CORDET v. ROBERT CHRISTOPHER COMPANY

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Court of Appeal, Second District, Division 4, California.

Nikki CORDET, Plaintiff and Appellant, v. ROBERT CHRISTOPHER COMPANY, Defendant and Respondent.

Civ. B006025.

Decided: February 04, 1985

Moriarity, Baldwin & Hart, John L. Moriarity, Van Nuys, and Marc J. Poster, Los Angeles, for plaintiff and appellant. Spray, Gould & Bowers, James S. Link, Bower & Baraban and Jeffrey H. Baraban, Los Angeles, for defendant and respondent.

Plaintiff Nikki Cordet appeals from the judgment entered in favor of defendant Robert Christopher Company and against her.

CONTENTIONS

Plaintiff raises the following contentions on appeal:

“The trial court erred prejudicially in failing to instruct that a landowner has a nondelegable duty to maintain the property in reasonably safe condition.

“The trial court erred prejudicially in failing to instruct on the rebuttable presumption of negligence from violation of a safety statute.

“The trial court's instructions on ‘peculiar risk’ were hopelessly confusing and prejudicially misleading.”

FACTS

During the period in question, plaintiff's mother Janice McComey resided in an apartment building located at 314 North Curson Street in Los Angeles, California.   That building was owned by defendant Robert Christopher Company, a partnership, comprised of Robert Carangi and Josephine Carangi.   Mr. Carangi hired one Victor Vinney to paint and repair the subject building.

On the afternoon of November 5, 1975, plaintiff's mother left the building to go shopping.   She noticed workmen scraping the walls in the front entrance way, preparing to paint.   When she returned, she met plaintiff who was waiting for her outside the building.   They noticed two to three workmen sitting in front of the building drinking and smoking.

As they entered the building, they noticed the common entrance way was very dark.   Plaintiff followed her mother up the three stairs located in the common area near the front entrance.   As plaintiff placed her foot on the second step, she stepped on a tool, her body rolled and she fell.   After plaintiff fell, she and her mother noticed that the light fixtures in that portion of the common area had been disconnected.   They also noticed two tools on the floor between the front door and steps.

Thereafter, plaintiff filed a complaint for damages to recover for the injuries she sustained in the fall.   Defendant Robert Christopher Company answered that complaint denying any liability.   The matter was tried before a jury, which jury rendered a verdict for defendant.

DISCUSSION

I

Plaintiff first contends that “the trial court erred prejudicially in failing to instruct that a landowner has a nondelegable duty to maintain the property in reasonably safe condition.”   We find merit in this contention.

In the case at bench, the jury was given instructions from which it could conclude, on the basis of evidence received, that the common area of the apartment building was being painted by either an employee of defendant or by an independent contractor who was hired by defendant.

The jury was also instructed that in the event it determined that the painting was being done by an employee of defendant who was acting within the scope of his employment, then any act or omission of that employee was an act or omission of defendant.   It was further instructed that if it determined that the painting was being done by an independent contractor that “[g]enerally, an employer of an independent contractor is not liable to others for any negligence of an independent contractor.”

Plaintiff urges that the trial court erred by refusing to give her proffered instruction that “[t]he duty which an owner of property owes to others to put and maintain it in a reasonably safe condition is non-delegable.   If an independent contractor or employee no matter how carefully selected is employed to perform work on the property, the owner is answerable for harm caused by the negligent failure of his workman to put or maintain the buildings and structures in reasonably safe condition, irrespective of whether the workman's negligence lies in his incompetence, carelessness, inattention or delay.”

