IN THE SUPREME COURT OF CALIFORNIA

Transcription

1 IN THE SUPREME COURT OF CALIFORNIA JEFFREY TVERBERG et al., Plaintiffs and Appellants, V. FILLNER CONSTRUCTION, INC., Defendant and Respondent. AFTER A DECISION BY THE COURT OF APPEAL, FIRST APPELLATE DISTRICT, DIVISION FOUR CASE NO. A120050; PRIOR SUPREME COURT CASE NO. S PETITION FOR REVIEW HORVITZ & LEVY LLP DAVID M. AXELRAD (BAR No ) STEPHEN E. NORRIS (BAR No ) VENTURA BOULEVARD, 18TH FLOOR ENCINO, CALIFORNIA (818) FAX: (818) daxelrad@horvitzlevy. corn snorris@horvitzlevy.com VITALE & LOWE ROBERT LAWRENCE BRAGG (BAR No ) 3249 QUALITY DRIVE, No. 200 RANCHO CORDOVA, CALIFORNIA (916) FAX: (916) larry.bragg@zurichna.com ATTORNEYS FOR DEFENDANT AND RESPONDENT FILLNER CONSTRUCTION, INC.

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES iv ISSUES PRESENTED 1 INTRODUCTION 3 A. Nature of the action 3 B. Why review should be granted 5 1. The need to resolve a conflict in the law on the retained control issue 5 2. The need to resolve a conflict in the law on the issue of when a hirer may delegate a duty imposed by Cal-OSHA regulations 8 3. The need to resolve a conflict on the issue whether a hirer's mere failure to ensure contractor compliance with a regulatory duty rises to the level of affirmative contribution The need to resolve a conflict on the issue whether alleged violations of Cal-OSHA regulations, designed for protection of California employees, may form the basis of a contractor's claim against a hirer 11 STATEMENT OF THE CASE 12 A. Jeffrey Tverberg's injury 12 B. The Tverbergs' complaint and the summary judgment in favor of Fillner 13 C. The Court of Appeal opinion on remand Retained control Non-delegable duty 15

3 D. The Court of Appeal's orders granting publication, modifying its opinion, and denying rehearing 17 LEGAL ARGUMENT 18 I. REVIEW SHOULD BE GRANTED TO CLARIFY THAT A HIRER DOES NOT AFFIRMATIVELY CONTRIBUTE TO A CONTRACTOR'S INJURIES WHERE THE HIRER DOES NOTHING TO PREVENT THE CONTRACTOR FROM UNDERTAKING SAFETY MEASURES 18 A. General contractors, like all hirers, may delegate to subcontractors the duty to perform hazardous work, including the duty to undertake safety measures 18 B. Madden and Padilla establish that a hirer does not affirmatively contribute to a contractor's injuries merely by failing to undertake safety precautions the contractor is capable of undertaking Madden Padilla 20 C. The Court of Appeal opinion in the present case directly conflicts with Madden and Padilla by requiring general contractors to undertake safety measures that any hirer should be entitled to delegate to a contractor 22 D. The rationale provided by the Court of Appeal in support of its decision does not provide a valid basis for distinguishing either Madden or Padilla...23 II. REVIEW SHOULD BE GRANTED TO ESTABLISH THAT HIRERS MAY GENERALLY DELEGATE DUTIES IMPOSED BY CAL-OSHA PROVISIONS AND OTHER SAFETY REGULATIONS 28 ii

4 Padilla establishes that a hirer may delegate the duties imposed by Cal-OSHA regulations unless the regulations expressly or implicitly preclude such delegation 28 B. The Cal-OSHA regulation cited by plaintiffs was subject to delegation 30 C. The Court of Appeal in the present case failed to consider whether section 1542 was delegable under the test set forth in Padilla, creating a conflict in the law 31 III. IV. REVIEW SHOULD BE GRANTED TO CONSIDER WHETHER THE MERE VIOLATION OF A REGULATORY DUTY RAISES A TRIABLE ISSUE CONCERNING A HIRER'S AFFIRMATIVE CONTRIBUTION TO INJURIES SUSTAINED BY A CONTRACTOR 33 REVIEW SHOULD BE GRANTED TO DETERMINE WHETHER INDEPENDENT CONTRACTORS MAY RECOVER FROM A HIRER BASED ON THE HIRER'S ALLEGED NON-COMPLIANCE WITH A CAL-OSHA REGULATION 34 CONCLUSION 36 CERTIFICATE OF WORD COUNT 37 iii

5 TABLE OF AUTHORITIES Cases Evard v. Southern California Edison (2007) 153 Cal.App.4th 137 Hooker v. Department of Transportation (2002) 27 Ca1.4th 198 Iversen v. California Village Homeowners Assn. (2011) 193 Cal.App.4th 951 Kinsman v. Unocal Corp. (2005) 37 Ca1.4th 659 Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267 Padilla v. Pomona College (2008) 166 Cal.App.4th 661 3, 11, 6, Page(s) 16 19, 27 12, 34, 35 18, 19 10, 20, 22 passim Privette v. Superior Court (1993) 5 Ca1.4th Ruiz v. Herman Weissker, Inc. (2005) 130 Cal.App.4th Seabright Ins. Co. v. U.S. Airways (2010) 183 Cal.App.4th 219 [107 Cal.Rptr.3d 358], review granted June 9, 2010, , 16, 32, 33 Toland v. Sunland Housing Group, Inc. (1998) 18 Ca1.4th Tverberg v. Fillner Construction, Inc. (2010) 49 Ca1.4th 518 4, 14, 18, 19 iv

6 Statutes Cal. Code of Regulations, title , subd. (a)(3) 5, 16 Labor Code Rules of Court Cal. Rules of Court, rule 8.504(d)(1) 37

