Khosh v. Staples Construction

Filed 11/17/16 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
AL KHOSH, 2d Civil No. B268937
(Super. Ct. No. 56-2014-
Plaintiff and Appellant, 00447304-CU-PO-VTA)
(Ventura County)
v.
ORDER MODIFYING
STAPLES CONSTRUCTION OPINION
COMPANY, INC., [NO CHANGE IN
JUDGMENT]
Defendant and Respondent.
THE COURT:
It is ordered that the opinion filed herein on October
26, 2016, and certified for publication, be modified as follows:
At the end of the last paragraph on page 11, delete
the last sentence that reads: “A judgment may not be reversed
due to the erroneous exclusion of evidence unless the court finds
that the error resulted in a miscarriage of justice. (Evid. Code,
§ 354.)”
There is no change in the judgment.
Filed 10/26/16 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
AL KHOSH, 2d Civil No. B268937
(Super. Ct. No. 56-2014-
Plaintiff and Appellant, 00447304-CU-PO-VTA)
(Ventura County)
v.
STAPLES CONSTRUCTION
COMPANY, INC.,
Defendant and Respondent.
An employee of an independent contractor generally
may not recover tort damages for work-related injuries from the
contractor’s hirer. (Privette v. Superior Court (1993) 5 Cal. 4th
689, 702 (Privette).) There are exceptions to this rule but they do
not apply here. We decide that the trial court correctly granted a
motion for summary judgment against the injured employee
when he failed to present evidence that respondent affirmatively
contributed to his injuries. As a result, there were no triable
issues of material fact on his theory that either the retained
control exception or the nondelegable duty exception applied.
Al Khosh was injured while performing electrical
work at California State University Channel Islands (the
University). He was employed by Myers Power Products, Inc.
(Myers), a subcontractor on the project. Khosh sued the general
contractor, Staples Construction Company, Inc. (Staples), for
negligence.
The trial court granted Staples’s motion for summary
judgment because Khosh failed to establish that Staples retained
control over his work and affirmatively contributed to his injury.
(Code Civ. Proc., § 437c; Hooker v. Department of Transportation
(2002) 27 Cal. 4th 198, 202 (Hooker).) Khosh contends that a
reasonable jury could find Staples (1) retained control over the
work and affirmatively contributed to Khosh’s injury; and (2)
breached a nondelegable duty to Khosh which caused his injury.
He also contends the court erred in sustaining Staples’s
evidentiary objections. We affirm.
FACTS AND PROCEDURAL HISTORY
The University hired Staples to install a backup
electrical system at the university. Staples hired DK Electrical
Systems, Inc. (DK) as the high-voltage subcontractor for the
project. DK hired Myers to construct and install electrical
switchgear for the system.
The contract between Staples and the University
required Staples to “exercise precaution at all times for the
protection of persons and their property,” and to “retain a
competent, full-time, on-site superintendant to . . . direct the
project at all times,” among other things. It made Staples
“exclusively responsible” for the health and safety of its
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subcontractors, and required Staples to submit “comprehensive
written work plans for all activities affecting University
operations,” including utility shutdowns.
Myers informed Staples it needed three days to
accomplish its last task on the project, including a shutdown of
the electrical system. The University scheduled a campus-wide
electrical shutdown. The shutdown was to be followed by final
testing of the system’s operation.
Khosh arrived at the University two and a half hours
before the scheduled shutdown time. The University’s project
manager let Khosh and a helper into a substation containing
electrical switchgear. Khosh performed work in the substation,
while the switchgear was still energized. An electrical arc flash
occurred, severely injuring him. The flash occurred
approximately half an hour before the shutdown was scheduled
to begin. Staples did not have any personnel at the University at
the time.
Khosh filed a complaint, asserting a cause of action
for general negligence against Staples. Staples moved for
summary judgment relying upon the Privette doctrine, which
generally prohibits the employee of a contractor from suing the
hirer of the contractor for work-related injuries. (Privette, supra,
5 Cal.4th at p. 702.)
Khosh argued Privette did not bar his claim because
(1) Staples retained control over the work and affirmatively
contributed to his injuries (Hooker, supra, 27 Cal.4th at p. 202.);
and (2) Staples violated nondelegable regulatory duties because it
did not have a qualified electrical worker present to supervise
Khosh and did not prepare a written procedure for the electrical
shutdown. Khosh offered an expert declaration that these
3
omissions caused or contributed to Khosh’s injuries. The trial
court excluded most of the declaration for lack of foundation. It
also sustained objections to a declaration of Khosh’s counsel that
purported to authenticate records.
