Piontkowski v. Veolia ES Industrial Services, Inc. CA2/3 ( 2021 )

Filed 3/2/21 Piontkowski v. Veolia ES Industrial Services, Inc. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ROBERT PIONTKOWSKI, B301845
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC636816
v.
VEOLIA ES INDUSTRIAL
SERVICES, INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Deirdre Hill, Judge. Affirmed.
Arnold & Itkin, Noah M. Wexler, John Benjamin Bireley;
Keisel Law, Paul R. Keisel and Melanie M. Palmer for Plaintiff
and Appellant.
Weinberg Wheeler Hudgins Gunn & Dial, Marjan
Hajimirzaee, Kristian T. Kaskla and D. Lee Roberts, Jr. for
Defendants and Respondents.
_______________________________________
INTRODUCTION
Plaintiff and appellant Robert Piontkowski (plaintiff), an
employee of Chevron, was seriously injured on the job at the
company’s El Segundo refinery when he was splashed with super-
heated materials. Plaintiff claims he was injured because a pipe
that would normally have drained those materials in a different
manner was plugged. Chevron had a services agreement with
Veolia Environmental Services, Inc. to hydroblast such pipes at
Chevron’s direction. Plaintiff filed this negligence action against
defendants and respondents Veolia ES Industrial Services, Inc.,
Veolia North America, LLC, and Veolia Water Technologies, Inc.
(collectively, Veolia) alleging Veolia owed him a duty, as a third-
party beneficiary of the services agreement, to timely respond to
a request from Chevron to clean the drainpipe at issue and,
further, that Veolia’s failure to clean the pipe caused the
condition that led to his injury.
The trial court granted Veolia ES Industrial Services, Inc.’s
motion for summary judgment and plaintiff appeals from the
subsequently entered judgment.1 He asserts the trial court erred
in finding that Veolia did not owe him a legal duty of care
because he was not an intended third-party beneficiary of the
services agreement between Veolia and Chevron. Finding no
error, we affirm the judgment.
1This appeal only involves the judgment entered in favor of one of the
Veolia entities, Veolia ES Industrial Services, Inc.
2
FACTS AND PROCEDURAL BACKGROUND2
1. The Complaint
Plaintiff, a Chevron employee, was seriously injured at the
company’s oil refinery in El Segundo on June 1, 2016. Plaintiff
subsequently received workers’ compensation benefits for the
injuries he sustained. Those benefits notwithstanding, plaintiff
filed the current action against several defendants, including
Veolia, on October 11, 2016. In the operative first amended
complaint, plaintiff asserted causes of action for negligence and
gross negligence against Veolia.3 Chevron retained Veolia to
provide, among other things, on-demand hydroblasting services
at the El Segundo facility.
According to the operative complaint, plaintiff was
performing his assigned job task and was required to drain a line
on a coker unit4 at the worksite. The line was plugged, however,
and would not properly drain. In the process of performing his
2Most of the documents critical to our analysis were filed under seal in
the trial court and in this court. In the interest of avoiding disclosure of
any confidential information, our discussion of the facts in this case is
somewhat more general than usual.
3Plaintiff did not oppose Veolia’s motion for summary judgment and/or
adjudication with respect to the gross negligence claim and does not
address that claim in this appeal.
4 Coking is a refinery process that takes place at above atmospheric
pressure and at approximately 900 degrees Fahrenheit. Coke, a coal-
like substance, builds up in a large drum and water is used to
hydraulically cut the coke, enabling its removal from the drum. (Today
in Energy - U.S. Energy Information Administration (EIA): Coking is a
refinery process that produces 19% of finished petroleum product
exports [as of
Feb. 26, 2021], archived at .)
3
assigned task, plaintiff “ ‘sustained serious burns and other
injuries’ ” after “ ‘scalding coke and other materials were violently
released from the plugged line.’ ”
Plaintiff also alleged that a few days prior to the accident,
Chevron requested that Veolia unplug the drain line. At the time
of the accident, Veolia had not yet reported to unplug the line. In
response to a special interrogatory request, plaintiff contended
“that [Veolia] owed a general duty of care to identify and remedy
dangerous conditions—such as plugged lines or conditions which
may have caused lines to easily plug—with respect to the lines
and other equipment [Veolia was] responsible for cleaning,
draining, and maintaining.” He further stated, with respect to
the alleged breach of duty, that “[o]n the day of the explosion,
Plaintiff had to drain water from the lines in the coke drum to
conduct his work. However, the line was plugged and would not
drain. On information and belief, [Veolia is] responsible for
maintaining, draining and cleaning lines, such as the one at issue
in this litigation. Plaintiff contends that the plugged line on the
day of the injury was caused by Veolia’s negligent draining,
cleaning, and/or maintenance of the line.”
