Rafferty v. Del Monte Foods, Inc. CA5

Filed 3/13/23 Rafferty v. Del Monte Foods, Inc. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
AMANDA RAFFERTY, etc., et al.,
F082233
Plaintiffs and Appellants,
(Super. Ct. Nos. 9000526
v. & 2130792)
DEL MONTE FOODS, INC.,
OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Stanislaus County. John D.
Freeland, Judge.
Walkup, Melodia, Kelly & Schoenberger, Khaldoun A. Baghdadi, Joseph
Nicholson; Bogan Law Firm, Tai C. Bogan; Law Offices of Tiffany J. Gates, Tiffany J.
Gates; Law Offices of Sanjay Schmid and Sanjay Schmidt for Plaintiffs and Appellants.
Borbely & Associates, Ronald F. Berestka, Jeffery A. Chadic and Thomas E.
Borbely for Defendant and Respondent.
-ooOoo-
Del Monte Foods, Inc. (Del Monte) hired J.M. Equipment Company, Inc. (J.M.
Equipment) to clean and repair its air powered dock levelers. While David Rafferty
(Rafferty), an employee of J.M. Equipment, was performing repair work on a dock
leveler at Del Monte, the leveler’s platform fell on him and crushed him to death.
Rafferty’s wife, Amanda Rafferty, and his minor daughter, Addison Rafferty, by and
through her guardian ad litem, Dorothy Patscheck (collectively, plaintiffs), sued Del
Monte for his wrongful death, alleging Del Monte was responsible for the safe condition
of the dock leveler, yet it failed to undertake promised safety measures or train and
supervise its employees in the dock leveler’s safe operation.
Del Monte moved for summary judgment on the ground plaintiffs’ claims were
barred by the Privette doctrine (as set forth in Privette v. Superior Court (1993) 5 Cal.4th
689 (Privette) and subsequent cases), under which the hirer of an independent contractor
is not liable for on-the-job injuries to the contractor’s employees unless some exception
applies. The trial court granted summary judgment, rejecting plaintiffs’ argument Del
Monte could be liable to them under the nondelegable duty exception, which applies
when the hirer breaches nondelegable statutory or regulatory duties in a manner that
affirmatively contributes to the employee’s injury. Because we conclude there are triable
issues of fact as to whether Del Monte is liable to plaintiffs under a nondelegable duty
theory, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Del Monte leased a large property in Modesto, on which sits several warehouses
and the facility Del Monte used to package, can, store, and ship fruit products. In April
2014, Del Monte’s landlord agreed to replace six dock levelers in Warehouse 4 of the Del
Monte facility and hired a general contractor to install the new levelers. A specialty
contractor, who the general contractor hired to perform the installation, installed six Nova
Technology air-powered dock levelers (dock levelers) at Warehouse 4 in July 2014.
The dock levelers are operated using a raise button on a control panel. When the
button is pressed, an air bag under the dock leveler’s platform or plate inflates, causing
the platform to rise; when the platform reaches a certain level, the lip on the platform’s
front extends and the dock leveler reaches its full height. When the button is released, the
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air bag deflates, and the platform lowers until the extended lip rests on the truck bed. For
cleaning and maintenance purposes, the dock levelers include a maintenance prop arm
with a lockout pin which supports the platform in a raised position. To perform
maintenance under the platform, the platform must be raised by inflating the air bags, and
the maintenance prop arm placed behind the front header plate; once the prop is in place,
it bears the platform’s weight, and the air bags are deflated. Unless the dock leveler is
equipped with a tethered remote, two people are required to engage the maintenance
prop—one person to operate the leveler and the other to engage the maintenance prop.
The owner/user’s manual for the dock leveler contains several warnings and
cautions for servicing the dock leveler. It warns that hydraulic and electrical power must
be off when servicing the equipment and, for maximum protection, to use an OSHA-
approved locking device to lock out all power sources, with only the person servicing the
equipment having the key. It cautions to always post safety warnings and barricade the
work area at dock and ground level to prevent unauthorized use of the unit before
maintenance is complete. It also cautions to place the maintenance prop “in the upright
‘service’ position” when working under the dock leveler and to always “lock all electrical
disconnects in the OFF position after raising the platform and engaging the maintenance
prop.” Moreover, since 2015, the manufacturer has recommended using additional
means to support the dock platform and lip when physically working in front of or under
the dock leveler, such as a boom or fork truck, or stabilizing bar.
Del Monte Hires J.M Equipment Company to Maintain the Dock Levelers
Randy Reeder, a Del Monte forklift supervisor, was responsible for hiring
companies to maintain the dock levelers. Reeder did not work on the dock levelers
himself. Rather, Del Monte hired companies to periodically inspect and maintain the
dock levelers. According to Reeder, Del Monte employees never inspected or maintained
the dock levelers.
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In early 2016, Reeder wanted to hire an independent dock leveler maintenance
contractor to replace the one Del Monte had been using. Reeder spoke with Robert John
(RJ) Days about Day’s company, J.M. Equipment, performing dock leveler maintenance
at the Del Monte warehouse, and they agreed J.M. Equipment would perform quarterly
cleaning and maintenance, which would start in May. As a condition of J.M.
Equipment’s dock leveler maintenance, Reeder advised Days that Del Monte required
J.M. Equipment to: (1) use two employees for dock leveler maintenance; (2) have its
employees sign in at the Del Monte facility’s front gate; and (3) have its employees check
in with Reeder whenever they came on the property. Reeder did not give Days manuals
or technical or service bulletins from the manufacturer concerning the dock levelers. He
also did not provide a written lockout/tagout plan or any lockout/tagout information.
Days, however, did not recall any conversation with Reeder about any specific
safety policies that applied to the dock levelers at the Del Monte facility including
lockout or tagout procedures. Darren Costa, who was a J.M. Equipment employee,
recalled only one conversation with Reeder in which Reeder confirmed they were there to
make minor adjustments to the springs while servicing the docks; Reeder never
mentioned having a hazardous energy control procedure (HEC procedure) that applied to
contractors. Costa denied having a custom and practice of checking in with Reeder while
working at Del Monte.
Rafferty and Costa began the dock leveler maintenance in May 2016. While they
previously performed dock leveler maintenance elsewhere and had worked on dock
levelers with airbags, they had never worked on this brand of dock leveler. They checked
in with Reeder when they came to the facility, but they did not finish servicing all the
dock levelers. No one at Del Monte told them how to perform the maintenance work,
direct the means or methods of their work, or supervise their work, and Costa and
Rafferty controlled the safety procedures associated with that work. They relied on J.M.
Equipment to provide the lockout/tagout equipment they needed.
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While performing preventative maintenance on the dock levelers, Costa and
Rafferty noticed some welds on the levelers at Warehouse 4 were cracked. Although the
levelers were still operational, Costa reported to Days the need for repairs, which work
exceeded the scope of the maintenance contract. After Days spoke with Reeder about the
cracked welds, Reeder inspected the cracks and recommended his supervisor to authorize
J.M. Equipment to make the repairs.
The Accident
Del Monte authorized the repair work, but a written purchase order was not issued
until June 23, 2016. It was nearly summer, which was the busiest time of year at the Del
Monte facility and having repair work done on the dock levelers would have been
disruptive to Del Monte’s business. Before the formal, written work order was issued,
Reeder called Days to ask the status of “this work” since the busy season was coming.
Reeder testified he did not call specifically about the welding work, but rather he called
about the completion of services on the docks, as they had two more warehouses to do.
