Peredia v. HR Mobile Services, Inc. ( 2018 )


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  • Filed 7/30/18
    CERTIFIED FOR PARTIAL PUBLICATION *
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIFTH APPELLATE DISTRICT
    OSCAR PEREDIA et al.,
    F074083
    Plaintiffs and Appellants,
    (Super. Ct. No. 13CECG03137)
    v.
    HR MOBILE SERVICES, INC.,                                        OPINION
    Defendant and Respondent.
    APPEAL from a judgment of the Superior Court of Fresno County. Mark Wood
    Snauffer, Judge.
    Law Offices of Tony J. Tanke, Tony J. Tanke; Law Offices of Gary L. Simms and
    Gary L. Simms; Law Office of Scott Righthand, Scott D. Righthand and Brittany Rogers,
    for Plaintiffs and Appellants.
    Farbstein & Blackman, Michael A. Farbstein and Ramsey F. Kawar for Defendant
    and Respondent.
    -ooOoo-
    *       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
    certified for publication with the exception of part IV. of the Discussion.
    This appeal addresses the circumstances under which a safety consultant retained
    by a California employer owes a duty of care to the employer’s workers. California
    recognizes the common law theory of negligent undertaking, which is described in
    section 324A of the Restatement Second of Torts (section 324A). Our Supreme Court set
    forth the five elements of a negligent undertaking cause of action in Artiglio v. Corning
    Inc. (1998) 
    18 Cal. 4th 604
    (Artiglio), three of which are related to the duty of care. Our
    Supreme Court has not applied these elements to a safety consultant.
    Here, the trial court granted summary judgment to the safety consultant on the
    ground the consultant owed no duty of care to the employees because the consultant’s
    allegedly negligent omissions were not affirmative misfeasance and, therefore, were not
    acts “wrongful in their nature” for purposes of Civil Code section 2343. We interpret the
    phrase “wrongful in their nature” as encompassing conduct that is tortious—that is, a
    civil wrong. Consequently, if plaintiffs are able to prove all of the elements of their
    negligent undertaking cause of action, they will have established the consultant’s acts
    constituted a tort and, thus, were “wrongful in their nature.” In that situation, their claim
    will not be precluded by Civil Code section 2343. Under this statutory interpretation,
    agents are responsible for their independent torts, but are not held vicariously liable for
    the torts of their principal.
    As to the elements of the negligent undertaking cause of action, we conclude there
    are triable issues of material fact as to (1) the precise scope of the consultant’s
    undertaking and of the duty that may have arisen from the undertaking, (2) whether the
    consultant breached that duty, and (3) whether the breach caused the death of plaintiffs’
    son.
    We therefore reverse the summary judgment and remand for further proceedings.
    FACTS
    Plaintiffs Oscar and Laura Peredia are the parents of Oscar Peredia, Jr., who was
    19 years old on September 20, 2012, when he was killed while working at Double
    2.
    Diamond’s dairy. When Oscar Jr. was sweeping the feed slab that morning, he was hit
    by the front-end loader on a John Deere tractor, knocked down, and run over by the right
    front wheel of the tractor.
    Double Diamond began its dairy business in 1998. At the time of the incident, the
    dairy occupied 220 acres, had approximately 4,800 milking cows, a total of 9,500
    animals, and about 50 employees. Approximately 3,000 acres of farmland support the
    dairy, and Double Diamond’s farming operations employ another 20 workers.
    Around May 2012, Double Diamond engaged defendant HR Mobile Services, Inc.
    (HR Mobile) to assist it with human resources, training, loss prevention, and workers’
    compensation issues. The contractual relationship between Double Diamond and HR
    Mobile was established by a handshake and was not set forth in a written document
    signed by the parties. Double Diamond paid HR Mobile $24,000 per year for services
    related to the dairy.
    HR Mobile acknowledges it agreed to assist, and did assist, Double Diamond in
    carrying out its workplace safety obligations, but asserts it did not agree to fully assume
    Double Diamond’s workplace safety obligations to the employees working at the dairy.
    Plaintiffs contend the extent of HR Mobile obligations presents an issue of fact that is
    disputed. In HR Mobile’s view, it agreed to and accepted a secondary role with respect
    to quarterly safety meetings, quarterly site safety inspections, accident investigations, and
    safety training, while Double Diamond remained responsible for compliance with safety,
    site safety inspections, correcting hazards, safety training and record keeping.
    HR Mobile supplied Double Diamond with several new human resources
    documents, including employee safety policy documents. HR Mobile requested Boretti,
    Inc., one of its vendors, to provide a form of injury and illness prevention plan (IIPP).
    HR Mobile asserts that when it obtained the IIPP from Boretti, Inc., it believed the IIPP
    complied with California’s basic statutory and regulatory requirements for dairy IIPP’s
    and was based on current occupational and health standards and requirements and on
    3.
    accepted industrial safety and health principles and practices. Plaintiffs contend HR
    Mobile’s belief was not reasonable because, among other things, HR Mobile neglected to
    analyze the dairy’s previous IIPP or the one obtained from Boretti, Inc. to ensure the new
    IIPP complied with occupational and health standards and requirements. Plaintiffs assert
    the subsequent citations issued by California’s Division of Occupational Safety and
    Health (CalOSHA) establish the IIPP was not compliant.
    On August 24, 2012, HR Mobile staff conducted a job site safety inspection at
    Double Diamond’s dairy and also conducted an employee safety training meeting. The
    worker who was operating the tractor (Driver) that struck Oscar Jr. attended the meeting.
    The topics covered at the meeting included tractor safety and front-end loader safety.
    Employees attending the meeting were provided with training materials that included the
    instruction for equipment operators to always look where they were going.
    The September 20, 2012, incident occurred while Driver was using the tractor and
    loader to move feed ingredients from one location to another at the dairy. Before the day
    of the incident, Driver had observed workers sweeping gravel from the feed slab at
    random times approximately two or three times a month and had observed Oscar Jr.
    working in the feed slab area, cutting rope from bales of hay, sweeping or both. The
    position of the loader’s bucket at the time of the incident may have created a blind spot,
    which may have obstructed Driver’s view for at least 15 to 20 feet in front of the bucket.
    The parties dispute whether Driver was paying attention to where he was going
    when he struck Oscar Jr. and whether Oscar Jr., contrary to Double Diamond’s policy,
    was using earbuds to listen to an electronic device.