 The trial court instead instructed the jury that “if the work done is likely to create a ‘peculiar risk’ of harm during its progress unless special precautions are taken, the employer is liable for any negligence of the independent contractor.” 1

 “[A]n employer of an independent contractor is ordinarily not liable to third persons for losses attributable to the negligence of the independent contractor;  this doctrine of nonliability ‘is founded on the principle that one person should not be compelled to answer for the fault or neglect of another over whom he has no control, and that the employer has a right to rely on the presumption that the contractor will discharge his legal duties owing to his employees and third persons.’  (57 C.J.S., Master and Servant, § 584, p. 355.)”  (Harold A. Newman Co. v. Nero (1973) 31 Cal.App.3d 490, 496, 107 Cal.Rptr. 464;  see Prosser, Torts (5th ed. 1984) § 71, p. 509;  2 Harper & James, Law of Torts (1956) § 26.11, p. 1395.) 2

 The many exceptions to that rule, however, make its application proper in only limited circumstances.  (Widman v. Rossmoor Sanitation, Inc. (1971) 19 Cal.App.3d 734, 743, 97 Cal.Rptr. 52.)   The determination that the land possessor-employer of an independent contractor has a “nondelegable” duty results in a conclusion that he is held responsible for the contractor's negligence in performing tasks which are encompassed within that duty.  (See Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 251, 66 Cal.Rptr. 20, 437 P.2d 508;  Pappas v. Carson (1975) 50 Cal.App.3d 261, 268–269, 123 Cal.Rptr. 343;  Anderson v. Chancellor Western Oil Dev. Corp. (1975) 53 Cal.App.3d 235, 239, 125 Cal.Rptr. 640.)

 The law is clear that a landlord cannot delegate to an independent contractor its duty to maintain in a reasonably safe condition the common areas of an apartment building over which that landlord retains control.  (Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256, 260–261, 143 P.2d 929;  see also Yazzolino v. Jones (1957) 153 Cal.App.2d 626, 633–634, 315 P.2d 107;  Rest.2d Torts, § 421.)   The law is less than clear, however, as to the extent this rule subjects the land possessor-employer of an independent contractor to liability when the negligence of the independent contractor occurs during the progress of the work and not from a defective condition of the finished product.

The Restatement provides in pertinent part that “an employer of an independent contractor, unless he is himself negligent, is not liable for physical harm caused by the negligence of the contractor if [¶] (a) the contractor's negligence consists solely in the improper manner in which he does the work, and [¶] (b) it creates a risk of such harm which is not inherent in or normal to the work, and [¶] (c) the employer had no reason to contemplate the contractor's negligence when the contract was made.”  (Rest.2d Torts, § 426.)   This is commonly referred to as the “collateral” or “casual” negligence rule.

 An employer of an independent contractor is, however, subject to liability for the acts or omissions of the independent contractor occurring during the performance of work which involves a peculiar risk of harm in the absence of the taking of special precautions.  “ ‘A peculiar risk is a risk which is peculiar to the work to be done and arises out of its character or the place where it is to be done, and against which a reasonable person would recognize the necessity of taking special precautions.’  (Griesel v. Dart Industries, supra [1979], 23 Cal.3d [578] at p. 586 [153 Cal.Rptr. 213, 591 P.2d 503];  Rest.2d Torts, §§ 413, com. b., 416, com. b.)   It is something other than the ordinary and customary dangers which may arise in the course of the work or of normal human activity.  ‘ “Peculiar” does not mean that the risk must be one which is abnormal to the type of work done, or that it must be an abnormally great risk.   It has reference only to a special, recognizable danger arising out of the work itself.’  [Fn. omitted.]  (Rest.2d Torts, § 413, com. b.)”  (Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 502, 509, 156 Cal.Rptr. 41, 595 P.2d 619.)

Defendant urges that the trial court properly refused to give the subject instruction arguing that “liability does not arise where the victim is injured from the [independent contractor's] performance of the details of the work.”   Defendant seeks to categorize any negligence of an independent contractor which causes injury during the performance of the work and which is not the result of a peculiar risk as collateral or casual negligence which precludes a landlord-employer from being subject to liability for the acts or omissions of an independent contractor.