7 IN THE SUPREME COURT OF CALIFORNIA JEFFREY TVERBERG et al., Plaintiffs and Appellants, V. FILLNER CONSTRUCTION, INC., Defendant and Respondent. PETITION FOR REVIEW ISSUES PRESENTED 1. May a general contractor be held liable to a subcontractor on the theory that the general contractor retained control of the subcontractor's work and affirmatively contributed to injuries sustained by the subcontractor where (i) the subcontractor inspected the worksite prior to commencing his work, recognized the need for safety precautions, was capable of undertaking such precautions, but failed to do so; and (ii) the general contractor did not undertake safety precautions in response to a request by the subcontractor, but did nothing to prevent the subcontractor from undertaking safety precautions? Two Court of Appeal opinions have held, under the authority of Privette v. Superior Court (1993) 5 1

8 Cal.4th 689 (Privette), that a hirer may not be held liable on a retained control theory in analogous circumstances. In this case, however, the Court of Appeal has held that the general contractor may be held liable on a retained control theory. 2. A Cal-OSHA regulation requires specific safety measures (covering or barricading excavations), but does not identify the party who is responsible for undertaking those measures. Is a general contractor's compliance with the regulation excused on the theory that the general contractor, in retaining the subcontractor, has effectively delegated to the subcontractor the duty to comply with the regulation? In Seabright Ins. Co. v. U.S. Airways (2010) 183 Cal.App.4th 219 [107 Cal.Rptr.3d 358], review granted June 9, 2010, (Seabright), this Court is considering the circumstances in which a hirer may delegate to a contractor the duty to comply with Cal-OSHA regulations. 3. Does evidence of a general contractor's non-compliance with a Cal-OSHA regulation in itself raise a triable issue whether the general contractor affirmatively contributed to the plaintiffs injuries? If not, what additional evidence must an injured subcontractor offer to demonstrate that the general contractor has affirmatively contributed to the injuries? This issue is raised in the Seabright case now pending in this Court.

9 4. Is a subcontractor (or other independent contractor) within the class of persons protected by Cal-OSHA regulations or do Cal-OSHA regulations apply solely to employees? In Iversen v. California Village Homeowners Assn. (2011) 193 Cal.App.4th 951 (Iversen), the Court of Appeal held that independent contractors are not within the class of persons protected by Cal-OSHA regulations. The Court of Appeal opinion in the present case, which holds that an independent contractor may recover based on an alleged violation of Cal-OSHA regulations, conflicts with Iversen. INTRODUCTION A. Nature of the action. In this negligence action, a subcontractor has sued a general contractor for personal injuries sustained in an accident that occurred during the construction of a petroleum refueling station. The general contractor, defendant Fillner Construction, Inc., retained several subcontractors, one of whom excavated several shallow holes in preparation for the installation of bollards around the station's fuel pumps. Meanwhile, another subcontractor retained by Fillner hired plaintiff Jeffrey Tverberg to erect a canopy over the fuel pumps. The day before Tverberg commenced his work, he inspected the construction site, saw the open bollard holes, and asked Fillner's foreman to cover the holes before he started erecting the canopies. Fillner's foreman did not have a bolt necessary to cover the holes 3

10 with several plates available at the worksite, but told Tverberg that he (Tverberg) could use Fillner's backhoe to do so. Although Tverberg was aware that the backhoe could be used to cover the bollard holes, and was capable of either covering the bollard holes himself or retaining someone else to do so, he did not cover the holes before starting his work. In the course of erecting the canopy, Tverberg accidentally fell into one of the uncovered bollard holes. After the accident, Tverberg and his wife sued Fillner, asserting various negligence claims premised on the assumption that Fillner owed Tverberg a duty to cover or barricade the bollard holes. Fillner sought summary judgment, arguing that plaintiffs' action was without merit as a matter of law based on the Privette doctrine. The trial court entered summary judgment in favor of Fillner. In a prior opinion, the Court of Appeal held that Privette's limitations on hirer liability do not apply to claims by injured independent contractors. (See Tverberg v. Fillner Construction, Inc. (2010) 49 Ca1.4th 518, 524 (Tverberg).) This Court granted review and reversed, holding that because hirers have the right to delegate responsibility for safety measures to independent contractors, Privette's limitations apply, at a minimum, to vicarious liability claims by independent contractors. (See id. at pp ) This Court then remanded to the Court of Appeal to address plaintiffs' direct liability claims. (Id. at p. 529.) On remand following this Court's prior decision, the Court of Appeal again reversed the summary judgment, holding that plaintiffs have raised a triable issue on two direct liability theories: 4

11 retained control and breach of a nondelegable duty. On the retained control issue, the court held that the evidence raised a triable issue because Fillner directed that the bollard holes be excavated but did not cover or barricade them prior to Tverberg's work. According to the Court of Appeal, this evidence raised a triable issue whether Fillner affirmatively contributed to Tverberg's injuries. On the nondelegable duty issue, the Court of Appeal held that plaintiffs again raised a triable issue because a jury could find Fillner liable for failing to comply with a Cal-OSHA regulation requiring that construction-site pits be barricaded or securely covered. (See Cal. Code Regs., tit. 8, 1542, subd. (a)(3) (section 1542).) In deciding this issue, however, the Court of Appeal failed to consider whether section 1542 expressly or implicitly precluded Fillner from delegating to Tverberg the duty to comply with this provision. Instead, the court held that the regulation imposed a nondelegable duty and that violation of the regulation gave rise to a triable issue whether Fillner affirmatively contributed to Tverberg's injuries. Why review should be granted. 1. The need to resolve a conflict in the law on the retained control issue. In the Privette line of cases, California courts have imposed a number of reasonable limitations on both retained control and nondelegable duty liability theories asserted by injured contractors