    PROCEEDINGS
    In 2013, plaintiffs filed a wrongful death and survival action against HR Mobile
    and others. In April 2014, they filed a first amended complaint alleging negligence
    claims against HR Mobile. The first amended complaint is the operative pleading in this
    appeal and, as a result, frames the issues addressed in HR Mobile’s motion for summary
    4.
    judgment. Plaintiffs alleged HR Mobile was negligent in, among other things, (1) failing
    to design and create a safety program addressing the safety of ground workers in the
    vicinity of heavy equipment operations, (2) failing to institute a safety program that
    included use of high visibility clothing for workers at the dairy, (3) failing to educate
    workers about the dangers of heavy equipment, and (4) inadequate management of its
    responsibilities as set forth in the IIPP.
    In April 2016, HR Mobile moved for summary judgment, asserting plaintiffs’
    causes of action were devoid of merit because plaintiffs could not establish the duty or
    causation elements of the underlying negligence claims. The motion also challenged
    plaintiffs’ prayer for punitive damages.
    On June 15, 2016, the trial court issued a tentative ruling stating the court intended
    to grant the motion because “Civil Code section 2343 precludes liability for HR [Mobile]
    under the circumstances of this case.” Following a hearing and arguments from counsel,
    the court took the matter under submission. Later, the court filed a minute order adopting
    its tentative ruling.
    In July 2016, the court signed and filed a judgment on order granting summary
    judgment in favor of HR Mobile. Plaintiffs filed a timely notice of appeal.
    DISCUSSION
    I.     BASIC LEGAL PRINCIPLES
    A.      Standard of Review
    Appellate courts independently review a grant of summary judgment to determine
    whether there is a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (c).) The
    independent standard of review also applies to the issue of statutory construction
    presented in this appeal, which is a question of law. (Brown v. Superior Court (2018) 19
    Cal.App.5th 1208, 1218.)
    5.
    B.     Negligence
    1.     Elements of a Claim
    The elements of any negligence cause of action are duty, breach of duty,
    proximate cause, and damages. 
    (Artiglio, supra
    , 18 Cal.4th at p. 614.) Here, HR
    Mobile’s motion for summary judgment asserted plaintiffs could not establish the
    elements of duty or causation.
    2.     Negligent Undertaking
    California recognizes a legal duty of care in certain circumstances where the
    defendant undertakes to render services to someone other than the plaintiff. This
    “negligent undertaking” theory of liability is set forth in section 324A. In Artiglio, our
    Supreme Court stated that “California courts, including this court, have long recognized
    section 324A’s negligent undertaking theory, the general viability of which is not at
    issue.” 
    (Artiglio, supra
    , 18 Cal.4th at pp. 607-608; see Paz v. State of California (2000)
    
    22 Cal. 4th 550
    , 559; CACI No. 450C [negligent undertaking].) In Artiglio, the plaintiffs
    alleged injury from silicone breast implants and sued the defendant corporations for
    negligently discharging an undertaking to provide silicone toxicology research to their
    subsidiary, the manufacturer of the implants. 
    (Artiglio, supra
    , at p. 608.) The Supreme
    Court upheld the grant of summary judgment for the defendant corporations on the
    ground that “any risk of physical harm to plaintiffs from negligent performance of that
    undertaking was unforeseeable.” (Ibid.) Artiglio is significant to the instant appeal
    because of its discussion of the negligent undertaking theory of liability and section
    324A. As quoted by the Supreme Court, section 324A provides in its entirety:
    “‘One who undertakes, gratuitously or for consideration, to render services
    to another which he should recognize as necessary for the protection of a
    third person or his things, is subject to liability to the third person for
    physical harm resulting from his failure to exercise reasonable care to
    [perform] his undertaking, if [¶] (a) his failure to exercise reasonable care
    increases the risk of such harm, or [¶] (b) he has undertaken to perform a
    duty owed by the other to the third person, or [¶] (c) the harm is suffered
    6.
    because of reliance of the other or the third person upon the undertaking.’”
    
    (Artiglio, supra
    , 18 Cal.4th at pp. 612-613, fn. omitted.)
    After discussing some case law related to section 324A and the Good Samaritan
    rule, the Supreme Court set forth the elements of a negligent undertaking cause of action
    that are applicable in this case. We have modified that statement by replacing the names
    of the parties in that case with the names of the entities in this appeal:
    “As the traditional theory is articulated in the Restatement, a negligent
    undertaking claim of liability to third parties requires evidence that: (1) the
    actor (in this case, [HR Mobile]) undertook, gratuitously or for
    consideration, to render services to another ([Double Diamond]); (2) the
    services rendered were of a kind the actor should have recognized as
    necessary for the protection of third persons ([the employees of Double
    Diamond]); (3) the actor failed to exercise reasonable care in the
    performance of its undertaking; (4) the failure to exercise reasonable care
    resulted in physical harm to the third persons; and (5) either (a) the actor’s
    carelessness increased the risk of such harm, or (b) the undertaking was to
    perform a duty owed by the other to the third persons, or (c) the harm was
    suffered because of the reliance of the other or the third persons upon the
    undertaking.” 
    (Artiglio, supra
    , 18 Cal.4th at pp. 613-614.)
    Based on this description of the elements of a negligent undertaking claim,
    plaintiffs contend HR Mobile owed a duty of care to the deceased on two grounds. First,
    HR Mobile undertook to perform safety duties that Double Diamond owed to its
    employees. Second, Double Diamond relied on HR Mobiles’ safety program and IIPP
    and, thus, did not consider or implement further safety measures.
    3.      Case Law Involving Inspectors and Safety Consultants
    Generally, cases in which negligence claims are pursued against entities
    performing safety inspections or other safety-related services for the injured worker’s
    employer involve at least five types of defendants. The type of defendant of interest here
    is the safety consultant because HR Mobile acted in that capacity. The other types of
    7.
    defendants include (1) insurance companies, 1 (2) parent corporations, 2 (3) engineering
    firms, 3 and (4) governmental entities. 4
    The California Supreme Court has not specifically addressed the application of the
    negligent undertaking theory of liability to a safety consultant. However, other state
    supreme courts have. For example, the Arkansas Supreme Court considered “whether an
    independent safety inspection company owes a duty of care to a third-party employee.”
    (Wilson v. Rebsamen Insurance, Inc. (1997) 
    330 Ark. 687
    , 696 [
    957 S.W.2d 678
    ]
    (Wilson).) The court noted the question was “an issue of first impression in Arkansas”
    and provided the following description of how other courts had dealt with the issue:
    1       In Hutcherson v. Progressive Corporation (11th Cir. 1993) 
    984 F.2d 1152
    , a
    summary judgment for an insurance company was reversed. In Derosia v. Liberty Mut.