 We disagree.   A landlord-employer may be liable for an act or omission of an independent contractor which causes injury during the course of his work if that act or omission is encompassed within the landlord-employer's nondelegable duty to maintain the common areas of the premises in a reasonably safe condition.   This liability exists regardless of whether the contractor's acts or omissions fall within the peculiar risk doctrine.

In support of its assertion, defendant relies on a line of cases exemplified by McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 285 P.2d 902 and Smith v. Lucky Stores (1976) 61 Cal.App.3d 826, 132 Cal.Rptr. 628.   These cases are each distinguishable from the case at bench and are therefore not controlling.

In McDonald, plaintiff was an employee of an independent contractor that had been hired by defendant Shell.   Plaintiff sued Shell for injuries he sustained while working on the job for which the contractor had been retained.   Those injuries were caused by the malfunction of a tool belonging to that contractor which had been maintained in a negligent manner by another employee of the contractor.   The court found that the employer Shell was not liable, in part because “[t]his [was] not a case where the employee of the independent contractor was injured by some condition of the owner's premises over which the owner remained in control, and where the owner's duties to the employee were those owing to a business invitee.”  (44 Cal.2d 785, 791, 285 P.2d 902.)

As distinguished from McDonald, the plaintiff in the case at bench was injured, at least in part, as a result of a condition of the inadequately lighted common area of the owner's premises over which the owner remained in control.

 It is this retention of control of the common area of the apartment building that is the basis for finding that defendant had a nondelegable duty for the condition of that area during the progress of the work.   Defendant, by implication, would have us adopt a rule whereby an independent contractor automatically assumes exclusive control of the general area in which he is doing work.   This we may not do, for such a rule would abrogate the nondelegable duty of a landlord to exercise ordinary care to keep the common areas of the building in a reasonably safe condition.

In Williams v. Fairhaven Cemetery Assn. (1959) 52 Cal.2d 135, 338 P.2d 392, the court did indicate that in limited circumstances an independent contractor could assume the duty of a landowner to keep the premises in a safe condition.   In Williams, defendant hired an independent contractor to operate its hotel having full management and control thereof.   The contractor agreed to keep the hotel in good condition and to carry liability insurance.   Plaintiff, an employee of the contractor, was injured when a water heater exploded.   The water heater was being worked on in a negligent manner by another employee of the contractor.   In finding that the defendant was not liable for the negligence, the court reasoned that “[p]laintiff was an employee of [the contractor], which by agreement had assumed the duty of maintaining the hotel in a reasonably safe condition.   At the time [the contractor] assumed that duty the premises and equipment were in a safe condition.”  (Id., at pp. 139–140, 338 P.2d 392.)   The court concluded that defendant did not authorize the repair of the water heater and “defendant exercised no control over the repair and maintenance of the hot water system in the hotel.   Therefore, defendant was not liable.”  (Id., at p. 140, 338 P.2d 392.)   Because the record in this case is devoid of evidence that the worker here made any “Williams type” assumption of control of the apartment building, that case is distinguishable from the case at bench.

 Accordingly, while defendant landlord kept the subject common area of the apartment building open to the tenants, their guests and others during the course of the work, defendant continued to have a duty to use ordinary care to maintain it in a reasonably safe condition.   Defendant could not delegate that duty to an independent contractor, as long as it remained in control of the premises.

A clear explanation of the reasoning for this rule is found in Bailey v. Zlotnick (D.C.App.1945) 149 F.2d 505, 506, wherein the court stated that “the liability of an employer for harm caused by the negligence of an independent contractor depend[s] on whether the employer had a duty to the person injured which the independent contractor failed to perform on his behalf.   If such a breach of duty actually resulted from the work of the independent contractor the landlord may not escape liability since liability for non-performance of a duty may not be shifted to another.   According to this principle it is immaterial whether the breach of the employer's duty occurred during the progress of the work or from a defective condition of the work after it was finished.”  (See also Bowater v. Tassey (1947) 81 Cal.App.2d 651, 184 P.2d 931.)

