KUNTZ v. Del E. Webb Construction Co., a corporation, Appellant.*

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District Court of Appeal, Second District, Division 2, California.

Alex J. KUNTZ, Plaintiff and Respondent, v. MITCHELL STEEL, INC., a corporation, Del E. Webb, Individually and doing business as Del E. Webb Construction Company, Del E. Webb Construction Company, a corporation, et al., Defendants, Del E. Webb Construction Co., a corporation, Appellant.*

Civ. 24781.

Decided: July 26, 1961

Richard B. Coyle and Henry F. Walker, Los Angeles, for appellant. Rose, Klein & Marias, Robert P. Dockeray, Los Angeles, of counsel, for respondent.

Defendant Del E. Webb Construction Company appeals from a judgment for $11,000 in favor of plaintiff and from an order denying its motion for judgment non obstante. The judgment runs against Mitchell Steel, Inc., also, but that defendant did not appeal. The problem is that troublesome one of liability of a general contractor for injuries to an employee of a subcontractor caused by negligence of the employee of another subcontractor.

The accident occurred during construction of Union Oil Center in Los Angeles on December 14, 1956. Del E. Webb Construction Company was general contractor; Mitchell Steel, Inc., was a subcontractor under another subcontractor, H. H. Robertson; Patent Scaffolding Company was a subcontractor under Webb,1 the general contractor. Patent was charged with operation of a material tower alongside the new building, and plaintiff, a journeyman iron worker was its employee. Mitchell was engaged in laying steel decking which was to act as a form and base for concrete floors to be poured later. The steel decking came in strips of deeply corrugated metal about 16 feet long and 2 feet wide which had interlocking lips and when in place would be welded to the girders across which they lay, thus forming a continuous floor awaiting a cement filling. The decking comes to the site of installation in bundles, is then scattered preparatory to laying and then, as the strips are assembled for interlocking etc., each one is laid across a girder at each end for support; finally they are welded to the girders. In order to be safe for use as a temporary walk the ends of the decking strips must overlap from 6 inches to a foot; if that is not done one end may become detached and fall, carrying the whole piece of decking to the floor below.

About 2:45 in the afternoon of December 14, 1956, plaintiff was about his work, on his way to tighten guy wires from the material tower and passing from one side of the structure to the other on the 13th floor (or roof) level; as he did so he walked partly on girders and partly on decking which was in place. On this day he had passed the place of accident in the morning and as he left for lunch and as he returned from same; at those times the decking involved in the accident was not in place. About 2:45 he walked along the girder until he came to some decking which had been laid since he returned from lunch. It looked safe for use as a walk, a thing he had done many times before. Two of Mitchell's men, Dold and Walker, who had laid those strips, were standing some 35 to 40 feet away smoking cigarettes. They gave no warning that plaintiff understood, not until he was falling. As he stepped onto the first sheet of decking it and another one went down and plaintiff went with them to the floor below, receiving the injuries which brought about the verdict in his favor. Neither side argues that the Mitchell men were not negligent or that their negligence was not the proximate cause of the accident.

The law governing liability of a general contractor for injuries inflicted upon the employee of one subcontractor by negligence of the employee of another subcontractor is involved in some confusion due largely to application of fairly well-settled principles to varying and often complicated factual situations.

