Case Name: Roger Lenz v. Turner Construction Company, et al.
Case No.: 1-15-CV-276588

Motion for Summary Judgment of Defendant Turner Construction Company

Factual and Procedural Background

Plaintiff Roger Lenz (“Lenz”) is the inspector of record (“IOR”) for the Santa Clara Valley Medical Center (“SCVMC”) project. (Complaint, ¶GN-1.) On September 13, 2013, in performance of his work as IOR, plaintiff Lenz was observing a pressure test of a 12 inch chilled water line. (Id.) The pipe was pneumatically pressurized to 42 psi when the steel end cap came free, striking plaintiff Lenz causing multiple fractures of his left lower extremity and other serious injuries. (Id.)

Defendants Turner Construction Company (“Turner”) and Lescure Company, Inc. (“Lescure”) negligently designed, constructed, planned, tested, maintained and controlled the chilled water line which created a dangerous and hazardous condition. (Id.) Defendants pneumatically tested the line in violation of code and good industry practice, failed to adequately install the end cap and coupling, and failed to control access and locations for the IOR and others during the testing process. (Id.)

On February 9, 2015, plaintiff Lenz filed a Judicial Council form complaint against defendants Turner and Lescure asserting a single cause of action for general negligence.

On May 22, 2015, defendant Lescure filed an answer to the complaint. On May 27, 2015, defendant Turner filed an answer to the complaint and also filed a cross-complaint against Lescure for express contractual indemnity and declaratory relief. On September 25, 2015, Turner dismissed its cross-complaint without prejudice.

On July 20, 2017, defendant Turner filed the motion now before the court, a motion for summary judgment of plaintiff Lenz’s complaint.

I. Defendant Turner’s motion for summary judgment is DENIED.

“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673.)

It is defendant Turner’s contention in moving for summary judgment that it has no liability for plaintiff Lenz’s injury on the ground that under Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and its progeny, a hirer of an independent contractor can be liable for a workplace injury of the contractor’s employee only if the hirer retained control over the contractor’s work and exercised that control in a way that affirmatively contributed to the employee’s workplace injury. Defendant Turner contends it did not contribute in any way to the injury.

Under the Privette line of cases, the Supreme Court held that the employee of a contractor may not sue the hirer of the contractor for injuries caused by the contractor’s negligence on theories of the peculiar risk doctrine or negligent hiring. The relevant cases are discussed in detail below.

In Privette, a duplex owner hired a roofing contractor to install a new tar and gravel roof on the duplex. One of the contractor’s employees was injured while transporting buckets of hot tar up the roof on a ladder and sought workers’ compensation benefits, but also sued the duplex owner. Even though the owner did not participate in the contractor’s decision to have the employee hand-carry the buckets, the employee alleged that “because of the inherent danger of working with hot tar, [the owner] should, under the doctrine of peculiar risk, be liable for injuries to [the employee] that resulted from [the contractor’s] negligence.” (Privette, supra, 5 Cal.4th at pp. 692-693.) The trial and appellate courts denied the owner’s summary judgment motion, but the Supreme Court reversed, concluding that the justifications for the peculiar risk doctrine did not apply to situations in which a contractor’s employee is injured and workers’ compensation is available, since the peculiar risk doctrine merely “seeks to ensure that injuries caused by contracted work will not go uncompensated,” but in the case of on-the-job injury to an employee of an independent contractor, the workers’ compensation system achieves the identical purposes that underlie recovery under the doctrine of peculiar risk. (Id. at p. 701.)

In Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 (Toland), the Supreme Court extended Privette to bar liability against a hirer of an independent contractor to do inherently dangerous work even if the hirer fails to provide in the contract or in some other manner that “special precautions” be taken to avert the peculiar risks of that work. The Court held that “[i]n either situation, it would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for the worker’s on-the-job injuries, is limited to providing workers’ compensation coverage.” (Toland, supra, 18 Cal.4th at p. 267.) And in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235 (Camargo), the same reasoning was applied by the court in holding that an employee of a contractor is barred from suing the hirer of the contractor under a negligent hiring theory.

