GONZALES v. Vienna Stonecraft, Inc., a corporation, Cross-Defendant and Appellant. (1977)

Ben Gonzales sued R. J. Novick Construction Company (Novick) for personal injuries suffered when he was working for Vienna Stonecraft, Inc. (Vienna), a subcontractor of Novick.¹ Novick cross-complained against Vienna for indemnity. The trial was trifurcated, with the liability issue tried before a jury, the cross-complaint before the court, and damages before the jury. A verdict was entered for plaintiff and against Novick in the amount of $111,500, from which there was a set-off of a $12,578 workers' compensation payment. On the cross-complaint, the trial court found for Novick against Vienna for $98,922 plus interest and costs. Vienna appeals from the judgment on the cross-complaint, and Novick cross-appeals from the judgment for plaintiff.²

FACTS:

On April 25, 1972, Ben Cruz Gonzales was a brick tender working for Vienna Stonecraft on a construction project in the San Fernando Valley. According to Gonzales' testimony, Harold Eklund, foreman for Vienna, told him to ‘hurry up and get the mud boards and stands over to the north wall; the bricklayers are going to be there.'³ Gonzales picked up the mud boards and mud stands and started walking on the north wall scaffold. Since bricks were lying in the portion of the planks nearest to the wall, Gonzales was forced to walk on the outside planks. A plank gave way under him, and he fell on a cement floor. He testified that he first realized there were no handrails on the scaffold when he fell down. The accident apparently was caused by incorrect overlapping of planks.

Vienna Stonecraft, Gonzales' employer, was in charge of building the scaffolding. Eklund was in charge of the laborers; he would check scaffolds.⁴ Randy Wineinger, who was the job superintendent for Novick, testified that he would bring a dangerous condition to the attention of Eklund and would stay with it until he saw that it was corrected. Safety was one of his duties on the job sites; this duty included inspecting the premises daily. He would usually report safety hazards to Eklund and have them corrected immediately; if he could correct them himself, he would do so if it needed to be done immediately.⁵ Franz Neuwirth, president of Vienna, testified that he assumed Wineinger checked for safety.

CONTENTIONS ON APPEAL:

Appellant Vienna Stonecraft, Inc., contends:

1. There is no liability of an employer to indemnify for injuries to its employee unless there is a written agreement so to do.

2. Agreements for indemnity for sole negligence of a contractor are void and unenforceable.

3. An indemnitee is not entitled to indemnity when actively negligent if the indemnity agreement does not refer expressly to negligence.

Cross-appellant Novick first asserts that the indemnity agreement was valid in all respects and that substantial evidence supports the determination that Novick was entitled to indemnity. Novick states, however, that if Vienna is successful in its appeal from the judgment on the cross-complaint, then only should we consider Novick's additional contentions that Novick was not negligent and that the jury verdict finding Novick negligent was based on erroneous instructions given by the trial court.

However, in our opinion, the underlying issue of negligence on the part of Novick is so basic to the entire lawsuit that it must be examined and determined first. The matter has been properly brought to our attention. We are not limited by Novick's ‘conditions' of its cross-appeal. If there is no negligence on the part of Novick, then there is no liability and thus no need for indemnity. It would be wrong to allow an erroneous judgment of Novick's liability to stand simply because there is someone else from whom Novick may collect. Novick as cross-appellant asserts in its brief ‘only the presence of indemnity from Vienna prevents this case from becoming a gross miscarriage of justice.’ We view both the finding of Novick's tort liability, as well as the passing of the total tort liability on to the employer Vienna, unjust and improper. That finding of liability and fault of Novick is nothing less than a fiction and a sham. There is no substantial evidence that Novick was negligent, passively or actively. The jury's giving to the badly injured workman a recovery in tort against Novick was the result of sympathy compounded by error of the trial court in instructing the jury. Novick contends in its cross-appeal that the instructions on federal OSHA regulations, and on peculiar risk theory were error. We agree.

