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Subcontractor Held Liable to Workers Injured by Jobsite Hazard that It Did Not Report
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July 19, 2010
By Rowan T. Mason
A subcontractor has been held liable to employees of a general contractor because the sub failed to notify the general contractor of a non-obvious jobsite hazard that it discovered.
The sub, Pacific Northstar Mechanical, Inc., contracted to install HVAC equipment for All Bay Contractors, Inc., the general contractor, on a tenant improvement project. During construction, two of the general contractor’s employees were severely injured when one grasped an I-bolt to which an electrified, ungrounded lighted fixture was attached and fell off a ladder, striking the other worker. Both workers were injured. The light fixture had been installed and left ungrounded by a previous owner, and neither the general contractor nor the subcontractor had performed any work involving the light fixture.
However, it was discovered that one of the sub’s employees previously had been slightly injured by the same hazard, his foreman knew this, but his foreman had failed to report the hazard to the general contractor. In deposition, the worker, the foreman and the owner of the sub acknowledged an obligation to report safety hazards to the general contractor.
After the general contractor’s injured employees sued the sub for negligence, the trial court granted summary judgment for the defense, finding that the subcontractor had no duty to report a hazard that it did not create. The injured employees appealed. The California Court of Appeal reversed. Suarez v. Pacific Northstar Mechanical, Inc., 180 Cal.App.4th 430, 103 Cal.Rptr.3d 168 (2009). The Supreme Court declined to review the Court of Appeal decision.
The Court of Appeal agreed with the trial court that the subcontractor had no duty of care to the injured workers under common law rules of negligence. It found that under long-standing tort principles no duty arises to affirmatively assist or protect another person from harm not created by the actor unless a special relationship existed between them. The appeals court held that no special relationship exists between a subcontractor and the employees of another employer on a jobsite. It declined the workers’ invitation to expand the special relationship doctrine to the facts before the court.
The appeals court also found that no duty arose from the contractual relationship of the parties. Although the subcontract imposed a duty on the sub to warn All Bay of dangerous conditions, the duty was limited to conditions “created during the progress of the work” and to “facilities utilized by [the sub] in performing the work,” but the sub had not installed or created the ungrounded light fixture.
However, the Court of Appeal agreed with the gseneral contractor’s employees that a statutory duty of care existed. The court wrote that Cal-OSHA workplace safety requirements and standards promulgated pursuant to them were admissible “in the same manner as any other statute, ordinance, or regulation.” It based its conclusion on Labor Code §6304.5 and a California Supreme Court decision applying the statute, which held that plaintiffs may use Cal-OSHA provisions to establish a duty of care in negligence suits.
The court looked to Labor Code §6400, which provides that when an employee is exposed to a hazard, a citation may be issued to certain types of employers, including the “employer whose employees were exposed to the hazard (exposing employer).” The appeals court noted that a Cal-OSHA regulation, 8 CCR §336.11, provides that an “exposing employer” can avoid citation by demonstrating that the “creating, controlling and/or correcting employers… were specifically notified or were aware of the hazards.” In other words, a subcontractor could fulfill its duty by notifying the party responsible for control of the jobsite, in this case the general contractor, of the hazard.
The appeals court rejected the sub’s argument that the reach of the statute was limited to the employer’s own employees. The court noted that the express language of the statute was broader than that.
The general contractor’s employees argued that the statute and regulation imposed a duty on the sub, after its employee was injured, to warn the general contractor, as a controlling employer, of the hazard and that the failure to do so constituted actionable negligence.
In the absence of direct authority on the issue, the appeals court turned to the legislative history of the most recent amendments to the CalOSHA statutes. First, it noted that the California Supreme Court already had held that the amendments were “intended to increase civil and criminal sanctions against those who maintain unsafe working conditions.” The appeals court found that the sub’s reading of the statutes directly conflicted with the stated goal of these amendments.
Next, the appeals court found that during consideration of the amendments, the Legislature specifically stated that changes in the statutes were not intended to authorize injured workers to sue the state based upon its duty to inspect workplace facilities. The court held that because any limitations on suits against non-governmental defendants were conspicuously absent from the amendments, none should be implied.
Finally, the court noted that before the amendments, Cal-OSHA and worker’s compensation liability already existed for injuries suffered by an employer’s own employees. That being the case, the court reasoned, not imposing liability for injuries to employees of other employers would mean that the amendments represented no change to then-existing law and would defeat the stated purpose of the amendments: to expand “civil and criminal penalties for failure to maintain a safe workplace.”
The appeals court held that: 1) the safety statutes and regulations impose a duty on employers on multi-employer jobsites to report all non-obvious hazards about which they learn as a result of exposure of their employees to the hazards even if the employer did not create the hazard; and 2) breach of that duty is actionable in a negligence suit by any workers subsequently injured by the unreported hazard.
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