    Ins. Co. (1990) 
    155 Vt. 178
    [
    583 A.2d 881
    ], a jury verdict against an insurance company
    was affirmed. In Pratt v. Liberty Mutual Ins. Co. (2d Cir. 1992) 
    952 F.2d 667
    , the court
    reversed a directed verdict for the employer’s workers’ compensation carrier, which
    allegedly undertook to conduct an active loss-prevention program at the facilities of the
    plaintiff’s employer.
    2      In Miller v. Bristol-Myers Co. (1992) 
    168 Wis. 2d 863
    [
    485 N.W.2d 31
    ],
    Wisconsin’s Supreme Court reversed a summary judgment granted to a parent
    corporation, concluding the parent corporation had acted in such a manner as to assume a
    common law duty of care to its subsidiary’s employees. In Johnson v. Abbe Engineering
    Co. (5th Cir. 1984) 
    749 F.2d 1131
    , the court upheld a jury verdict against a parent
    company that inspected a plant where the plaintiff was injured. In contrast, Louisiana’s
    Supreme Court reversed a jury’s award in favor of injured workers, concluding the
    evidence presented did not establish for purposes of section 324A that the parent
    company affirmatively undertook to provide its subsidiary’s employees with a reasonably
    safe place to work. (Bujol v. Entergy Services, Inc. (La. 2004) 
    922 So. 2d 1113
    , 1133,
    1138 (Bujol).)
    3      In McDonnell v. Wasenmiller (8th Cir. 1934) 
    74 F.2d 320
    , the court upheld a
    judgment against a civil engineer whose firm actively supervised installation of heating
    units. (Id. at p. 326.)
    4     In Irving v. United States (1st Cir. 1998) 
    162 F.3d 154
    , an injured factory worker
    unsuccessfully claimed inspectors employed by Occupational Safety and Health
    Administration negligently performed their duties.
    8.
    “Other jurisdictions have consistently held that pursuant to section (b) of
    Restatement 324A an independent consulting firm that agrees to perform
    safety inspections of an employer’s work place owes a duty of care to a
    third-party employee to perform those inspections with reasonable care.
    Canipe v. National Loss Control Serv. Inc., 
    736 F.2d 1055
    (5th Cir.1984);
    Santillo v. Chambersburg Eng’g Co., 
    603 F. Supp. 211
    (E.D.Pa. 1985), aff’d
    802 F.2d 44[8] (3rd Cir. 1986); see also Price v. Management Safety Inc.,
    
    485 So. 2d 1093
    (Ala.1986) (imposing a duty without mentioning
    Restatement § 324A); Gallichio v. Corporate Group Serv. Inc., 
    227 So. 2d 519
    (Fla.App.1969) (finding a duty of care under contract law). These
    jurisdictions reason that the safety consultant owes a duty of care under
    Restatement § 324A(b) because it is reasonably foreseeable that if the
    inspections are done improperly, a third-party employee will be injured.
    See 
    Santillo, supra
    ; 
    Gallichio, supra
    .
    “Moreover, the facts of the cases in which other courts have imposed a duty
    of care are virtually identical to the facts at hand. For example, in Santillo,
    an employer hired NATLCO, an independent consulting firm, to perform
    safety inspections of its plant and make recommendations concerning
    safety improvements. 
    Santillo, supra
    . Although it appears that NATLCO
    did not have the authority to implement the safety improvements it
    recommended, the Pennsylvania court held that pursuant to section (b) of
    Restatement 324A, NATLCO owed a duty of care to an employee who was
    injured as a result of NATLCO’s allegedly negligent inspection of a piece
    of machinery. 
    Santillo, supra
    .” 
    (Wilson, supra
    , 957 S.W.2d at pp. 681-
    682.)
    Ultimately, the Arkansas Supreme Court concluded “that pursuant to section (b) of
    the Restatement (Second) of Torts § 324A, [the safety inspection company and its vice
    president in charge of the inspection] owed [the injured worker] a duty of care in
    connection with their undertaking to inspect the premises and warn [the employer]
    Arkansas Oak Flooring about any detected safety hazards.” 
    (Wilson, supra
    , 957 S.W.2d
    at p. 683.) Accordingly, the court reversed the summary judgment granted to the safety
    inspection company. (Ibid.)
    Santillo v. Chambersburg Engineering Co. (E.D.Pa. 1985) 
    603 F. Supp. 211
    (Santillo), also involved a safety consultant. Santillo is significant to us because it was
    discussed by the Arkansas Supreme Court, has been cited the parties in their appellate
    9.
    briefs, and was cited twice by our Supreme Court in Artiglio. The second and most
    detailed citation read: “(Cf. Santillo v. Chambersburg Engineering 
    Co., supra
    , 603
    F.Supp. at p. 214 [defendant provided safety inspections of an employer’s physical plant;
    court noted ‘[s]afety concerns by their nature involve consideration of the well-being and
    protection of third parties: the employees’].)” 
    (Artiglio, supra
    , 18 Cal.4th at p. 615.)
    This citation by the Supreme Court refers to (and provides guidance on) the second of the
    five elements articulated in Artiglio for a negligent undertaking cause of action—that is,
    whether “(2) the services rendered were of a kind the actor should have recognized as
    necessary for the protection of third persons.” (Id. at p. 614.)
    4.     Summary of the Elements of the Negligent Undertaking Claim
    Based on Artiglio, section 324A and the case law from other jurisdictions, we
    reach the following legal conclusions. A safety consultant is liable to an employee of the
    firm that hired the safety consultant when the employee establishes the elements of a
    negligent undertaking claim set forth by our Supreme Court in Artiglio. Therefore, to
    establish a negligent undertaking cause of action against HR Mobile, plaintiffs must
    establish that (1) HR Mobile undertook to render services to Double Diamond; (2) the
    services rendered were of a kind HR Mobile should have recognized as necessary for the
    protection of the employees of Double Diamond; (3) HR Mobile failed to exercise
    reasonable care in the performance of its undertaking; (4) the failure to exercise
    reasonable care resulted in physical harm to Oscar Jr.; and (5) either (a) HR Mobile’s
    carelessness increased the risk of such harm, or (b) the undertaking was to perform a duty
    owed by Double Diamond to the employees, or (c) the harm was suffered because of the
    reliance of Double Diamond or the employees upon the undertaking. 