Veolia answered the complaint and denied the allegations.
2. Summary Judgment Proceedings
Veolia ES Industrial Services, Inc. filed a motion for
summary judgment and/or adjudication. With respect to the
negligence claim, Veolia noted the distinction between
nonfeasance, i.e., the failure to act, and misfeasance, i.e., the
failure to use ordinary care in performing an act. As to
nonfeasance, Veolia observed that the failure to act to prevent
harm is normally actionable only where a special relationship
exists between the plaintiff and the defendant. Here, Veolia
4
argued, no special relationship existed between plaintiff and
Veolia as a matter of law because Veolia had been hired to
perform its duties by Chevron, for Chevron’s benefit. With respect
to misfeasance, Veolia argued that none of the relevant factors
weighed in favor of imposing liability on it—particularly
foreseeability—because the company fulfilled a small role,
directed by Chevron, at the worksite. The overall processes were
managed, controlled, and monitored by Chevron, not Veolia.
Plaintiff, by contrast, argued that Veolia was negligent
under both a nonfeasance and a misfeasance theory. As to
nonfeasance, plaintiff argued that Veolia’s contract with Chevron
obligated Veolia to perform certain services, including clearing
the plugged drain line, and that Veolia’s failure to timely perform
caused plaintiff’s injuries. Plaintiff also contended a special
relationship existed between himself and Veolia because, as a
Chevron employee, he was an intended third-party beneficiary of
the contract between Veolia and Chevron. With respect to
misfeasance, plaintiff asserted that Veolia breached its ordinary
duty of care to perform services for Chevron in a timely manner
and that it was foreseeable that a Chevron employee, such as
plaintiff, could be seriously injured as a result.
3. The Court’s Ruling and the Appeal
The court granted Veolia’s motion for summary judgment.
As pertinent here, the court found as a matter of law that
plaintiff could not establish that Veolia owed him a legal duty of
care. The court noted that plaintiff’s primary allegations against
Veolia rested on the company’s failure to act, i.e., its failure to
clear the drain line prior to the accident. And as to alleged
nonfeasance, liability is typically limited to situations in which
there is a special relationship between the parties that creates a
5
duty to act. Plaintiff alleged that the services agreement between
Veolia and Chevron created such a duty, citing legal authority
holding that a special relationship might exist where, for
example, a contractor has an ongoing duty to maintain a property
in safe condition. But after reviewing the services agreement, the
court determined that Veolia was obligated to unclog the drain
line at issue once monthly or upon Chevron’s request—and was
not tasked with maintaining the drain line in a clear state on an
ongoing basis. The court concluded, therefore, that as a matter of
law no special relationship existed by virtue of the services
agreement which obligated Veolia to act affirmatively to prevent
harm to plaintiff.5
The court signed the judgment in favor of Veolia on
August 12, 2019. Plaintiff timely appeals.
DISCUSSION
Although plaintiff asserted multiple theories of negligence
in opposition to Veolia’s motion for summary judgment, he now
contends only that Veolia owed him a duty of care arising out of
the company’s services agreement with Chevron. Plaintiff argues
that the services agreement created a special relationship
between Veolia and himself and that, as a result, Veolia was
required to clear plugged drain lines at the worksite in a timely
fashion, for his protection. As we explain, plaintiff’s theory of
liability turns on whether plaintiff is an intended third-party
beneficiary of the services agreement. We conclude, as the trial
court did, that he is not.
5The court also addressed plaintiff’s misfeasance theory of negligence.
Plaintiff does not challenge that portion of the court’s ruling, however.
6
1. Scope and Standard of Review
The applicable standard of review of a ruling on a motion
for summary judgment is well established. “The purpose of the
law of summary judgment is to provide courts with a mechanism
to cut through the parties’ pleadings in order to determine
whether, despite their allegations, trial is in fact necessary to
resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 843 (Aguilar).)