Rafferty went to Del Monte to perform repair work on June 15, 2016. Rafferty did
not sign in on the Del Monte visitor’s log or check in with Reeder, who did not know a
J.M. Equipment mechanic was working on the dock levelers that day. Rafferty worked
on about two or three of the dock levelers at Warehouse 4. To independently raise the
dock platforms and engage the maintenance prop arms, Rafferty used a metal nut and
duct tape to activate the control button and raise the dock platforms, which allowed him
to raise the maintenance prop and place it under the lip outside the header bars to prop
open the dock platform.
Del Monte employees Dennis Wasson and Rudy Garcia, who were working in
Warehouse 4 that day, saw some dock doors open at Warehouse 4 and a truck with “JM”
insignia parked in front of the docks. Garcia heard music in the vicinity of the docks, but
neither man had contact with the person working on the dock platforms at that time.
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About an hour and a half later, Wasson and Garcia were starting their 6:00 p.m.
lunch break when they decided Garcia would check on the J.M. Equipment mechanic to
see how long he would be there and if he needed anything. Garcia discovered the
mechanic, Rafferty, pinned under the dock platform at Dock N. Garcia immediately
notified Wasson and they called 911. Rafferty was pronounced dead at the scene; the
cause of death was determined to be a crush injury to the chest.
J.M. Equipment’s workers compensation carrier, Starstone National Insurance
Co., paid over $650,000 in workers compensation benefits to Rafferty’s widow, Amanda,
for his accidental death.
This Lawsuit
In April 2018, plaintiffs filed a complaint against Del Monte, among other
defendants, and alleged causes of action for negligence and premises liability against Del
Monte. Del Monte answered the complaint with a general denial and asserted several
affirmative defenses, including that it did not breach any duty owed to plaintiffs under
SeaBright Ins. Co. v. U.S. Airways, Inc. (2011) 52 Cal.4th 590 (SeaBright).
Del Monte’s Summary Judgment Motion
Del Monte filed its motion for summary judgment in August 2020, asserting
plaintiffs’ claims were barred by the Privette doctrine, as it did not exercise any control
over Rafferty’s work in a manner that affirmatively contributed to his death.
Specifically, Del Monte argued it was not liable for the accident because, as in SeaBright,
it implicitly delegated to J.M. Equipment any duty to provide J.M. Equipment’s
employees a safe workplace, including any duty based on Cal-OHSA regulations. Del
Monte contended any statutory or regulatory duty it may have had to provide lockout/
tagout procedures or any other safety procedures applicable to the maintenance of the
dock levelers was delegable and was implicitly delegated to J.M. Equipment as an
incident of its work on the dock levelers. Del Monte further argued the retained control
exception to the Privette doctrine did not apply, as it did not retain control over Rafferty’s
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work, and any control it did retain was not exercised in a manner that affirmatively
contributed to his death.
Plaintiffs’ Opposition
Plaintiffs opposed the motion on several grounds. They argued the Privette
presumption may be overcome if the relevant statutes or regulations indicate an intent to
limit Privette’s application or preclude delegation of a tort law duty the hirer owes the
independent contractor’s employees. Plaintiffs asserted the plain language of California
Code of Regulations, title 8, section 33141 evinces a clear intent to preclude Del Monte
from delegating its duty to develop an HEC procedure specific to dock levelers and to
instruct outside contractors on the procedure’s purpose and use.
Plaintiffs argued Del Monte’s failure to address section 3314 in its moving papers
warranted denial of Del Monte’s motion but, in any event, triable issues of fact existed as
to whether Del Monte breached its nondelegable duties under section 3314 and whether
such breach was a substantial factor in causing Rafferty’s death. In support, plaintiffs
presented evidence that Del Monte did not have written HEC procedures for dock
levelers, and Del Monte’s employees were not trained in the lockout or tagout of dock
levelers. Alternatively, plaintiffs argued triable issues of fact existed as to whether Del
Monte negligently exercised retained control over Rafferty’s work in a manner that
affirmatively contributed to his death.
Del Monte’s Reply
In reply, Del Monte asserted the provisions of section 3314 were delegable, and it
did not owe Rafferty a duty to have an HEC procedure, because section 3314 imposes a
duty to promulgate an HEC procedure only when the employer’s employees perform
maintenance and repair on heavy equipment such as levelers, and Del Monte’s employees
never performed such work. Instead, J.M. Equipment was the employer of employees
1 Further undesignated section references are to this title.
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who engaged in repairing and servicing the levelers; therefore, J.M. Equipment was
required to provide an HEC procedure for its employees. Del Monte also argued any tort
law duties it may have owed Rafferty relating to the levelers were delegable to J.M.
Equipment when Del Monte contracted with J.M. Equipment to perform maintenance and
repair on the levelers.
The Trial Court Grants Summary Judgment
At the conclusion of oral argument on the motion, the trial court took the matter
under submission and subsequently issued a written order granting the motion and
entering judgment in Del Monte’s favor. The trial court found that under Seabright, “any
tort law duty Del Monte may have had was delegated to J.M. Equipment.” The trial court
acknowledged “[t]he hirer of an independent contractor can be liable if the hirer retained
control over the contractor’s work and exercised it in a way that affirmatively contributed
to the employee’s workplace injury,” but found there was no evidence Del Monte
exercised control over the work in a way that affirmatively contributed to Rafferty’s
death. The trial court determined the fact Del Monte did not review with or provide an
HEC procedure to J.M. Equipment did not raise a triable issue of fact, as Del Monte did
not have a right of control over J.M. Equipment’s work. The trial court also determined
Del Monte’s specification that two J.M. Equipment employees perform service on the
dock levelers did not equate to retaining control over the work or raise an issue of fact, as
Del Monte did not have an opportunity to enforce the specification since it was
undisputed Rafferty failed to check in with Reeder.
DISCUSSION
I. The Privette Doctrine
The “workers’ compensation scheme ‘is the exclusive remedy against an employer
for injury or death of an employee.’ ” (Privette, supra, 5 Cal.4th at p. 697.) In Privette,
the Supreme Court held that “ ‘an independent contractor’s employee should not be
allowed to recover damages from the contractor’s hirer, who “is indirectly paying for the
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cost of [workers’ compensation] coverage, which the [hired] contractor presumably has
calculated into the contract price.” ’ ” (Alvarez v. Seaside Transportation Services LLC
(2017) 13 Cal.App.5th 635, 640 (Alvarez).) Thus, the Privette doctrine bars an employee
of an independent contractor from recovering damages from the hirer of the contractor
for a worksite injury. (SeaBright, supra, 52 Cal.4th at p. 594.) In other words, an
independent contractor’s employee injured on the job is generally entitled to no greater
damages than a similarly situated employee of the hirer—both are limited to workers’
compensation benefits.
Over time, our Supreme Court has “recast [the] primary rationale for the Privette
doctrine in terms of delegation rather than workers’ compensation.” (Sandoval v.
Qualcomm Incorporated (2021) 12 Cal.5th 256, 270 (Sandoval); Gonzalez v. Mathis
(2021) 12 Cal.5th 29, 41 [“[o]ur more recent cases emphasize delegation as the key
principle underlying this rule”].) Since contractors typically are expected to perform the
contracted work more safely than hirers, the Supreme Court has “endorsed a ‘strong
policy’ of presuming that a hirer delegates all control over the contracted work, and with
it all concomitant tort duties, by entrusting work to a contractor.” (Sandoval, supra,
12 Cal.5th at p. 270.) As a result, “[t]here is a strong presumption under California law
that a hirer of an independent contractor delegates to the contractor all responsibility for
workplace safety.” (Gonzalez, at p. 37; Sandoval, at p. 271 [“[a] presumptive delegation
of tort duties occurs when the hirer turns over control of the worksite to the contractor so
that the contractor can perform the contracted work”].)
