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District Court of Appeal, Fifth District, California.

Robert ALBER, Plaintiff and Appellant, v. C. William OWENS et al., Defendants and Respondents.

Civ. 679.

Decided: October 27, 1966

Bradford, Cross, Dahl & Hefner and William A. Wilson, Sacramento, for appellant. Rust & Hoffman, David C.Russ and Ellis J. Horvitz, Los Angeles, for respondents Parrish and Briggs.


After hearing evidence for seven days, the court granted a nonsuit followed by a judgment to the same effect.   The plaintiff and appellant, Robert Albert, was seriously injured when he fell from a balcony or platform at the second-story level of an apartment house, which was being constructed by the defendants;  at the time, he was in the course of performing necessary work preliminary to the pouring of concrete for the subcontracting firm of Alber & Van, Inc.;   the plaintiff's head was struck severely, resulting in brain injuries accompanied, incidentally, by retrograde amnesia.   There were no guard rails on the second-story platform from which he fell, and the trial court was of the opinion that, under the law and the facts as they existed, the plaintiff was guilty of negligence, which contributed proximately to his own injury.

 The defendants were the owners, developers and builders of the apartment house complex, and unquestionably owed a duty to furnish a safe place to work for the workmen of the subcontracting concrete corporation of Alber & Van, Inc.   The duty of the defendants in this respect clearly appeared from the evidence adduced by the plaintiff, and the granting of the nonsuit is not attacked by appellant on any such ground.   It was granted on one basis only, and the appeal must stand or fall on that issue alone;  the trial judge held as he did for the sole reason that the plaintiff, Robert Alber, president of the subcontracting firm of Alber & Van, Inc., also had the necessary duty, as statutory employer, to make sure that all employees of the subcontracting firm had a safe place to work, and that he was guilty of contributory negligence by his failure to observe that duty.

Section 6304 of the Labor Code defines employer as follows:

“Employer” shall have the same meaning as in section 3300 and shall also include every person having direction, management, control, or custody of any employment, place of employment, or any employee.

Section 6402 of the Labor Code expresses the general duty of due care to employees, which is binding on all employers:

“No employer shall required, or permit any employee to go or be in any employment or place of employment which is not safe.”

At the time of the accident, section 1616 of the Construction Safety Orders (Cal.Admin.Code, tit. 8, § 1616) * specified that:

“Railings shall be provided on all open sides and ends of a all built-up scaffolds, runways, ramps. rolling scaffolds, elevated platforms, or other elevations ten feet (10') or more above the ground, floor, or level underneath.”

(See Conner v. Utah Constr. v. Mining Co., 231 Cal.App.2d 263, 274, 41 Cal.Rptr. 728.)

 The evidence showed that at least a portion of the second-floor platform from which the plaintiff fell was more than ten feet about the ground, and it was a proper inference that this section of the safety order was applicable.   The plaintiff was actually doing the work of an employee of the subcontracting corporation on the project;  he also, at that time, owned the duty to comply with the necessary safety provisions.   He unquestionably had the direction, management, and control of the workmen of the subcontracting company, and, at that time, had the control of the place of employment within the meaning of section 6304 of the Labor Code.   In the circumstances, he had the nondelegable duty to make the place of employment a reasonably safe place to work, and he had completely failed to do so.   If permitted to recover in this action, he would be taking advantage of his own wrong.   If the defendants were liable for not furnishing a safe place to work for Mr. Albert, Mr. Alber himself was also negligent;  and the negligence of all parties proximately contributed to the accident and to his injury and damage.   Generally speaking, anyone who is himself guilty of negligence proximately contributed to his injury is barred from recovery from other persons who are also guilty of negligence proximately contributing his damage.  (35 Cal.Jr.2d, Negligence, § 210, pp. 731–734.)   The trial court was correct in its ruling;  the nonsuit must be affirmed.