    (Artiglio, supra
    , 18
    Cal.4th at pp. 613-614.) Under this formulation, a duty of care exists when the first,
    second and fifth elements are established. The third element addresses the breach of that
    duty of care and the fourth element covers both causation and damages.
    10.
    II.    CIVIL CODE SECTION 2343
    Before we consider the application of the first, second and fifth elements to the
    facts asserted and evidence presented, we consider whether Civil Code section 2343
    compels the conclusion that HR Mobile owed no duty of care to Double Diamond’s
    employees. This question requires us to construe Civil Code section 2343 and apply that
    statutory construction to the facts presented. When the trial court undertook these steps,
    it concluded “Civil Code section 2343 precludes liability of HR [Mobile] under the
    circumstances of this case” and granted the motion for summary judgment on that
    ground.
    A.      Meaning of the Statute
    1.     Statutory Text
    Civil Code section 2343 provides: “One who assumes to act as an agent is
    responsible to third persons as a principal for his acts in the course of his agency, in any
    of the following cases, and in no others: [¶] … [¶] When his acts are wrongful in their
    nature.” (Italics added.) The italicized text was significant to the trial court’s analysis.
    The court concluded the phrase “and in no others” has a preclusive effect—that is, the
    statute operates to limit the liability of agents to the situations specifically listed in the
    statute. In addition, the court interpreted the term “wrongful” to mean affirmative
    misfeasance. Applying this interpretation, the court concluded HR Mobile’s passive
    failure to identify and correct dangerous working conditions at the dairy was not
    “wrongful” and, therefore, HR Mobile had no responsibility (i.e., owed no duty of care)
    to the third persons who worked at the dairy.
    2.     Acts Wrongful in Their Nature
    The foundation for our analysis of the meaning of Civil Code section 2343 is
    provided by three basic rules addressing the liability of principals and agents to third
    parties. First, a principal who personally engages in no misconduct may be vicariously
    liable for the tortious act committed by an agent within the course and scope of the
    11.
    agency. (Downey Venture v. LMI Ins. Co. (1998) 
    66 Cal. App. 4th 478
    , 513; see 3 Witkin,
    Summary of Cal. Law (11th ed. 2017) Agency and Employment, § 175 [principal liability
    for agent’s tort where agent alone is at fault].) Second, an agent is liable for his or her
    own torts, whether the principal is liable or not, and in spite of the fact that the agent
    acted in accordance with the principal’s directions. (Holt v. Booth (1991) 
    1 Cal. App. 4th 1074
    , 1080, fn. 5; 3 Witkin, Summary of Cal. Law, supra, § 210 [liability of agent for
    torts].) Stated another way, the fact that the principal becomes liable under the rules of
    vicarious liability or otherwise does not exonerate an agent from liability for a tortious act
    committed by the agent while acting under the authority of the principal. (Bayuk v.
    Edson (1965) 
    236 Cal. App. 2d 309
    , 320.) Third, in contrast to the vicarious liability of
    principals, agents are not vicariously liable for the torts of their principals. (Kurtin v.
    Elieff (2013) 
    215 Cal. App. 4th 455
    , 480 (Kurtin); 3 Witkin, Summary of Cal. Law, supra,
    § 212 [innocent agent ordinarily is not liable for the principal’s tort].)
    The meaning of Civil Code section 2343’s clause referring to acts “wrongful in
    their nature” was addressed in Kurtin. In that court’s view, the clause reflects the rule
    that agents are not liable for the torts of their principals and, furthermore, codifies the rule
    that agents are responsible for their own independent torts committed during the course
    of their agency. 
    (Kurtin, supra
    , 215 Cal.App.4th at p. 480.) For instance, when an
    attorney commits fraud in dealing with a third party, the fact the attorney acted as the
    agent of a client does not relieve the attorney of liability. (Shafer v. Berger, Kahn,
    Shafton, Moss, Figler, Simon & Gladstone (2003) 
    107 Cal. App. 4th 54
    , 69 (Shafer).)
    Under the views expressed in Kurtin and Shafer, acts are “wrongful in their nature” if
    they constitute an independent tort, which is the equivalent of interpreting “wrongful” as
    encompassing tortious acts.
    12.
    3.     Meaning of “Wrong” and “Wrongful” in Other Contexts
    In other contexts, court have used the terms “wrong” and “wrongful” to describe
    torts. For example, it is well established that the word “tort” means a civil wrong, other
    than a breach of contract, for which the law will provide a remedy in the form of an
    action for damages. (Trujillo v. North County Transit Dist. (1998) 
    63 Cal. App. 4th 280
    ,
    286; Stephen K. v. Roni L. (1980) 
    105 Cal. App. 3d 640
    , 642; see Martinez v. Metabolife
    Internat., Inc. (2003) 
    113 Cal. App. 4th 181
    , 189 [court referred to “wrongful conduct
    forming the foundation for Plaintiffs’ negligence claim”].) This definition of “tort”
    logically implies that when all the elements of a tort cause of action have been
    established, the defendant’s conduct is “wrongful” for purposes of civil law.
    In addition, former Code of Civil Procedure section 377—a wrongful death
    statute—used the term “wrongful” in referring “to the ‘death of a person caused by the
    wrongful act or neglect of another.’” (Barrett v. Superior Court (1990) 
    222 Cal. App. 3d 1176
    , 1191.) As to the meaning of the phrase “wrongful act or neglect,” the court
    “conclude[d] that ‘neglect’ is a specific word, an example of one kind of ‘wrongful act.’
    Thus, the term ‘wrongful act’ must define a class of behavior, of which ‘neglect’ is a
    member.” (Ibid.) The court noted “‘wrongful act’ has been defined in other cases as
    meaning simply any tortious conduct, i.e., any act for which the defendant may be liable
    in tort.” (Ibid.) As a result, the court concluded “that ‘wrongful act’ as used in [former]
    section 377 means any kind of tortious act, including the tortious act of placing defective
    products into the stream of commerce.” (Ibid.)
    In the context of a claim for intentional interference with prospective economic
    advantage, our Supreme Court has stated the plaintiff must “prove that the interference
    was wrongful, independent of its interfering character.” (Edwards v. Arthur Andersen
    LLP (2008) 
    44 Cal. 4th 937
    , 944.) “‘[A]n act is independently wrongful if it is unlawful,
    that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or
    other determinable legal standard.’” (Ibid.) The commission of a tort violates a legal
    13.
    standard established by common law and, thus, is an independent wrong under this
    definition.