The Privette doctrine has exceptions, however, which “apply where delegation is
either ineffective or incomplete.” (Sandoval, supra, 12 Cal.5th at p. 271.) The exception
for the latter situation—the retained control exception—applies when “the hirer retains
control over any part of the work and actually exercises that control so as to affirmatively
contribute to the worker’s injury.” (Sandoval, supra, 12 Cal.5th at p. 271, citing Hooker
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v. Department of Transportation (2002) 27 Cal.4th 198, 202 (Hooker).)2 “If a hirer
entrusts work to an independent contractor, but retains control over safety conditions at a
jobsite and then negligently exercises that control in a manner that affirmatively
contributes to an employee’s injuries, the hirer is liable for those injuries, based on its
own negligent exercise of that retained control.” (Tverberg v. Fillner Construction, Inc.
(2012) 202 Cal.App.4th 1439, 1446.)
A form of the retained control exception applies when the hirer breaches
nondelegable statutory or regulatory duties in a manner that affirmatively contributes to
the employee’s injury.3 (Khosh v. Staples Construction Co., Inc. (2016) 4 Cal.App.5th
712, 717, 719‒721 (Khosh); Padilla v. Pomona College (2008) 166 Cal.App.4th 661, 673
(Padilla).) As the Supreme Court explained in SeaBright, appellate courts generally have
concluded a hirer’s statutory or regulatory duties regarding workplace safety “constitute
retained control if those duties are nondelegable,” in which case hirer liability exists if the
hirer’s breach of nondelegable duties affirmatively contributes to the injury of the
independent contractor’s employee. (SeaBright, supra, 52 Cal.4th at p. 601.) A statutory
or regulatory duty is nondelegable if the applicable statutes or regulations either indicate
an intent to limit the application of Privette or preclude delegation of any tort law duty
the hirer owes the independent contractor’s employees. (SeaBright, at p. 594, fn. 1.)
2 Delegation is ineffective when there is a concealed hazard, which exception
applies when a landowner-hirer fails to disclose to the independent contractor a concealed
hazard, i.e., a hazard the hirer knows or reasonably should know exists and that the
contractor does not know exists and could not reasonably discover without the hirer’s
disclosure. (Sandoval, at pp. 271‒272.) This exception is not at issue in this case.
3 “The nondelegable duties 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. The doctrine applies when the duty preexists
and does not arise from the contract with the independent contractor.” (SeaBright, supra,
52 Cal.4th at pp. 600‒601.)
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Unless the statutory or regulatory duties are nondelegable, however, the “hirer
implicitly delegates to the contractor any tort law duty it owes to the contractor’s
employees to ensure the safety of the specific workplace that is the subject of the
contract[,]” including “any tort law duty the hirer owes to the contractor’s employees to
comply with applicable statutory or regulatory safety requirements.” (SeaBright, supra,
52 Cal.4th at p. 594 & fn. 1.)
In SeaBright, the defendant airline hired an independent contractor to maintain and
repair its baggage conveyor, but the conveyor lacked safety guards required by certain
Cal-OSHA regulations (i.e., Lab. Code, § 6300 et seq. [Cal. Occupational Safety &
Health Act of 1973 (Cal-OSHA) ]; §§ 3999, 4002). (SeaBright, supra, 52 Cal.4th at
pp. 594‒595.) An employee of the independent contractor was injured while inspecting
the conveyor and sued the airline for negligence and premises liability. (Ibid.) In
opposing the airline’s summary judgment motion based on Privette, the employee
presented a declaration from an accident reconstruction expert who stated the lack of
safety guards violated Cal-OSHA regulations and the safety guards would have prevented
the employee’s injury. (SeaBright, supra, 52 Cal.4th at p. 595.)
The court concluded any tort law duty a hirer owes to an independent contractor’s
employees under Cal-OSHA and its regulations is delegable. (SeaBright, supra,52 Cal.4th at p. 601.) The court reasoned that when the airline hired the independent
contractor to maintain and repair the conveyor, the airline “presumptively delegated to
[the contractor] any tort law duty of care the airline had under Cal-OHSA and its
regulations to ensure workplace safety for the benefit of [the contractor]’s employees,”
which “included a duty to identify the absence of the safety guards required by Cal-
OSHA regulations and to take reasonable steps to address that hazard.” (SeaBright,
supra, 52 Cal.4th at p. 601.)
The court explained the issue was whether the airline implicitly delegated to the
contractor any tort law duty it had to ensure workplace safety for the contractor’s
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employees, which duty did not predate the airline’s contract with the contractor, but
rather arose out of it. (Seabright, supra, 52 Cal.4th at p. 603.) Since any tort law duty
the airline owed the contractor’s employees only existed because of the maintenance and
repair work the contractor was performing for the airline, it did not fall within the
nondelegable duties doctrine. (Ibid.) Accordingly, the injured employee could not
recover in tort from the airline on a theory the employee’s workplace injury resulted from
the airline’s breach of what the employee described as a nondelegable duty under Cal-
OSHA regulations to provide safety guards on the conveyor. (Ibid.)
II. The Standard of Review
A trial court properly grants summary judgment when there are no triable issues of
material fact, and the moving party is entitled to judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c).) “A defendant may establish its right to summary judgment by
showing that one or more elements of the cause of action cannot be established or that
there is a complete defense to the cause of action. (Code Civ. Proc., § 437c,
subd. (p)(2).) Once the moving defendant has satisfied its burden, the burden shifts to
the plaintiff to show that a triable issue of material fact exists as to each cause of action.
[Citation.] A triable issue of material fact exists where ‘the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof.’ ” (Neiman v. Leo A. Daly
Co. (2012) 210 Cal.App.4th 962, 967.)
“In evaluating the propriety of a grant of summary judgment our review is de
novo, and we independently review the record before the trial court.” (Zavala v. Arce
(1997) 58 Cal.App.4th 915, 925, fn. omitted.) We may affirm the judgment “on any
correct legal theory, provided the opposing party had the opportunity to address it
below.” (Vallely Investments v. BancAmerica Commercial Corp. (2001) 88 Cal.App.4th
816, 821.) In our review “we must consider all of the evidence and all of the inferences
reasonably drawn therefrom, and we must view such evidence in the light most favorable
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to the opposing party.” (Alexander v. Codemasters Group Limited (2002)
104 Cal.App.4th 129, 139.) This means we accept as true the facts shown by the
evidence offered in opposition to summary judgment and the reasonable inferences that
can be drawn from them. (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376,
1385.) “A material issue of fact may not be resolved based on inferences, if contradicted
by other inferences or evidence.” (Alexander v. Codemasters Group Limited, at p. 139.)
“ ‘[T]he court may not weigh the plaintiff’s evidence or inferences against the
defendants’ as though it were sitting as the trier of fact,’ but must determine the question
of law of ‘what any evidence or inference could show or imply to a reasonable trier of
fact.’ ” (Ibid.)
“[A] defendant moving for summary judgment is ‘ “entitled to the benefit of any
relevant presumptions….” ’ ” (Alvarez, supra, 13 Cal.App.5th at p. 642.) A presumption
affecting the burden of producing evidence shifts the burden on summary judgment to the
opposing party to show there are triable issues of material fact. (Ibid., citing Security
Pacific National Bank v. Associated Motor Sales (1980) 106 Cal.App.3d 171, 179‒180.)
If the established facts and relevant presumption entitle the defendant to a directed
verdict at trial, the defendant is entitled to summary judgment. (Security Pacific National
Bank v. Associate Motor Sales, at p. 180.) Thus, where the defendant establishes the
presumption applies and the plaintiff offers no evidence to contradict the presumption,
the presumption justifies a summary judgment. (Ibid.)