In an extensive brief, counsel for the plaintiff argue that when Mr. Alber was hurt, he was acting as an employee only and should obliterate from their consciousness the fact that he owed a nondelegable duty to provide a safe place to work.   This argument might be effective in the future if the Legislature should see fit to follow it, but the law as it stands prevents recovery by Mr. Alber, because his own negligence contributed proximately to his injury.

In Conner v. Utah Constr. & Mining Co., supra, 231 Cal.App.2d 263, 41 Cal.Rptr. 728, Conner was an employee of Statewide Steel, the subcontractor, working on a tower at the Oakland Airport;  Utah Construction and Mining Company was the general contractor;  Conner was sent by his immediate employer, Statewide Steel, to work on a floor which was unprotected by safety rails;  Conner fell and was injured.   The jury returned a verdict in favor of Conner against Utah and a verdict in favor of Statewide against Utah for its liens for workmen's compensation;  the trial court granted Utah's motion for a judgment notwithstanding the verdict as to the second situation on the ground that, if a general contractor is held for the liability to the employee of a subcontractor, the employer subcontractor is also concurrently negligent as a matter of law, because the subcontracting employer has the primary, not the secondary, obligation to see that a safe place to work is provided.   The appellate court upheld the trial court's action in setting aside the jury's verdict, saying that the fact that Utah could have been found to be an employer with a nondelegable duty did not prevent Statewide from having a simultaneous nondelegable duty to see that the Labor Code and applicable safety orders were complied with.   The opinion confirmed that it was incumbent on Statewide to provide a reasonably safe place for Conner to work.

In the opinion in Jones v. McFarland Co-op Gin, Inc., 237 Cal.App.2d 94, 98, 46 Cal.Rptr. 572, 575, Justice Stone, for this court, said:

“An employer's liability, under Witt v. Jackson, 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641, is predicated on concurrent negligence, and the law of negligence is fashioned around the concept of the reasonable mind.   An employer who as a reasonable person should anticipate that his employee's work is likely to carry him into an unsafe place, cannot escape liability by simply turning his back, knowing that his employee is likely to be working there.”

Plaintiff's extended arguments do not alter the necessary conclusion that the trial court acted properly in holding that if the defendants were negligent in allowing the balcony to be worked upon without safety rails the plaintiff was concurrently negligent also.  (See Jackson v. Georgia-Pacific, Inc., 195 Cal.App.2d 412, 15 Cal.Rptr. 680;  Baldwin Contracting Co. v. Winston Steel Works, Inc., 236 Cal.App.2d 565, 46 Cal.Rptr. 421;  Kuntz v. Del E. Webb Constr. Co., 57 Cal.2d 100, 18 Cal.Rptr. 527, 368 P.2d 127.)

 Appellant finally contends that the presumption of due care arose in his favor, because he suffered from retrograde amnesia and could not recall his fall from the platform, and that this factor required that the case be submitted to the jury.   But, as stated in Scott v. Burke, 39 Cal.2d 388, 247 P.2d 313, and many other authorities, among them Smellie v. Southern Pacific Co., 212 Cal. 540, 553, 299 p. 529, the disputable presumption of due care is dispelled and disappears from the case, as here, when the plaintiff's own witnesses testify to facts which are wholly irreconcilable with it, “under circumstances which afford no indication that the testimony is the product of mistake or inadvertence.”   If respondents were negligent, the conduct and omissions of plaintiff, which make him contributorily negligent, were clearly proven.   He inspected the job site, directed an employee to perform the concrete work, and told him how to do it at the place where the work was to be completed.   Mr. Alber's negligence was the result of his omission to perform his duties as president, manager, and supervisor, and, hence, employer of his workman;  plaintiff's counsel stipulated that it was obvious to everyone that there were no guard railings at the job site.   This is not a situation for an application of the presumption of due care.

The order and judgment are affirmed.


FOOTNOTE.   The subject matter is now covered in the 1965 Construction Safety Orders by section 1621 of title 8 of the California Administrative Code.

CONLEY, Presiding Justice.

STONE and GARGANO, JJ., concur.

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