In Hooker v. Department of Transportation (2002) 27 Cal.4th 198 (Hooker), an independent contractor’s employee was killed in a crane accident while helping to construct a freeway overpass for Caltrans. Caltrans had permitted vehicles to use the overpass where the employee operated his crane. Shortly before the accident, the employee had retracted the crane’s outriggers to allow traffic to pass. The employee attempted to swing the boom without first reextending the outriggers, and the crane tipped over, killing the employee. Caltrans was responsible for compliance with safety laws and regulations, and its construction safety coordinator was supposed to “‘recognize and anticipate unsafe conditions’” in its construction projects. (Ibid.) The employee’s estate contended there was a triable issue regarding whether Caltrans was liable under a “retained control theory” under the Restatement Second of Torts, section 414, which states: “One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” The Supreme Court agreed that “if a hirer does retain control over safety conditions at a worksite and negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, it is only fair to impose liability on the hirer.” (Id. at p. 213.) However, the court noted that liability would not attach on the hirer “merely because the hirer retained the ability to exercise control over safety at the worksite. …[T]he imposition of tort liability on a hirer should depend on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor’s employee.” (Id. at p. 210.) The court affirmed summary judgment in favor of Caltrans because it found that by merely permitting traffic to use the overpass, Caltrans did not affirmatively contribute to the employee’s death.

Defendant Turner contends this case falls squarely within the confines of Privette and Hooker. Defendant Turner proffers the fact that the accident at issue occurred at the Santa Clara Valley Medical Center (“VMC”) construction project (“Project”) located in San Jose. Plaintiff Lenz was working as an IOR, hired by Santa Clara County to inspect and approve sections of completed construction at the Project. Turner, the general contractor on the Project, hired Lescure as the plumbing sub-contractor on the job site. Part of Lescure’s work on the Project involved the building and testing of the chilled water supply and return lines in the North Utility Loop.

As the general contractor, Turner acts as a conduit to facilitate communication between subcontractors and the architect of record and mechanical engineer of record, including facilitating communication between these entities on “Requests for Information” [“RFI”]. A RFI is a construction document used by contractors to obtain answers from design professionals on modifications or details of construction procedures. The original construction documents called for the pipes to be tested using a hydrostatic (water) pressure testing method. Because the lines being tested where of a large diameter piping and below grade, it would have been unduly cumbersome, expensive, and time consuming to conduct the test using water as the test medium, because after the test is completed (or in the event the test fails), the water must be removed from the piping/trench. In addition, the increased potential for rust to form in medical water lines is unacceptable. For these reasons, an RFI was prepared by Lescure, asking that pneumatic (air) pressure testing be conducted in place of hydrostatic testing. Lescure prepared the RFI with plaintiff Lenz’s assistance and provided it to Turner. The RFI was approved by the architect and project engineer and plaintiff Lenz, before it was returned to Lescure.

On September 13, 2013, plaintiff Lenz was notified that plumbing work on the North Loop Utility had been completed and was ready for testing. In order to pressurize the lines, Lescure fashioned an end cap with a pressure gauge which is clamped to the pipe being tested via a Gruvlok coupling. The Gruvlok coupling is attached to the pipe and end cap using bolts which have to be torqued to 550 foot-pounds. Despite these specific instructions, Lescure tightened the bolts using an open-ended box wrench and did not measure the torque applied. Turner did not provide any direction as to how the test should be set up or what materials to use: the selection of the Gruvlok coupling and methods employed to attach it to the pipe were made solely by Lescure in its capacity as plumbing contractor. When the line reached 42 pounds per square inch, the Gruvlok coupling failed, ejecting the end cap which struck plaintiff Lenz’s left leg. In its subcontract with Lescure, Turner expressly delegated all responsibility for safely performing the work encompassed in Lescure’s work on the Project, to Lescure.