DISCUSSION:

1. The negligence if any here was entirely that of Vienna's employees, whose duties included erecting the scaffold.

Novick should not be held responsible for any negligence of Vienna. Here unlike other reported cases involving general contractors such as Herman Christensen & Sons, Inc. v. Paris Plastering Co., 61 Cal.App.3d 237, 132 Cal.Rptr. 86, and cases cited therein, the general contractor Novick did not provide or erect and was not required to provide or to erect a scaffold. It was not required to supervise, direct, or inspect the erection of the scaffold.

Although the general rule that the employer of an independent contractor is not liable to third parties for the contractor's negligence has been virtually engulfed by its exceptions (Holman v. State of California, 53 Cal.App.3d 317, 327, 124 Cal.Rptr. 773), it nevertheless remains true that the general contractor's conduct must fall within some one of those exceptions to ground liability. No such exception is present here. There is no evidence that Novick negligently employed an incompetent subcontractor, nor were there any plans or specifications prepared by Novick that negligently required something to be done which is inherently dangerous or wrong. (Widman v. Rossmoor Sanitation, Inc., 19 Cal.App.3d 734, 743, 97 Cal.Rptr. 52.) Neither is this a case in which the general contractor's liability is predicated on a dangerous condition of the premises which constitutes a hazard to all employees on the premises. (Kuntz v. Del. E. Webb Constr. Co., 57 Cal.2d 100, 105, 18 Cal.Rptr. 527, 368 P.2d 127.)

That leaves two other exceptions. Liability of general contractors may sometimes be predicated on a finding of ‘nondelegable duty’ owed by reason of a special situation created by statute, common law, franchise or contract. (West v. Guy F. Atkinson Constr. Co., 251 Cal.App.2d 296, 300, 59 Cal.Rptr. 286.) Absent the federal statute erroneously injected into the case by plaintiff, there is clearly no basis for applying this exception here.

The remaining exception to the general rule of nonliability is the ‘peculiar risk’ doctrine of Restatement of Torts, 2d, § 416 (see Van Arsdale v. Hollinger, 68 Cal.2d 245, 251, 253, 66 Cal.Rptr. 20, 437 P.2d 508). This concept, too, has no place where the plaintiff is a subcontractor's employee suing for injuries caused by the subcontractor's equipment used in an ordinary manner.

2. The court erred in instructing that the Federal Occupational Safety and Health Act (OSHA) created a duty.

The jury was first told that OSHA requires every employer to furnish his employees a place of employment free from recognized hazards and then that federal law imposes many sorts of regulations upon ‘scaffolds such as that involved in this accident.’

This was followed by BAJI 13.22:

‘One who is under a duty to provide specified safeguards or precautions or to maintain certain equipment in a specified condition, is subject to liability for harm proximately caused to others by the omission of a contractor employed by him to provide such safeguards or precautions or by the failure of such contractor to put such equipment in the condition so required.

‘Thus, if you find that the contractor employed by the defendant omitted to provide the specified safeguards or precautions or failed to put defendant's equipment in the condition required and that such omission or failure was a proximate cause of plaintiff's injury, you will find that defendant is subject to liability for plaintiff's injury unless defendant proves by a preponderance of the evidence that such omission or failure was not due to any negligence on the part of such contractor.’

The error of giving the OSHA instruction was compounded by the giving of BAJI No. 13.22. It was error because there was and is no common law, statutory or other legal duty on the landowner R & D, or on Novick the prime contractor to provide any scaffold. Neither of them undertook to provide the scaffold. Thus as to Novick, with whom we are here concerned, BAJI 13.22 was totally inapplicable. Nothing about the scaffolding which Novick was not obligated to provide was the business or obligation of Novick. Wineinger, Novick's employee, testified that he would report dangers that he in fact might discover. That voluntary and reasonable effort should not be used against Novick. The willingness to be helpful and to report does not amount to an assumption of duty affirmatively to seek and discover defects in the results or work products of another who is responsible for such results and/or work products. There is no evidence that plaintiff or his employer Vienna expected, or relied on, the voluntary inspection or that plaintiff was thereby misled to enter an unknown risk or danger.