12 and their employees. These limitations are based in large part on the premise that hirers may reasonably delegate to contractors the duty to ensure that a worksite is safe before the contractors commence their work. One key limitation on both retained control and nondelegable duty theories is that an injured worker may not recover from a hirer absent proof that the hirer affirmatively contributed to the employee's injury. Under one line of authority defining the scope of affirmative contribution, mere inaction by the hirer (e.g., mere failure to ensure that the contractors and their employees perform their work in conformity with standard safety practices) cannot be a basis for imposing liability on the hirer on either a retained control or nondelegable duty theory. Consistent with this general principle, two Court of Appeal cases have held that a general contractor's failure to undertake precautions on behalf of a subcontractor does not rise to the level of affirmative contribution, provided the hirer has done nothing to prevent the subcontractor from undertaking precautions. (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267 (Madden) [general contractor's failure to install guardrail which would have prevented subcontractor's employee from falling from deck did not constitute affirmative contribution]; Padilla v. Pomona College (2008) 166 Cal.App.4th 661 (Padilla) [general contractor that failed to prevent damage to pressurized pipe during demolition work did not affirmatively contribute to subcontractor's employee's injuries that occurred when pipe burst during demolition work].) 6

13 Had the Court of Appeal in this case followed Madden and Padilla, it would have concluded that Fillner was not liable under the Privette doctrine because (i) Tverberg was aware of the danger presented by the bollard holes and was capable of covering or barricading the holes prior to commencing his work; and (ii) Fillner did nothing to prevent Tverberg from undertaking precautions. Instead of following Madden and Padilla, however, the Court of Appeal has held that even where a subcontractor knew of a dangerous condition prior to commencing work and was capable of undertaking measures to prevent injury, the general contractor may be liable for failing to ensure that all necessary safety measures are undertaken to protect the subcontractor from injury. By refusing to follow the Court of Appeal opinions in Madden and Padilla, the Court of Appeal opinion in the present case has created a conflict in the law on an issue of overwhelming importance to virtually every property owner, general contractor, or other person who retains an independent contractor to perform potentially hazardous work. Without guidance from this Court, parties and trial courts throughout the state will not know for certain whether a hirer may generally delegate the duty to undertake safety measures to an independent contractor or whether the hirer must undertake such measures upon request by the contractor, even where the hirer has done nothing to prevent the contractor from undertaking the safety measures. The viability of Tverberg's claim is an exceedingly important issue to anyone who retains an independent contractor to perform work that is potentially hazardous. A single worksite accident can 7

14 give rise to a catastrophic claim for damages that can be ruinous for many defendants, particularly homeowners and small businesses who retain the services of independent contractors. One slip and fall at a worksite can lead to death or spinal injuries and result in damages claims of millions of dollars (and in the most serious cases, claims of tens of millions of dollars). Few homeowners or small business owners have the wherewithal to compensate injured contractors and their employees for a large catastrophic workrelated personal injury claim. Review should thus be granted to clarify the extent to which a general contractor or other hirer may be liable to contractors (and their employees) on a retained control theory of liability. 2. The need to resolve a conflict in the law on the issue of when a hirer may delegate a duty imposed by Cal-OSHA regulations. To the extent the Court of Appeal held that Fillner can be liable for the violation of section 1542, review is warranted because the Court of Appeal opinion conflicts with Padilla, which held that one who retains a contractor generally delegates to the contractor the duty to comply with Cal-OSHA regulations. (See Padilla, supra, 166 Cal.App.4th at pp ) According to Padilla, a duty imposed by a regulation is nondelegable only where the regulation expressly or implicitly provides that it may not be delegated. (Ibid.) Here, the Court of Appeal ignored Padilla's analysis, holding that the sole issue is whether the hirer's alleged violation of the 8

15 regulation affirmatively contributed to the worker's injuries. The Court of Appeal opinion in this case thus precludes delegation of the duty to comply with regulatory provisions even where nothing in the applicable regulation precludes such delegation. Whether a hirer may delegate to a contractor the duties imposed by Cal-OSHA is another issue of overwhelming importance to California property owners, general contractors, and others who retain independent contractors and rely on them to ensure compliance with Cal-OSHA regulations. Indeed, this issue is so important that this Court granted review in Seabright to consider the circumstances in which a hirer may be held liable for breach of an alleged nondelegable duty of care purportedly arising from a Cal- OSHA regulation. If the nondelegable duty issue discussed in Padilla and ignored by the Court of Appeal in this case will not be addressed in Seabright, review should be granted to permit the parties to address the conflict between Padilla and the Court of Appeal opinion in the present case. Alternatively, if the nondelegable duty issue discussed in Padilla will be addressed in this Court's opinion, review should be granted and this case held pending the decision in Seabright. 9

16 3. The need to resolve a conflict on the issue whether a hirer's mere failure to ensure contractor compliance with a regulatory duty rises to the level of affirmative contribution. The Court of Appeal also held in this case that the "mere breach" of a duty imposed by a regulation "is sufficient to establish an affirmative contribution to an injury." (Exh. A, typed opn., 9.) In so holding, the court cited as authority its decision in Seabright, now pending in this Court. The Court of Appeal opinion in this case, like its opinion in Seabright, is in conflict with other decisions addressing this issue. (See, e.g., Madden, supra, 165 Cal.App.4th at p. 1280, [rejecting conclusion that mere breach of Cal-OSHA regulation is sufficient to establish that hirer affirmatively contributed to contractor's employee's injuries]; Padilla, supra, 166 Cal.App.4th at pp [same].) Because the Court of Appeal decisions addressing this issue are in conflict, the issue whether the mere breach of a regulatory duty is sufficient to establish affirmative contribution should be resolved by this court, either in Seabright or the present case. If the issue is not to be resolved in Seabright, review should be granted in this case to resolve the issue. At a minimum, review should be granted and this case held pending the Seabright opinion. 10