The general principles are thus stated in George v. Trinity Church, 176 Cal. 553, 556, 169 P. 69, 70: ‘A subcontractor bears the same relation to the contractor that the latter does to his employer, and the rule governing each status is the same’; and in McDonald v. Shell Oil Co., 44 Cal.2d 785, 788, 285 P.2d 902, 904: ‘The general supervisory right to control the work so as to insure its satisfactory completion in accordance with the terms of the contract does not make the hirer of the independent contractor liable for the latter's negligent acts in performing the details of the work. Green v. Soule, 145 Cal. 96, 99–100, 78 P. 337. An owner is not liable for injuries resulting from defective appliances unless he has supplied them or has the privilege of selecting them or the materials out of which they are made, Hard v. Hollywood Turf Club, 112 Cal.App.2d 263, 274–275, 246 P.2d 716, or unless he exercises active control over the men employed or the operations of the equipment used by the independent contractor. Willis v. San Bernardino Lbr. & Box Co., 82 Cal.App. 751, 756, 256 P. 224.’ In the Hard case, thus cited with approval, it was said in 112 Cal.App.2d 263, 274, 246 P.2d 724: ‘A general contractor may be liable for injuries resulting from defective appliances only when he has the privilege of selecting them or the materials out of which they are made (Roche v. Llewellyn Iron Works Co., 140 Cal. 563, 569, 74 P. 147), but he is not liable for injuries caused by defective scaffolds or other instrumentalities unless he has supplied them (Rae v. California Equipment Co., 12 Cal.2d 563, 569, 86 P.2d 352; Martin v. Food Machinery Corp., 100 Cal.App.2d 244, 248, 223 P.2d 293; Dahms v. General Elevator Co., 214 Cal. 733, 739, 7 P.2d 1013; McCall v. Pacific Mail S. S. Co., 123 Cal. 42, 44, 55 P. 706.)’

Bedford v. Bechtel Corp., 172 Cal.App.2d 401, 411, 342 P.2d 495, 501:

‘In Hard v. Hollywood Turf Club, 1952, 112 Cal.App.2d 263, 246 P.2d 716, the employees of a painting subcontractor sued the owner and general contractor for injuries received from a defective scaffold supplied by their employer. The court held that although the general contractor had general supervision of the work and knew of the high painting being done on the scaffolding, such contractor owed no duty to the employees of the subcontractor.

‘The reasoning behind the rule that the general contractor (and the same reasoning applies to the owner) is not liable to the employees of an independent contractor for the latter's negligence, is the same as that set forth in the Hard case, supra, 112 Cal.App.2d 263, 246 P.2d 716, where the court in discussing the persons included in the word ‘employer’ in the ‘Act to regulate scaffolding’ (Stats.1913, ch. 48, §§ 1 and 2, pp. 49–50) said (112 Cal.App.2d at page 271, 246 P.2d at page 722): ‘* * * to impose the duty upon the general contractor directly to oversee all labor being performed and to inspect every device imported for use by the workmen on a particular construction and to impose nondelegable duties upon him to enforce all statutory safety provisions would be to place an extremely enerous burden upon him who has the general control over the ultimate result of the labor done yet without control or management of the means utilized to achieve the purpose planned.’'

Respondent argues that §§ 6400–6404 and 6310–6311, Labor Code, add a statutory duty to the normal duties of all general contractors, requiring them to furnish to employees of subcontractors a safe place to work, safety devices and safeguards and to adopt and use practices, means, methods, operations and processes reasonably adequate to render such employment and places of employment safe. This was the theory applied by the trial judge in Hard, supra, but it was rejected by this division of this court, by the Supreme Court in denying a hearing and by later cases which have approved and followed the Hard opinion. That case seems to represent the weight of authority with respect to liability of the general contractor where not affected by statute such as our Labor Code. See, 26 Cal.Jur.2d § 28, page 422; 57 C.J.S. Master and Servant § 609, page 380; 65 C.J.S. Negligence § 95, page 612.

There are several cases in this jurisdiction which seem to qualify the Hard rule to such an extent as to flatly place upon the general contractor the duty to perform toward a subcontractor's employee all the duties which his immediate employer owes him, such as, furnishing a safe place to work and adopting practices, means, methods, operations and processes reasonably adequate to render employment and place of employment safe (per Labor Code, §§ 6400, 6401).

