Castro v. State

Opinion

This appeal involves the peculiar risk exception to the general immunity of an employer for the torts of its independent contractor. Plaintiff, a dump truck driver, was an employee of a construction company engaged by the State of California to install a pipeline to transport Feather River water across the City of Riverside to a reservoir in Perris. Plaintiff sued the state (defendant) for damages for injuries he sustained when a fellow employee backed his truck into him. Trial resulted in a plaintiff’s jury verdict but the court granted defendant’s motion for judgment notwithstanding the verdict. Plaintiff appeals from the judgment in favor of defendant notwithstanding the verdict and defendant cross-appeals from the judgment for plaintiff on the jury verdict.

On both appeals, plaintiff is entitled to the benefit of every favorable inference which may reasonably be drawn from the evidence and to have all conflicts in the evidence resolved in his favor. (Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 502 , 507 [ 156 Cal.Rptr. 41 , 595 P.2d 619 ]; In re Marriage of Mix (1975) 14 Cal.3d 604 , 614 [ 122 Cal.Rptr. 79 , 536 P.2d 479 ]; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920 , 925-926 [ 101 Cal.Rptr. 568 , 496 P.2d 480 ].) The evidence will be reviewed accordingly.

Sully-Miller Construction Company had contracted with the state to lay the pipeline. At the time of the accident, work was progressing southerly on Watkins Drive, a north-south street, in the City of Riverside. The street was approximately 60 feet wide and sloped downward southerly. The pipe was 10 feet in diameter and was being set in a trench approximately 20 feet wide and 24 feet deep within the street right-of-way and adjacent to the westerly curb line. The trench and the equipment took up most of the entire width of the street.

Six to seven dump trucks, all owned or leased by the drivers, were used to haul the dirt away. All of the drivers, including plaintiff, were employees of Sully-Miller Construction Company. Plaintiff’s truck which was similar to the others was a 10 wheeler with a dump box having a capacity of 10 square yards; it was 8 feet wide with an overall length of 25 feet; the cab was 7 or 8 feet high and the top of the bed was approximately 15 feet high; there was an extension mirror on each side of the cab and a rear view mirror within the cab; vision from the inside mirror was totally obscured by the dump box.

In order to avoid having the trucks back uphill after being loaded, the construction procedure for the project included a plan calling for the truckers to drive their empty trucks north on Watkins beyond the construction site to a driveway or cross street, turn the vehicles around and back down the street to the backhoe for loading. In lining up for loading, the trucks were to maintain a space of 25 feet. After the trucks were loaded, they were to be driven north on Watkins to unloading areas. At the time of the accident, the trucks had to back up a distance of about a half a block to reach the backhoe.

Plaintiff had backed his truck down Watkins Drive into a position fourth in line for loading. While backing down, he noticed that his motor was sputtering, so after he stopped in line he got out to check a new bolt he had put on the battery cable of his truck. He opened the hood, climbed onto the front bumper and was checking the battery cable when he was struck by a backing truck operated by coemployee Brake.

Brake had backed down Watkins a distance of more than half a block; he did not see plaintiff in either of his side mirrors; the mirrors provided just a glimpse of the edge of Castro’s truck; at a distance of 85 feet or less, he was unable to see what was directly behind him. Plaintiff did not see Brake’s truck nor did he hear its backup bell. The trucks in line had their motors running; the diesel powered backhoe, a large air compressor and boiler, bulldozers and other heavy equipment in the

There was evidence that the truck drivers had been told to remain in their vehicles while waiting in line, not as a safety precaution, but to avoid work delays. The truckers paid little or no attention to the admonition; they commonly got out of their trucks to stretch their legs of to smoke. Defendant adduced testimony that truckers were told to get out of the line to make repairs when they encountered engine trouble. Plaintiff testified he had never been so told.

Plaintiff stated that on other similar jobs where he had worked there were “spotters” or “flagmen” who directed the truck drivers in backing up their vehicles. Plaintiff’s expert, a former state inspector, testified it was normal and customary to have “spotters” or “flagmen” when the job required trucks to back up and that in his opinion “flagmen” or “spotters” should have been provided on the instant job because of truck drivers’ limited visibility to the rear and the difficulty in hearing backup bells above the noise from the heavy equipment working in the area.

The jury returned a verdict in plaintiff’s favor and assessed his damages at $240,000 but found that he was 45 percent negligent. The jury also returned a special verdict in which it answered “Yes,” to the following question: “Should the defendant, State of California, have recognized that the work done by plaintiff’s employer, Sully-Miller Construction Company, would create a peculiar risk of harm without special precautions?” Judgment on the jury verdict was entered in plaintiff’s favor for $132,000.