    Also, the term “wrong” appears in the codified maxim of jurisprudence that “[f]or
    every wrong there is a remedy.” (Civ. Code, § 3523.) Courts have interpreted this use of
    the term “wrong” to mean legal wrongs or those wrongs for which the law authorizes or
    sanctions redress, such as a tort. (The MEGA Life & Health Ins. Co. v. Superior Court
    (2009) 
    172 Cal. App. 4th 1522
    , 1526-1527.) Thus, the maxim does not “provide remedies
    for every ‘wrong’ in the moral sense.” (Id. at p. 1527.)
    The foregoing approaches to the meaning of the term “wrong” is compatible with
    the view that tortious conduct is wrongful. Based on Kurtin, Shafer, and the way
    “wrong” and “wrongful” are used in other contexts, we conclude “acts are wrongful in
    their nature” for purposes of Civil Code section 2343 when they constitute an
    independent tort, such as the tort of negligent undertaking. Under this interpretation of
    Civil Code section 2343, agents are protected from vicarious liability for the torts of their
    principals, but are held responsible for their own actions that constitute a tort, such as the
    negligent undertaking tort recognized in California.
    4.     Defining “Wrongful” as Affirmative Misfeasance
    The trial court relied on Ruiz v. Herman Weissker, Inc. (2005) 
    130 Cal. App. 4th 52
    (Ruiz), when it interpreted Civil Code section 2343’s phrase “wrongful in their nature” to
    mean affirmative misfeasance. In Ruiz, the Fourth District stated:
    “[Civil Code section 2343] provides that an agent is liable to third persons
    for wrongful acts taken in the course of the agency. (Civ. Code, § 2343,
    subd. (3).) However, the statute only makes an agent liable for affirmative
    misfeasance; it does not render an agent liable to third parties for the failure
    to perform duties owed to his principal. (Mears v. Crocker Nat. Bank
    (1950) 
    97 Cal. App. 2d 482
    , 491 [
    218 P.2d 91
    ].) Thus, Civil Code section
    2343 does not make [the contract administrator] liable to the [plaintiff] for
    any failure to perform its obligations under its contract with [the
    landowner] to monitor safety at the worksite.” 
    (Ruiz, supra
    , at p. 65.)
    14.
    We agree that Civil Code section 2343 does not make an agent liable to third
    parties for failures to perform duties owed to his principal so long as that failure to
    perform did not breach a duty of care the agent owed to the third parties. An example of
    such a duty of care is the one that exists when the first, second and fifth elements of a
    negligent undertaking cause of action have been established. In Ruiz, the court did not
    address section 324A and the negligent undertaking cause of action recognized in
    Artiglio. Consequently, it is not authority for the proposition that Civil Code section
    2343 operates to restrict liability under that cause of action.
    Our interpretation of Civil Code section 2343 is the same as that adopted in Mears
    v. Crocker Nat. Bank (1950) 
    97 Cal. App. 2d 482
    , the only case cited by the Fourth
    District to support its “affirmative misfeasance” interpretation. In Mears, the court
    stated: “‘Section 2343 recognizes the elementary rule that every one is liable for his
    torts, and an agent or servant no exception merely because such.’ We think the provision
    cited means that and no more.” (Id. at p. 491.) We have reached the same conclusion—
    agents are liable for their torts.
    B.      Application of Statutory Interpretation to the Facts
    The application of our interpretation of Civil Code section 2343 to the facts of this
    case is straightforward. If plaintiffs are able to establish the elements of their negligent
    undertaking cause of action, then they will have established that HR Mobile’s conduct
    was “wrongful” for purposes of the statute and, as a result, the statute allows, rather than
    bars, their claim. Consequently, the order granting HR Mobile’s motion for summary
    judgment cannot be upheld on the ground that plaintiffs’ negligence claims are precluded
    by Civil Code section 2343. If the order is to be upheld, HR Mobile’s moving papers
    must demonstrate the negligent undertaking cause of action itself has no merit. (Code
    Civ. Proc., § 437c, subd. (p)(2).)
    15.
    III.   DUTY OF CARE FOR THE NEGLIGENT UNDERTAKING CLAIM
    A.     Burden to Negate an Element
    Whether HR Mobile owed a duty of care to the employees at Double Diamond’s
    dairy depends on whether plaintiffs can establish the first, second and fifth elements of a
    cause of action for negligent undertaking. Under subdivision (p)(2) of Code of Civil
    Procedure section 437c, a moving party defendant meets its burden of showing a cause of
    action has no merit by showing “that one or more of the elements of the cause of action
    … cannot be established.” Therefore, HR Mobile can prevail on the ground that it owed
    no duty of care to Double Diamond’s employees by demonstrating plaintiffs cannot
    establish that one or more of the elements related to duty.
    B.     Contentions
    HR Mobile contends its limited consulting role with Double Diamond did not
    extend to an assumption of Double Diamond’s worker safety duties. HR Mobile asserts
    plaintiffs have grossly overstated the scope of its undertaking when they argued HR
    Mobile expressly undertook to safeguard and to protect Double Diamond’s employees
    from workplace hazards. HR Mobile contends it never agreed to take control of, or
    responsibility for, on-the-ground conditions at Double Diamond. HR Mobile contends
    plaintiffs “disregard uncontroverted evidence that HR Mobile’s consulting relationship
    with Double Diamond was nascent” and it had presented a preliminary IIPP that was not
    fully developed.
    Plaintiffs contend HR Mobile has failed to articulate how the scope of its
    undertaking was limited and, moreover, has failed to set forth any facts showing its
    undertaking to protect Double Diamond’s employees was “clearly limited.”
    C.     The Elements Establishing a Duty of Care
    1.     Review of the Elements
    As stated by our Supreme Court, the first element of a negligent undertaking cause
    of action requires plaintiffs to prove “(1) the actor (in this case, [HR Mobile]) undertook,
    16.
    gratuitously or for consideration, to render services to another ([Double Diamond]).”
    
    (Artiglio, supra
    , 18 Cal.4th at p. 614.) The second element requires plaintiffs to prove
    “(2) the services rendered were of a kind [HR Mobile] should have recognized as
    necessary for the protection of third persons ([the employees of Double Diamond]).”
