O'Gan v. King City Joint Union High School District

Opinion

Plaintiff Tonya O’Gan appeals from a judgment entered after a jury found in favor of respondent King City Joint Union School District in a personal injury action. Appellant contends the trial court erred in excluding a prior inconsistent statement offered to impeach a defense witness and in refusing to instruct the jury on the liability of the school district for the negligent acts of an independent contractor.

Appellant, a student at King City High School, had received permission to leave study hall and visit the restroom in the Fine Arts Building. She was accompanied by a friend Linda Sprügasci. Appellant testified that Miss

Even if the letter were admissible for impeachment, the judge had the authority to exclude it under Evidence Code section 352, which provides that a trial court may in its discretion exclude otherwise admissible evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time of (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

In this case, the trial court could well conclude that the danger of the jury considering the Sprugasci letter as substantive evidence that plaintiff was not sitting on the sink outweighed any effectiveness it may have had in impeaching her deposition testimony. The deposition was neutral on the issue of contributory negligence, but the letter would have been strong evidence showing lack of contributory negligence while having no apparent competence except to impeach the witness’ statement of nonrecollection. We conclude that it was not an abuse of discretion to exclude the letter.

Under Government Code section 815.4, a public entity is liable for torts committed by an independent contractor to the same extent that a private person would be liable. The trial court refused appellant’s request to instruct on this theory of liability. Appellant claims error. There was evidence that the Fine Arts Building was constructed by an independent

This evidence would have supported a jury finding that the sink had been negligently installed. Therefore, if the school district was liable for the contractor’s acts, it was error not to so instruct the jury. The general rule is that one is not liable for the acts of an independent contractor; however, this rule is subject to numerous exceptions. (See generally, Rest.2d Torts (1965) §§ 409-429.) One of these exceptions is that the possessor of land is answerable for the negligent failure of an independent contractor to construct or maintain buildings and structures in reasonably safe condition. (Maloney v. Rath (1968) 69 Cal.2d 442 , 447 [ 65 Cal.Rptr. 386 ]; Knell v. Morris (1952) 39 Cal.2d 450 [ 247 P.2d 352 ]; Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256 [ 143 P.2d 929 ]; Rest.2d Torts (1965) § 422.) The rationale behind this and similar exceptions is explained in the Restatement: “[The exceptions] arise in situations in which, for reasons of policy, the employer is not permitted to shift the responsibility for the proper conduct of the work to the contractor. The liability imposed is closely analogous to that of a master for the negligence of his servant.

“The statement commonly made in such cases is that the employer is under a duty which he is not free to delegate to the contractor. Such a ‘nondelegable duty’ requires the person upon whom it is imposed to answer for it that care is exercised by anyone, even though he be an independent contractor, to whom the performance of the duty is entrusted.” (2 Rest.2d Torts (1965) p. 394.)

This liability of the landowner extends to negligent installation of fixtures which are permanently affixed to and an integral part of the building. (Knell v. Morris, supra, 39 Cal.2d 450 , 456-457.) The jury could have found that the sink was a fixture; therefore it was error not to give the requested instruction on the liability of the school district for negligent installation by the independent contractor.

Defendant argues that the error was not prejudicial because instructions given to the jury were sufficient to cover the school district’s responsibility for negligent installation. The jury was instructed that the district was liable

But the potential vicarious liability of the school district for the contractor’s negligence is broader than its liability under Government Code section 835. The district might be vicariously liable without any fault of the kind contemplated by section 835. (2 Rest.2d Torts (1965) p. 394.) It would have been possible for the jury to find that the architect, in supervising the construction of an entire building, was not negligent in failing to insure that this particular sink was properly installed. The defect in installation was not of such an obvious nature that the jury would have been compelled to find that the district had constructive notice of the dangerous condition of the sink.

The jury could well have concluded that appellant’s injury was proximately caused by the contractor’s negligence and that, under the instructions given, the school district was nevertheless not liable. Such a resolution of the issues would have been contrary to law. Failure of the trial court to instruct the jury on the strongest theory which might have supported liability was prejudicial error.

The judgment is reversed.

Devine, P. J., and Rattigan, J., concurred.