In opposition, plaintiff Lenz contends Privette does not apply here because plaintiff Lenz is not an employee of the subcontractor, Lescure. Plaintiff proffers evidence that he was the Office of State Health Planning and Development (OSHPD) approved IOR hired by the County of Santa Clara to inspect and approve the medical construction to ensure that it was in compliance with the state building code. Plaintiff Lenz is a licensed state regulator trained to be knowledgeable in whether hospital construction is in compliance with the building code. As explained in Privette, “At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work. [Citations.] Central to this rule of nonliability was the recognition that a person who hired an independent contractor had ‘ “no right of control as to the mode of doing the work contracted for.” ’ [Citations.]” (Privette, supra, 5 Cal.4th at p. 693.) One exception to this general rule of nonliability “pertains to contracted work that poses some inherent risk of injury to others. This exception is commonly referred to as the doctrine of peculiar risk.” (Id.) Privette, however, concluded that, “When, as here, the injuries resulting from an independent contractor’s performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers’ compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries.” (Id. at p. 702.)

The court is inclined to agree with plaintiff Lenz that Privette does not apply under the factual circumstances presented here because plaintiff Lenz is not an employee of Lescure, but rather a third party. Even if Privette applied, “There are exceptions to the Privette doctrine. One allows a contractor’s employee to sue the hirer of the contractor when the hirer (1) retains control over any part of the work and (2) negligently exercises that control (3) in a manner that affirmatively contributes to the employee’s injury. [Citation.] Another exception permits recovery when the hirer (1) has a nondelegable legal duty (2) which it breaches (3) in a manner that affirmatively contributes to the injury. [Citations.]” (Khosh v. Staples Construction Company, Inc. (2016) 4 Cal.App.5th 712, 717 (Khosh).)

“In order for a worker to recover on a retained control theory, the hirer must engage in some active participation.” (Tverberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1446.) “An affirmative contribution may take the form of directing the contractor about the manner or performance of the work, directing that the work be done by a particular mode, or actively participating in how the job is done. . . . A hirer’s failure to correct an unsafe condition, by itself, does not establish an affirmative contribution. (Khosh, supra, at 4 Cal.App.5th at p. 718.) Affirmative contribution occurs where a general contractor is actively involved in, or asserts control over, the manner of performance of the contracted work. (Hooker, supra, 27 Cal.4th at p. 215.) In addition, “[s]uch affirmative contribution need not always be in the form of actively directing a contractor or contractor’s employee” as “[t]here will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer’s negligent failure to do so should result in liability if such negligence leads to an employee injury.” (Id. at p. 212, fn. 3.)

In opposition, plaintiff Lenz proffers evidence which would present a triable issue of material fact with regard to whether defendant Turner is liable under a retained control theory. In contrast to defendant Turner’s assertion that it did not direct or instruct Lescure how to perform its work, plaintiff Lenz proffers evidence, for example, that Turner was not merely a general contractor, but a design-build contractor with responsibilities for designing and engineering in addition to coordinating the different trades performing work on the Project. Turner’s design team approved the RFI allowing for pneumatic testing instead of hydrostatic testing, but in doing so, imposed certain conditions, which were not met, and ensuring compliance with the RFI. As a further example of a triable issue of material fact, plaintiff Lenz proffers evidence that Turner’s subcontract with Lescure required identification of “High Risk” tasks and a “Job Hazard Analysis” to be developed and reviewed with Turner prior to the start of work. However, no “Job Hazard Analysis” was performed prior to the pneumatic test that injured plaintiff Lenz.

To the extent defendant Turner contends it delegated away its duties regarding safety to Lescure, “The nondelegable duties doctrine prevents a party that owes a duty to others from evading responsibility by claiming to have delegated that duty to an independent contractor hired to do the necessary work. The doctrine applies when the duty preexists and does not arise from the contract with the independent contractor.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 600-601.) Here, plaintiff Lenz proffers evidence that present a triable issue of material fact with regard to whether the nondelegable duties doctrine applies.

Accordingly, defendant Turner’s motion for summary judgment is DENIED.