Ignacio Dominguez v. Mike Owen Fabrication, et al., 16CV-0280

Hearing: Motion for Summary Judgment

Date: April 4, 2018

Background.

Ignacio Dominguez (“Mr. Dominguez”) and Marlene Dominguez (collectively “Plaintiffs”) filed a lawsuit against Mike Owen Fabrication, Inc., Mike Owen1, and J.W. Design and Construction, Inc. (“J.W. Design”) (collectively “Defendants”), asserting that Mr. Dominguez suffered injuries while installing decking at a project on Monterey Street in San Luis Obispo (“the Project”). Plaintiffs’ complaint alleges causes of action for negligence, premises liability, and loss of consortium. With respect to Plaintiffs’ negligence and premises liability claims, Plaintiffs allege that all Defendants violated various regulatory provisions, including California Code of Regulations, title 8, sections 1670, 1710 (l), and 1724, and Labor Code sections 3706, 3708, and 6400. (Compl., pp. 45.)

J.W. Design was the general contractor on the Project and entered into a subcontract with Mike Owen to perform steel work, including steel decking. Mike Owen entered into a subcontract with W.J. Lent (“Lent”) to install the decking. Mr. Dominguez was employed with Lent, and suffered injuries in a fall on December 9, 2015, while working at the Project.

In their complaint, Plaintiffs generally allege that Defendants’ negligence caused Mr. Dominguez to be exposed to a risk of falling. (Compl., p. 4.) Plaintiffs further allege that Defendants “were responsible for the placement of decking bundles on the structural steel frame of the building for the purpose of being spread by” Lent employees, including Mr. Dominguez. (Ibid.) Plaintiffs further allege that Defendants improperly placed the decking bundles, “thereby exposing those tasked with spreading the individual sheets to an unreasonable risk of harm.” (Ibid.) Plaintiffs also claim that Defendants failed to place cables and prevented Mr. Dominguez from using appropriate fall protection on the Project. (Ibid.)

Discussion.

J.W. Design moves for summary judgment on the basis that Plaintiffs’ claims are barred by Privette v. Superior Court (1993) 5 Cal.4th 689 (“Privette”) and its progeny. Privette holds that where the defendant is a contractor, owner, or developer, and is also a hirer of the injured employee’s employer, the injured worker’s suit against that defendant is
1 Mike Owen Fabrication, Inc. and Mike Owen are referred to collectively as “Mike Owen.”
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generally barred. (Privette, supra, 5 Cal.4th at p. 692; see also Toland v. Sunland Housing Group (1998) 18 Cal.4th 253, 264-265 (“Toland”) [Privette doctrine bars recovery on a theory that the hirer was directly negligent in failing to take precautions against peculiar risks]; SeaBright Ins. Co. v. U.S. Airways, Inc. (2011) 52 Cal.4th 590, 594 [Privette applicable where the general contractor/hirer fails to comply with workplace safety requirements concerning the precise subject matter of the contract, and the injury allegedly occurs of this failure].)

There are exceptions to the Privette doctrine. Relevant to this motion, the hirer can be held liable where he or she retained control of the details of the work and affirmatively contributed to the accident. (Hooker v Department of Transportation (2002) 27 Cal.4th 198, 202 (“Hooker”).)

As outlined in Hooker:

We conclude that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained control affirmatively contributed to the employee’s injuries. (Hooker, supra, 27 Cal.4th at p. 202.)

The Hooker facts are instructive. Paul Hooker was a crane operator employed by a general contractor. The California Department of Transportation (“CalTrans”) hired the general contractor to construct an overpass. The overpass was 25 feet wide, and the crane with the outriggers extended was 18 feet wide. Hooker would retract the crane’s outriggers to allow other construction vehicles or Caltrans vehicles to pass. Shortly before the fatal accident, Hooker retracted the outriggers and left the crane. When Hooker returned, he attempted, without first re-extending the outriggers, to swing the boom. Because the outriggers were retracted, the weight of the boom caused the crane to tip over. Hooker was thrown to the pavement and killed. (Hooker, supra, at p. 202.)

Caltrans was responsible for supervising the jobsite, and the safety chapter of Caltrans’ construction manual provided that it was responsible for obtaining the general contractor’s compliance with all safety laws and regulations. (Hooker, supra, at p. 202.) Caltrans previously observed the crane operators retract their outriggers to let other vehicles pass, as the decedent did. (Id. at pp. 202-203.)