In Alvarez, the appellate court concluded the Privette presumption affects the
burden of producing evidence; therefore, a moving defendant need only show it is
entitled to the benefit of the presumption to shift the burden of proof to the opposing
plaintiff to show there are triable issues of fact. (Alvarez, supra, 13 Cal.App.5th at
pp. 643‒644.) Once the defendant hirer establishes the foundational facts for the Privette
presumption to apply—that the defendant hired the plaintiff’s employer to perform work
on the jobsite and the plaintiff was injured while working at the site—the burden shifts to
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the plaintiff to raise a triable issue of material fact. (Alvarez, at p. 644.) The plaintiff
may do so by presenting evidence that an exception to Privette may apply. (Alvarez, at
pp. 644‒646.) The burden of persuasion, however, remains with the party moving for
summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850‒851.)
We view the evidence in a light favorable to the plaintiff, as the nonmoving party,
“liberally construing [the plaintiff’s] evidentiary submission while strictly scrutinizing
defendants’ own showing, and resolving any evidentiary doubts or ambiguities in
plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
III. Del Monte’s Burden
Del Monte met its initial burden to show it is presumptively entitled to the benefit
of the Privette doctrine. Del Monte provided evidence that it hired Rafferty’s employer
to perform cleaning, maintenance, and repair work on the dock leveler, and Rafferty was
injured while working at the site. That is all that is required for Del Monte to shift to
plaintiffs the burden to produce evidence raising a triable issue of fact as to the
applicability of an exception to the Privette doctrine. (Alvarez, supra, 13 Cal.App.5th at
p. 644; Degala v. John Stewart Co. (2023) 88 Cal.App.5th 158, 167.)
Plaintiffs nevertheless contend Del Monte failed to meet its initial burden because
it did not address the nondelegable duty exception to Privette or section 3314 in its
moving papers.4 But under Alvarez, no such showing is required. (Alvarez, supra,
13 Cal.App.5th at p. 644.)5 Plaintiffs assert Alvarez is not controlling because they
4 While Del Monte did not mention section 3314 in its moving papers, it did argue
that any duty it may have had under Cal-OSHA regulations to provide lockout or tagout
procedures applicable to maintenance of the dock levelers was delegable and was
implicitly delegated to J.M. Equipment.
5 Plaintiffs cite Vargas v. FMI, Inc. (2015) 233 Cal.App.4th 638 in support of their
argument that Del Monte was required to address section 3314 in its moving papers.
While the appellate court noted in Vargas that it could conclude the defendant failed to
show it was entitled to summary judgment and reverse on that basis because the
defendant’s motion was “silent regarding the ‘relevant statutes or regulations,’ ” as was
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explicitly put the nondelegable duty exception at issue by (1) identifying the duty in the
complaint, and (2) repeatedly invoking the exception and identifying section 3314 as the
specific source of the alleged nondelegable duty in their discovery responses. They argue
under those circumstances, Del Monte bore the initial burden of producing evidence that
would require a reasonable trier of fact to find the exception does not apply.
This argument ignores that it is the operative complaint that determines the issues
a defendant must address to prevail on a summary judgment motion; therefore, a moving
defendant need address only the issues raised by the complaint. (Laabs v. City of
Victorville (2008) 163 Cal.App.4th 1242, 1258.) It also ignores the rationale asserted in
Alvarez for requiring a defendant moving for summary judgment to submit evidence
establishing the foundational facts of the Privette presumption, rather than requiring the
defendant to show an exception to the presumption does not apply. As the Alvarez court
explained, once the presumption is shown, the trier of fact must assume the existence of
the presumed fact until evidence is introduced to support a finding of its nonexistence;
therefore, on summary judgment a moving party need only show entitlement to the
benefit of the presumption to shift the burden of proof to the opposing party to show there
are triable issues of fact. (Alvarez, supra, 13 Cal.App.5th at p. 644.) This rationale
applies regardless of whether the complaint pleads the existence of an exception to
Privette or the plaintiff’s reliance on an exception is revealed in subsequent discovery
responses.
IV. The Nondelegable Duty Exception to the Privette Doctrine
Plaintiffs contend they raised a triable issue of fact as to whether the nondelegable
duty exception to Privette doctrine applies. They argue section 3314 imposes a
its respondents’ brief, it declined to do so due to the significant issues presented. (Id. at
p. 654.) The Vargas court, however, did not address the effect of the Privette
presumption on the moving defendant’s initial burden on summary judgment. We
believe Alvarez is the better reasoned decision and follow it here.
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nondelegable duty on Del Monte to develop an HEC procedure for the dock leveler,
which outside service personnel must follow when servicing the dock leveler, and to
instruct designated employees on the procedure, which duties Del Monte breached by not
having such a procedure and not training its employees on it. Plaintiffs further argue
these breaches affirmatively contributed to Rafferty’s death, as the absence of a
procedure intended to protect employees and contractors from potential injury would be
expected to result in a contractor being injured or killed while servicing the leveler.
A. Nondelegable Duty
As noted in SeaBright, in considering whether a duty is nondelegable, the test is
whether “the relevant statutes or regulations indicate an intent to limit the application of
Privette … or preclude delegation of the tort law duty, if any, that the hirer owes to the
contractor’s employees.” (SeaBright, supra, 52 Cal.4th at p. 594, fn. 1; see Vargas,
supra, 233 Cal.App.4th at p. 662 [the test is whether the statute “indicate[s] an intent to
preclude delegation of the tort law duty”].)6 The court also recognized a duty is
nondelegable when it “preexists and does not arise from the contract with the
independent contractor.” (SeaBright, supra, 52 Cal.4th at p. 601.)
It is necessary to consider the regulation in question to determine whether the
duty or duties created by it were intended to be nondelegable. (Padilla, supra,
166 Cal.App.4th at p. 673.) Section 3314 “applies to the cleaning, repairing, servicing,
setting-up and adjusting of machines and equipment in which the unexpected
energization or start up of the machines or equipment, or release of stored energy could
cause injury to employees.” (§ 3314, subd. (a)(1).) To prevent inadvertent movement or
the release of stored energy during cleaning, servicing, and adjusting operations, the
6 In Vargas, the court concluded the relevant duties in that case were nondelegable
because the statutory and regulatory provisions at issue prohibited carriers from
delegating to independent contractors the responsibility to safely operate vehicles on
public highways. (Vargas, supra, 233 Cal.App.4th at pp. 654, 662‒664.)
16.
regulation requires machinery or equipment capable of movement to “be stopped and the
power source de-energized or disengaged” and, if necessary, the mechanical blocking or
lock out of movable parts. (Id., subd. (c).) If the machinery or equipment must be
capable of movement to perform the specific task, the employer is required to minimize
the hazard by providing and requiring the use of extension tools or other methods or
means to protect employees from injury. (Id., subd. (c)(1).) When performing repair
work and setting-up operations, “[p]rime movers, equipment, or power-driven machines”
that have lockable or readily lockable controls must “be locked out or positively sealed in
the ‘off’ position,” but if not so equipped, positive means must be taken which will
effectively prevent inadvertent movement or release of stored energy, such as de-
energizing or disconnecting the equipment from its power source. (Id., subd. (d).)
During all operations, accident prevention signs or tags must be placed on the controls of
the power source of the machinery, equipment, or prime movers. (Id., subds. (c) & (d).)