An example is Gonzales v. Robert J. Hiller Const. Co., 179 Cal.App.2d 522, at page 530, 3 Cal.Rptr. 832, at page 837, which after quoting Labor Code §§ 6400, 6401 and 6403, says ‘These statutes apply to the general contractor,’ and quotes Johnson v. Nicholson, 159 Cal.App.2d 395, 406–407, 324 P.2d 307, as follows: “‘The contractor * * * has supervision over the entire building and its construction, including the work performed by a subcontractor. * * * He is in full control of the construction.’ * * * ‘The general rule is that a general contractor on a construction job who is in control of the premises is burdened with the duty to use ordinary care to provide a safe place for employees of a subcontractor to work, including the duty to warn such employees of a danger, either known to the general contractor, or discoverable by the exercise of ordinary care, or otherwise to protect the employees from injury, and to avoid exposing them to injury on account of dangerous conditions. He is bound to take reasonable measures to protect the employees of a subcontractor from injuries likely to arise from places of danger about the building. If he neglects this duty by failing to give adequate notice or warning of the existence of a place of danger, he may be found liable to an employee of a subcontractor for resulting injury.” Johnson v. Nicholson, 159 Cal.App.2d 395, 406–407, 324 P.2d 307, 313. ‘As a part of supervising the work, it is the duty of the general contractor to oversee conditions in the work of each subcontractor so far as they affect the safety of the employees of a subcontractor.’ Revels v. Southern Calif. Edison Co., 113 Cal.App.2d 673, 678, 248 P.2d 986, 990.'

The dividing line between these two lines of authorities is indicated by Atherley v. MacDonald, Young & Nelson, Inc., 142 Cal.App.2d 575, 298 P.2d 700, where the court meets headon the relation between § 6400, Labor Code, and the common-law rule of absence of liability of an owner or general contractor for injuries to a subcontractor's employee. In that case the plaintiff was the employee of an electrical subcontractor; he fell down an unprotected and unfinished stairway in a building under construction due to negligence of the owner's managing agent. At page 580 of 142 Cal.App.2d, at page 704 of 298 P.2d the court, through Mr. Presiding Justice Peters, said: ‘Appellants first contend that as to them respondent was at most a business invitee to whom appellants only owed the duty to warn of known latent dangers, and were under no duty to warn of obvious dangers. They point out that an invitee to a building under construction is only invited to use the building in its then incomplete condition. This is undoubtedly the law. Kolburn v. P. J. Walker Co., 38 Cal.App.2d 545, 101 P.2d 747; Mitchell v. A. J. Bayer Co., 126 Cal.App.2d 501, 272 P.2d 870. This argument, however, is predicated on the unwarranted assumption that section 6400 of the Labor Code is not applicable to appellants. That section provides that: ‘Every employer shall furnish employment and a place of employment which are safe for the employees therein.’ This section, if applicable, adds this statutory duty to the normal duties of an invitor.' At 581, of 142 Cal.App.2d, at page 704 of 298 P.2d:

‘Appellants now urge that it was error to admit the safety order into evidence as against appellants because appellants were not the ‘employers' of respondent, or of the electrical subcontractors, within the meaning of section 6400 of the Labor Code. Appellants cite cases which are not applicable to the factual situation here presented. * * * Hayden v. Paramount Productions, Inc., 33 Cal.App,2d 287, 91 P.2d 231, holding that a general contractor was not liable for injuries suffered by an employee of a subcontractor where the general contractor had no right of control over the activity prohibited by the safety order. Obviously, in these cases, the defendants were not ‘employers' of the injured party within the meaning of section 6400 of the Labor Code. [Emphasis added.]

‘Similar to the Hayden case is Hard v. Hollywood Turf Club, 112 Cal,. app.2d 263, 246 P.2d 716. There the employee of a subcontractor, using a scaffolding of his employer, attempted to sue the general contractor for injuries caused when the scaffolding collapsed. There was no evidence of any control by the general contractor over the employees of subcontractors, nor did the general contractor have anything to do with the construction of the scaffold. Under such circumstances the court properly held that the ‘duty to furnish safe place of work’ section had no application to the general contractor insofar as the injured employee of the subcontractor was concerned.' (Emphasis added.)

Furnishing of facilities or active control over activities of a subcontractor's men thus becomes the key to a general contractor's liability. If that control or participation exists § 6400 applies with consequent liability; but in the absence of such control or activity the common-law rule of nonliability governs.