The moving party “bears the burden of persuasion that
there is no triable issue of material fact and that he is entitled to
judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at
p. 850; Code Civ. Proc., § 437c, subd. (c).) A defendant moving for
summary judgment must “ ‘show[ ] that one or more elements of
the cause of action ... cannot be established’ by the plaintiff.
[Citation.]” (Aguilar, at p. 853.) A defendant meets its burden by
presenting affirmative evidence that negates an essential
element of a plaintiff’s claim. (Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 334 (Guz).) Alternatively, a defendant meets its
burden by submitting evidence “that the plaintiff does not
possess, and cannot reasonably obtain, needed evidence”
supporting an essential element of its claim. (Aguilar, at p. 855.)
On appeal from a summary judgment, we review the record
de novo and independently determine whether triable issues of
material fact exist. (Saelzler v. Advanced Group 400 (2001) 25
Cal.4th 763, 767; Guz, supra, 24 Cal.4th at p. 334.) We resolve
any evidentiary doubts or ambiguities in favor of the party
opposing summary judgment. (Saelzler, at p. 768.)
In performing an independent review of the granting of
summary judgment, we conduct the same procedure employed by
the trial court. We examine (1) the pleadings to determine the
7
elements of the claim, (2) the motion to determine if it establishes
facts justifying judgment in the moving party’s favor, and (3) the
opposition—assuming movant has met its initial burden—to
decide whether the opposing party has demonstrated the
existence of a triable, material fact issue. (Oakland Raiders v.
National Football League (2005) 131 Cal.App.4th 621, 629–630.)
We need not defer to the trial court and are not bound by the
reasons in its summary judgment ruling; we review the ruling of
the trial court, not its rationale. (Id. at p. 630.)
Finally, although we review the court’s summary judgment
ruling independently we are, as always, guided by the principle
that “ ‘[a] judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error
must be affirmatively shown. This is not only a general principle
of appellate practice but an ingredient of the constitutional
doctrine of reversible error.’ [Citations.]” (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.)
2. The court properly granted Veolia’s motion for
summary judgment.
2.1. Negligence Generally
To support a negligence cause of action, a plaintiff must
plead and prove: (1) the defendant owed the plaintiff a legal duty,
(2) the defendant breached the duty, and (3) the breach was a
proximate or legal cause of the plaintiff’s injuries. (Merrill v.
Navegar, Inc. (2001) 26 Cal.4th 465, 477.) “ ‘[T]he threshold
element of a cause of action for negligence is the existence of a
duty to use due care toward an interest of another that enjoys
legal protection against unintentional invasion.’ ”
8
(Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 837
(Goonewardene).) “ ‘Duty, being a question of law, is particularly
amenable to resolution by summary judgment.’ ” (Regents of
University of California v. Superior Court (2018) 4 Cal.5th 607,
618.)
Veolia’s motion for summary judgment asserted that Veolia
did not owe plaintiff a legal duty of care. “In considering whether
a party has a legal duty in a particular factual situation, a
distinction is drawn between claims of liability based upon
misfeasance and those based upon nonfeasance. ‘ “ ‘Misfeasance
exists when the defendant is responsible for making the
plaintiff’s position worse, i.e., defendant has created a risk.
Conversely, nonfeasance is found when the defendant has failed
to aid plaintiff through beneficial intervention. ...’ [Citations.]” ’
[Citation.] Liability for misfeasance is based on the general duty
of ordinary care to prevent others from being injured by one’s
conduct. [Citations.] Liability for nonfeasance is limited to
situations in which there is a special relationship that creates a
duty to act. [Citations.] ‘The basic idea is often referred to as the
“no duty to aid rule,” which remains a fundamental and long-
standing rule of tort law. ... “As a rule, one has no duty to come to
the aid of another. A person who has not created a peril is not
liable in tort merely for failure to take affirmative action to assist
or protect another unless there is some relationship between
them which gives rise to a duty to act.” ’ [Citation.]” (Seo v. All-
Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202–1203
(Seo).)