17 4. The need to resolve a conflict on the issue whether alleged violations of Cal-OSHA regulations, designed for protection of California employees, may form the basis of a contractor's claim against a hirer. In Iversen, a case of first impression, the Court of Appeal held in a 2 to 1 decision that a property owner may not be held liable to an independent contractor for personal injuries arising from alleged violations of Cal-OSHA regulations. The majority reasoned that the protections afforded by Cal-OSHA provisions apply only to employees and do not extend to independent contractors, who are not within the class of persons subject to the protections of Cal- OSHA. The court in Iversen also concluded that many hirers, such as property owners, have no reason to be familiar with the requirements of Cal-OSHA, a complex legislative scheme intended to govern the relationship between employers and employees. The court explained that it was unnecessary to impose a duty on hirers to comply with Cal-OSHA provisions because hirers who fail to provide safe work conditions may be held liable under the rules of general negligence for breach of the duty of care. In contrast to Iversen, the Court of Appeal has held in the present case that an independent contractor may rely on a violation of a Cal-OSHA regulation to establish a breach of a duty of care. As noted by the dissenting opinion in Iversen, the majority opinion in that case "cannot be squared" with the Court of Appeal opinion in 11

18 the present case. (Iversen, supra, 193 Cal.App.4th at p. 968, emphasis added.) Accordingly, review should be granted to determine whether Iversen or the Court of Appeal opinion in the present case is correctly decided. STATEMENT OF. THE CASE A. Jeffrey Tverberg's injury. In 2006, Fillner was the general contractor on a project that called for construction of a petroleum fuel station. (AA 38 [Fact 1].) Fillner contracted with Lane Supply to assist in the construction project. (AA 38 [Fact 4].) Lane Supply then retained Perry Construction, Inc. (Perry) to install a canopy at the site. (AA 38 [Fact 5].) Perry hired appellant Jeffrey Tverberg to erect the canopy. (AA 38 [Fact 8].) Prior to the commencement of Tverberg's work, another contractor retained by Fillner (Alexander Concrete) dug eight holes at the worksite in preparation for the installation of bollards around the station's gas pumps. (AA 39 [Fact 10], 110.) The holes were four feet wide and four feet deep. (AA 39 [Facts 9-10].) After the bollard holes were excavated, the owner of Alexander Concrete inserted stakes around the holes and encircled them with caution tape. (AA 156.) It is undisputed that Tverberg was aware of the bollard holes as of the time he began his work at the construction site. (AA 39 [Facts 14-15], 62-64, ) The day Tverberg arrived at the site, 12

19 he asked Fillner foreman Steve Richardson to cover the bollard holes with metal plates at the site that belonged to a subcontractor retained to install a sewer line. (AA 106, ) Richardson told Fillner that he could not do so because he did not have in his truck "an HIJ bolt" he needed to move the metal plates, but that Tverberg could use Richardson's backhoe to do so. (AA 144; accord AA ) Although Tverberg had seen backhoes used to place metal plates over holes, he did not attempt to move the plates into place with the backhoe, did not retain anyone else to do so, and did nothing else to cover or barricade the bollard holes. (Ibid.) On his second day on the job, Tverberg again requested that Richardson cover the holes, but Richardson neither complied with Tverberg's request nor promised to do so. (AA 112, ) Tverberg resumed work without covering the bollard holes. (AA 112.) During the course of his work, Tverberg accidentally fell into one of the holes. (AA 40 [Fact 25].) B. The Tverbergs' complaint and the summary judgment in favor of Fillner. Following the accident, Tverberg and his wife filed a negligence action against Fillner and Perry. (Typed opn., 3; AA 1-8 [Complaint].) Fillner answered the complaint with a general denial. (AA 9-14 [answer].) Fillner moved for summary judgment, asserting it owed no duty of care to Tverberg. (Typed opn., 3; AA [notice of motion and supporting memorandum].) Plaintiffs opposed the motion, 13

20 arguing that Fillner was responsible for covering or barricading the bollard holes. (Typed opn., 3; AA ) The trial court granted Fillner's motion for summary judgment, finding that Fillner owed the Tverbergs no duty of care because it did not affirmatively contribute to Jeffrey Tverberg's injuries. (Typed opn., 3; AA [order granting summary judgment], 201 [final judgment].) The Tverbergs appealed and the Court of Appeal reversed, holding that the Privette doctrine bars certain claims by injured contractors' employees, but has no application to claims asserted by injured contractors. (See Tverberg, supra, 49 Ca1.4th at pp ) This Court then reversed and remanded, holding that a hirer may not be held vicariously liable for conduct resulting in injuries to an independent contractor. (Id. at pp ) This Court remanded to the Court of Appeal to determine the scope of a hirer's direct liability for injuries sustained by a contractor. (Id. at p. 529.) C. The Court of Appeal opinion on remand. 1. Retained control. Preliminarily, the Court of Appeal acknowledged that a hirer is not liable to a contractor or a contractor's employee for workrelated injuries merely because the hirer retains control over the worksite. (Typed opn., 5.) Instead, "[t]he imposition of tort liability turns on whether the hirer exercised that retained control in a manner that affirmatively contributed to the injury." (Ibid.) The 14

