Greatway Roofing v. SCCI CA2/6

Filed 2/22/22 Greatway Roofing v. SCCI CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
GREATWAY ROOFING, INC., 2d Civ. No. B312872
(Super. Ct. No. 56-2019-
Cross-complainant and 00531872-CU-PO-VTA)
Appellant, (Ventura County)
v.
SCCI, INC. et al.,
Cross-defendants and
Respondents.
The question here is whether cross-defendants are liable
for injuries caused by a third party. The trial court granted
cross-defendants’ motion for summary judgment on the ground
that they did not increase the risk of injury and were not in a
special relationship with cross-complainant or the third party
who caused the injury. We affirm the judgment.
FACTS
Greatway Roofing, Inc. (Greatway) contracted to resurface
the roof and remove air-conditioning equipment at a premises
owned by a non-party. The roof on the premises contained a
number of skylights.
Rod Menzel, the owner of Greatway, created a safety plan
for work on the roof. Some of the skylights were covered with
wood structures. The uncovered skylights were in a section
marked off as “no access.”
Alex Luna was an independent contractor working for
SCCI, Inc. (SCCI). Greatway contracted with SCCI to provide
safety instruction to its employees. On October 9, 2017, Luna
was on the jobsite to conduct a workplace safety meeting for
Greatway. The topic was slip and fall. Roof safety was not
addressed.
After the meeting Menzel asked Luna if he would
accompany him to the roof so that Menzel could show him what
he put in place as the safety plan for the project. Neither Luna
nor SCCI were hired to review Greatway’ s safety plan. Luna
voluntarily agreed to do so.
Luna spent approximately 10 to 15 minutes on the roof.
Menzel asked Luna, “What do you think of what we’ve done?”
Luna replied, “You guys did a great job there.” Menzel believed
Luna was referring to the overall safety plan for the roof.
Ten days later, David Sciuk, an employee of an
independent contractor hired by the property owner, was power-
washing the roof. Sciuk tripped and fell through a skylight,
suffering substantial injuries.
Sciuk sued Greatway and Greatway settled by paying its
policy limits. Greatway sued Luna and SCCI for indemnity to
recover the amount of the settlement. The action was based on
Luna’s statement, “You guys did a great job there.” Greatway did
not allege breach of contract against Luna or SCCI.
2.
Summary Judgment
SCCI and Luna moved for summary judgment. While the
motion was pending, our Supreme Court decided Brown v. USA
Taekwondo (2021) 11 Cal.5th 204. Based on Brown, the trial
court concluded Greatway cannot show SCCI or Luna owed a
duty to Greatway or Sciuk. The trial court granted the motion.
DISCUSSION
I
Standard of Review
Summary judgment is properly granted only if all papers
submitted show there is no triable issue as to any material fact
and the moving party is entitled to a judgment as a matter of
law. (Code Civ. Proc., § 437c, subd. (c).) The court must draw all
reasonable inferences from the evidence set forth in the papers
except where such inferences are contradicted by other inferences
or evidence which raise a triable issue of fact. (Ibid.) In
examining the supporting and opposing papers, the moving
party’s affidavits or declarations are strictly construed and those
of his opponent liberally construed, and doubts as to the propriety
of granting the motion should be resolved in favor of the party
opposing the motion. (Szadolci v. Hollywood Park Operating Co.
(1993) 14 Cal.App.4th 16, 19.)
The moving party has the initial burden of showing that
one or more elements of a cause of action cannot be established.
(Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
Where the moving party has carried that burden, the burden
shifts to the opposing party to show a triable issue of material
fact. (Ibid.) Our review of the trial court’s grant of the motion is
de novo. (Id. at p. 767.)
3.
II
SCCI’s Duty to Sciuk
Greatway contends the trial court erred in concluding SCCI
and Luna owed no duty to Sciuk.
In Brown v. USA Taekwondo, supra, 11 Cal.5th 204, our
Supreme Court considered the duty to protect a plaintiff from
injuries caused by a third party. The court stated the general
rule that a defendant owes a duty of care to the plaintiff only
where the defendant created the risk of harm to the plaintiff,
including when the defendant is responsible for making the
plaintiff’s position worse. (Id. at p. 214.) An exception to the
general rule applies, however, when the defendant is in a
“ ‘special relationship’ ” with either the victim or the person who
created the harm. (Id. at p. 215.) In such a case, a defendant
may have an affirmative duty to protect the victim from harm
caused by a third party. (Ibid.) The court stated: “Where the
defendant has neither performed an act that increases the risk of
injury to the plaintiff nor sits in a relation to the parties that
creates an affirmative duty to protect the plaintiff from harm,
however, our cases have uniformly held the defendant has no
legal duty to the plaintiff.” (Id. at p. 216.)