Plaintiff sued Caltrans on the theory that Caltrans negligently exercised control over safety conditions at the jobsite. The Supreme Court determined that, although plaintiff had established triable issues of fact concerning whether CalTrans retained control over safety conditions at the worksite, plaintiff failed to raise triable issues of material fact as to whether CalTrans actually exercised the retained control so as to affirmatively contribute to the death of the decedent. In other words, there was no evidence that
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Caltrans affirmatively contributed to the adoption of the practice of retracting the outriggers to let other vehicles pass. (Hooker, supra, at p. 215.)

“Affirmative contribution” occurs where a general contractor

[I]s actively involved in, or asserts control over, the manner of performance of the contracted work. Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. (Hooker, supra, at p. 207, internal citations omitted.)
Here, J.W. Design contends it did not affirmatively contribute to the accident because: (1) J.W. Design did not improperly place the decking bundle; and (2) J.W. Design was not responsible for providing fall protection equipment to Lent employees, including Mr. Dominguez.

The evidence before the Court does not establish that anyone from J.W. Design improperly placed the decking bundles, prevented Mr. Dominguez from having adequate fall protection on the Project, or instructed the Project’s practices with respect to either the decking bundles or fall protection. Thus, the evidence does not establish that J.W. Design affirmatively contributed to Mr. Dominguez’s injuries to overcome the Privette doctrine.

J.W. Design presents 35 undisputed material facts (“UMFs”) to establish that Mr. Dominguez’s claims are barred under Privette. The evidence set forth by Mr. Dominguez in attempting to dispute these facts can be categorized as: the Prime Contract between the Project Owner and J.W. Design (“Prime Contract”); deposition testimony; and the declaration of Plaintiff’s expert, safety consultant J. Robert Harrell.

Before addressing the UMFs, the Court will address the Prime Contract2, of which Mr. Dominguez includes selected pages and highlighted excerpts in opposing this motion:

§ 3.3.1 The Contractor3 shall supervise and direct the Work4…[and] shall be solely responsible for, and have control over, construction means, methods, techniques, sequences and procedures for coordinating all portions of the Work…

2 The Prime Contract is a “Standard Form of Agreement between Owner and Contractor” published by the American Institute of Architects, or AIA. (Hiney Decl., Ex. 1, p. 1.)

3 “Contractor” in the Prime Contract is J.W. Design.

4 Mr. Dominguez did not include the Prime Contract’s page or section defining “Work.”
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§ 10.1 SAFETY PRECAUTIONS AND PROGRAMS The Contractor shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Contract. § 10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to 1. employees on the Work and other persons who may be affected thereby;

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§10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. (Hiney Decl., Ex. 1, pp. 3-5.)

Mr. Dominguez argues that based on the above excerpts, J.W. Design “retained responsibility for the safety of its subcontractors’ employees,” and that therefore Privette is inapplicable. Such language does not by itself establish a Privette exception. In Hooker, the plaintiff relied on the safety chapter of the Caltrans construction manual and the testimony of Caltrans officials responsible for supervising the jobsite to establish that Caltrans negligently exercised control over jobsite safety; this argument, as set forth above, was not persuasive. (Hooker, supra, 27 Cal.4th 198 at p. 202.) Here, the Court is not persuaded that in entering into the Prime Contract that J.W. Design sought to undertake additional responsibility for potential workplace injuries beyond that which it is responsible for under Privette and its progeny.

Turning to the UMFs, Plaintiff asserts UMF 3 is disputed based on the above-excerpted language of the Prime Contract. This evidence does not put the fact truly in dispute; rather, it evidences that J.W. Design entered into a Prime Contract for the Project with standard terms, provisions, and conditions5. Likewise, the deposition testimony of Travis Snyder, Mike Owen’s foreman, does not legitimately dispute the offered fact.