The instructions could only have conveyed to the jury the mistaken notion that Novick must be found liable for violation of the duties supposedly imposed by federal law. Thus, the error was necessarily prejudicial.

“[w]here it seems probable that the jury's verdict may have been based on the erroneous instruction prejudice appears and [the reviewing] court ‘should not speculate upon the basis of the verdict.” [Citations.]’ (Henderson v. Harnischfeger Corp., 12 Cal.3d 663, 670, 117 Cal.Rptr. 1, 5, 527 P.2d 353, 357.)

Such an application of OSHA violates both the express purpose of that statute and the clear intention of the California Legislature to eliminate the entire theory of employer's liability for personal injuries to employees based on duties inferred from safe place to work statutes.

3. The federal statute specifically disclaims any intent to affect state civil remedies or liabilities.

It clearly was not intended by congress that OSHA create a form of statutory tort liability, nor affect in any manner preexisting rules of employer tort liability. Rather, the purpose of OSHA is purely remedial; the law is intended to promote employee safety by a system of penalties for unsafe practies, enforced by administrative procedures. (Brennan v. Occupational Safety & Health Review Com'n., 491 F.2d 1340, 1343–1344 (2d Cir. 1974).) Congress recognized the potential for OSHA to disrupt or alter state remedies and liabilities, and therefore added the following proviso to the statute:

‘Nothing in this chapter shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.’ (29 U.S.C.A. § 653(b)(4).)

OSHA cannot be used to enlarge a general contractor's liability for injuries to employees of a subcontractor under existing state law. (Hare v. Federal Compress and Warehouse Company, 359 F.Supp. 214, 218–219 (D.C.Miss.1973). See also Jeter v. St. Regis Paper Co., 507 F.2d 973, 977 (5th Cir. 1975); Frohlick Crane Serv., Inc. v. Occupational S. & H. R. C., 521 F.2d 628, 631 (10th Cir. 1975).)

The OSHA standards read to the jury are not the law in California. Apparently to avoid overlap and potential conflict with state industrial safety statutes, Congress created a reverse preemption scheme:

‘(b) Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated under section 655 of this title shall submit a State plan for the development of such standards and their enforcement.’ (29 U.S.C.A. § 667(b).) (See American Fed. of Labor & Cong. of Ind. Org. v. Brennan, 390 F.Supp. 972, 973 (D.C.D.C.1975).)

In response, California enacted its own OSHA statute. (Part I of Division Five of the California Labor Code (§ 6300 et seq., hereinafter ‘Cal-OSHA.’) Thus the only applicable safety regulations are those contained in the California Labor Code or promulgated under authority granted therein. However, by its own terms the California OSHA standards cannot be used to create or constitute evidence of employers' duties in negligence cases.

4. The California statute forbids the use of statutory safety regulations in personal injury actions.

The 1971 amendment to the Labor Code provides:

‘It is the intent of the Legislature that the provisions of this division shall only be applicable to proceedings against employers brought pursuant to the provisions of Chapter 3 (commencing with section 6500) and 4 (commencing with section 6600) of Part 1 of this division for the exclusive purpose of maintaining and enforcing employee safety.

‘Neither this division nor any part of this division shall have any application to, nor be considered in, nor be admissible into, evidence in any personal injury or wrongful death action arising arising after the operative date of this section, except as between an employee and his own employer.’ (Lab.Code, § 6304.5; Stats.1971, ch. 1751, p. 3780, operative April 1, 1972.)6

The legislative history of section 6304.5 leads as directly to the conclusion that the instructions given here were erroneous as do the literal words of the statute. A long line of decisions (see, for exhaustive collection of authorities, Mezerkor v. Texaco, Inc., 266 Cal.App.2d 76, 84–87, 72 Cal.Rptr. 1) held that general contractors who met Labor Code section 6304's definition of employer were under a statutory duty to provide a safe place to work and to comply with the Labor Code's safety standards; these statutory duties were in addition to and greater than any common law duty. (Souza v. Pratico, 245 Cal.App.2d 651, 657, 54 Cal.Rptr. 159; Atherley v. MacDonald, Young & Nelson, 142 Cal.App.2d 575, 298 P.2d 700; 4 Witkin, Summary of Calif.Law (8th ed.), Torts, § 657.) In other words, the Labor Code formerly created, in effect, a tort distinguishable from common law negligence.