21 Court of Appeal then concluded that Fillner's conduct gave rise to a triable issue on affirmative contribution because Fillner (i) ordered that the bollard holes be excavated and "requir[ed] Tverberg to conduct unrelated work near them;" (ii) determined that the safety ribbon provided sufficient protection for workers at the construction site; and (iii) did not cover the holes in response to a request by Tverberg to do so. (Typed opn., 7-8.) Accordingly, the court reversed the portion of the trial court's order granting summary judgment on the retained control issue and remanded the case for a trial on that issue. (Id. at 8-9.) In reaching its decision on the affirmative contribution issue, the Court of Appeal opinion failed to discuss either Madden or Padilla even though Fillner discussed both of those cases at length in its supplemental brief on remand and filed a petition for rehearing to call to the court's attention its failure to discuss these controlling authorities. (See typed opn., 4-8; Supplemental Brief of Respondent Fillner Construction, Inc. (Fillner's Supp. Brief) 23-36; exh. C, 8-15 [Fillner's Petition for Rehearing].) 2. Non-delegable duty. In addressing the nondelegable duty issue, the Court of Appeal preliminarily noted that "[i]n some circumstances, a regulatory duty imposed on the hirer of an independent contractor is nondelegable, making the hirer liable for its breach of those regulations if that breach affirmatively contributed to the injuries 15

22 sustained." (Typed opn., 8, citing Evard v. Southern California Edison (2007) 153 Ca1.App.4th 137, , ) The Court of Appeal acknowledged that section 1542, subdivision (a)(3) "does not specify who is responsible for compliance," but noted that "the underlying Labor Code provision states that the employer who creates the hazard and the employer who is responsible for the safety of the construction worksite may be cited for safety violations." (Ibid., citing Lab. Code, 6400, subd. (b).) The court concluded that section 1542 gave rise to a nondelegable duty in the present case because (i) "Fillner created the bollard holes by directing another subcontractor to dig them;" and (ii) Fillner "was also generally responsible for safety conditions on the jobsite." (Id. at pp. 8-9, citing Lab. Code, 6400, subd. (b)(2), (3) and Evard, supra, 153 Cal.App.4th at pp ) Although the Court of Appeal discussed Evard (a case supporting its decision), it failed to discuss Padilla (a case that is contrary to its decision). (See typed opn., 8-9.) The Court of Appeal also found "evidence on which a jury could conclude that Fillner affirmatively contributed to Tverberg's injuries by breaching [a] nondelegable regulatory duty." (Typed opn., 9.) In support of this conclusion, the court cited its decision in Seabright, in which it held that the mere breach of a duty imposed by a Cal-OSHA regulation is sufficient to establish an affirmative contribution to an injury. (Ibid., citing Seabright, supra, 183 Cal.App.4th at pp [107 Cal.Rptr.3d at pp ) The court further concluded that in the present case "there is even stronger evidence of affirmative contribution" because 16

23 Fillner's safety officer concluded that the stakes and ribbon marking were sufficient to protect worker safety, even after Tverberg asked to cover the bollard holes. In so doing, Fillner made the affirmative determination that providing a protection less than the Cal-OSHA regulation required was sufficient. (Typed opn., 9.) Based on this evidence, the Court of Appeal concluded that plaintiffs asserted sufficient facts to raise a triable issue "whether Fillner affirmatively contributed to Tverberg's injuries on a nondelegable regulatory duty theory." (Typed opn., 9.) Accordingly, the court reversed "this aspect of the trial court's grant of summary judgment." (Ibid.) D. The Court of Appeal's orders granting publication, modifying its opinion, and denying rehearing. The Court of Appeal opinion was initially non-published. (See exh. A.) In response to a request by the Consumer Attorneys, the Court of Appeal ordered the publication of its opinion on remand. (See exh. B.) On its own motion, the Court of Appeal also issued an order making a minor modification to the opinion. (See exh. C.) Fillner filed a timely petition for rehearing, which the Court of Appeal denied. (See exh. D.) 17

24 LEGAL ARGUMENT I. REVIEW SHOULD BE GRANTED TO CLARIFY THAT A HIRER DOES NOT AFFIRMATIVELY CONTRIBUTE TO A CONTRACTOR'S INJURIES WHERE THE HIRER DOES NOTHING TO PREVENT THE CONTRACTOR FROM UNDERTAKING SAFETY MEASURES. A. General contractors, like all hirers, may delegate to subcontractors the duty to perform hazardous work, including the duty to undertake safety measures. General contractors may delegate control over hazardous work to subcontractors. (Tverberg, supra, 49 Ca1.4th at p. 528; Toland v. Sunland Housing Group, Inc. (1998) 18 Ca1.4th 253, 269.) In delegating such control, the general contractor, like any other hirer, also delegates responsibility for ensuring that the contract work is performed in a safe manner. (Tverberg, at p. 528; accord, Kinsman v. Unocal Corp. (2005) 37 Ca1.4th 659, 671 (Kinsman) ["when a hirer delegate[s] a task to an independent contractor, it in effect delegate [s] responsibility for performing that task safely"]; see Kinsman, at pp ["a corollary of Privette and its progeny is that the hirer generally delegates the responsibility to take... precautions to the contractor, and is not liable to the contractor's employee if the contractor fails to do so"].) 18