DISCUSSION
Standard of Review
Summary judgment is appropriate “if all the papers
submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The
defendant bears the initial burden of showing the plaintiff cannot
establish one or more elements of the plaintiff’s cause of action.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 853.) If
the defendant carries his burden, the burden shifts to the
plaintiff to establish a triable issue of material fact. (Id. at p.
850.)
Our review is de novo. (Knapp v. Doherty (2004) 123
Cal. App. 4th 76, 84.) Upon the grant of summary judgment, we
liberally construe the opposing party’s evidence and resolve all
doubts about the evidence in favor of the opposing party. (Lyle v.
Warner Brothers Television Productions (2006) 38 Cal. 4th 264,
274.)
We consider all evidence set forth in the moving and
opposition papers, except evidence to which objections were
properly sustained. (Yanowitz v. L’Oreal USA, Inc. (2005) 36
Cal. 4th 1028, 1037.)
Privette Doctrine
An employee of an independent contractor generally
may not sue the contractor’s hirer for work-related injuries.
(Privette, supra, 5 Cal.4th at p. 702.) Instead, the injured
4
employee is generally limited to worker’s compensation remedies
against his employer. (Id. at pp. 698-700, 702.)
There are exceptions to the Privette doctrine. One
allows a contractor’s employee to sue the hirer of the contractor
when the hirer (1) retains control over any part of the work and
(2) negligently exercises that control (3) in a manner that
affirmatively contributes to the employee’s injury. (Hooker,
supra, 27 Cal.4th at p. 209.) Another exception permits recovery
when the hirer (1) has a nondelegable legal duty (2) which it
breaches (3) in a manner that affirmatively contributes to the
injury. (Padilla v. Pomona College (2008) 166 Cal. App. 4th 661,
669-670, 672 (Padilla); Hooker, at pp. 210, 215; Evard v.
Southern California Edison (2007) 153 Cal. App. 4th 137, 146-147
(Evard).) Khosh presented sufficient evidence that Staples
retained control over the work, but there is no evidence that
Staples affirmatively contributed to Khosh’s injury.
Retained Control
Khosh presented competent evidence that Staples
retained control over safety. In Hooker, a triable issue as to who
retained control existed. The construction manual required
Caltrans to comply with safety laws and regulations, know about
highway construction procedures and equipment, and recognize
and anticipate unsafe conditions. (Hooker, supra, 27 Cal.4th at
pp. 202, 215.) The manual required periodic visits by a
construction safety coordinator, and authorized Caltrans to shut
down work to correct dangerous conditions. (Id. at p. 202.)
Similarly, in Kinney v. CSB Construction, Inc. (2001) 87
Cal. App. 4th 28, there was a triable issue as to who retained
control because the general contractor employed a
superintendant who was authorized to eliminate safety hazards,
5
and who had the final say in any disagreements over safety. (Id.
at p. 33.)
Here too, the contract required Staples to “keep all
phases of the work under its control,” including compliance with
safety laws and regulations. It also required Staples to take
affirmative safety measures, such as implementing a safety
program and installing safety devices on job equipment. It made
Staples “exclusively responsible” for the health and safety of its
subcontractors and required Staples to “exercise precaution at all
times for the protection of persons and their property” and
“comply with all applicable laws relating to safety precautions.”
This evidence creates a triable issue of fact as to retained control.
But, “[i]n order for a worker to recover on a retained
control theory, the hirer must engage in some active
participation.” (Tverberg v. Fillner Construction, Inc. (2012) 202
Cal. App. 4th 1439, 1446 (Tverberg).) An affirmative contribution
may take the form of directing the contractor about the manner
or performance of the work, directing that the work be done by a
particular mode, or actively participating in how the job is done.
(Ibid.) Evidence of Staples’s omissions does not create a triable
issue of fact regarding affirmative contribution.
A hirer’s failure to correct an unsafe condition, by
itself, does not establish an affirmative contribution. (Hooker,
supra, 27 Cal.4th at p. 215.) In Hooker, for example, there was
no evidence of affirmative contribution where the contractor’s
hirer, Caltrans, knew crane operators on the project were not
extending the outriggers, but did not take any corrective action
even though it had the right to do so. (Id. at pp. 202-203, 214.)