Employers are required to develop procedures to control hazardous energy: “A
hazardous energy control procedure shall be developed and utilized by the employer
when employees are engaged in the cleaning, repairing, servicing, setting-up or adjusting
of prime movers, machinery and equipment.” (§ 3314, subd. (g).)7 The employer’s HEC
procedure must “be documented in writing,” and “include separate procedural steps for
the safe lockout/tagout of each machine or piece of equipment affected by the hazardous
energy control procedure.” (Id., subd. (g)(2)(A).) “Whenever outside servicing
7 The procedure must “clearly and specifically outline the scope, purpose,
authorization, rules, and techniques to be utilized for the control of hazardous energy, and
the means to enforce compliance, including but not limited to, the following: [¶] (A) A
statement of the intended use of the procedure; [¶] (B) The procedural steps for shutting
down, isolating, blocking and securing machines or equipment to control hazardous
energy; [¶] (C) The procedural steps for the placement, removal and transfer of lockout
devices and tagout devices and responsibilities; and, [¶] (D) The requirements for testing
a machine or equipment, to determine and verify the effectiveness of lockout devices,
tagout devices and other hazardous energy control devices.” (§ 3314, subd. (g)(1).)
17.
personnel are to be engaged in activities covered by [section 3314], the on-site
employer’s lockout or tagout procedures shall be followed.” (Id., subd. (k).)
Employers also must train its employees concerning the HEC procedure. As
applicable here, an “affected employee” who operates or uses a machine or equipment on
which cleaning, repairing, servicing, setting-up or adjusting operations are being
performed under lockout or tagout, or works in an area in which such operations are
being performed under lockout or tagout, must “be instructed in the purpose and use of
the energy control procedure.” (§ 3314, subds. (b) & (l)(2).) All other employees who
may work in the area where HEC procedures may be utilized must “be instructed about
the prohibition relating to attempts to restart or reenergize machines or equipment which
are locked out or tagged out.” (Id., subd. (l)(3).)
The parties do not dispute that section 3314 applies to dock levelers. Plaintiffs
assert Del Monte was required to have a written HEC procedure specific to dock levelers
and to instruct its affected employees in its use. Plaintiffs contend these duties are
nondelegable because: (1) they exist regardless of whether Del Monte hires an
independent contractor to service or repair the dock levelers; (2) only Del Monte can
ensure the procedure exists and is followed by employees and contractors; and (3) outside
contractors have no ability to ensure Del Monte’s employees know how to conduct
themselves when the dock leveler is being locked or tagged out so they do not
inadvertently defeat the mechanisms in place.
1. Del Monte is Required to Develop an HEC Procedure for the
Levelers
We first address whether Del Monte was required to develop an HEC procedure
for the dock levelers when it intends for only independent contractors to clean, repair,
service, set up or adjust them. Del Monte contends it was not required to do so because
this duty exists only if Del Monte’s employees perform the enumerated activities on the
dock levelers, which according to Del Monte never happens. Del Monte reasons that
18.
since it was not required to have an HEC procedure, the regulation could not impose a
nondelegable duty, and the exception cannot apply.
To support this interpretation, Del Monte cites section 3314, subdivision (g):
“A hazardous energy control procedure shall be developed and utilized by the employer
when employees are engaged in the cleaning, repairing, servicing, setting-up or adjusting
of prime movers, machinery and equipment.” Del Monte asserts the phrase “when
employees are engaged in the cleaning, repairing, servicing, setting-up or adjusting of
prime movers, machinery and equipment” modifies both the immediately preceding verb
“utilized” and the more remote verb “developed”; therefore, it was only required to
develop an HEC procedure if its employees engaged in those operations.
Plaintiffs, however, argue the latter phrase modifies only the immediately
preceding verb; therefore, the regulation requires the employer to develop an HEC
procedure when the listed operations will be performed on “machines and equipment in
which the unexpected energization or start up of the machines or equipment, or release of
stored energy could cause injury to employees” (§ 3314, subd. (a)(1)), regardless of who
performs those operations. This dispute requires us to interpret the regulation.
“ ‘[T]he interpretation of an administrative regulation is subject to the same
principles as the interpretation of a statute.’ ” (Sanchez v. State of California (2009)
179 Cal.App.4th 467, 477; accord, Auchmoody v. 911 Emergency Services (1989)
214 Cal.App.3d 1510, 1517.) When interpreting the regulation, our “fundamental” task
is to “ascertain the intent of the agency issuing the regulation so as to effectuate the
purpose of the law.” (Brewer v. Patel (1993) 20 Cal.App.4th 1017, 1021.) “To
determine that intent, we turn first to the words of the regulation, giving effect to the
usual meaning of the language used, while avoiding an interpretation which renders any
language mere surplusage. [Citation.] When statutory language is clear, we must apply
that language without indulging in interpretation.” (Ibid.) However, “ ‘ “ ‘ “[l]iteral
19.
construction should not prevail if it is contrary to the legislative intent apparent in the
[statute] ….” ’ ” ’ ” (Sanchez v. State of California, at p. 477.)
The issue here is whether the last phrase of section 3314, subdivision (g)
concerning employees engaging in enumerated operations modifies only the phrase
“utilized by the employer” or also modifies the words “be developed.” In discerning the
most reasonable interpretation of section 3314, subdivision (g), we apply the last
antecedent rule, which provides that “ ‘ “qualifying words, phrases and clauses are to be
applied to the words or phrases immediately preceding and are not to be construed as
extending to or including others more remote.” ’ ” (Renee J. v. Superior Court (2001)
26 Cal.4th 735, 743, quoting White v. County of Sacramento (1982) 31 Cal.3d 676, 680
(White).) Under that interpretive rule, the phrase “when employees are engaged in the
cleaning, repairing, servicing, setting-up or adjusting of prime movers, machinery and
equipment” modifies only the phrase “utilized by the employer.” The regulation’s
punctuation provides further support for this interpretation, as the qualifying phrase
“when employees are engaged in the cleaning, repairing, servicing, setting-up or
adjusting of prime movers, machinery and equipment” is not set off from the preceding
terms by a comma. (White, supra, 31 Cal.3d at p. 680 [evidence that a qualifying phrase
applies to all antecedents rather than only the immediately preceding one “may be found
in the fact that it is separated from the antecedents by a comma”].)
There are two exceptions to the last antecedent rule, neither of which is applicable
here. The first exception “provides that when several words are followed by a clause that
applies as much to the first and other words as to the last, ‘ “ ‘the natural construction of
the language demands that the clause be read as applicable to all.’ ” ’ ” (Renee J., supra,
26 Cal.4th at p. 743.) The phrase “when employees are engaged in the cleaning,
repairing, servicing, setting-up or adjusting of prime movers, machinery and equipment”
does not necessarily apply equally to the words “be developed” as such an interpretation
would negate another subsection of the regulation, section 3314, subdivision (k), which
20.
provides that when “outside servicing personnel are to be engaged in activities covered
by this section, the on-site employer’s lockout or tagout procedures shall be followed.” If
an employer were required to develop an HEC procedure only when its employees
perform the enumerated activities, this subsection would be meaningless, as there would
be no procedures for the outside servicing personnel to follow. Therefore, the pertinent
phrase does not apply equally to the development and utilization of the HEC procedure.
The second exception “provides that ‘[w]here the sense of the entire act requires
that a qualifying word or phrase apply to several preceding wo[r]ds …, [its application]
will not be restricted….’ [Citations.] This is, of course, but another way of stating the
fundamental rule that a court is to construe a statute ‘ “so as to effectuate the purpose of
the law.” ’ ” (White, supra, 31 Cal.3d at p. 681.) In this case, the “sense” of section 3314
does not require the application of the phrase “when employees are engaged in the
cleaning, repairing, servicing, setting-up or adjusting of prime movers, machinery and
equipment” to both the development and utilization of the HEC procedure, as the purpose
of section 3314 is to protect both employees and outside servicing personnel from the
unexpected energization or start-up of machines or equipment that could cause injury.