The cases of Revels v. Southern Cal. Edison Co., supra, 113 CalApp.2d 673, 248 P.2d 986, Gonzales v. Robert Hiller Const. Co., supra, 179 Cal.App.2d 522, 3 Cal.Rptr. 832, Maia v. Security Lumber & Concrete Co., 160 Cal.App.2d 16, 324 P.2d 657, and Dow v. Holly Manufacturing Co., 49 Cal.2d 720, 725, 321 P.2d 736, though distinguishable factually, contain language which overlooks or ignores the dividing line of active control as drawn by Atherley, Hard, Bedford and other cases above discussed. We are confronted with the task of selecting the rule which seems more practical and in the long run more just and we conclude that the Hard-Atherley line of cases represents the more workable rule for this State. Dow v. Holly Manufacturing Co., supra, does not contain the last word of the Supreme Court which said, in Williams v. Fairhaven Cemetery Ass'n, 52 Cal.2d 135, 139, 338 P.2d 392, 395: ‘It is conceded by the parties that Santora was an independent contractor. In McDonald v. Shell Oil Co., 44 Cal.2d 785, 788 [2] et seq. 285 P.2d 902, 904, this court said: ‘The general supervisory right to control the work so as to insure its satisfactory completion in accordance with the terms of the contract does not make the hirer of the independent contractor liable for the latter's negligent acts in performing the details of the work. Green v. Soule, 145 Cal. 96, 99–100, 78 P. 337. An owner is not liable for injuries resulting from defective appliances unless he has supplied them or has the privilege of selecting them or the materials out of which they are made Hard v. Hollywood Turf Club, 112 Cal.App.2d 263, 274–275, 246 P.2d 716, or unless he exercises active control over the men employed or the operations of the equipment used by the independent contractor. Willis v. San Barnardino Lbr. & Box Co., 82 Cal.App. 751, 756, 256 P. 224.’ See also Sabin v. Union Oil Co., 150 Cal.App.2d 606, 608[1], 310 P.2d 685.'

Johnson v. A. Schilling & Co., 170 Cal.App.2d 318, at page 323, 339 P.2d 139, at page 142, recognizes the distinction just discussed, saying: ‘Cases such as Deorosan v. Haslett Warehouse Co., 165 Cal.App.2d 599, 332 P.2d 422, and Hard v. Hollywood Turf Club, 112 CalApp.2d 263, 246 P.2d 716, are distinguishable on their facts. In those cases the dangerous condition was created by the injured employee's immediate employer during the course of the work, a condition over which the owner in the one case and the general contractor in the other did not have ‘direction, management, control, or custody’ within the meaning of section 6304 Labor Code. Deorosan v. Haslett Warehouse Co., supra, 165 Cal.App.2d pp. 599, [617–618,] 332 P.2d 422. It was because of this distinction that the court in Atherley v. MacDonald, Young & Nelson, 142 Cal.App.2d 575, 298 P.2d 700, stressed the fact that the owner in that case was also in fact the builder, with the contractor acting as its agent since the dangerous condition in Atherley was created by the contractor in the course of construction, a matter over which the owner as owner would not have had ‘direction, management, control, or custody.” (Emphasis added.)

Counsel for respondent argue that a general contractor, though he does not have active control over the work of his subcontractors, is liable to the employee of one subcontractor who is injured by the negligence of an employee of another subcontractor although that general contractor may not be liable to the injured man for negligence of the subcontractor who is his own employer. We find no such distinction in the cases and perceive none in principle. If the general contractor does not have active control of the work of either subcontractor he does not owe a duty to protect that subcontractor's employees from negligence of their own employer or that of other subcontractors or their servants and hence does not become liable for the negligence of either subcontractor's servant regardless of the identity of the person injured thereby. See Duggan v. National Constructors & Engineers, 223 App. Div. 163, 228 N.Y.S. 126, 130; Employers Mut. Liability Ins. Co. of Wis. v. Di Cesare & Monaca Concrete Const. Corp., 9 App. Div. 379, 194 N.Y.S.2d 103, 108; Stagg v. Taylor's Adm'x, 119 Va. 266, 89 S.E. 237, 238.