Plaintiff’s negligence claim is predicated on Veolia’s failure
to act, i.e., its failure to clear the plugged drainpipe that he
alleges caused his injury. Accordingly, to establish that Veolia
9
owed him a legal duty, plaintiff must demonstrate the existence
of a special relationship between them. As plaintiff suggests, “ ‘[a]
duty [of care] may arise through statute, contract, or the
relationship of the parties.’ ” (Lichtman v. Siemens Industry, Inc.
(2017) 16 Cal.App.5th 914, 920, fn. omitted.) And a duty running
from a defendant to a plaintiff may arise from a contract even
though, as here, the parties are not in privity. (Biakanja v. Irving
(1958) 49 Cal.2d 647, 650 (Biakanja); see Goonewardene, supra, 6
Cal.5th at p. 838.) “Under these circumstances, the existence of a
duty is not the general rule, but may be found based on public
policy considerations.” (Lichtman, at p. 921.)
2.2. Duty of Care Based on Contractual Obligation
Plaintiff claims, essentially, that the services agreement
evidences a special relationship because it shows that the parties
intended to protect him from workplace injury. As the existence
and language of the contract are undisputed and neither party
has proffered disputed extrinsic evidence relating to its meaning,
the proper interpretation of the contract is a question of law.
(Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180
Cal.App.4th 430, 439.)
Veolia acknowledges that a special relationship may, in
some cases, arise out of a contract in which a company
undertakes repairs. That is not the precise situation here, but it
is similar in several respects. Seo, supra, relied on by plaintiff
below, provides relevant guidance. There, the plaintiff was
injured after his arm was caught in a garage gate as it closed.
The plaintiff contended the gate was defectively designed and, in
addition to suing the property owner, he sued the garage gate
repairer for negligence because the repairer failed to advise the
property owner of the defect. (Seo, supra, 97 Cal.App.4th at
10
pp. 1198–1199.) The repairer moved for summary judgment,
arguing it had no duty to the plaintiff to advise the property
owner about the defect. (Id. at p. 1200.) The court of appeal
agreed.
Importantly for our purposes, the court distinguished
between an ongoing, affirmative obligation to maintain property
in a safe and working condition and an obligation to provide
repair services as needed and requested. Specifically, the court
noted that “[a] special relationship may arise out of a contract in
which a repair company agrees for a fee to keep a piece of
equipment in repair, perform all work necessary for the safety
and maintenance of the equipment, and make periodic
inspections of the equipment.” (Seo, supra, 97 Cal.App.4th at
p. 1204.) But where a contractor provides repair services on
demand, no such relationship with third parties is created. (Ibid.)
In the case at hand, it was evident that “the owner of the
property called defendant gate repair company on those occasions
the gate or some other similar equipment needed specific
repairs.” (Ibid.) Accordingly, the court concluded, the repair
company had no legal duty to plaintiff to advise the property
owner of the gate’s defect.
The distinction drawn in Seo is applicable here. Stated
simply,6 Chevron hired Veolia to clean equipment at several of its
work sites. The services agreement states that Veolia is an
independent contractor and that its services, including the
hydroblasting services plaintiff contends should have been
6As noted, many of the materials relevant to our analysis, including
the services contract, were filed under seal. We have reviewed the
agreement in detail but provide only a general summary in this
opinion.
11
performed prior to the accident, are to be provided on demand,
and as requested in writing by Chevron. Further, the location
and extent of all services provided by Veolia are to be identified
by Chevron. Veolia’s compensation is based on the labor,
material, equipment, and other costs directly associated with
each of Chevron’s assignments. The agreement also notes that
Chevron would closely monitor Veolia’s work and provide
sufficient notice to Veolia of upcoming projects and services
required. In sum, Chevron would instruct Veolia what
hydroblasting services it needed and would also direct Veolia
when, where, and how to provide those services. Chevron plainly
did not task Veolia with an ongoing duty to ensure the safety of
its workers, as plaintiff suggests.
The specific contractual provisions identified by plaintiff do
not change our analysis. As plaintiff notes, the services
agreement contains several provisions relating to workplace
safety, including requirements that Veolia’s employees be
subjected to drug, alcohol and search policies before entering a
Chevron worksite, that Veolia employees are responsible for or
are required to participate in certain aspects of job site safety,
and that Veolia was required to provide a safety orientation to its
employees at its own expense. Also, plaintiff observes, Veolia
warrantied its services “in a manner reasonably believed to be in
the best interest of Chevron and with such care as a reasonably
prudent provider of similar services would use under similar
circumstances.” These provisions, plaintiff claims, constitute
“substantial evidence that Chevron employed Veolia to protect its
employees from the dangers of a coke fallout, which are increased
when draining the drums through the Delta Valve … .”