Caltrans’s passive omission did not constitute an affirmative
contribution. (Id. at p. 215.)
6
Khosh relies on similar omissions. He contends
Staples promised to provide a written work plan for the
shutdown, have a superintendant present to supervise Khosh’s
work, and comply with applicable codes, statutes, and
regulations. He contends Staples affirmatively contributed to his
injury by breaching these promises. (Hooker, supra, 27 Cal.4th at
p. 212, fn. 3.)
Hooker does not foreclose the potential for liability
based on the hirer’s omission. (Hooker, supra, 27 Cal.4th at p.
212, fn. 3.) When a hirer promises to undertake a particular
safety measure, the negligent failure to fulfill that specific
promise may constitute an affirmative contribution. (Ibid.) For
example, the hirer in Tverberg could be liable when it did not
cover holes at a construction site after it impliedly agreed to do so
in response to the plaintiff’s employer’s request. (Tverberg,
supra, 202 Cal.App.4th at p. 1448.) But there was no specific
promise here. This case is more like Michael v. Denbeste
Transportation, Inc. (2006) 137 Cal. App. 4th 1082, in which a
general promise to be “responsible for site safety” did not
constitute a specific promise to undertake a particular safety
measure. (Id. at p. 1096.) Likewise, in Padilla, there was no
affirmative contribution when the hirer did not shut off utilities
before work began although it promised to be generally
“responsible for . . . all safety precautions,” and to “provide
reasonable protection to prevent . . . injury . . . to . . . persons who
may be affected” by the work. (Padilla, supra, 166 Cal.App.4th at
pp. 666-667.) Because the hirer did not refuse a request to shut
off service and did not prevent the independent contractor from
installing protective devices there was no affirmative
contribution. (Id. at p. 671.)
7
This case is unlike Regalado v. Callaghan (Sept. 22,
2016, D069647) __ Cal.App.5th __ [2016 DJDAR 9788] (Regalado)
in which evidence of an affirmative contribution supported a
jury’s verdict against the hirer. There, the defendant hired a
contractor to install a pool and spa at his home. The plaintiff, an
employee of the pool contractor, was injured by an explosion in an
underground vault which housed a propane heater for the pool.
The defendant participated in the construction work, including
installation of the underground vault. He worked with another
contractor to modify the entry and exit points to the underground
vault, and ran a propane line to the vault. He also obtained the
permits for the plumbing to the vault, but did not obtain permits
for the vault or the propane line, even though he represented to
plaintiff’s employer that he did so. The plaintiff’s injury occurred
when he ignited the propane heater in the inadequately
ventilated vault, causing an explosion.
Unlike the facts in Regalado, Staples did not directly
participate in construction activities. Staples did not assist in
building the electrical substation or its component parts. Nor did
Staples represent that all steps of the construction had passed
inspection before Khosh began his work.
Like the contract in Padilla, Staples’s agreement
with the University imposed only a general duty to prevent
accidents. It did not impose specific measures that Staples was
required to undertake in response to an identified safety concern.
There is no evidence that Staples refused a request to shut off
electrical power or prevented Khosh from waiting until the
scheduled shutdown before starting work. There is no evidence
Myers or Khosh relied on a specific promise by Staples. There is
8
no evidence of an act by Staples which affirmatively contributed
to Khosh’s injury.
Nondelegable Duty
Khosh contends two safety regulations imposed
nondelegable duties on Staples. He contends Staples violated
California Code of Regulations, title 8, section 2940, subdivision
(c) (hereafter section 2940(c)), which states: “Only qualified
electrical workers shall work on energized conductors or
equipment connected to energized high-voltage systems. . . .
Employees in training, who are qualified by experience and
training, shall be permitted to work on energized conductors or
equipment connected to high-voltage systems while under the
supervision or instruction of a qualified electrical worker.” He
also contends that Staples violated National Fire Protection
Association (NFPA) Standard 70E, section 120.2, subdivision
(D)(2)(b), which provides that “all complex lockout/tagout
procedures shall require a written plan of execution that
identifies the person in charge.” We disagree.