Merely recognizing a relationship as that of general contractor and subcontractor is not wholly sufficient to solve the problem, however. In the recent case of Stewart v. Cox, 55 Cal.2d 857, 13 Cal.Rptr. 521, 524, it is said: ‘In Biakanja v. Irving, 49 Cal.2d 647, 649 et seq., 320 P.2d 16, 65 A.L.R.2d 1358, * * * we held that the determination whether in a specific case the defendant will be held liable to a third person is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that he suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, and the policy of preventing future harm. See also United States [for Use and Benefit of Los Angeles Testing Laboratory] v. Rogers & Rogers, D.C.Cal., 161 F.Supp. 132. The liability of a contractor or subcontractor must be determined by applying this general test rather than by arbitrarily placing them in a separate category subject to a special rule. Cf. Garcia v. Soogian, 52 Cal.2d 107, 110, 338 P.2d 433.’ In Garcia v. Soogian, 52 Cal.2d 107, 110, 338 P.2d 433, 435. ‘The question of liability must be decided in the light of all the circumstances and not by arbitrarily placing cases in rigid categories on the basis of the type of condition involved without giving due consideration to the effect of all the factors in a particular situation. There is no inflexible rule which would exclude liability in every case involving building materials or buildings under construction, and each such case must be judged on its own facts. Although there are some cases of this type in which recovery has been denied (Knight v. Kaiser Co., 48 Cal,2d 778, 312 P.2d 1089; Lopez v. Capitol Co., 141 Cal.App.2d 60, 296 P.2d 63; Camp v. Peel, 33 Cal.App.2d 612, 92 P.2d 428), there are others recognizing that liability may exist (Woods v. City & County of San Francisco, 148 Cal.App.2d 958, 307 P.2d 698; Morse v. Douglas, 107 Cal.App. 196, 290 P. 465).’

Pertinent factors to be considered at bar are these: Appellant had no part whatever in the work of laying and fastening the decking; none of its employees had any contact with that operation which was exclusively in the hands of Mitchell Steel; none of its employees was present at the time of accident; the dangerous condition had been created by Mitchell less than an hour before plaintiff fell; there was no substantial possibility that appellant could have discovered the situation in that short time. Only journeymen (structural) iron workers worked on or about the levels where there was no decking or the decking, though scattered, cut, fitted and interlocked, had not been welded to the girders. Plaintiff belonged to the crew of the material tower whose business was to supply materials to the other structural workers engaged in enclosing a skeleton structure. The Mitchell and Patent men were engaged in erecting a new and large building; in the nature of things it would present situations which would be temporarily dangerous to less skilled persons, and they were employed for the very purpose of avoiding or correcting any dangerous conditions that arose in the process of construction. Requiring the general contractor to have knowledge of the negligent work which led to this accident would impose upon it the duty to actively oversee all acts of all subcontractors' men, an intolerable burden which the law should not impose upon it. Pertinent here is the statement at page 580 of 142 Cal.App.2d, at page 704 of 298 P.2d of the Atherley case, supra, that ‘an invitee to a building under construction is only invited to use the building in its then incomplete condition. This is undoubtedly the law.’ The cases there cited, Kolburn v. P. J. Walker Co., 38 Cal.App.2d 545, 101 P.2d 747, and Mitchell v. A. J. Bayer Co., 126 Cal.App.2d 501, 272 P.2d 870, so hold, as do the following: Ambrose v. Allen, 113 Cal.App. 107, 113–115, 298 P.2d 169; Nagle v. City of Long Beach, 113 Cal.App.2d 669, 671, 248 P.2d 799; Allen v. Jim Ruby Construction Co., 138 Cal.App.2d 428, 434, 291 P.2d 991; Martin v. Ideal Packing Co., 156 Cal.App.2d 232, 236, 319 P.2d 95.

Men who are engaged to so conduct the operations of erecting a large new building that dangerous conditions shall not prevail, cannot expect that the general contractor or owner will supply them with a structure or partial structure which is safe at all stages. This thought applies as much to plaintiff as to the Mitchell workmen. He was accustomed throughout his job to walk girders and temporary flooring, for a material tower (upon which he was working) is designed to aid in delivering materials to the very men who were doing the Mitchell flooring work immediately preceding the accident.