Plaintiff’s Appeal

Plaintiff contends that the court erred in granting defendant’s motion for judgment notwithstanding the verdict on the basis that the evidence was insufficient as a matter of law to support the jury finding of liability on the peculiar risk theory. As we explain below, we agree with plaintiff’s position.

(a) The Peculiar Risk Doctrine:

The general rule is that an employer of an independent contractor is not liable for the negligence of the contractor or its employees but the

The doctrine can perhaps be best explained by examples of the types of risks which have been found to come within its scope. The following were collected and summarized in Griesel v. Dart Industries, Inc., supra, 23 Cal.3d 578 , at page 586: “[T]he risk of being struck by an automobile while eradicating traffic lines on a busy street (Van Arsdale v. Hollinger, supra, 68 Cal.2d at p. 254), the risk of being run over by dump trucks backing up during road construction work (Anderson v. L.C. Smith Constr. Co. (1969) 276 Cal.App.2d 436 , 445-446 [ 81 Cal.Rptr. 73 ]), the risk of explosion while painting the inside of a tank with a volatile paint (Woolen v. Aerojet General Corp., supra, 57 Cal.2d at p. 410 [ 20 Cal.Rptr. 12 , 369 P.2d 708 ]; McDonald v. City of Oakland (1965) 233 Cal.App.2d 672 , 677-678 [ 43 Cal.Rptr. 799 ]), the risk of falling while working on a 10-foot high wall (Morehouse v. Taubman (1970) 5 Cal.App.3d 548 , 557-558 [ 85 Cal.Rptr. 308 ]), or on a 20-foot high bridge (Fonseca v. County of Orange (1972) 28 Cal.App.3d 361 , 365-366 [ 104 Cal.Rptr. 566 ]), the risk of electrocution while operating a crane near high, voltage wires during bridge construction work (Walker v. Capistrano Saddle Club (1970) 12 Cal.App.3d 894 , 900 [ 90 Cal.Rptr. 912 ]), and the risk of a cave-in while working in a 14-foot deep trench (Widman v. Rossmoor Sanitation, Inc. (1971) 19 Cal.App.3d 734 , 744-747 [ 97 Cal.Rptr. 52 ]).”

Whether the particular work which the independent contractor has been hired to perform is likely to create a peculiar risk of harm to others unless special precautions are taken is ordinarily a question of fact. (Ferrel v. Safway Steel Scaffolds (1962) 57 Cal.2d 651 , 656 [ 21 Cal.Rptr. 575 , 371 P.2d 311 ]; Mackey v. Campbell Construction Co. (1980) 101 Cal.App.3d 774 , 785 [ 161 Cal.Rptr. 64 ]; Walker v. Capistrano Saddle Club (1970) 12 Cal.App.3d 894 , 899 [ 90 Cal.Rptr. 912 ].) In the case at bench, the trial court instructed the jury on the peculiar risk doctrine as set forth in section 416 of the Restatement and submitted a special verdict form for a finding as to whether the state should have recognized that the work done by Sully-Miller Construction Company would create a peculiar risk of harm without special precautions. The jury returned a special finding in favor of the plaintiff on the pecu

(b) Propriety of the Order Granting Motion for Judgment Notwithstanding the Verdict:

The rules circumscribing the power of a trial judge to grant a motion for judgment notwithstanding the verdict are well established. The power to grant such a motion is identical to the power to grant a directed verdict; the judge cannot weigh the evidence or assess the credibility of witnesses; if the evidence is conflicting or if several reasonable inferences may be drawn, the motion should be denied; the motion may be granted “‘“only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict.””’ (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865 , 877-878 [ 151 Cal.Rptr. 285 , 587 P.2d 1098 ]; Brandenburg v. Pac. Gas & Elec. Co. (1946) 28 Cal.2d 282 , 284 [ 169 P.2d 909 ], quoting Hauter v. Zogarts (1975) 14 Cal.3d 104 , 110-111 [ 120 Cal.Rptr. 681 , 534 P.2d 377 , 74 A.L.R.3d 1282 ].)

Viewing the evidence in accordance with the foregoing principles, there was ample evidence to support the jury’s finding that the state should have recognized that the work Sully-Miller Construction Company was hired to do would be likely to create during its progress a peculiar risk of harm to others, including Sully-Miller employees, unless special precautions were taken.