Mr. Dominguez asserts that UMF 4, based on his own deposition testimony, is disputed, offering the deposition testimony of Randy Walorinta, J.W. Design’s superintendent. Mr. Dominguez specifically claims Mr. Walorinta testified that “J.W. Design knew Mr. Dominguez was not secured by a safety harness and had a duty to stop the unsafe work.”
5 For the same reasons, UMFs 16, 17, 18, 32, 34, and 35 are not truly disputed, inasmuch as Plaintiff cannot dispute the cited portions from the Prime Contract and from the subcontract between J.W. Design and Mike Owen.
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However, none of the excerpted portions of Mr. Walorinta’s deposition support this statement, and there is no evidence before the Court that Mr. Walorinta knew whether Mr. Dominguez was secured by a safety harness. (See Hiney Decl., Ex. 3, pp. 69:5-13, 83:14-84:1.) Moreover, a hirer’s failure to correct an unsafe condition, by itself, does not establish an affirmative contribution to the accident. (Khosh v. Staples Const. Co., Inc. (2016) 4 Cal.App.5th 712, 717-721.) Even if Mr. Walorinta did testify to this fact, it does not legitimately dispute J.W. Design’s UMF that Mr. Dominguez received direction exclusively from his Lent supervisors as to the decking work. (UMF 4.)

Mr. Dominguez also asserts UMF 5 is disputed because Mr. Walorinta recalled seeing Mr. Dominguez placing decking before he fell. Again, this testimony does not legitimately dispute J.W. Design’s UMF – based on Mr. Dominguez’s own deposition testimony – that he never received directions about decking work from J.W. Design. (UMF 5.)

Mr. Dominguez attempts to dispute the language outlined in the subcontract between J.W. Design and Mike Owen with Mr. Walorinta’s statement that J.W. Design was “responsible for overall safety on the Project.” (UMF 19.) Mr. Dominguez also highlights Mr. Walorinta’s statement that he never read the Prime Contract. This testimony does not actually dispute the language of the subcontract between J.W. Design and Mike Owen.

Mr. Dominguez asserts UMF 26 is disputed because “J.W. Design was responsible for overall safety on the Project.” This does not dispute the fact that no one from Mike Owen or J.W. Design discussed safety with Lent’s employees, or instructed Mr. Dominguez to work without fall protection.

Mr. Dominguez does not legitimately dispute UMF 29, based on Mr. Dominguez’s deposition testimony, that each Lent employee used his own safety equipment. Mr. Dominguez’s cited testimony, also from his deposition, does not establish that “no perimeter lines had been placed.” Rather, Mr. Dominguez’s testimony establishes that he had a harness but was not wearing it because Lent’s supervisor told him “not to worry” about putting it on. (Hiney Decl., Ex. 6, pp. 71:21-72:18.) Moreover, even if there were no perimeter lines on the Project, Mr. Dominguez may not recover on a theory that J.W. Design failed to take precautions against this particular risk. (Toland, supra, 18 Cal.4th at pp. 264-265.)

According to UMF 31, there is no evidence that J.W. Design prevented Lent or Mike Owen from setting up fall protection, or directed that no fall protection be used; that anyone requested the J.W. Design set up fall protection; or that J.W. Design offered or promised to set up fall protection. Mr. Dominguez’s response does not dispute this fact; rather, Mr. Dominguez’s evidence again refers to Prime Contract’s general language. Likewise, Mr. Walorinta’s statement that J.W. Design was “responsible for overall project safety” does not dispute this fact.

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Similarly, nothing in the cited provisions of the Prime Contract, or Mr. Walorinta’s statement that he “inspected the job site daily,” disputes that the individual workers (including Mr. Dominguez, by his own testimony) brought their own safety equipment to the Project and performed their own safety functions. (See UMF 33.)

Mr. Dominguez does not dispute the following facts, which are significant in establishing that J.W. Design did not affirmatively contribute to the incident causing Mr. Dominguez’s injuries: – Mr. Dominguez notified Jim Zamora, whom Mr. Dominguez believed was Lent’s superintendent, of the improper placement of the decking bundle, which Mr. Dominguez believed was a safety hazard (UMF 12); – Mr. Dominguez did not discuss the improper placement of the decking bundle with anyone from Mike Owen or J.W. Design (UMF 13); – Mr. Dominguez and his Lent colleagues attempted to use Mike Owen’s forklift to relocate the decking bundle, which attempt was unsuccessful (UMFs 14, 15); – Mike Owen originally placed the decking bundles on the worksite with its crane (UMF 20); – Ralph Mosley, believed to be Lent’s supervisor, instructed Mr. Dominguez “not to worry” about harnessing himself, “but to worry about getting the decking installed” (UMF 21); – Mr. Mosley, the Lent supervisor, asked Mr. Dominguez to work without a safety harness (UMF 22); – Another Lent employee heard Mr. Mosley tell Mr. Dominguez to work without safety cables (UMF 24); – Mr. Dominguez did not ask a representative of either Mike Owen or J.W. Design about fall protection (UMF 25); – Neither J.W. Design or Mike Owen conducted a safety meeting for the workers (UMF 27); and – Mr. Dominguez brought his own safety equipment to the Project and did not request safety equipment from either Mike Owen or J.W. Design (UMFs 29, 30).