The Kolburn case, supra, 38 Cal.App.2d 545, 101 P.2d 747, presents a close factual parallel to the situation at bar. Owens-Illinois Pacific Coast Company was owner and P. J. Walker Company general contractor. Plaintiff, a structural steel worker, was employed by the subcontractor and was engaged in work of altering an old building. He walked down a truss and stepped onto a corrugated metal sheet which gave way and precipitated him to a concrete floor. The court said, at page 549 of 38 Cal.App.2d, at page 749 of 101 P.2d:

‘Plaintiff relies for reversal of the judgment in favor of defendant P. J. Walker Company and Owens-Illinois Pacific Coast Company upon the proposition that the foregoing facts disclose that said defendants were negligent in maintaining the roof on the building above described, in that the corrugated iron roofing adjacent to and below that corrugated glass roofing which formed the skylight was not fastened at its upper end in any manner and that as a result thereof when plaintiff stepped upon it it pulled away from the purlin and permitted him to fall to the floor of the building. (Italics by court.)

‘This proposition is untenable. The rule is established in California that an invitee to an incompleted building in process of construction is invited to use such building in its then condition. In Ambrose v. Allen, 113 Cal.App. 107, 298 P. 169, 171, a case where the facts were analogous to those in the present case, after an exhaustive review of the authorities from other jurisdictions Mr. Justice Sturtevant at page 113 quoting from Cole v. L. D. Willcutt & Sons Co., 218 Mass. 71, 105 N.E. 461, 462, thus states the rule:

“* * * But the plaintiff contends that the defendant had invited him to use the stairs, and so owed him a duty to keep them in safe condition for his use. If there was such an invitation, it was merely to use them in the condition in which they were with whatever work was openly and plainly being done upon them.'

‘Since the authorities supporting the rule just mentioned and the reasons therefor are fully set forth in Ambrose v. Allen, supra, it is unnecessary for us to further discuss this subject. Suffice it to say that under the rule above stated plaintiff has failed to show any actionable negligence upon the part of defendants P. J. Walker and Owens-Illinois Pacific Coast Company.’

Respondent argues that Mitchell men had been doing the same kind of negligent work for some time, that it was known to John N. Jepson, Safety Engineer for California Division of Industrial Safety, and that he had talked with Mitchell's foreman about it and that Webb was also advised of the facts. It is true that Jepson, on December 13 (the day before the accident), addressed to appellant a notice to remedy unsafe conditions, but its only reference to the present subject is: ‘Fence in all small floor openings, or shaft openings, or cover same with material strong enough to safely carry any load which may be imposed upon it.’ This hardly suffices to bring home notice of a condition which did not occur until the next day or to point attention to the particular kind of negligence involved in this action. None of Jepson's prior written reports made any mention of floor holes or openings. The assertion of respondent's counsel that defendant Webb knew of persistent negligence on Mitchell's part finds no support in the record and counsel do not attempt to furnish supporting transcript references.

Appellant complains of six instructions given to the jury and claimed to be erroneous or misleading. But they need no discussion because of the reversal with instructions which we are ordering herein.

Appellant made a motion for a directed verdict which, for the reasons above indicated, was erroneously denied; it moved in the alternative for judgment notwithstanding the verdict and same was erroneously denied, and its motion for new trial was denied. It appears from the whole evidence that a verdict in favor of defendant-appellant should have been directed at the trial. It is therefore ordered, pursuant to § 629, Code of Civil Procedure, that the judgment and the order denying motion for judgment notwithstanding the verdict are reversed and the lower court is instructed to enter judgment in favor of defendant-appellant, Del E. Webb Construction Co., a corporation.

On Petition for Rehearing

In our opinion we said, at page 888, that ‘The assertion of respondent's counsel that defendant Webb knew of persistent negligence on Mitchell's part finds no support in the record and counsel do not attempt to furnish supporting transcript references.’ In the absence of such aid from respondent's counsel it was not our duty to search the elaborate transcript for evidence supporting claims so presented. They now attempt to mend their hold by arraying excerpts from the reporter's transcript which should have been presented in their briefs if they would support their assertions. This is not permissible practice.

Petition for rehearing denied.

FOOTNOTES

1.  Del E. Webb Construction Company will be herein called Webb, Mitchell Steel, Inc., Mitchell, and Patent Scaffolding Company will be designated as Patent.

ASHBURN, Justice.

FOX, P. J., and HERNDON, J., concur.

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