not be named in the contract, he
must be a member of a class referred to and identifiable therein. [Citations.]â€
(Kirst v. Silna (1980) 103 Cal.App.3d 759, 763.) Other persons, termed incidental
beneficiaries, may fortuitously benefit from the performance of the
contract, but they have no legal right to enforce its terms. (Ibid; see also 1 Witkin, Summary of
Cal. Law (10th ed. 2005) Contracts, § 689, p. 776.)
Here,
the general contract states it is an agreement between Alten and City. The trial court correctly concluded paragraph
6.2.D. of the General Conditions in Section 00700 (a provision relied on by
Batton in opposing summary judgment) does not support, and indeed undercuts,
Batton’s claim he is an intended beneficiary of the contract. Paragraph 6.2.D. provides: “[Alten’s] duties and responsibilities under
paragraph [sic] of this Section 00700
are for the benefit of City . . . and also for the benefit of such
other contractors and utility owners working at the Site to the extent that
there are comparable provisions for the benefit of [Alten] in the direct contracts between City . . . and such other
contractors and utility owners.â€
(Italics added.) It is undisputed
Galletti’s subcontract was only with Alten; Galletti had no direct contract
with City. Paragraph 6.2.D. confers no
enforcement rights on Galletti or its employees.
Alten
argues further that paragraph 6.2.D. specifies the intended beneficiaries of
the General Conditions (Section 00700) as a whole, thus precluding Batton from
relying on other provisions to show he is an intended beneficiary. Paragraph 6.2.D. arguably is ambiguous on
this point. It states Alten’s “duties
and responsibilities under paragraph [sic]
of this Section 00700†are for the benefit of City and other contractors that
have direct contracts with City.
Paragraph 6.2.D. thus may only designate the intended beneficiaries of
some unspecified paragraph of Section 00700, rather than of Section 00700 as a
whole.
We
need not resolve this question, because the other provisions cited by Batton do
not support his claim he is an intended beneficiary. Batton cites paragraphs 8.1.B. and 8.3 of the
General Conditions, which provide Alten must “supervise, inspect, and direct
Work competently and efficiently†(¶ 8.1.B.), and “shall have sole care,
custody, and control of the Site and its Work areas†(¶ 8.3). These and related provisions allocate, as
between Alten and City, control of the site and the work. Alten must supervise and direct the work to
ensure it complies with contractual requirements (¶ 8.1.B.); the work is
to be performed under City’s representative’s “general observation and
administration†(¶ 8.2.A.); and Alten must provide access for City and its
employees to inspect and perform work (¶ 8.3). These provisions provide no basis for finding
Batton is an intended beneficiary.
Batton
also cites paragraphs 16.3.B. and 16.3.C. of the General Conditions, which
provide Alten is to be “fully responsible for the safety of its and its Subcontractors’
employees, agents and invitees on the Site†(¶ 16.3.B.), and must “provide
safe means of access to all places at which persons may at any time have
occasion to be present†(¶ 16.3.C.).
But Batton cites no authority holding these or similar provisions in a
general contract establish a subcontractor’s employee is an intended
beneficiary entitled to sue the general contractor for breach of contract. Indeed, courts have refused to find similar
contractual provisions established a hirer had a contractual duty to an injured
employee of a subcontractor. In Zamudio v. City and County of
San Francisco, supra,
70 Cal.App.4th at page 453, this court held a contractual provision delegating
the owner’s safety responsibilities to the general contractor did not create a
duty of care upon the general contractor toward the subcontractor’s
employee. In West v. Guy F. Atkinson
Constr. Co. (1967) 251 Cal.App.2d 296, 302 (West), the court held provisions in the main contract between the
general contractor and the state requiring the contractor to comply with safety
laws, provide safeguards, and take actions to protect employees on the job were
not intended to create a third party beneficiary contract giving
employees of the subcontractor the right to sue at
compensation rights. Instead, the
provisions were intended to “underline the fact that [the general contractor],
by subcontracting, was not to be relieved of any obligation owed to the state
and the public.†(Ibid.) The West court
reached this conclusion even though a clause in the main contract provided that
“ ‘all persons engaged in the work of construction will be considered as
employees of the [c]ontractor.’ â€
contract, whatever their relevance to Batton’s negligence cause of action, do not
establish Batton is an intended beneficiary entitled to pursue an independent
cause of action for breach of the general contract.
IV. DISPOSITION
The order granting
summary judgment and the judgment are reversed.
The trial court is directed to enter a new order denying summary
judgment, denying summary adjudication as to the negligence causes of action,
and granting summary adjudication as to the contract cause of action. The parties shall bear their own
SIMONS,
J.
We concur.
JONES, P.J.
NEEDHAM, J.
qualified his testimony on this point, stating he was “not sure†and could not
be “positive†Alten’s workers removed the tape.
But the evidence Alten’s workers took other measures (the guardrail,
blocks in the step pans, and planks below the bottom step) permits an inference
they removed the tape to gain access to the stairway to take those
measures. In any event, the evidence
Alten took the other measures is sufficient to raise triable issues of material
fact.
earlier decision by Division Four in Tverberg
that involved different issues. (See
(2010) 49 Cal.4th 518, 521-522, 528-529; Tverberg,
supra, 202 Cal.App.4th at
p. 1444.)