Moreover, as plaintiffs assert, Del Monte’s proposed interpretation would
effectively negate the training requirements imposed by section 3314 when an employer
uses outside servicing personnel to perform service and repairs on machines or equipment
that are covered by the regulation. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735
[“[a]n interpretation that renders related provision nugatory must be avoided”].) As set
out above, employees whose job requires them to operate or use a machine or equipment,
or work near a machine or equipment, that is being cleaned, repaired, serviced, set up, or
adjusted under lockout or tagout are required to be “instructed on the purpose and use of
the energy control procedure.” (§ 3314, subds. (b) & (l)(2).) In addition, employees
“whose work operations may be in an area where energy control procedures may be
21.
utilized” must be instructed not to attempt to restart or reenergize machines or equipment
that are locked or tagged out. (Id., subd. (l)(3).)
The purpose of these training requirements is to ensure the on-site employer’s
employees do not inadvertently defeat whatever hazardous energy control devices or
methods are in place while the machine is being cleaned, repaired, serviced, set up, or
adjusted, whether the work is being performed by the on-site employer’s employees or
outside servicing personnel. But if an employer who hires only outside servicing
personnel to perform the enumerated activities, such as Del Monte, does not have a duty
to develop an HEC procedure, there would not be a procedure on which to train its
employees and those employees would have no idea how to safely work around the
machine or equipment when it is locked out or tagged out. Del Monte’s interpretation of
section 3314 would effectively eliminate the training requirement and defeat the
overarching intent of section 3314 to prevent or minimize the risk of injury during the
repair or maintenance of dangerous machines such as dock levelers.
In sum, Del Monte was required to develop its own HEC procedures for the dock
levelers and to train its employees on that procedure.
2. Del Monte’s Duties Extend to Employees of Independent
Contractors
Del Monte argues that even if it had a duty to develop an HEC procedure, it only
owed that duty to its own employees, not to employees of independent contractors who
are servicing or repairing the dock levelers. Section 3314, however, provides that the on-
site employer’s HEC procedure must be followed by its own employees and “outside
servicing personnel” who are engaged in activities covered by the section. (§ 3314,
subds. (g) & (k).) Thus, an on-site employer’s HEC procedure is intended to ensure the
safety of both its own employees and the employees of independent contractors.
Moreover, the on-site employer’s duty to train its own employees in the purpose and use
of the HEC procedure exists regardless of whether the on-site employer’s employees or
22.
outside personnel are performing the activities covered by section 3314 and evidences an
intent to protect both employees and outside personnel.
Citing SeaBright, supra, 52 Cal.4th at page 603, Del Monte asserts while it may
have owed a duty to its own employees to have an HEC procedure before J.M.
Equipment was hired, it did not owe a duty to J.M. Equipment and its employees until the
contract for servicing the dock levelers was created; therefore, as in SeaBright, any duty
it owed Rafferty only existed because of the work J.M. Equipment was performing and
did not fall within the nondelegable duties doctrine. SeaBright, however, is
distinguishable, as the two Cal-OSHA regulations that were at issue there are unlike
section 3314, as neither explicitly contemplate the protection of “outside servicing
personnel” in addition to protecting the on-site employer’s employees. (See SeaBright,
supra, 52 Cal.4th at p. 595, citing §§ 3999, 4002 [regulations governing conveyor
safety].) Moreover, the duty to develop an HEC policy and train its employees did
preexist the contract with J.M. Equipment, as Del Monte was required to develop the
HEC procedure and train its employees on it regardless of whether an independent
contractor was being hired to service the dock levelers.
In sum, section 3314 evinces an intent to protect the on-site employer’s employees
as well as outside servicing personnel. Consequently, any duties Del Monte owed under
section 3314 are owed to both its own employees and employees of its independent
contractors.
3. Section 3314 Evinces an Intent to Preclude Delegation
Del Monte argues that even if it owed a duty to develop an HEC procedure for the
dock levelers, which extended to both its own employees and employees of its
independent contractors, that duty was presumptively delegated to J.M. Equipment when
it hired J.M. Equipment to perform maintenance and repairs on the dock levelers. While
Del Monte acknowledges there may be cases in which the relevant regulations indicate an
23.
intent to limit Privette’s application or preclude delegation of any tort law duty the hirer
owes the contractor’s employees, Del Monte insists this is not the case here.
Del Monte argues implicit delegation occurs when the Cal-OSHA regulation or
other statutory duty is designed to protect workers from harm created by a specific task
and that task is contracted out to an independent contractor.8 But that is too broad a
brush here. As plaintiffs argue, by requiring “outside servicing personnel” engaged in the
enumerated activities to follow the on-site employer’s lockout or tagout procedures,
section 3314 contemplates that even if Del Monte hires an independent contractor to
service the dock levelers, it still owes a duty to the independent contractor and its
employees to have an HEC procedure in place and to train Del Monte’s employees to
follow it. This makes this regulation different than the regulations and statutes in the
cases Del Monte cites, as it evinces an intent to preclude delegation of an on-site
employer’s duty to develop a machine-specific HEC procedure.
As we have noted, Del Monte’s duty to develop an HEC procedure and train
affected employees concerning it preexists any contract that Del Monte might enter into
with an independent contractor to service the dock levelers, and both must occur even if
8 In support, Del Monte cites cases that determined any duty owed the contractor’s
employee under Cal-OSHA regulations was delegable to the contractor because the
regulation pertained to workplace safety for the specific work the contractor was hired to
perform. (SeaBright, supra, 52 Cal.4th at pp. 595, 603 [Cal-OSHA regulations requiring
guards on luggage conveyor delegable to conveyor repair contractor]; Delgadillo v.
Television Center, Inc. (2018) 20 Cal.App.5th 1078, 1090‒1091 & fn. 4 [Cal-OSHA
regulations, California statutes, and municipal code requiring building owners to install
structural roof anchors for use by window washers delegable to window washing
contractor; court noted there was no indication of intent to preclude delegation]; Khosh,
supra, 4 Cal.App.5th at pp. 719‒720 [Cal-OHSA regulation requiring supervision of high
voltage systems and National Fire Protection Association (NFPA) Standard requiring
written lockout/tagout procedures for electrical system delegable to contracted
electrician]; Padilla, supra, 166 Cal.App.4th at pp. 671‒673 [Cal-OSHA regulation
requiring utilities/water to be shut off, capped or controlled before demolition work
delegable to demolition contractor].)
24.
Del Monte never hires an independent contractor.9 Thus, like the regulation found to be
nondelegable in Evard v. Southern California Edison (2007) 153 Cal.App.4th 137(Evard), which required the billboard owner to provide standard guardrails (id. at p. 146),
section 3314 imposes duties that only Del Monte can fulfill. (See Padilla, supra,
166 Cal.App.4th at p. 673 [noting the regulation in Evard imposed a permanent
obligation on the owner with respect to the property’s condition that only the landowner
was able to ensure].)
Del Monte asserts delegating any duty concerning the HEC procedure to J.M.
Equipment is preferable because J.M. Equipment, as a business that professionally
services dock levelers, is in a superior position to develop safety protocols for their
maintenance and repair. (See Sandoval, supra, 12 Cal.5th at p. 279 [it is preferable to
discourage hirer involvement in contracted work since “we presume the contractor is best
situated to prevent contract worker injury given its relative proximity to the work,
superior expertise and resources, ability to internalize costs, and relationship with the
workers”].)