The Privette rule applies “when the party that hired
the contractor (the hirer) fail[s] to comply with the workplace
safety requirements concerning the precise subject matter of the
contract.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52
Cal. 4th 590, 594 (SeaBright).) The hirer of an independent
contractor presumptively delegates to that contractor the duty to
provide a safe workplace for the contractor’s employees. (Id. at p.
600.) This includes any duty to comply with statutory or
regulatory safety requirements. (Ibid.)
In SeaBright, an airline hired an independent
contractor to service and maintain luggage conveyors. The
plaintiff was injured when his arm was caught in its moving
9
parts. An expert witness declared that Cal-OSHA regulations
required safety guards which were not present but which would
have prevented the injury. The delegation of tort law duty “is
implied as an incident of an independent contractor’s hiring” and
“[t]he policy favoring ‘delegation of responsibility and assignment
of liability’ is very ‘strong in this context’ [citation].” (SeaBright,
supra, 52 Cal.4th at p. 602.) Because the alleged “duty” to an
independent contractor’s employee “arose out of the contract” and
“only existed because of the work . . . that [the independent
contractor] was performing for the [hirer],” it “did not fall within
the nondelegable duties doctrine.” (Id. at p. 603.)
Similarly, in Padilla, the duty to comply with a Cal-
OSHA regulation requiring utilities to be shut off, capped, or
otherwise controlled during demolition work was a delegable
duty. The regulation only applied when specific work was being
performed. (Padilla, supra, 166 Cal.App.4th at p. 671.)
The regulations at issue here are like those in
SeaBright and Padilla. Section 2940(c) applies specifically to
“work on energized conductors or equipment connected to high-
voltage systems.” NFPA Standard 70E, section 120.2, applies
specifically to lockout/tagout procedures. The regulations pertain
to specific work, and apply only when that work is performed.
(Padilla, supra, 166 Cal.App.4th at p. 673.)
This case is unlike Evard, in which a regulation that
required the owner of a billboard to maintain horizontal safety
lines on the billboard imposed an ongoing, nondelegable duty.
(Evard, supra, 153 Cal.App.4th at p. 148.) “The regulation [in
Evard] imposed a permanent obligation on the owner with
respect to the condition of the property; no one but the [owner]
10
was in a position to ensure that condition.” (Padilla, supra, 166
Cal.App.4th at p. 673.)
The safety regulations here do not impose
nondelegable duties under the Seabright test. But even if they
did, “the liability of a hirer for injury to employees of independent
contractors caused by breach of a nondelegable duty imposed by
statute or regulation remains subject to the Hooker test.”
(Padilla, supra, 166 Cal.App.4th at p. 673.) Therefore, even
where there is a breach of a nondelegable duty, the plaintiff must
show that the breach affirmatively contributed to his injury. (Id.
at p. 674.) The absence of a work plan or a supervisor did not
affirmatively contribute to Khosh’s injuries for the reasons set
forth above.
Evidentiary Objections
Khosh contends the court erred in sustaining
Staples’s objections to evidence he filed in support of his
opposition. The court sustained numerous objections to the
declaration of Khosh’s expert witness, including all paragraphs
setting forth the expert’s opinions and the facts the opinions were
based on. It ruled those paragraphs lacked foundation and were
argumentative. The court also sustained objections that certain
exhibits attached to the declaration of Khosh’s counsel were not
properly authenticated.
We need not decide if the court erred in excluding
this evidence because the excluded evidence does not create a
triable issue of fact, and admitting the evidence would not
warrant a different result. A judgment may not be reversed due
to the erroneous exclusion of evidence unless the court finds that
the error resulted in a miscarriage of justice. (Evid. Code, § 354.)
11
Khosh submitted the expert’s declaration to support
his contention that Staples breached regulatory duties. But the
cited regulations do not create nondelegable duties. And the
excluded contract documents were before the court when it
decided the motion, because Staples submitted the same contract
documents in support of its motion. None of the remaining
exhibits are sufficient to show that Staples affirmatively
contributed to Khosh’s injury.
DISPOSITION
The judgment is affirmed. Respondent shall recover
its costs on appeal.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
12
Vincent, J. O’Neill, Jr., Judge
Superior Court County of Ventura
______________________________
Angarella Law and Steven V. Angarella, for Plaintiff
and Appellant.
Yukevich | Cavanaugh, James J. Yukevich, Cristina
M. Ciminelli and Patrick J. Cimmarusti, for Defendant and
Respondent.