Merely because the injury is not the result of a peculiar risk does not change this result.3  While at first blush a line of cases exemplified by Smith v. Lucky Stores, supra, 61 Cal.App.3d 826, 132 Cal.Rptr. 628, might appear to support defendant's position, a closer reading reveals the flaw in its assertion.

In Smith, defendant owned a market.   It hired an independent contractor to remove a sign.   The contractor safely lowered the sign so that it came to rest on the ground.   As plaintiff walked past, and after the sign was at rest on the ground, an employee of the contractor negligently released the sign and a gust of wind blew it on to plaintiff, causing her injuries.   The court reasoned:

“Plaintiff's problem in this case is not the existence of a theory under which defendant would have been liable to her, had she been injured while [the contractor's] equipment was lowering the letter from defendant's store across the sidewalk onto the ground.   The trouble with her case is that it is a textbook example of ‘collateral’ or ‘casual’ negligence by an employee of the independent contractor for which the employer is universally held to be not responsible.   This doctrine rests on the premise that where harm results from a risk other than the one which makes the employer liable for the negligence of the independent contractor, the reason for imposing such liability no longer applies.   Or, as is stated in 2 Harper and James, The Law of Torts, section 26.11, page 1410:  ‘Where the duty is nondelegable because of the inherently dangerous character of the work, conduct is “collaterally negligent” when it does not involve the risks that made the work peculiarly dangerous.’

“The concept that there must be a relationship between the particular act of negligence of the independent contractor and the peculiar risk which justifies a departure from the general rule of nonliability, was recognized in California at least 60 years ago.   In Schmidlin v. Alta Planing Mill Co., 170 Cal. 589 [150 P. 983], employees of an independent contractor were using an empty scaffold to raise a paint bucket to the top of a building.   It fell and struck the plaintiff.   Conceding, for the sake of argument, that the character of the work being done was ‘inherently dangerous,’ a judgment of nonsuit in favor of the employer was nevertheless affirmed because the painters' negligence with respect to the manner of raising the bucket ‘formed no attribute, part, or characteristic of the work itself.’  (Ibid., at p. 592, 150 P. 983.)”  (Smith v. Lucky Stores, supra, 61 Cal.App.3d at pp. 829–830, 132 Cal.Rptr. 628;  fns. omitted.)

 As distinguished from Smith, plaintiff's injury in the case at bench did not result from a risk other than the one which would make the landlord liable for the independent contractor's negligence.   In Smith, the sole theory upon which defendant could be held liable was by reason of the “peculiar-risk doctrine.”   Accordingly, because plaintiff was injured during the course of the work due to a risk that did not fall within that doctrine, it follows that that injury as a matter of law was the result of casual or collateral negligence.

In the case at bench, however, one of the bases of defendant's alleged liability was its breach of a nondelegable duty to exercise ordinary care to maintain the common areas of the apartment building in a reasonably safe condition.   Consequently, even though plaintiff's injury did not result from a peculiar risk, defendant is not absolved from liability.   An example of collateral negligence within this setting would be any injury which results from the independent contractor's negligence, which does not affect the condition of the premises;  e.g., a paint brush slips from the contractor's hand, strikes and injures plaintiff.

 In the case at bench there was sufficient evidence from which the jury could have properly concluded that plaintiff was injured by a condition of the common area of the apartment building which area remained in control of defendant.   Accordingly, the trial court prejudicially erred by refusing to give the instruction proffered by plaintiff which provided that defendant had a nondelegable duty to use ordinary care to maintain those common areas in a reasonably safe condition.

For the trial court's guidance in the event of a retrial, we discuss plaintiff's other contentions.