But as plaintiffs point out, while J.M. Equipment may have more general
knowledge on how to maintain and repair dock levelers than Del Monte, this does not
make J.M. Equipment an expert on every brand of dock leveler, as shown by Costa’s
testimony that while he and Rafferty had done similar work on dock levelers, he had
never worked on the brand of dock leveler that was in Del Monte’s warehouse. Del
Monte possessed the manufacturer’s manual for the dock levelers, which provides clear
instructions on how to safely service them. Moreover, Del Monte knew how to develop
9 For this reason, section 3314 is distinguishable from the NFPA Standard found
delegable in Khosh, which provided “that ‘all complex lockout/tagout procedures shall
require a written plan of execution that identifies the person in charge.’ ” (Khosh, supra,
4 Cal.App.5th at p. 719.) While the NFPA Standard required a written procedure for
lockout/tagout, it apparently did not require outside contractors to follow that procedure
or require training of the on-site employer’s employees, as section 3314 does.
25.
an HEC procedure, as it adopted a general HEC procedure, although it was not specific to
dock levelers,10 which was required under section 3314. (See In re Eel River Sawmills,
Inc. (Cal. OSHA App. Bd., Sept. 3, 2003, No. 00-R2D3-3623) 2003 CA OSHA App. Bd.
LEXIS 95, pp. *4-*13 [§ 3314 requires machine-specific energy control procedures].)
Further, Del Monte ignores its training obligations under section 3314, which is
meant to ensure Del Monte’s employees will not inadvertently release stored energy
while the dock levelers are being repaired or serviced. If we accept Del Monte’s logic,
this training duty, like the duty to develop an HEC procedure, would be presumptively
delegated to J.M. Equipment upon hiring. J.M. Equipment, however, is not in a position
to train Del Monte’s employees, as it has no control over them.
In sum, the duties Del Monte owed under section 3314 to develop a detailed,
written HEC procedure for the dock levelers and instruct its affected employees in the
purpose and use of the procedure were nondelegable. Del Monte does not dispute that if
such duties existed and were nondelegable, they were breached in this case.
B. Affirmative Contribution
Even if a duty is found to be nondelegable, a hirer is not liable for injury to a
contractor’s employee unless the hirer’s breach of that nondelegable duty affirmatively
contributed to the employee’s injury. (Khosh, supra, 4 Cal.App.5th at pp. 720‒721;
Padilla, supra, 166 Cal.App.4th at p. 673.) Plaintiffs assert a trier of fact could conclude
Del Monte’s breach of its nondelegable duties to develop an HEC procedure for the dock
10 Notably, the general HEC procedure stated it applied “to the control of hazardous
energy during all service and maintenance activities whether performed by Del Monte
employees or outside contractors at the Modesto facility.” It further provides that all
contractors must be familiar with the procedure, Del Monte’s chief engineer or project
manager is responsible for reviewing the program with the contractor before contracted
work begins, and on request, the contractor will be given a copy of the procedure to share
with the contractor’s employees. Moreover, Del Monte’s employees affected by the
outside contractor’s lockout program must be informed of the work and program
deviations before the contractor begins work.
26.
levelers and instruct its affected employees affirmatively contributed to Rafferty’s death.
Del Monte responds that the lack of an HEC procedure is at most an omission to correct a
potentially unsafe condition, which is not actionable.
Our Supreme Court recently addressed the affirmative contribution element in the
context of the retained control exception in Gonzalez and Sandoval. In Gonzalez, the
court held that a landowner is not liable to an independent contractor or its workers for an
injury resulting from a known hazard on the premises unless the “landowner retains
control over any part of the contractor’s work and negligently exercises that retained
control in a manner that affirmatively contributes to the injury.” (Gonzalez, supra,
12 Cal.5th at pp. 38‒39.) In so holding, the court noted that following its decision in
Hooker, supra, 27 Cal.4th 198, which established the retained control exception to
Privette, “courts have consistently reaffirmed that ‘[a] hirer’s failure to correct an unsafe
condition’ is insufficient, by itself, to establish liability under Hooker’s exception to the
Privette doctrine.” (Gonzalez, at p. 46.) Instead, “[t]o be liable, a hirer must exercise its
retained control over any part of the contracted-for work … in a manner that
affirmatively contributes to the injury.” (Id. at pp. 46‒47.)
The court further explained the element of affirmative contribution in Sandoval:
“ ‘Affirmative contribution’ means that the hirer’s exercise of retained control contributes
to the injury in a way that isn’t merely derivative of the contractor’s contribution to the
injury. [Citation.] Where the contractor’s conduct is the immediate cause of injury, the
affirmative contribution requirement can be satisfied only if the hirer in some respect
induced—not just failed to prevent—the contractor’s injury-causing conduct. [Citations.]
It is not enough for the hirer’s exercise of control to incidentally give the hirer the
opportunity to prevent the contractor’s injury-causing conduct. [Citation.] [¶] A hirer’s
conduct also satisfies the affirmative contribution requirement where the hirer’s exercise
of retained control contributes to the injury independently of the contractor’s contribution
(if any) to the injury.” (Sandoval, supra, 12 Cal.5th at p. 277.)
27.
The Sandoval court stated the critical factor was the relationship between the
hirer’s conduct and contractor’s conduct, and “neither ‘actual exercise’ nor ‘affirmative
contribution’ requires that the hirer’s negligence (if any) consist of an affirmative act.
The hirer’s negligence may take the form of any act, course of conduct, or failure to take
a reasonable precaution that is within the scope of its duty under Hooker.” (Sandoval,
supra, 12 Cal.5th at p. 277.) Affirmative contribution is a different inquiry than
substantial factor causation, as “affirmative contribution does not itself require that the
hirer’s contribution to the injury be substantial.” (Id. at p. 278.) “If a plaintiff proves that
the hirer actually exercised retained control in a way that affirmatively contributed to the
contract worker’s injury, the plaintiff establishes that the hirer owed the contract worker a
duty of reasonable care as to that exercise of control.” (Ibid.)
Plaintiffs assert that under this test for affirmative contribution, a trier of fact could
conclude Del Monte’s breach of its nondelegable duties to develop a written HEC
procedure for the dock levelers and instruct its affected employees in the purpose and use
of the procedure affirmatively contributed to Rafferty’s death. Plaintiffs assert because
there is no evidence to suggest J.M. Equipment, or its employees, were the immediate
cause of Rafferty’s death,11 the issue is whether Del Monte’s breach of its nondelegable
duties contributed to Rafferty’s death independent of any other factor that may have
played a role in his death. Plaintiffs argue a trier of fact reasonably could infer Del
Monte’s failure to develop an HEC procedure for the dock levelers contributed to
Rafferty’s death because “the entire purpose” of having such a procedure “is to prevent
or, at the very least, significantly mitigate the risk of injury or death to an employee or
contractor in the event stored energy is unexpectedly released while the leveler is being
cleaned, repaired, serviced, set up, or adjusted.”
11 While there is evidence Rafferty used a metal nut and duct tape to activate the
control button, raise the dock platform, and put the maintenance prop in place, there is no
evidence this caused the platform to fall.
28.
Del Monte responds the affirmative contribution is not met here because the
failure to develop an HEC procedure for the dock levelers was at most a passive
omission. In support, Del Monte cites Khosh, in which the appellate court concluded
“[t]he absence of a work plan or a supervisor did not affirmatively contribute to [the
plaintiff]’s injuries,” because the hirer’s breach of its regulatory duties was, at most, a
“passive omission” that did not constitute an affirmative contribution. (Khosh, supra,
4 Cal.App.5th at pp. 718, 721; see Gonzalez, supra, 12 Cal.5th at pp. 46‒47 [“courts have
consistently reaffirmed that ‘[a] hirer’s failure to correct an unsafe condition,’ is
insufficient, by itself, to establish liability under Hooker’s exception to the Privette
doctrine”]; Hooker, supra, 27 Cal.4th at p. 215 [hirer did not affirmatively contribute to
death of contractor’s employee where hirer’s safety personnel were aware of an unsafe
practice and failed to exercise their retained authority to correct it]; Delgadillo v.
