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SAN FRANCISCO--A general contractor who actively engaged in creating conditions that led to injuries on the job site can be held directly liable, a California state appeals court ruled March 25 (Tverberg v. Fillner Construction Inc., Cal. Ct. App., No. A120050, 3/25/11).
The California Court of Appeal, First District, held that subcontractor Jeffrey Tverberg can sue the general contractor for direct liability for ordering four-by-four-foot holes be drilled and left uncovered in an area where Tverberg was working.
“While the passive permitting of an unsafe condition to occur is not an affirmative contribution, the act of directing that it occur is active participation,” the appeals court said. “We agree that by ordering these holes to be created and requiring Tverberg to conduct unrelated work near them, [general contractor] Fillner's conduct may have constituted a negligent exercise of its retained control in a manner that could have made an affirmative contribution to Tverberg's injury,” the court said.
General contractor Fillner Construction Inc., based in Rocklin, Calif., hired Lane Supply as a subcontractor on the gas station construction project in Dixon, Calif. Lane hired Perry Construction Inc. to build the canopy, and Perry Construction hired Tverberg to erect the canopy. Tverberg was injured when he fell into a hole one day after asking the “lead man’’ for Fillner to cover the holes. Another worker fell in the same hole earlier that morning, according to court records. Tverberg and his wife, Catherine, sued Fillner for personal injury.
The appeals panel held the Tverbergs offered sufficient evidence of a triable issue that Fillner assumed responsibility for the safety of workers near the holes and discharged that responsibility in a negligent manner.
California Labor Code Section 6400(B) and California Division of Occupational Safety and Health regulations (Cal. Code Regs. 8 Section 1542(a)(3)), require all pits be barricaded or securely covered. Fillner was generally responsible for safety conditions on the job site under Lab. Code Section 6400(b)(2), (3).
“Under these circumstances, we conclude that the regulation created a non-delegable duty that may form the basis of direct liability,” the court said in a 3-0 decision filed Feb. 24 but ordered published March 25.
The California Superior Court, Solano County, granted summary judgment to Fillner, finding Tverberg, as an independent contractor, could not hold the general contractor vicariously liable on a peculiar risk theory or directly liable for failing to cover the holes. The trial court held Tverberg was aware of the danger the open holes posed, did not refuse to work around them, and that Fillner had never promised to cover the holes.
The appeals court reversed, holding that recovery was not barred under Privette v. Superior Court((1993) 5 Cal.4th. 689) because Tverberg was an independent contractor rather than an employee covered by the state worker's compensation system (38 OSHR 979, 12/18/08).
The California Supreme Court last year held Tverberg could not hold Fillner vicariously liable on a peculiar risk theory for injuries arising from risks inherent in the nature of the location where the independent contractor was granted control (40 OSHR 584, 7/8/10).
Justices remanded to the appeals court to resolve whether the defendant could be held directly liable on a theory that it retained control over safety conditions at the job site.
“It essentially comes down to who is responsible that the OSHA regulations are followed and the site is safe,” Leslie M. Mitchell, a Sacramento, Calif., appellate attorney representing the Tverbergs, said April 5.
“The real issue in all of these cases is who has these obligations. The rules are pretty clear that the general contractor doesn't have the obligation to make sure that the site is safe’’ for subcontractors' employees and such responsibility is delegated to the subcontractors. “The question is to the extent they create hazards they cannot delegate that down,” Mitchell told BNA.
Stephen E. Norris, with Horvitz & Levy in Encino, Calif., representing Fillner, said April 5 the contractor plans to petition the California Supreme Court for review.
The California Supreme Court frequently has taken up Privette and its progeny, Norris and Mitchell noted. Justices now are considering whether a breach of non-delegable duty can make a party that hires a contractor liable for injuries to that contractor's employee (SeaBright Insurance Co. v. U.S. Airways Inc., Cal., No. S182508, extension granted 3/28/11; 40 OSHR 542, 6/24/10).
The court last month granted Fillner permission to file an amicus brief in the case.
Fillner is represented by Stephen E. Norris and David Axelrad, Horvitz & Levy in Encino, Calif., and Robert Lawrence Bragg, Vitale & Lowe, Rancho Cordova, Calif. Leslie Margaret Mitchell, Sacramento, Calif., and Kirk J. Wolden of the Arnold Law Firm in Sacramento, Calif., represent the Tverbergs.
The decision is available at http://www.courtinfo.ca.gov/opinions/documents/A120050A.PDF.
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