25 In light of a general contractor's right to delegate hazardous work to independent contractors, a general contractor is generally not liable to a subcontractor (or the subcontractor's employees) for personal injuries arising from the manner in which the subcontract work is performed. (See Tverberg, supra, 49 Ca1.4th at p. 528; Hooker v. Department of Transportation (2002) 27 Ca1.4th 198, (Hooker).) The general contractor, like property owners and other hirers, may be held liable for such injuries only in limited circumstances, such as where the general contractor has retained control over the subcontractor's work and has affirmatively contributed in some manner to the injuries. (See, e.g., Hooker, at pp. 202, ; and see Kinsman, supra, 37 Ca1.4th at p. 664 [hirer may not be liable on premises liability theory for failing to warn contractor of obvious danger, but may be liable for failing to warn of concealed, dangerous condition not reasonably discoverable by contractor].) Madden and Padilla establish that a hirer does not affirmatively contribute to a contractor's injuries merely by failing to undertake safety precautions the contractor is capable of undertaking. 1. Madden. In Madden, an employee of an electrical subcontractor sued a general contractor for injuries sustained in a fall from an elevated patio that was not enclosed with a guardrail as required by a Cal- 19

26 OSHA regulation. The plaintiff contended that the general contractor was liable on a retained control theory because it failed to install a guardrail. According to the plaintiff, the failure to install the guardrail affirmatively contributed to his injuries. The Court of Appeal held, however, that the general contractor did not affirmatively contribute to the plaintiffs injuries for three reasons: 1. Plaintiff offered no evidence in opposition to the motion that the general contractor either (i) directed that no guardrail be placed along the raised patio, or (ii) prevented a guardrail from being installed. (Madden, supra, 165 Cal.App.4th at pp ) 2. The absence of a guardrail was "open and obvious to all of the contractors who worked at the site." (Madden, supra, 165 Cal.App.4th at p ) Plaintiff was thus "in as good a position as [the general contractor] to perceive that there was no guardrail along the raised patio to prevent a fall." (Ibid.) This undisputed evidence CC negate [d] any claim by [plaintiff] that [the general contractor] induced him to believe the hazard did not exist or that the hazard was otherwise concealed." (Id. at p. 1277, fn. 3.) 3. Plaintiff "directed his own work;" the general contractor "had no involvement in the manner in which he performed [his] work." (Madden, supra, 165 Cal.App.4th at p ) 2. Padilla. In Padilla, the Court of Appeal rejected a retained control claim asserted by an employee of a demolition subcontractor against 20

27 Pomona College and a general contractor hired to remodel a residential dormitory on the college campus. Plaintiff was injured when, during the course of demolishing an overhead drainage pipe, a portion of the overhead pipe broke loose and struck a pressurized (PVC) water pipe, breaking it open. The force of the water escaping from the broken PVC pipe knocked plaintiff from the ladder on which he was working and caused him to sustain injuries. (Padilla, supra, 166 Cal.App.4th at pp ) Pomona College and the general contractor moved for summary judgment, relying on evidence that prior to the demolition, the general contractor warned plaintiffs employer that the PVC pipe had been pressurized and needed to be protected during the course of the demolition work. The trial court agreed, finding that neither Pomona College nor the general contractor affirmatively contributed to plaintiffs injuries. (Padilla, supra, 166 Cal.App.4th at p ) The Court of Appeal affirmed, holding that defendants' retention of control over the PVC pipe did not affirmatively contribute to plaintiffs injuries. While acknowledging that only defendants retained the ability to depressurize the pipe, the court found no evidence of affirmative contribution because: (i) defendants could and did delegate safety measures to the demolition subcontractor (plaintiffs employer); and (ii) the demolition subcontractor neither made a request that defendants turn off the water which the defendants refused nor prevented the demolition subcontractor from "setting up an emergency valve on the [PVC] pipe." (Padilla, supra, 166 Cal.App.4th at p. 671.) 21

28 C. The Court of Appeal opinion in the present case directly conflicts with Madden and Padilla by requiring general contractors to undertake safety measures that any hirer should be entitled to delegate to a contractor. Had the Court of Appeal followed Madden, it would have concluded that Fillner did not affirmatively contribute to Tverberg's injuries. Like the defendants in Madden, Fillner neither directed that no covers or barricades be placed on or around the bollard holes nor prevented guardrails or covers from being installed. (See Madden, supra, 165 Cal.App.4th at pp ) Furthermore, the absence of guardrails or covers was "open and obvious to all of the contractors who worked at the site." (See id. at p ) Had the Court of Appeal followed Padilla, it would have concluded that Fillner did not affirmatively contribute to Tverberg's injuries. Just as the defendants in Padilla did not affirmatively contribute to plaintiffs injuries merely because they failed to install a guard around the pressurized pipe, Fillner did not affirmatively contribute to Tverberg's injuries merely because it failed to cover or barricade the bollard holes. Like the pressurized PVC pipe at issue in Padilla, the bollard holes presented an open and obvious danger, one against which Tverberg could have protected himself by undertaking a variety of safety precautions. The Court of Appeal's decision in the present case cannot be reconciled with Madden or Padilla. If Madden correctly holds that a general contractor does not have a duty to subcontractors to 22

29 install a guardrail along the edge of an elevated deck, then Fillner had no duty to its subcontractors to cover or barricade the bollard holes and could in any event properly delegate that duty to Tverberg. Similarly, if Padilla correctly holds that a general contractor does not have a duty to subcontractors to prevent rupture of utility lines during demolition work, then Fillner had no duty to its subcontractors to cover or barricade the bollard holes and could properly delegate that duty to Tverberg. Review by this Court is the only means of resolving this conflict. D. The rationale provided by the Court of Appeal in support of its decision does not provide a valid basis for distinguishing either Madden or Padilla. Perhaps wary of highlighting the conflict between its holding in the present case and the holdings of Madden and Padilla, the Court of Appeal studiously avoided discussing either of these cases even though Fillner discussed both cases at length in its supplemental brief and petition for rehearing. (Fillner's Supp. Brief, 23-36; exh. C, 8-15.) The Court of Appeal's express rationale for its decision, moreover, fails to provide a legitimate basis for reconciling the holdings of Madden and Padilla with the court's holding in the present case: 1. The Court of Appeal first concludes that Fillner's conduct gave rise to a triable issue on affirmative contribution because Fillner "order[ed] these holes to be created and requir[ed] Tverberg to conduct unrelated work near them." (Typed opn., 7, 23