    (Ibid.) The fifth element requires proof that “(5) either (a) the actor’s carelessness
    increased the risk of such harm, or (b) the undertaking was to perform a duty owed by
    [Double Diamond] to the [employees], or (c) the harm was suffered because of the
    reliance of [Double Diamond] or the [employees] upon the undertaking.” (Ibid.)
    2.     The First Element: Undertaking to Render Services
    It is undisputed that HR Mobile undertook, for consideration ($24,000 annually),
    to render services to Double Diamond related to its dairy operations, despite the absence
    of a written document signed by them. HR Mobile’s separate statement of undisputed
    facts asserted it reached an agreement with, and actually rendered services to, Double
    Diamond, including conducting a site safety inspection and an employee safety training
    meeting. Thus, HR Mobile has failed to demonstrate plaintiffs cannot establish the first
    element of a negligent undertaking claim—namely, an undertaking to render services.
    3.     The Second Element
    HR Mobile’s separate statement of undisputed material fact and its memorandum
    of points and authorities in support of its motion for summary judgment did not
    specifically assert that plaintiffs could not establish the second element of a negligent
    undertaking cause of action. Similarly, HR Mobile’s appellate brief does not argue the
    element is not present. We address the element here because it provides part of the
    foundation for discussing the parties’ disputes related to the fifth element.
    Undisputed material fact (UMF) No. 6 in HR Mobile’s separate statement of
    undisputed facts asserts “Double Diamond engaged HR Mobile to assist it with its human
    resources, training, loss prevention, and workers’ compensation in approximately May of
    17.
    2012.” UMF No. 8 asserts “HR Mobile agreed to assist and did assist Double Diamond
    in carrying out its workplace safety obligations, but it did not agree to fully assume
    Double Diamond’s workplace safety obligations to Double Diamond employees.” UMF
    No. 9 asserts “HR Mobile agreed to and did accept a secondary role with respect to
    quarterly safety meetings, quarterly site inspections, accident investigations, and safety
    training.” On August 24, 2012, HR Mobile staff conducted a job site safety inspection
    and an employee safety training session at Double Diamond. (UMF Nos. 20, 22.)
    Plaintiffs disputed some aspects of HR Mobile’s description of its agreement with
    Double Diamond and the acts it performed under that agreement. As to UMF No. 6,
    plaintiffs assert “HR Mobile was asked to do a safety program and evaluation for Double
    Diamond Dairy and that included safety inspections of equipment and the site, safety
    meetings, inspection of the work areas, job specific safety training, and recommendations
    for safe premises and a safe operation at the dairy.” As to UMF No. 8, plaintiffs do not
    dispute that “HR Mobile agreed to assist and did assist Double Diamond Dairy in
    carrying out workplace safety on the premises” but assert “the extent of its obligations is
    an issue of fact and is in dispute[].” As to HR Mobile’s assertion its role was secondary,
    plaintiffs assert there was no discussion of primary versus secondary roles and the extent
    of HR Mobile’s role is an issue of fact.
    We conclude UMF Nos. 8 and 9 demonstrate that HR Mobile undertook to assist
    Double Diamond in carrying out its workplace safety obligations and accepted a role (the
    extent of which is disputed) in conducting safety inspections and safety training. “Thus,
    it appears that [HR Mobile] undertook to provide services which were recognized as
    involving safety concerns.” (
    Santillo, supra
    , 603 F.Supp. at p. 214.) Our Supreme Court
    has quoted the statement in Santillo that “‘[s]afety concerns by their nature involve
    consideration of the well-being and protection of third parties: the employees.’”
    
    (Artiglio, supra
    , 18 Cal.4th at p. 615.) The next sentence in Santillo stated: “It would be
    disingenuous to conclude, as [defendant] suggests, that the performance of a safety
    18.
    evaluation would not foreseeably give rise to concerns regarding the safety and protection
    of third parties.” (
    Santillo, supra
    , at p. 214.) Based on Artiglio, Santillo and the
    undisputed facts, we conclude the safety-related services undertaken by HR Mobile
    foreseeably related to the safety and protection of Double Diamond’s employees.
    Therefore, HR Mobile has failed to demonstrate plaintiffs cannot establish the second
    element of a negligent undertaking claim.
    4.     The Fifth Element: Undertaking to Perform a Duty
    There are three options for proving the fifth element of the negligent undertaking
    cause of action. As the three options are joined by the disjunctive “or,” plaintiffs need
    only establish one of the three to satisfy the fifth element. In comparison, HR Mobile, as
    a moving party defendant, must establish that plaintiffs cannot prove any of the three
    options if it is to prevail on its motion for summary judgment. Here, we consider the
    second option: whether HR Mobile’s “undertaking was to perform a duty owed by
    [Double Diamond] to the third persons.” 
    (Artiglio, supra
    , 18 Cal.4th at p. 614; §
    324A(b).)
    The first legal issue we consider is raised by HR Mobile’s assertion that it did not
    fully assume Double Diamond’s safety obligation to the employees working at the dairy.
    (UMF No. 8.) In effect, HR Mobile has interpreted our Supreme Court’s reference to an
    “undertaking … to perform a duty owed by [Double Diamond] to the third persons”
    
    (Artiglio, supra
    , 18 Cal.4th at p. 614) to mean a safety consultant must fully assume a
    duty owed by the employer to its employees before the safety consultant owes a duty of
    care to the employees. 5 As explained below, we conclude California does not require a
    full assumption of the employer’s duties to provide a safe workplace.
    5       As observed by the trial court, California employers have a duty to provide a safe
    place of employment. Labor Code section 6403 provides in full: “No employer shall fail
    or neglect to do any of the following: [¶] (a) To provide and use safety devices and
    safeguards reasonably adequate to render the employment and place of employment safe.
    [¶] (b) To adopt and use methods and processes reasonably adequate to render the
    19.
    Our analysis of this issue begins by noting the language used by our Supreme
    Court in Artiglio does not explicitly address, one way or the other, whether the defendant
    must fully assume the employer’s duties. In addition, we have located no published
    opinion of a California appellate court interpreting Artiglio or section 324A(b) to require
    a full assumption of the employer’s duties.
    Similar to HR Mobile’s fully-assumed-duty argument, the consulting firm in
    Wilson, argued it did not owe a duty to third-party employees injured on the job because
    it had no authority to implement the safety changes it suggested. 