II

Plaintiff contends that the trial court erred prejudicially by refusing to give plaintiff's proffered instruction on the rebuttable presumption of negligence for the violation of a safety statute.   At trial, the court instructed the jury that “[i]n every apartment house there shall be installed and kept burning, sunrise to sunset, throughout the year, artificial light sufficient in volume to properly illuminate every public hallway, and public stairway, whenever there is insufficient natural light to permit a person to read in any part thereof.”

In conjunction with that instruction, plaintiff requested that the court also instruct the jury that “[i]f you find that a party to this action violated the [statute] [ordinance] [safety order] just read to you [and that such violation was a proximate cause of injury to another or to himself], you will find that such violation was negligence unless such party proves by a preponderance of the evidence that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.”   The court refused to give this instruction.

Evidence Code section 669, provides in part:

“(a) The failure of a person to exercise due care is presumed if:

“(1) He violated a statute, ordinance, or regulation of a public entity;

“(2) The violation proximately caused death or injury to person or property;

“(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent;  and

“(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

“(b) This presumption may be rebutted by proof that:

“(1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law;  ․”

 The first two elements of this standard are factual issues to be determined by the trier of fact, while the second two elements are matters of law to be determined by the trial court.  (Cade v. Mid-City Hosp. Corp. (1975) 45 Cal.App.3d 589, 597, 119 Cal.Rptr. 571.)   The determination of whether the defendant was excused or justified in his conduct is generally a factual question.  (Fuentes v. Panella (1953) 120 Cal.App.2d 175, 183, 260 P.2d 853.)

The “[r]efusal to give an instruction adequately covering a party's theory which is supported by substantial evidence is inherently prejudicial error.  [Citations.]   In deciding whether a trial court erred in refusing a requested instruction, the evidence should be viewed in a light most favorable to the appellant.”  (Ng v. Hudson (1977) 75 Cal.App.3d 250, 254, 142 Cal.Rptr. 69.)

Defendant first urges that plaintiff was not entitled to an instruction for negligence per se because the statute she relied upon was no longer in existence at the time of the accident.   The source of plaintiff's instruction on the duty to keep the hallways and stairways of an apartment building illuminated was section 66 of the State Housing Act.4

As defendant correctly explains, that section was later embodied in former Health and Safety Code section 17819.  (Stats.1939, ch. 60, § 17819, p. 936.)   In 1961, the Legislature repealed division 13 of the Health and Safety Code including section 17819.   In so doing, the Legislature provided:  “The provisions of Part 1 (commencing with Section 15000) of Division 13 of the Health and Safety Code, with the exception of Chapter 3 (commencing with Section 15250) and Chapter 28 (commencing with Section 17900) of such Part 1, are continued in effect as rules and regulations of the Department of Industrial Relations, Division of Housing, and shall remain in effect as such rules and regulations until amended or repealed pursuant to the State Housing Law.”  (Stats.1961, ch. 1844, § 14, p. 3927.)

The Department of Housing and Community Development replaced the Department of Industrial Relations.  (See Health and Saf.Code, § 17920, subd. (d).)  Thereafter, and prior to the happening of the accident which is the subject of this appeal, that department adopted rules and regulations which are contained in title 25 of the California Administrative Code.   That title contains no regulation dealing with the duty of an apartment building owner to adequately light public hallways and stairways.   Defendants urge that this is an implied repeal of Health and Safety Code section 17819 which was later made into a regulation.

 In support of this assertion, defendant relies upon Meyers v. Board of Supervisors (1952) 110 Cal.App.2d 623, 629, 243 P.2d 38, wherein the court explained that “[w]here it clearly appears that the intention of the legislative body is to revise in the later act the entire subject matter of the former one, the later act operates as a repeal of the former although it contains no express words to that effect.”   We see nothing in title 25 of the California Administrative Code which demonstrates any such clear intention to revise the entire subject matter covered by former Health and Safety Code section 17819.   Accordingly, that section continues to remain in effect as a state housing law regulation as it was not “amended or repealed pursuant to State Housing Law.”  (Stats.1961, ch. 1844, § 14, p. 3927.)