By amending the Labor Code to prohibit any reference to, or reliance on, its provisions in tort actions, the Legislature intended to eliminate such statute-founded torts⁷ as the basis of liability in third party tort cases such as that at bench.

“It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them. [Citations.]” (Estate of McDill, 14 Cal.3d 831, 839, 122 Cal.Rptr. 754, 758, 537 P.2d 874, 878.)

Telling the jury about ‘duties' and ‘requirements' which both federal and state statutes expressly removed from consideration was clearly prejudicial error by the trial court.

5. Instruction of the peculiar risk theory was improper as a matter of law.

Instruction on another exception to the nonliability rule was equally inappropriate. This instruction, based on the peculiar risk doctrine of Restatement of Torts 2d, sections 413 and 416, was read to the jury:

‘Ordinarily, one who employs an independent contractor is not liable for the acts or omissions of such contractor or its employees. However, there are exceptions to the general rule. One who employs an independent contractor to do work which the employer should recognize as necessarily requiring the creation during its progress of a condition involving a peculiar risk of bodily harm to others, unless special precautions are taken, is subject to liability for bodily harm proximately caused to them by the failure of the contractor to exercise reasonable care to take such precautions unless the employer himself had taken reasonable precautions against such a risk.’

This war error because scaffolds are not a peculiar risk. ‘. . . the use of a scaffold . . . does not constitute an inherently dangerous or peculiar activity . . ..’ (Anderson v. Chancellor Western Oil Dev. Corp., 53 Cal.App.3d 235, 243, 125 Cal.Rptr. 640, 645, citing Hard v. Hollywood Turf Club, 112 Cal.App.2d 263, 275, 246 P.2d 716. See also Addison v. Susanville Lumber, Inc., 47 Cal.App.3d 394, 404, 120 Cal.Rptr. 737.)

““[T]he principle [of inherently dangerous activites—unreasonable risk of physical harm—need for special precautions] seems to be limited to work in which there is a high degree of risk in relation to the particular surroundings, or some rather specific risk or set of risks to those in the vicinity, recognizable in advance as calling for definite precautions. The emphasis is upon the ‘peculiar’ character of the risk, and the need for special, unusual care.”” (Anderson v. Chancellor Western Oil Dev. Corp., supra, 53 Cal.App.3d at p. 241, 125 Cal.Rptr. at p. 643.) (Emphasis original.)

Every type of work involves a variety of risks of harm. Thus in order that the concept of the peculiar character of a risk have a less than arbitrary definition it is necessary to eliminate from the ambit of that concept the risks normally associated with a job.

‘[Section 416] is not concerned with the taking of routine precautions, of a kind which any careful contractor could reasonably be expected to take, against all of the ordinary and customary dangers which may arise in the course of the contemplated work. Such precautions are the responsibility of the [sub] contractor; . . .’ (Addison v. Susanville Lumber, Inc., supra, 47 Cal.App.3d at 401, 120 Cal.Rptr. at 741 (quoting in part Comment b to Restatement of Torts 2d, § 416, emphasis deleted.)

There was nothing unusual, uncommon or of special danger in the manner in which Vienna used its own equipment—the scaffold. There was nothing unusual about the site where the scaffold was placed nor the purpose for which it was to be used. In point of fact the independent contractor, Vienna, used scaffolds constantly in its work, so much so that it had its own scaffolds rather than renting or leasing them. It brought its own scaffolds to the job involved in this case and provided its own crew to set them up. Whatever was wrong with the scaffold—and there was evidence it was either improperly set up or just incomplete—responsibility for those details was clearly with Vienna's own crew, which was in charge of completing the scaffold.

