Caudel v. East Bay Municipal Utility District

At the time of the subject accident, the contractor was performing excavation and earthmoving work at night. Excavated mud was dumped in certain areas and then spread out. Although the project was generally illuminated through the use of light towers furnished, maintained and erected by the contractor, some portions of the work area were not well illuminated. According to appellant’s own deposition testimony, the accident occurred when appellant’s foreman directed appellant to drive his bulldozer into an area that was some distance away from the lights.^[1] Patrick A. Clinton, a junior civil engineer employed by respondent, testified that this area was extremely muddy, slick and wet and was “not well lighted”; indeed, it was so dark that he could not see without the use of a flashlight. Shortly after midnight, July 20, 1979, while appellant was working in the unlighted area, the foreman signalled with his flashlight to appellant to dismount from the bulldozer and come towards him. As appellant began to dismount, he slipped on some mud on the push arm of the bulldozer and fell two feet to the ground.

Subsequently, appellant filed this lawsuit alleging personal injuries and seeking damages from respondent. Respondent’s motion for summary judgment was continued in order to allow appellant six months to obtain facts through discovery to show that there was a triable issue of fact with regard to the issue of whether respondent was supervising and directing appellant’s activities. After six months, respondent refiled its motion, which was granted. This appeal followed.

At the time of the accident, appellant was employed by an independent contractor. As a general rule, an employer is not liable for the negligence or other tort of an independent contractor or of the latter’s employees. (McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785 , 788 [ 285 P.2d 902 ]; West v. Guy F. Atkinson Constr. Co. (1967) 251 Cal.App.2d 296 , 299 [ 59 Cal.Rptr. 286 ].) However, this rule is subject to so many exceptions that it has been said that nonliability is now the exception, and the so-called “general rule” will be followed only where no good reason is found for departing

The principle exception to this rule is known as the “peculiar risk” doctrine. As stated in the Restatement of Torts: “One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.” (Rest.2d Torts, § 416.)^[2] The rule set forth in section 427 of the Restatement Second of Torts is closely related to and to a considerable extent a duplication of the rule stated in section 416.^[3]

Appellant contends that the peculiar risk in the instant case arose from the fact that the work involved—moving heavy excavated materials over wet, slick, slippery and muddy ground—was being performed at night. The risk was arguably “peculiar” because unless special precautions were taken, this kind of work was likely to create a foreseeable, identifiable risk of harm to individuals, who would be liable to slip and fall in the dark and thereby injure themselves. The special precautions to be taken here, at a minimum, would be the provision of adequate lighting to illuminate the area in which work was to take place. Appellant argues that respondent was liable for the injuries he suffered because they resulted from the negligent failure to provide adequate lighting in all parts of the work site.

Appellant’s position is supported by the case law. In general, as long as a peculiar risk is present, it is irrelevant whether it was the independent contractor or the contractor’s employer who was negligent in failing to exercise reasonable care to take the necessary precautions; under the law, the employer will be liable for physical harm resulting from the negligence. (LaCount v. Hensel Phelps Constr. Co. (1978) 79 Cal.App.3d 754 , 762-764 [ 145 Cal.Rptr. 244 ].) “ ‘A peculiar risk is a risk which is peculiar to the work to be done and arises out of its character or the place where it

This 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 at p. 252, quoting Harper, Law of Torts (1933) § 292.) On this subject, the Supreme Court has observed: “ ‘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 at p. 510.) Prosser defines collateral negligence as follows: “The test of ‘collateral’ negligence, therefore, appears to be, not its character as a minor incident or operative detail of the work to be done, but rather its disassociation from any inherent or contemplated special risk which may be expected to be created by the work.” (Prosser, Torts (4th ed. 1971) p. 475.)

Thus, an employer is required to contemplate, and to be responsible for, the negligence of the contractor with respect to all special risks or dangers to others which are inherent in or peculiar to the work to be done, arising out of the normal and usual manner of doing work of that character under the particular circumstances or situation at hand. (Rest.2d Torts, §§ 413, com. b, 416, com. b, d, e, 426, com. b, 427, com. b.) On the other hand, “[h]e is not required to contemplate or anticipate abnormal or unusual kinds of negligence on the part of the contractor, or negligence in the performance of operative details of the work which ordinarily may be expected to be carried out with proper care, unless the circumstances under which the work is done give him warning of some special reason to take precautions, or some special risk of harm to others inherent in the work.” (Rest.2d Torts, § 426, com. b; see also Rest.2d Torts, § 427, com. d.)^[4]

The statute setting forth the grounds for summary judgment states that a motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from such evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from such evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).) “The summary judgment procedure is a drastic measure depriving the losing party of a trial on the merits and may not be granted unless it is clear from the affidavits or the declarations filed in connection with the motion that there are no triable issues of fact. [Citation.] The affidavits or declarations of the moving party are to be strictly construed and those of the opponent liberally construed. [Citation.] ... In all cases,