30 emphasis added.) This portion of the court's opinion erroneously implies that Fillner somehow prevented Tverberg from covering the holes or taking other safety measures, i.e., that Fillner "required" Tverberg to do the work without first covering the bollard holes. The undisputed evidence demonstrated otherwise. The only reasonable interpretation of Tverberg's conversation with Richardson (Fillner's foreman) is that Richardson permitted Tverberg to undertake reasonable measures including the use of Fillner's equipment to cover the holes. Furthermore, Fillner did not affirmatively contribute to Tverberg's injuries merely by permitting excavation of the bollard holes in advance of Tverberg's work. The mere act of excavating holes when subcontractors are present at a worksite does not create an unreasonable level of risk because contractors can undertake safety measures (e.g., covering the holes) to ensure their safety and the safety of their employees.' (See AA 144 [admission by Tverberg that Fillner offered to let him use backhoe and that he knew backhoe could be used to cover holes with metal plates that were present at worksite].) 2. The Court of Appeal further held that Fillner affirmatively contributed to Tverberg's injuries because Richardson Had Tverberg tripped on the safety ribbon and fallen into one of the bollard holes because he was unaware of it (e.g., because it was dark when he arrived at the worksite), it might be arguable that Fillner affirmatively contributed to Tverberg's injury. Here, however, Tverberg was well aware of the holes prior to his accident and Fillner indicated prior to the accident that Tverberg could cover the holes. 24

31 concluded that Alexander's use of caution tape to demarcate the bollard holes "constituted sufficient worker protection." (See typed opn., 7.) Richardson's conclusion about the efficacy of Alexander's use of the caution tape did not, however, constitute affirmative contribution for two reasons. First, in requesting that Fillner cover the bollard holes, Tverberg recognized that the use of the caution tape was no substitute for covering the bollard holes. Second, by telling Tverberg that he could use the backhoe to cover the bollard holes, Fillner encouraged Tverberg to cover or barricade the holes notwithstanding the presence of the caution tape. 3. The Court of Appeal also concluded that plaintiffs offered sufficient evidence to establish that Fillner agreed to cover the bollard holes in advance of Tverberg's work. (Typed opn., 7-8.) The only evidence cited by the court on this issue is the evidence that, on the day prior to commencing his work, Tverberg requested Richardson to cover the holes and Richardson responded by stating that "the equipment necessary to comply with this request was not available." (Typed opn., 7.) The Court of Appeal concluded that this evidence "could allow a reasonable jury to infer that Fillner agreed to cover the holes and then failed to meet this responsibility." (Typed opn., 8.) As a threshold matter, the suggested inference that Richardson agreed to cover the bollard holes is not warranted by the evidence. Richardson actually told Tverberg the day prior to the accident that he did not have the necessary equipment (an HIJ bolt) to move the plates, but that Tverberg could use Fillner's backhoe to do so. (AA 144 ["He offered to let me use the backhoel ; accord, AA 25

32 168 [Richardson told Tverberg that Tverberg could use Fillner's tractor "to put the steel plates over the holes"]; 169 [Richardson told Tverberg "there's a tractor and plates you can go ahead and cover the holes up"]; ibid. ["Fillner had said if you want the holes covered, cover them yourself].) Tverberg further admitted at his deposition that he himself had seen backhoes used to move plates over holes. (AA 144 ["I've seen that used in that aspect"].) However, Tverberg did not use the backhoe to move the plates. 2 (Ibid.) The only reasonable meaning of Richardson's statements was that he was not going to move the plates himself, but that Tverberg could and should use the backhoe himself to move the plates. But even if the statement by Richardson the day before Tverberg started work could be read to mean that Fillner would cover the holes, the salient fact, under both Madden and Padilla, is that Tverberg knew when he arrived at the worksite the following day that Fillner had not covered the bollard holes and that he therefore needed to undertake safety measures. Tverberg testified that on his second day on the job, he once again requested that Richardson cover the holes. (AA ) When asked how Richardson responded, Tverberg stated, "I got a silly facial look and arms-in-the-air response." (AA 146.) Nothing in Richardson's conduct amounted to the express promise of assistance which this Court held in Hooker might give rise to retained control liability. 2 Plaintiffs admitted in briefing in the Court of Appeal that Tverberg could have moved the plates or, alternatively, could have retained someone to assist in moving the plates. (See AOB 49 [concession that Tverberg "could have obtained coverings on his own, or contacted Perry Construction about the problem"].) 26

33 (27 Ca1.4th at p. 212, fn. 3.) To the contrary, Richardson's conduct once again left no doubt that Tverberg could not rely on Fillner to cover the bollard holes. Thus, in the context of all the relevant facts, the Court of Appeal opinion in the present case holds that even where a subcontractor knows that a general contractor has not undertaken a necessary safety measure and also knows that the general contractor has done nothing to prevent the subcontractor from undertaking the safety measure a jury could conclude that the general contractor has affirmatively contributed to injuries caused by the subcontractor's failure to undertake safety measures. This holding is in direct conflict with both Madden and Padilla, which squarely hold that general contractors should not be held liable for failing to undertake measures that may reasonably be delegated to subcontractors. 3 3 The Court of Appeal cites Ruiz v. Herman Weissker, Inc. (2005) 130 Cal.App.4th 52 in support of its decision. Ruiz held that a hirer's mere "failure to exercise control in the face of unsafe work practices by the [independent contractor]" is not a basis for retained control liability. (Id. at p. 66.) Far from supporting the Court of Appeal's decision, Ruiz conflicts with it, providing yet another reason to grant review to clarify the circumstances in which a hirer may properly be held liable on the basis of a retained control claim. 27