Where an independent contractor uses a scaffold as a customary and regular tool of his trade the fact that it was erected improperly or in an incomplete manner is not a ‘peculiar risk’ contemplated in section 416. Instead, the necessity of properly erecting the scaffold so as to include guard rails and proper planking was nothing more than a routine precaution, and the dangers involved in working on the scaffold were “ordinary and customary dangers which may arise in the course of the contemplated work.” (Addison v. Susanville Lumber, Inc., supra, 47 Cal.App.3d at p. 401, 120 Cal.Rptr. at p. 741.) (Emphasis omitted.)

Two recent reported decisions also involving the use of scaffolds and wherein the injured workman sued the general contractor in tort are distinguishable. In Ernest W. Hahn, Inc. v. Sunshield Insulation, 68 Cal.App.3d 1018, 137 Cal.Rptr. 732, the subcontractor (the employer) appealed the judgment of indemnification in favor of the general contractor claiming that the general contractor was not merely ‘passively’ negligent but was ‘actively’ negligent as a matter of law. The appellate court in affirming the judgment determined only that the evidence of the general contractor's negligence was not of such magnitude as to be designated ‘active’ as a matter of law. The court there accepted the finding by the jury that there was some negligence on the part of the general contractor. That evidence in part was as the opinion notes that the scaffold was not as wide as at least one-half the height, and thereby violated construction safety order No. 1646. (The injury there occurred in 1968, before the 1971 amendment which added Labor Code section 6304.5.) Unlike the question at bench, the question before the court in Hahn, supra, was not ‘Was the contractor negligent at all?’ The appellate court did not consider whether or not the contractor should have been found negligent but decided only whether the evidence supported the verdict that he was not as negligent as appellant claimed.

In Herman Christensen, supra, the appellate court affirmed a recovery by the general contractor against the employer subcontractor upon an indemnity contract. There the employee of the subcontractor recovered in tort against the general contractor for injuries sustained when he fell from an improperly erected scaffold. However, unlike the facts at bench the basis of duty and therefore liability in tort on the part of the third person, general contractor, was that the general contractor had in fact furnished the scaffold.

The judgment in favor of Gonzales against Novick is reversed. The judgment in favor of Novick against Vienna founded upon the indemnity agreement is also reversed. Novick to recover its costs on cross-appeal from Gonzales. Vienna and Novick shall each bear their own costs on Vienna's appeal.

FOOTNOTES

1.  Plaintiff also sued R & D Building Company, which owned the property on which the construction was being done. The jury found for R & D against plaintiff, and there was no appeal as to that verdict.

2.  Novick makes clear in its opening brief that if this court affirms the indemnity judgment, Novick abandons its appeal in the negligence case.

3.  Eklund testified that he told Gonzales to get the scaffold on the north wall ready for the bricklayers. The planking was not complete, and the guardrails were not up. This needed to be done as well as placing the stands, tubs, bricks, etc. Eklund's testimony differed substantially from that of Gonzales. Because of the errors on instructions, discussed below, we are not limited to the evidence supporting the judgment.

4.  John Coduto, union steward at Vienna, was required to inspect the safety of scaffolding on the job site before the bricklayers used the scaffolds.

5.  Like Eklund, Wineinger testified that plaintiff was erecting scaffolding on the morning of the accident. The defense version was that plaintiff had not yet completed the planking or the guardrail and therefore failure to notice incorrect overlapping or absence of a guardrail was understandable.

6.  Clearly applicable here, the injury occurred on April 25, 1972.

7.  These statute-founded torts were themselves exceptions to the rule of general contractor nonliability.

BEACH, Associate Justice.

FLEMING, Acting P.J., and COMPTON, J., concur.