Construction procedures on the project included a plan calling for the dump trucks to proceed to a point north of the construction site, turn around at an intersection or driveway, and back down for a distance of a half a block or more to the backhoe for loading. This plan was adopted in advance of actual construction and was known to the state’s safety inspectors on the job whose responsibilities included approval of the contractor’s safety plan. There was evidence that the mirrors mounted on the sides of the truck cabs did not enable drivers to see what was directly behind them at distances of 85 feet or less. The trucks were equipped with backup bells, but there was evidence from which it could be inferred that the bells could not be heard above the din of engine noises from the trucks and heavy equipment in the area. Although a representative of the contractor testified that it was the custom and

The foregoing evidence was sufficient to support the jury’s finding of liability under the peculiar risk doctrine. There was substantial evidence that the state should have recognized that the risk of someone being struck by dump trucks backing up for more than half a block was inherent in the approved plan of operation unless special precautions were taken. While the evidence was conflicting in many respects, the very existence of the conflict rendered it inappropriate for the court to grant the motion for judgment notwithstanding the verdict. (See Ferrel v. Safway Steel Scaffolds, supra, 57 Cal.2d 651 , 656; McCown v. Spencer (1970) 8 Cal.App.3d 216 , 226 [ 87 Cal.Rptr. 213 ]; Robinson v. North American Life & Cas. Co. (1963) 215 Cal.App.2d 111 , 118 [ 30 Cal.Rptr. 57 ].) In attempting to uphold the trial court’s action, defendant cites evidence favorable to it and ignores evidence and inferences favorable to plaintiff. In order to uphold an order granting a motion for judgment notwithstanding the verdict, it must be shown that, viewing the evidence in the light most favorable to the party who received the verdict, there was no substantial evidence to support the verdict. (Brandenburg v. Pac. Gas & Elec. Co., supra, 28 Cal.2d 282 , 284.)

Defendant argues that the peculiar risk doctrine should be narrowly interpreted when the injured party is an employee Of the independent contractor, citing LaCount v. Hensel Phelps Constr. Co. (1978) 79 Cal.App.3d 754 , 766-767 [ 145 Cal.Rptr. 244 ]; Elder v. Pacific Tel. & Tel. Co. (1977) 66 Cal.App.3d 650 , 659 [ 136 Cal.Rptr. 203 ]; Anderson v. Chancellor Western Oil Dev. Corp. (1975) 53 Cal.App.3d 235 , 240-243 [ 125 Cal.Rptr. 640 ]. In Anderson and Elder, the reviewing court held that under the particular facts and circumstances there shown, the

In any event, as a matter of public policy, we see no justification for a strict interpretation of the peculiar risk doctrine just because the injured person is the employee of the independent contractor rather than a third person. The workers’ compensation law preserves an employee’s right to obtain redress for injuries caused by the negligence of third persons who are not in an employment relationship with him. (Lab. Code, § 3852.) It does not alter the correlative rights and liabilities of parties who do not occupy the required statuses of employer and employee. (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486 , 495 [ 162 Cal.Rptr. 320 , 606 P.2d 355 ]; Baugh v. Rogers (1944) 24 Cal.2d 200 , 214 [ 148 P.2d 633 , 152 A.L.R. 1043 ]; Campbell v. Harris-Seybold Press Co. (1977) 73 Cal.App.3d 786 , 790 [ 141 Cal.Rptr. 55 ].) As the examples of the application of the peculiar risk doctrine collected in Grisel v. Dart Industries, Inc., supra, 23 Cal.3d 578 , 586, reveal, the doctrine finds its most common application when the injured party is an employee of the independent contractor. Our high court has declared time and again that an employee of an independent contractor comes within the word “others” as used in Restatement sections 413 and 416 and may sue the contractor’s employer under the peculiar risk doctrine. (Aceves v. Regal Pale Brewing, Co., supra, 24 Cal.3d 502 , 509, fn. 1; Van Arsdale v. Hollinger, supra, 68 Cal.2d 245 , 254; Woolen v. Aerojet General Corp. (1962) 57 Cal.2d 407 , 410-411 [ 20 Cal.Rptr. 12 , 369 P.2d 408 ].) The Supreme Court has never suggested that the doctrine must be strictly interpreted when the injured party is an employee of the independent contractor. Indeed, as Justice Kerrigan observed in this