    (Wilson, supra
    , 957
    S.W.2d at p. 679.) The Arkansas Supreme Court stated it could not find “any case in
    which the ability of the safety consultant to implement improvements was a relevant
    factor in determining whether the consultant owed a duty of care to the injured
    employee.” (Id. at p. 682.) In contrast, the court noted Santillo and Canipe v. National
    Loss Control Serv. Inc. (5th Cir. 1984) 
    736 F.2d 1055
    (Canipe) were cases in which the
    consultant did not have the authority to implement its safety recommendations, but a duty
    of care was imposed pursuant to section 324A. 
    (Wilson, supra
    , at pp. 681-682.) Thus,
    Wilson supports the conclusion that a safety consultant need not fully assume the
    employer’s duty to provide a safe workplace.
    employment and place of employment safe. [¶] (c) To do every other thing reasonably
    necessary to protect the life, safety, and health of employees.” In addition, Labor Code
    section 6401.7 provides that “[e]very employer shall establish, implement and maintain
    an effective injury prevention program,” which shall be in writing and shall include the
    elements listed in the statute. Among other things, the program must include a “safety
    training program designed to instruct employees in general safe and healthy work
    practices and to provide specific instruction with respect to hazards specific to each
    employee’s job assignment.” (Lab. Code, § 6401.7, subd. (a)(4).) “The employer shall
    train all employees when the training program is first established .…” (Lab. Code, §
    6401.7, subd. (c).) The subject of an “Injury and Illness Prevention Program” also is
    addressed by California Code of Regulations, title 8, section 3203. The foregoing
    provisions demonstrate that an employer’s general duty to render the place of
    employment safe encompasses the specific duty of provide employees with safety
    training.
    20.
    HR Mobile’s contention that it did not fully assume the employer’s workplace
    safety obligations is the practical equivalent of an argument that has created a split in
    authority about how section 324A(b) should be interpreted. One line of cases requires
    the defendant’s course of action to supplant, not merely supplement, the employer’s duty.
    (E.g., Ricci v. Quality Bakers of America Co-op. Inc. (D.Del. 1983) 
    556 F. Supp. 716
    , 721
    [under § 324A(b), a plaintiff must establish that the one who undertook a duty to inspect
    supplanted and not merely supplemented another’s duty to inspect]; Heinrich v.
    Goodyear Tire & Rubber Co. (D.Md. 1982) 
    532 F. Supp. 1348
    , 1355 [under § 324A(b),
    liability “arises in the workplace setting only if the actor’s undertaking was intended to be
    in lieu of, rather than a supplement to, the employer’s own duty of care to the
    employees”] (Heinrich); Blessing v. United States (E.D.Pa. 1978) 
    447 F. Supp. 1160
    ,
    1194 [United States would be liable only if, by performing safety inspections, the
    Occupational Health and Safety Administration “actually undertook not merely to
    supplement the employers’ own safety inspections, but rather to supplant those
    inspections”] (Blessing); see generally, Crawley, Environmental Auditing and the “Good
    Samaritan” Doctrine: Implications for Parent Corporations (1993) 28 Ga. L.Rev. 223,
    243-247.)
    In another line of cases, “courts have applied a less stringent standard than the ‘in
    lieu of’ of ‘supplant rather than supplement’ requirement.” (Wellington & Camisa, The
    Trade Association and Product Safety Standards: Of Good Samaritans and Liability
    (1988) 35 Wayne L.Rev. 37, 53.) For instance, in Canipe, the Fifth Circuit explicitly
    rejected a restrictive approach to section 324A(b) and concluded that provision “comes
    into play as long as the party who owes the plaintiff a duty of care has delegated to the
    defendant any particular part of that duty.” 
    (Canipe, supra
    , 736 F.2d at p. 1062.) Stated
    another way, “liability under section 324A(b) may result if an employer has delegated
    any part of its duty to discover and remedy unsafe working conditions.” 
    (Canipe, supra
    ,
    736 F.2d at p. 1063 [applying Tennessee law]; see 
    Santillo, supra
    , 603 F.Supp. at p. 215
    21.
    [defendant “does not have to assume the entire responsibility of another party” for a duty
    to arise under § 324A(b)].)
    In the context of an independent safety consultant rendering services for
    compensation, we conclude the appropriate legal standard is set forth in Canipe, Santillo
    and Wilson. Many of the cases adopting the more stringent legal standard involve other
    types of defendants, such as parent corporations and governmental entities. (See 
    Bujol, supra
    , 922 So.2d at p. 1119 [defendant was employer’s parent corporation]; 
    Heinrich, supra
    , 532 F.Supp. at p. 1350 [same]; 
    Blessing, supra
    , 
    447 F. Supp. 1194
    [defendant was
    the United States].) Also, our Supreme Court has cited Santillo with approval. HR
    Mobile’s appellate brief did not acknowledge the existence of a split of authority
    described above. As a result, HR Mobile has not presented any reasons explaining why
    the “supplant rather than supplement” requirement is superior to the interpretation of
    section 324A(b) adopted in Canipe, Santillo and Wilson.
    Based on the foregoing, we conclude plaintiffs are not required to show HR
    Mobile fully assumed Double Diamond’s safety obligations to its employees. HR
    Mobile’s moving papers did not adopt a fallback position and present the alternate
    argument that it had not undertaken a sufficient part of Double Diamond’s safety
    responsibilities to its employees. Consequently, we need not discuss that specific
    question.
    Another legal issue raised by HR Mobile’s contention that Double Diamond’s
    responsibility to render the place of employment safe for its employees was
    nondelegable. California’s nondelegable duty doctrine is not related to the elements of a
    negligent undertaking cause of action. Instead, the “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.” (SeaBright Ins. Co. v. US
    22.
    Airways, Inc. (2011) 
    52 Cal. 4th 590
    , 600-601.) 6 Therefore, we conclude the
    nondelegable nature of the duty does not preclude a safety consultant from undertaking to
    perform duties related to employee safety and, thus, satisfying option (b) of the fifth
    element identified in section 324A.
    In summary, we conclude that HR Mobile, as the moving party defendant, has not
    shown that the first, second or fifth elements of plaintiffs’ negligent undertaking “cause
    of action … cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).)
    D.    Breach of the Duties Undertaken
    HR Mobile suggests that it cannot be held liable because it performed, rather than
    breached, its undertaking to Double Diamond. This suggestion is related to HR Mobile’s
    argument about the “Clearly Delineated Confines of HR Mobile’s Undertakings to
    Double Diamond.”
    HR Mobile arguments are connected to the issue of “whether [a defendant’s]
    alleged actions, if proven, would constitute an ‘undertaking’ sufficient ... to give rise to
    an actionable duty of care is a legal question for the court.” 