Here Luna did not increase the risk of injury. He simply
looked at a plan already in place. Nor does Greatway point to a
special relationship with Greatway or the victim.
Greatway admits that Menzel created the safety plan.
Neither SCCI nor Luna were under contract to do a roof safety
inspection or, for that matter, any safety inspections. Their role
was limited to giving safety classes. Menzel simply made an
informal request that Luna accompany him to look at the safety
measures on the roof.
4.
In an effort to manufacture a special relationship,
Greatway cites Peredia v. HR Mobile Services, Inc. (2018) 25
Cal.App.5th 680. In Peredia, the defendant contracted with a
dairy to provide services, including assistance in carrying out the
dairy’s workplace safety obligations. The defendant’s duties
under the contract included a site safety inspection. A dairy
employee was killed when he was hit by a tractor. The parents of
the deceased employee brought an action against the defendant
service contractor alleging it was negligent in its failure to design
and implement a worker safety program and in its failure to
educate the workers. The trial court granted the defendant
summary judgment on the ground that it owed no duty to the
dairy’s employees. The Court of Appeal reversed, stating, “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 . . . .” (Id. at p. 690.)
In Peredia, the defendant was under contract to provide
safety consultation. Here there was no contract for a roof safety
inspection. We do not suggest that liability to third parties for
safety inspections always depends on a contract. There may be
instances where an expert safety inspector agrees to conduct a
formal safety inspection gratuitously as an accommodation to a
client. In such a case, finding a special relationship may be
warranted. But that is not this case.
In this case Menzel made an informal request to Luna to go
with him to the roof to look at the safety plan. Luna was on the
premises to teach a class unrelated to roof safety, not to conduct a
safety inspection. Luna accompanied Menzel to the roof, looked
around for a few minutes, and declared, “You guys did a great job
there.”
5.
That is not a safety inspection. That is a cursory look
followed by an off-the-cuff gratuitous remark. Greatway cites no
authority in which such an informal arrangement has been held
to constitute a special relationship.
Greatway points to the statement of its expert that if Luna
was not qualified as a safety inspector, he should have refused to
accompany Menzel to the roof. But Menzel did not tell Luna he
wanted a professional safety inspection. Menzel only said he
wanted to show Luna his safety plan. If Menzel wanted Luna to
do more than take a casual look, it was Menzel’s burden to make
it clear to Luna that he wanted a professional inspection.
The undisputed evidence is that if Greatway wanted SCCI
to do a professional safety inspection, SCCI would have required
a separate retainer and would have billed for its services. That
would, no doubt, entail substantial expenditure by Greatway.
Greatway did not want a professional safety plan. Menzel
created his own safety plan. Greatway did not want a
professional safety inspection either. Menzel simply informally
asked Luna to take a look. That is not enough to create a special
relationship.
III
Further Briefing and Evidence
Greatway argues the trial court erred in denying him the
right to further briefing and to introduce additional evidence.
Greatway claims that after it realized the trial court was
relying on Brown, it requested the right to provide further
briefing. The trial court denied the request. Given that our
review is de novo, the court’s denial of a request for further
briefing is irrelevant.
6.
Greatway also claims the trial court denied it the right to
produce further evidence. The evidence was the deposition of
Sciuk’s employer that this was the first job with multiple
skylights his company had ever been on and he was relying on
Greatway and SCCI to make the roof safe. The employer also
testified that the conditions on the roof were not safe.
But it is irrelevant on whom Sciuk’s employer was relying
and that the conditions on the roof were unsafe. Neither SCCI
nor Luna had a special relationship with Greatway, Sciuk, or his
employer.
DISPOSITION
The judgment is affirmed. Costs are awarded to
respondents.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
7.
Ronda J. McKaig, Judge
Superior Court County of Ventura
______________________________
Meyers McConnell Reisz Siderman; Reisz Siderman
Eisenberg, Frederick S. Reisz and Patrick A. Maher for Cross-
complainant and Appellant Greatway Roofing, Inc.
Berman Berman Berman Schneider & Lowary, Evan A.
Berman and Howard Smith for Cross-defendants and
Respondents SCCI, Inc. and Alex Luna.
8.