34 II. REVIEW SHOULD BE GRANTED TO ESTABLISH THAT HIRERS MAY GENERALLY DELEGATE DUTIES IMPOSED BY CAL-OSHA PROVISIONS AND OTHER SAFETY REGULATIONS. A. Padilla establishes that a hirer may delegate the duties imposed by Cal-OSHA regulations unless the regulations expressly or implicitly preclude such delegation. The Padilla opinion also holds that a Cal-OSHA regulation imposes a nondelegable duty of care on a hirer only if "no one but the landowner was in a position" to ensure compliance with the provision at the time of the injury. (Padilla, supra, 166 Cal.App.4th at pp ) Just as the Court of Appeal in this case ignored Padilla's discussion of the retained control issue, it also ignored Padilla's discussion of the nondelegable duty issue. In ignoring authority that is directly on point, the Court of Appeal again acknowledged that it could not reconcile its decision with Padilla. The plaintiff in Padilla was, as noted, injured when he accidentally caused a pressurized pipe to burst open during the course of his work. In his action against the landowner (Pomona College) and its general contractor, plaintiff asserted the defendants were liable for breach of an alleged nondelegable duty of care under a Cal-OSHA provision which generally required that "all utility service," including water service, be shut off prior to demolition. 28

35 (Padilla, supra, 166 Cal.App.4th at p. 673, quoting Cal. Code Regs., tit. 8, 1735, subd. (a).) The trial court granted summary judgment, rejecting the plaintiffs nondelegable duty theory. The Court of Appeal affirmed, holding that "it is the nature of the regulation itself that determines whether the duties it creates are nondelegable." (Padilla, supra, 166 Cal.App.4th at pp ) To determine whether a regulation imposes a nondelegable duty, courts must first "look at the language of the regulation itself' to see if that language expressly or implicitly imposes a nondelegable duty on a particular class of persons or entities. (Id. at p. 673.) Second, courts must evaluate whether a regulation imposes a "permanent obligation" on a property owner "with respect to the condition of the property" which "no one but the landowner [is] in a position to ensure." (Ibid., emphasis added.) If, for example, the regulation "pertain[s] solely to the preparation of the worksite... at a time when contractors are necessarily present... there is no basis in [the regulation] to conclude the duties [cannot] be delegated." (Ibid.) Applying these rules to the case before it, the court in Padilla concluded as a matter of law that the duty imposed by the regulation could be delegated by the landowner to the general contractor and by the general contractor to the demolition subcontractor. First, nothing in the regulation specified that a property owner or general contractor was obligated to protect the utilities and nothing inherent in the requirements of the regulation required that those duties be imposed on the hirers. (Padilla, supra, 166 Cal.App.4th at p ) Second, the regulation in 29

36 question did not impose a permanent obligation on the owner with respect to the condition of the property which no one but the landowner was in a position to ensure. Instead, the regulatory requirement that utilities be protected pertained solely to the preparation of the worksite "when specific work was being done; that is, at a time when contractors were necessarily present." (Ibid.) Accordingly, there was no basis to conclude that the duties could not be delegated. B. The Cal-OSHA regulation cited by plaintiffs was subject to delegation. As in Padilla, plaintiffs rely on a Cal-OSHA provision (Cal. Code Regs., tit. 8, 1542, subd. (a)(3)) in support of their nondelegable duty theory. (AOB ) Section 1542, subdivision (a)(3), which governs "shafts," provides that 101 wells, pits, shafts, caissons, etc. shall be barricaded or securely covered." This section, however, does not create a nondelegable duty of care for the reasons discussed in Padilla. Under Padilla, courts must look to the language and nature of the regulation to determine if it imposes on the hirer a nondelegable duty. Section 1542, subdivision (a)(3) imposes no such duty. Rather, that section like the regulatory provision at issue in Padilla nowhere indicates who must ensure that excavations are barricaded or covered and certainly "does not expressly place the obligation" on general contractors. (Padilla, supra, 166 Cal.App.4th at p. 673.) Likewise, the duty imposed by section 1542, subdivision 30

37 (a)(3) was one that subcontractors such as Tverberg could perform: there was no reason that Tverberg could not have barricaded or covered the bollard holes himself or retained someone else to do so, if he was physically unable to do so. (See ibid.) Furthermore, the regulation in question "pertained solely to the preparation of the worksite when specific work was being done; that is, at a time when contractors" such as Tverberg "were necessarily present" and capable of ensuring compliance with the provision before starting work. (Ibid.) C. The Court of Appeal in the present case failed to consider whether section 1542 was delegable under the test set forth in Padilla, creating a conflict in the law. Although Fillner argued that a general contractor may generally delegate to a subcontractor a duty imposed by a Cal- OSHA regulation, the Court of Appeal did not cite the Padilla case in its opinion and did not consider whether a general contractor may delegate to a subcontractor the duty to undertake safety measures. Instead, the Court of Appeal held that the mere act of "creat[ing]" a dangerous condition gives rise to "a nondelegable duty that may form the basis of direct liability." (Typed opn., 8-9.) In reaching this decision, the Court of Appeal cited Labor Code section 6400, subdivision (b), which provides that at a multi-employer worksite, the employer who "creates the hazard" may be cited under Cal-OSHA for failing to correct it. (Typed opn., 8.) The court also cited Labor Code section 6400 for the proposition that a general 31