    (Artiglio, supra
    , 18 Cal.4th
    at p. 615.) However, “there may be fact questions ‘about precisely what it was that the
    defendant undertook to do.’ That is, while ‘[t]he “precise nature and extent” of [an
    alleged negligent undertaking] duty “is a question of law ... ‘it depends on the nature and
    extent of the act undertaken, a question of fact.’”’ [Citation.] Thus, if the record can
    support competing inferences [citation], or if the facts are not yet sufficiently developed
    [citation], ‘“an ultimate finding on the existence of a duty cannot be made prior to a
    hearing on the merits”’ [citation], and summary judgment is precluded. [Citations.]”
    (Ibid.)
    6       Here, Double Diamond has not attempted to evade its responsibility for Oscar Jr.’s
    death—a responsibility defined by California’s workers’ compensation law—by claiming
    it delegated its duty to provide a safe workplace to HR Mobile.
    23.
    Applying the principles set forth in Artiglio, we conclude HR Mobile’s moving
    papers have not established the precise nature and extent of its undertaking and, as a
    result, it has failed to carry its burden of demonstrating there is no factual question about
    whether it complied with its undertaking. For example, HR Mobile asserts that (1) the
    topics covered at the August 24, 2012, safety training meeting included tractor safety,
    including front-end loader safety, and (2) the training materials disseminated to
    employees during the meeting included the instruction for equipment operators to always
    look where they were going. (UMF Nos. 24, 25.) Based on the information provided by
    HR Mobile’s separate statement, we cannot determine the precise nature and extent of
    HR Mobile’s undertaking, which necessarily leads to the conclusion that we cannot
    determine on the record before us whether HR Mobile fulfilled that undertaking.
    Accordingly, the HR Mobile’s scope-of-undertaking argument does not provide a basis
    for upholding the grant of summary judgment.
    IV.    CAUSATION *
    A.     Contentions of the Parties
    HR Mobile contends plaintiffs have posited “speculative, alternative causation
    theories with no legal or evidentiary tether.” HR Mobile contends the evidentiary
    deficiencies in the CalOSHA citations and the declarations of plaintiffs’ experts render
    plaintiffs’ argument on causation insufficient to raise a triable issue of material fact. In
    particular, HR Mobile asserts the evidence establishes as indisputable the facts as to the
    immediate cause of the fatal incident—that Driver was not looking where he was going
    when he ran over Oscar Jr. HR Mobile argues the theories about a blind spot created by
    the loader and the lack of reflective clothing “cannot overcome the plain reality that
    [Driver] was not even looking where he was going.”
    *      See footnote, ante, page 1.
    24.
    Plaintiffs contend HR Mobile has not shown why the evidentiary objections it
    raised in the trial court are relevant to the issue of causation and, in any event, its
    objections are not properly presented to this court. Plaintiffs further contend that HR
    Mobile failed to carry its burden as moving party to negate the causation element as a
    matter of law. Plaintiffs also argue this court need not reach the issue of causation
    because it was not addressed by the trial court and, as a result, it would be a proper
    exercise of discretion to remand the issue for a decision by that court.
    B.     Immediate Cause Versus the Substantial Factor Test
    First, we consider HR Mobile’s argument that plaintiffs cannot establish that its
    alleged negligence caused the fatal incident because Driver’s failure to look where he
    was going was the immediate cause. HR Mobile has not cited any authority for the
    principle that identifying the person whose negligence was the immediate cause of an
    accident precludes any other party from being held partially responsible for the accident.
    We conclude the applicable standard for causation in cases where concurrent independent
    causes contribute to an injury is the “substantial factor” test. (State Dept. of State
    Hospitals v. Superior Court (2015) 
    61 Cal. 4th 339
    , 352, fn. 12.)
    “California has definitively adopted the substantial factor test of the
    Restatement Second of Torts for cause-in-fact determinations. [Citation.]
    Under that standard, a cause in fact is something that is a substantial factor
    in bringing about the injury. [Citations.] The substantial factor standard
    generally produces the same results as does the ‘but for’ rule of causation
    which states that a defendant’s conduct is a cause of the injury if the injury
    would not have occurred ‘but for’ that conduct.” (Rutherford v. Owens-
    Illinois, Inc. (1997) 
    16 Cal. 4th 953
    , 968-969.)
    Accordingly, we conclude applicable law requires HR Mobile to demonstrate that
    plaintiffs cannot establish HR Mobile’s alleged negligence was a substantial factor in
    bringing about the death of Oscar Jr. HR Mobile’s reliance on Driver being the
    immediate cause fails to carry this burden as it did not address the correct legal standard
    25.
    and demonstrate its alleged negligence was not a substantial factor in bringing about the
    fatal incident.
    HR Mobile also argues it is speculative for plaintiffs to claim that the absence of
    high visibility clothing was a cause of the fatal incident. This argument does not consider
    the evidence in the light most favorable to the nonmoving party. The evidence presented
    does not establish that Driver would not have seen Oscar Jr. at any time before the
    incident. During his deposition, Driver testified “I wouldn’t have drove that – to that side
    if I would have knew he was there.” Therefore, it is reasonable to infer that if Driver had
    learned sometime that morning that Oscar Jr. was working on the feed slab, Driver would
    have taken a different route and the incident would have been avoided. HR Mobile
    argues this is speculation “about what would have occurred in an alternative universe.”
    This argument is unconvincing. The factual issue of whether negligence relating to a
    lack of high visibility clothing was a cause in fact of the fatal incident necessarily
    requires the trier of fact to consider if the incident would have been prevented if such
    clothing had been worn. Such a determination is essentially the same as determining
    whether an automobile accident would have occurred if the defendant had been observing
    the speed limit instead of speeding. Thus, HR Mobile’s alternate universe argument is
    not an accepted test for determining whether a theory of causation is speculative.
    Consequently, there are triable issues of material fact relating to causation.
    Therefore, we need not address the other arguments raised by the parties in connection
    with the issue of causation. The causation element does not provide an independent
    ground for affirming the order granting summary judgment.
    26.
    DISPOSITION
    The judgment is reversed. The trial court is directed to vacate its order granting
    the motion for summary judgment and to enter a new order denying the motion.
    Plaintiffs shall recover their costs on appeal.
    _____________________
    FRANSON, J.
    WE CONCUR:
    _____________________
    LEVY, Acting P.J.
    _____________________
    DETJEN, J.
    27.