12
Having reviewed the entire contract, as well as the handful
of safety-related provisions highlighted by plaintiff, we conclude
that the services agreement was not intended to benefit
Chevron’s employees nor was it focused on providing a safe work
environment for them. Rather, it is plain from the agreement
that Veolia’s services were intended to benefit Chevron by
keeping its refineries and equipment operating smoothly. The
fact that Veolia was required to undertake some safety tasks due
to the requirements of the worksite does not convert the services
agreement into an employee-safety-focused contract. And as we
now explain, relevant policy considerations support our
conclusion.
2.3. Policy considerations regarding the imposition of
tort liability
In Biakanja, our Supreme Court identified multiple factors
that may support a court’s conclusion that a duty of care to a
noncontracting party may arise from a contract:
“The determination whether in a specific case the
defendant will be held liable to a third person not in privity is a
matter of policy and involves the balancing of various factors,
among which are the extent to which the transaction was
intended to affect the plaintiff, the foreseeability of harm to him,
the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant’s conduct and
the injury suffered, the moral blame attached to the defendant’s
conduct, and the policy of preventing future harm.” (Biakanja,
supra, 49 Cal.2d at p. 650.)
Our Supreme Court applied these and other policy-related
factors recently, in Goonewardene, supra. There, an employer
contracted with a company to provide payroll services. A former
13
employee sued her employer under a variety of theories relating
to the employer’s failure to pay wages due. (Goonewardene,
supra, 6 Cal.5th at p. 822.) The Court considered, as pertinent
here, whether the employee could also sue the payroll company
for lost wages. The plaintiff asserted the payroll company
breached the oral payroll services contract with her employer and
she was entitled to enforce the contract as a third-party
beneficiary. She also claimed the payroll company negligently
performed its contract with the employer and, as a third-party
beneficiary of the contract, she was entitled to recover from the
company in tort as well. (Id. at p. 825.)
The Court rejected both arguments. First, the Court
addressed plaintiff’s contention that she could assert a breach of
contract action against the payroll company. (Goonewardene,
supra, 6 Cal.5th at pp. 826–837.) Summarizing its prior cases
relating to contract enforcement by third-party beneficiaries, the
Court explained that in addition to examining the plain language
of the contract, courts must consider three additional factors:
“(1) whether the third party would in fact benefit from the
contract, but also (2) whether a motivating purpose of the
contracting parties was to provide a benefit to the third party,
and (3) whether permitting a third party to bring its own breach
of contract action against a contracting party is consistent with
the objectives of the contract and the reasonable expectations of
the contracting parties. All three elements must be satisfied to
permit the third party action to go forward.” (Id. at p. 830.) With
respect to the second element, the Court clarified that “the
contracting parties must have a motivating purpose to benefit the
third party, and not simply knowledge that a benefit to the third
party may follow from the contract.” (Ibid.) And as to the third
14
element, the Court explained that it “calls for a judgment
regarding the potential effect that permitting third party
enforcement would have on the parties’ contracting goals, rather
than a determination whether the parties actually anticipated
third party enforcement at the time the contract was entered
into.” (Id. at p. 831.)
The Court concluded the plaintiff was not a third-party
beneficiary of the contract between her employer and the payroll
company. Because no written contract existed, the Court turned
directly to an examination of the three factors just described.
Assuming without deciding that the plaintiff would have
benefited from her employer’s use of a payroll company, the
Court noted that an incidental benefit to an employee was
insufficient to establish that the employee was a third-party
beneficiary of a contract. Instead, the court stated, “a motivating
purpose of the contracting parties must be to provide such a
benefit to employees.” (Goonewardene, supra, 6 Cal.5th at p. 835.)