Television Center, Inc., supra, 20 Cal.App.5th at pp. 1092‒1093 [failure to provide safety
equipment does not constitute affirmative contribution as the “passive provision of an
unsafe workplace” is not actionable].)
But as our Supreme Court recognized in SeaBright, there is a split of authority on
whether a hirer’s breach of a nondelegable statutory or regulatory duty can satisfy the
affirmative contribution requirement where, as here, the breach is an omission.12
(SeaBright, supra, 52 Cal.4th at p. 601.) In Barclay v. Jesse M. Lange Distributor, Inc.
(2005) 129 Cal.App.4th 281, the appellate court determined there was a triable issue of
fact as to whether a hirer’s failure to provide fire extinguishers within 75 feet of its fuel
storage tanks, in breach of its nondelegable duty under the California Fire Code,
12 The court did not resolve the split in SeaBright; instead, it concluded the
regulatory duties at issue in that case were delegable. (SeaBright, supra, 52 Cal.4th at
p. 601.) The split was not resolved in either Sandoval or Gonzalez, neither of which
involved the nondelegable duty exception. (Sandoval, supra, 12 Cal.5th at pp. 264‒265;
Gonzalez, supra, 12 Cal.5th at pp. 37‒39.)
29.
affirmatively contributed to the plaintiff’s injuries sustained when one of the tanks
exploded while he was working nearby. (Id. at pp. 298‒299.) Similarly, in Evard, supra,
153 Cal.App.4th 137, the appellate court concluded there was a triable issue of fact as to
whether a billboard owner’s failure to provide standard guardrails, a horizontal safety
line, or to ensure the employee’s safety belt or harness lanyard was secured to a ladder, in
breach of its nondelegable duty under the California Code of Regulations, affirmatively
contributed to the plaintiff’s injuries sustained when he received an electrical shock while
replacing an advertisement on the billboard and fell to the ground. (Id. at pp. 147‒148.)
Although both Barclay and Evard involved omissions, the omissions affirmatively
contributed to the plaintiff’s injuries because, had the hirers complied with their statutory
or regulatory duties, the plaintiffs may not have been injured. For example, in Barclay,
had a fire extinguisher been nearby when the explosion occurred it could have been used
to extinguish the flames sooner, thereby reducing the severity of the plaintiff’s injuries.
(Barclay, supra, 129 Cal.App.4th at p. 299.) And in Evard, the failure to provide
guardrails and lack of safety line, and to assure the plaintiff’s safety belt or harness
lanyard was secured to a ladder, allowed the plaintiff to fall when he received a shock
from the electrical power line. (Evard, supra, 153 Cal.App.4th at p. 148.)
As in Barclay and Evard, there is an issue of fact as to whether Del Monte’s
omission, i.e., its failure to develop an HEC procedure for the dock levelers, affirmatively
contributed to Rafferty’s death. As plaintiffs point out, had Del Monte developed a
proper HEC procedure for the dock levelers, it would necessarily have included “[t]he
procedural steps for shutting down, isolating, blocking and securing [the dock levelers] to
control hazardous energy” and “[t]he requirements for testing [the dock levelers] to
determine and verify the effectiveness of lockout devices, tagout devices and other
hazardous energy control devices.” (§ 3314, subd. (g)(1)(B) & (D).) In addition, since
2015, both the manufacturer and American National Standards Institute have
recommended the use of additional means to support the dock platform and lip whenever
30.
someone is working in front of or under the dock leveler. It can reasonably be inferred
that if these procedures had existed and were followed, Rafferty would more likely than
not have been able to work safely under the dock leveler’s platform without being
crushed. Affirmative contribution also can reasonably be inferred because Rafferty
sustained the precise injury section 3314 was intended to prevent.
Del Monte suggests it could not have affirmatively contributed to Rafferty’s death
because Rafferty did not comply with Del Monte’s requests to sign in at the entrance, he
failed to notify Reeder he would be working on site, and he performed maintenance
without a partner, which required him to use a nut and duct tape to raise the platform.
Del Monte asserts it was “[s]ome aspect of this rigged solo process [that] apparently
failed—as such fixes are wont to do—and he was tragically killed.”
But as plaintiffs assert, this is just conjecture, as there is no evidence as to what
precipitated the platform falling and crushing Rafferty to death. Del Monte claims it was
Rafferty’s improper placement of the maintenance prop bar in front of the dock plate
header that caused the rod to slip and the platform to collapse on him, citing Costa’s
testimony that in a photograph of a dock leveler shown to him, the maintenance prop was
incorrectly placed so it may be able to slide off the plate. Del Monte, however, does not
point to any evidence that this was the state of the dock leveler Rafferty was working on
when he was killed, and Costa did not opine the improper placement of the maintenance
prop was the cause of Rafferty’s accident.13
13 Plaintiffs objected to Costa’s testimony in the trial court on the grounds it lacked
foundation and constituted an improper lay opinion. Since the trial court did not rule on
these objections, we presume the objections have been overruled, with the objector
having the burden to renew its objections on appeal. (Reid v. Google, Inc. (2010)
50 Cal.4th 512, 534.) Although plaintiffs state in their reply brief that they renew their
objections here, they do not present any reasoned argument as to why their objections are
meritorious and therefore have forfeited the argument. (Cahill v. San Diego Gas &
Electric Co. (2011) 194 Cal.App.4th 939, 956 [we may treat a point as waived where the
appellant fails to support it with reasoned argument and citations to authority].)
31.
Del Monte suggests that even if it had developed an HEC procedure for the dock
levelers, Rafferty would not have followed it, since Rafferty ignored Del Monte’s “basic
requests” to sign in at the front gate, check in with Reeder, and to work in pairs. Even if
these policies existed, there is no evidence they were ever communicated to Rafferty or
that he was aware of them. At most, the evidence establishes these policies were
communicated to Days, who was J.M. Equipment’s contact with Del Monte. Moreover,
Costa testified it was not his custom and practice to check in with Reeder when
performing work at Del Monte, which strongly suggests these policies were
communicated only to Days.
Thus, a trier of fact reasonably could infer that if Rafferty did not follow Del
Monte’s policies, it was because he was unaware of them, not because he was someone
who disregarded requests made by the on-site employer. Even if it is fair to speculate
Rafferty would have ignored Del Monte’s HEC procedure for the dock levelers had it
been given to him, “[n]onetheless, ‘considering the totality of the evidence, we believe a
rational trier of fact could reasonably conclude’ ” Rafferty would have followed any HEC
procedures given to him; therefore, the lack of an HEC procedure affirmatively
contributed to Rafferty’s death. (Ray v. Silverado Constructors (2002) 98 Cal.App.4th
1120, 1139.)
In sum, when the evidence and all inferences reasonably drawn therefrom are
viewed in the light most favorable to plaintiffs, a trier of fact reasonably could conclude
Del Monte’s breach of its nondelegable duties under section 3314 affirmatively
contributed to Rafferty’s death. Since plaintiffs succeeded in raising triable issues of
material fact on the elements of the nondelegable duty exception to the Privette doctrine,
we conclude a trial is necessary to resolve those disputes and plaintiffs are entitled to
their day in court.
32.
DISPOSITION
The judgment is reversed. Costs on appeal are awarded to plaintiffs.
DE SANTOS, J.
WE CONCUR:
MEEHAN, Acting P. J.
SNAUFFER, J.
33.