After a thorough review of the Parties’ submissions, there is no evidence that anyone from J.W. Design directed the manner in which the decking was to be installed. Nor is there evidence that anyone at J.W. Design placed the decking bundles, let alone in an improper manner6. The evidence before the Court establishes that if anyone instructed Mr. Dominguez not to use his safety equipment, it was those individuals employed by Lent, not J.W. Design. This case is thus distinguishable from Tverberg v. Fillner Const., Inc. (2012) 202 Cal.App.4th 1439, where a triable factual issue existed as to whether the contractor/hirer was liable where it ordered large holes to be dug in area of subcontractor’s work without proper safety measures, and failed to cover the holes after agreeing to do so. (Id. at p. 1447.) Here, there is no evidence before the Court that anyone
6 As indicated above, Mr. Dominguez does not dispute any of J.W. Design’s evidence with respect to the placement of the decking bundles.
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from J.W. Design ordered the placement of the decking bundles, ordered Mr. Dominguez to work without adequate fall protection, or failed to provide adequate fall protection.

Mr. Dominguez also has an alternative theory of liability based on J.W. Design’s alleged regulatory violations. Even with this alternative theory, however, Mr. Dominguez must demonstrate that J.W. Design’s alleged breach of its regulatory duties affirmatively contributed to his injuries. (Barclay v. Less M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281, 290 [even where the general contractor’s regulatory duties are nondelegable, and therefore not defeated by Privette, the general contractor is not liable unless its conduct affirmatively contributed to the employee’s injuries], citing Park v. Burlington Northern Santa Fe Railway Co. (2003) 108 Cal.App.4th 595, 609-610.) As outlined above, Mr. Dominguez has not made such a showing.

Consistent with Privette, Hooker, and the line of cases that follow, to raise a triable issue of fact, Mr. Dominguez must show that J.W. Design’s conduct affirmatively contributed to his injuries. No such facts are presented here in terms of direction by a J.W. Design employee as to the installation of the decking, including with respect to the placement of the decking bundles and the fall prevention system in place on the Project. Thus, there are no triable issues of fact concerning the Privette exception as enunciated in Hooker.

Mr. Dominguez opposes J.W. Design’s motion by noting that he has a claim for direct negligence against J.W. Design, and that this claim should survive summary judgment. (See Opp., p. 6, ll. 10-12.) Even where Privette bars a vicarious liability claim, a negligence claim premised on direct liability can be maintained as an alternative theory of relief based on the traditional elements of duty, breach, causation, and damages. (Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, 1123, 1129; Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 593 [where defendant owner contractor asserted plaintiff’s direct negligence claim was barred by Privette, the jury was appropriately instructed on “the essential factual elements of general negligence and the basic standard of care in negligence cases”].)

Here, Mr. Dominguez raises a triable issue of fact with respect to his direct negligence claim with the declaration of J. Robert Harrell. Mr. Harrell opines that J.W. Design fell below the standard of care in its enforcement of safety measures on the Project. Notably, J.W. Design offers nothing on reply to contradict Mr. Harrell’s opinions concerning this alleged breach of the standard of care. (Ray v. Silverado Constructors, supra, 98 Cal.App.4th at p. 1130 [plaintiff raised triable issue of fact based on general contractor and project owner’s alleged breach of its duty to close the road where plaintiff’s decedent was killed]; see Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1332 [expert declarations on summary judgment are liberally construed].)

J.W. Design’s separate statement also fails to address Mr. Dominguez’s direct negligence claim at all. On summary judgment, the moving party’s separate statement of undisputed material facts must identify:
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(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and (B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion. (Cal. Rules of Court, rule 3.135(d).)

Here, J.W. Design does not identify each Plaintiffs’ causes of action as required by the Rules of Court. J.W. Design moves for summary judgment rather than adjudication, which it is entitled to do. However, the consequences of this are that J.W. Design’s separate statement fails to identify or address Mr. Dominguez’s direct negligence claim. Based on this failure, the Court is within its discretion to deny J.W. Design’s motion. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315-316.)

Plaintiffs raise a triable issue of fact with respect to their direct negligence claim. J.W. Design’s motion is denied.