Factual issue of hirer's negligent exercise of retained control in form of affirmative contribution renders reversal of grant of summary judgment

February 23, 2012
By Justice Steven Vartabedian (Ret.) on February 23, 2012 6:00 AM |

gavel.jpgIn Tverberg v. Fillner Construction Inc. (filed January 26, 2012) 2012 DJDAR, general contractor Fillner (defendant) was expanding the fuel pump area of a gas station. Two items of work involved the construction of a canopy and the erection of concrete posts to prevent vehicles from colliding with the fuel dispensers. Plaintiff Tverberg was the independent contractor who was the foreperson of Perry, the subcontractor constructing the canopy. Another sub, Alexander, was erecting the concrete posts. Plaintiff asked defendant's lead person twice, once before the start of the canopy construction and once on the next day after that construction started, to cover the wholes that had been dug where the posts (unrelated to canopy construction) were going to be installed. On the first occasion, the response was no equipment was available that day to over the holes. On the second occasion, a tractor was used by defendant to flatten the dirt piled around the holes. Later on that second day, Tverberg injured himself when he fell into one of the holes while walking toward the canopy work area.

In Solano Superior Court, defendant was granted summary judgment on each of two claims of liability: (1) breach of nondelegable regulatory duty and (2) negligent exercise of retained control. The Court of Appeal, First Appellate District, Division Four, reversed.

The appellate court first notes that the California Supreme Court in SeaBright Ins. V. US Airways, Inc. (2011) 52 Cal.4th 590 determined that the first theory is not actionable because the duty is delegable. However, the second theory here, if factually in dispute, is actionable. The court finds that triable issues of fact remain on that theory and reversed the judgment accordingly.

Recognizing that mere "retained control" concerning a claimed unsafe condition is not enough, standing by itself, to prove liability, the Court of Appeal points out three ways in which, defendant may have affirmatively contributed to plaintiff's injuries. First, that defendant ordered the creation of these holes would allow a jury to find negligent exercise of control. A second factual matter is whether defendant determined there was no need to cover up the holes because its employee felt the stakes and safety ribbon placed around the holes provided adequate safety. Finally, defendant's employee's statement there was no equipment available that day to cover the holes could allow a reasonable jury to infer that defendant agreed to cover the holes, but not immediately.

I find the legal analysis here to be very appropriate. What puzzles me a bit is the fact the plaintiff who injured himself is the very person who put defendant on notice of the dangerous holes. Didn't he know better than to step into the hole the very day he gave his second notice of need to remedy the danger? Perhaps that issue was not a part of this summary judgment consideration and might be raised later on in the case. Also, as the appellate court acknowledges, the third way that plaintiff could prove his case, inference of defendant's agreement to remedy the situation, is a "closer case;" perhaps offered as icing on the cake of the reasoning leading to reversal.

A public policy concern, perhaps beyond the purview of this opinion, is whether this line of cases starting with the California Supreme Court opinion in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, discourages hirers from taking any affirmative measures to help provide safety.