Defendant contends that it could not be liable under the peculiar risk theory because plaintiff’s injuries were caused by the “collateral” negligence of the employee who backed his truck into plaintiff. The distinction between “collateral” or “casual” negligence and negligence which will render the employer liable has been described as “a shadowy one at best.” (Van Arsdale v. Hollinger, supra, 68 Cal.2d 245 , 252, quoting Harper, Law of Torts (1933) § 292.) Our high court recently explained the distinction in the following terms: “Liability under the peculiar risk doctrine does not extend to so-called ‘collateral’ or ‘casual’ negligence on the part of the contractor or his employees. (Van Arsdale v. Hollinger, supra, 68 Cal.2d at p. 252.) 'Casual’ or ‘collateral’ negligence has sometimes been described as negligence in the operative detail of the work, as distinguished from the general plan or method to be followed. Although this distinction can frequently be made, since negligence in the operative details will often not be within the contemplation of the employer when the contract is made, the distinction is not essentially one between operative detail and general method. ‘It is rather one of negligence which is unusual or abnormal, or foreign to the normal or contemplated risks of doing the work, as distinguished from negligence which creates only the normal or contemplated risk.’ (Rest.2d Torts, § 426, com. a; see Prosser, Law of Torts, 4th ed. (1971) pp. 474-475.)” (Aceves v. Regal Pale Brewing Co., supra, 24 Cal.3d 502 , 510.)

Evidence in the case at bench supports the finding that plaintiff’s injuries resulted from negligence which creates only the normal or contemplated risk of harm to others. The negligence which occasioned

Defendant cites a number of cases where the peculiar risk doctrine has been held inapplicable. As the court in Mackey v. Campbell Construction Co., supra, 101 Cal.App.3d 774 , said of those cases: “We have examined the cases cited by defendants which have held the ‘peculiar risk of harm’ doctrine inapplicable. Each has turned on the court’s conclusion that the risk was an ordinary one or one not related to any risk inherent in the particular work being performed. (See, e.g., Addison v. Susanville Lumber, Inc. (1975) 47 Cal.App.3d 394 [ 120 Cal.Rptr. 737 ]; Elder v. Pac. Tel. & Tel. Co. (1977) 66 Cal.App.3d 650 [ 136 Cal.Rptr. 203 ]; Holman v. State of California, supra, 53 Cal.App.3d 317 [ 124 Cal.Rptr. 773 ]; see also Stark v. Weeks Real Estate, supra, 94 Cal.App.3d 965 [ 156 Cal.Rptr. 701 ].)” (Mackey v. Campbell Construction Co., supra, 101 Cal.App.3d 774 , 787-788.)

For all of the foregoing reasons, we conclude that the judgment notwithstanding the verdict should be reversed.

Defendant’s Cross-appeal

Defendant’s cross-appeal from the judgment on the jury verdict raises virtually the same issues presented by plaintiffs appeal from the judgment notwithstanding the verdict.

(a) Applicability of Peculiar Risk Doctrine:

Defendant, incorporating by reference its arguments in response to plaintiffs appeal, contends that the jury should not have been instruct

Defendant’s proposed instruction would also have been improper under the rule of liability stated in Restatement section 414. Liability under that rule is based on the employer’s negligent failure to use due care in exercising his retained control over the work; it is not a liability predicated on the doctrine of respondeat superior. As comment (a) to section 414 explains, if an employer retains control over the operative details of doing any part of the work, he may be liable for the negligence of the contractor’s employee under agency principles; but if the employer retains “only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others,” he may not be liable under agency principles but may be liable under rules stated in section 414 “unless he exercises his supervisory control with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others.” (Rest., § 414, p. 387, com. (a).) Comment (c) of section 414 states that in order for the rule contained in section 414 to apply, “the employer must have retained at least some degree of control over the manner in which the work is done.” In the case at bench, the question whether the state retained the degree of control over the manner of doing the work as would subject it to liability under the rule expressed in section 414 was for the jury. (See Holman v. State of California (1975) 53 Cal.App.3d 317 , 335 [ 124 Cal.Rptr. 773 ].)

Defendant cites comment (c) to section 414 and McDonald v. Shell Oil Co., supra, 44 Cal.2d 785 , as authority for its proposed instruction. As noted, comment (c) relates to the degree of control required to render the employer liable for its own failure to exercise due care; it does not relate to the degree of control required for liability under principles of master and servant. McDonald v. Shell Oil Co., supra, 44 Cal.2d 785 , involved the question whether the employer retained such degree of control over the means by which the work was to be accomplished as

Even were we to assume that the proposed instruction could somehow be deemed pertinent to the issue of liability under Restatement section 414, the failure to give the instruction was clearly nonprejudicial. Unlike situations in which the jury only returns a general verdict, in this case we need not speculate on the theory of liability adopted by the jury because it made a special finding of liability under the peculiar risk doctrine. There is thus no reasonable probability that a different verdict would have been rendered had defendant’s proposed instruction been given.

The judgment notwithstanding the verdict is reversed; judgment on jury verdict is affirmed and ordered reinstated.

Kaufman, J., and McDaniel, J., concurred.