With respect to an employer’s use of a payroll company, the Court
concluded that “the relevant motivating purpose is to provide a
benefit to the employer, with regard to the cost and efficiency of
the tasks performed and the avoidance of potential [statutory]
penalties.” (Ibid.) Moreover, even if it could be said that a
motivating purpose of the contract was to provide the employees
a benefit, “it still may be inconsistent with the objectives of the
contract and the reasonable expectations of the contracting
parties to permit the employees to sue the payroll company for an
alleged breach of the contract.” (Id. at p. 836.) The court
examined several factors, including the employer’s availability to
enforce the contract and the substantial additional costs that
would result from payroll company liability to employees for
15
wages, and concluded that permitting employees to sue a payroll
company for wage and hour violations would generally not be
consistent with the reasonable expectations of an employer and a
payroll company. (Ibid.)
Moving to the employee’s negligence claim against the
payroll company, the court examined the Biakanja factors to
determine whether the employee could sue the payroll company
for damages arising from its negligent contract performance. In
concluding the payroll company did not owe the plaintiff a legal
duty of care arising from the contract, the Court considered a
variety of policy considerations. First, even if an employee
sustained a loss of wages due to the payroll company’s
negligence, California’s wage and hour laws already provide the
employee with “a full and complete remedy” against the
employer. Accordingly, the Court saw the imposition of a
separate tort duty of care as “generally unnecessary to
adequately protect the employee’s interest.” (Goonewardene,
supra, 6 Cal.5th at p. 839.) Second, deterrence was not a
significant factor because the payroll company was already
obligated to the employer to perform its services with due care.
(Ibid.) Third, and as the Court explained in its breach of contract
analysis, the payroll company had no special relationship with
the plaintiff that would warrant the recognition of a
contractually-based duty of care. And “[g]iven this conclusion, it
would clearly be anomalous to impose tort liability, with its
increased potential damages, upon the payroll company based
upon its alleged failure to perform its obligations under its
contract with [the] plaintiff’s employer.” (Id. at p. 840.) Fourth,
the Court noted that the imposition of a duty of care to employees
could improperly distort a payroll company’s performance of its
16
contract with an employer—essentially, the Court concluded the
payroll company could not, in some circumstances, serve both
masters. (Ibid.) Finally, the court indicated that “imposition of a
tort duty of care on a payroll company is likely to add an
unnecessary and potentially burdensome complication to
California’s increasing volume of wage and hour litigation.” (Id.
at p. 841.) Because employees are already fully protected under
existing law, the Court concluded, the possible benefit of
expanded liability would be substantially outweighed by the
significant burden on the judicial system resulting from increased
and complicated litigation. (Ibid.)
Although plaintiff cites Biakanja, he does not discuss the
factors identified in that opinion. Nor does he conduct the sort of
analysis undertaken by the Court in Goonewardene. We discuss
the pertinent factors briefly, following the rubric used by the
Court in Goonewardene.
First, to the extent an employee is injured in the workplace,
California’s workers’ compensation laws provide the employee
with “a full and complete remedy” against the employer.
Accordingly, and as in Goonewardene, the imposition of a
separate tort duty of care here is unnecessary to adequately
protect the employee’s interest. Second, deterrence is not a
significant factor in the present case because Veolia is already
obligated to Chevron to perform its services with due care. Third,
and as explained ante, Veolia had no special relationship with
plaintiff that would warrant the recognition of a contractually-
based duty of care. And therefore, like Goonewardene, “it would
clearly be anomalous to impose tort liability, with its increased
potential damages [citation], … based upon [Veolia’s] alleged
failure to perform its obligations under its contract with”
17
Chevron. (Goonewardene, supra, 6 Cal.5th at p. 840.) Finally, and
again similar to Goonewardene, the imposition of a tort duty of
care in this circumstance is likely to foster litigation by plaintiffs
seeking to avoid the workers’ compensation bargain. As the Court
has said, because employees are already fully protected under
existing law, the possible benefit of expanded liability would be
substantially outweighed by the significant burden on the judicial
system resulting from increased and complicated litigation.
In sum, we conclude that plaintiff cannot maintain a
negligence action against Veolia because he is not an intended
beneficiary of the services agreement. As a matter of law,
therefore, no special relationship existed which imposed upon
Veolia an affirmative duty to act to protect plaintiff in the
circumstances presented.
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DISPOSITION
The judgment is affirmed. Veolia ES Industrial Services,
Inc. shall recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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