Defendant next urges that “[e]ven if the statute still exists, the record shows no prejudicial error in the refusal to instruct on negligence per se.”   Defendant claims that the record contains evidence which proves that it lacked any control over the operative details of the subject work, that it did not know of the alleged defective condition and that its lack of knowledge was reasonable because that condition existed for a maximum of one and one-half hours.

 A landlord's actual or constructive knowledge of the condition of the premises which condition is violative of a safety statute is an important factor in determining whether that landlord is negligent per se.  (See Harris v. Joffe (1946) 28 Cal.2d 418;  424–425, 170 P.2d 454;  Busby v. Silverman (1947) 82 Cal.App.2d 393, 399, 186 P.2d 442.)   The evidence alluded to by defendant which shows that it had no actual notice of the condition of the premises is not, however, dispositive of this issue.

 In this nondelegable setting, the landlord-employer's liability is premised upon the negligent acts of the contractor.   Accordingly, the true issue is whether the landlord would be negligent per se had it performed those acts which were taken by the contractor.   In the case at bench there is sufficient evidence from which the jury could have found that defendant would have been negligent per se in such a case.   Accordingly, the trial court prejudicially erred by refusing to give the proffered negligence per se instruction.

III

 Plaintiff's final contention is that “the trial court's instructions on ‘peculiar risk’ were hopelessly confusing and prejudicially misleading.”   The trial court on its own instructed the jury that “[a] ‘peculiar risk’ is one which arises out of the character of the work to be done, or the place it is to be done, and against which a reasonable person, with the knowledge and experience of the defendant, would recognize the necessity of taking special precautions.   It is something other than the ordinary and customary dangers normally arising from the work as it is usually done.”

 This instruction is extracted from Mackey v. Campbell Construction Co. (1980) 101 Cal.App.3d 774, 162 Cal.Rptr. 64, and is correct in law.   At trial, plaintiff acquiesced in the giving of this instruction.   She did not offer any additional or clarifying instruction to clarify what she perceived was too confusing or prejudicially misleading about it.   She has, accordingly, waived any prejudice she may have suffered by its allegedly confusing or misleading nature.  (4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 194, p. 3013 and Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 519, 523, 113 Cal.Rptr. 277.)

The judgment is reversed.

FOOTNOTES

1.   It should be noted that the jury rendered a general verdict in this case.  “[S]uch a verdict imports findings in favor of the prevailing party on all material issues [citations];  that if the evidence supports implied findings on any set of issues which will sustain the verdict it will be assumed that the jury so found [citation];  that the court on appeal does not have to speculate on what particular ground the jury may have found in favor of the prevailing party․”  (Thomson v. Casaudoumecq (1962) 205 Cal.App.2d 549, 555, 23 Cal.Rptr. 189.)We review the merits of this contention because the record on appeal contains insufficient evidence to support an implied finding that plaintiff's injuries were not the result of the negligent conduct of those individuals who were doing work for defendant.   There is sufficient evidence to support an implied finding that defendant was not personally negligent and that the individuals who were doing the work for defendant were independent contractors and not its employees.

2.   This rule has no application where the issue is one of the employer's own negligence;  e.g., where the employer negligently hires the independent contractor.  (Cf. Caswell v. Lynch (1972) 23 Cal.App.3d 87, 91, 99 Cal.Rptr. 880.)

3.   At oral argument appellant conceded, as we shall conclude, that the peculiar risk doctrine is not applicable in this case.

4.   Plaintiff, for the first time in her reply brief, refers to other ordinances which contain similar provisions to section 66.   Because these ordinances were not presented to the trial court, we do not consider them in determining the propriety of the trial court's ruling.   Upon any retrial, plaintiff may present these ordinances for the trial court's determination of their applicability.

McCLOSKY, Associate Justice.

WOODS, P.J., and BRECKENRIDGE, J.*, concur.

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