28 Cal. App. 5th 381
Cal. Ct. App. 5th2018Background
- Plaintiff Jose M. Sandoval, an employee of ROS, was severely burned by an arc flash while assisting TransPower (contractor) during an inspection at Qualcomm's cogeneration switchgear; jury found Qualcomm 46% at fault, TransPower 45%, Sandoval 9%.
- Qualcomm performed a lockout/tagout on the main cogen breaker and briefed contractors; TransPower witnessed the procedure and proceeded to inspect the de-energized main cogen cell.
- TransPower principal Frank Sharghi had long worked on the switchgear; he directed his employee to remove a cover on an adjacent energized cell (GF-5) without Qualcomm authorization; GF-5 exposure produced the arc flash that injured Sandoval.
- Plaintiff argued Qualcomm retained control over site safety and negligently exercised that control (failed to warn/mark/barricade energized equipment and ensure vendors/employees were informed); Qualcomm argued Privette and Hooker bar liability unless the hirer "affirmatively contributed" to the injury and that TransPower’s independent actions caused the accident.
- Trial court denied Qualcomm’s summary judgment and JNOV motions; jury returned verdict for plaintiff; trial court later granted Qualcomm a limited new trial on apportionment of fault (not on liability or amount of damages).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substantial evidence supported liability under the "retained control" exception (i.e., that Qualcomm negligently exercised retained control and "affirmatively contributed") | Qualcomm retained control over safety (lockout/tagout, safety briefings) and failed to ensure all persons (including Sandoval) knew which cells remained energized; that failure substantially caused the injury. | Privette/Hooker preclude hirer liability absent affirmative contribution; Qualcomm contends it did not direct or authorize opening GF-5, fully performed lockout/tagout, and communicated hazards to TransPower. | Affirmed: substantial evidence supported Qualcomm liability under retained-control exception; CACI No.1009B adequately covered Hooker’s "affirmative contribution" (causation/substantial-factor) requirement. |
| Whether the trial court properly granted a limited new trial on apportionment of fault | Sandoval argued the jury’s apportionment was supported by the evidence and the court erred in granting a new trial limited to apportionment. | Qualcomm argued apportionment was erroneous because TransPower (Sharghi) independently opened an energized cell beyond scope, warranting a new trial on apportionment. | Affirmed: trial court, sitting as independent factfinder, permissibly granted a new trial limited to apportionment (but the appellate court held the correct statutory basis was insufficiency of evidence to justify the verdict, not excessive damages). |
Key Cases Cited
- Privette v. Superior Court, 5 Cal.4th 689 (Cal. 1993) (general rule: hirer not liable for contractor’s employees; sets background for exceptions)
- Hooker v. Department of Transportation, 27 Cal.4th 198 (Cal. 2002) (retained-control exception: hirer liable where exercise of retained control affirmatively contributed to injury)
- Kinsman v. Unocal Corp., 37 Cal.4th 659 (Cal. 2005) (discusses retained-control principles and jury instruction context)
- Cabral v. Ralphs Grocery Co., 51 Cal.4th 764 (Cal. 2011) (standard for reviewing JNOV—substantial evidence test)
- Regalado v. Callaghan, 3 Cal.App.5th 582 (Cal. Ct. App. 2016) (supports CACI No.1009B; explains affirmative-contribution instruction need not require active conduct)
- Butler (Schelbauer) v. Butler Manufacturing, 35 Cal.3d 442 (Cal. 1984) (approves limited new trial on apportionment when jury’s apportionment is unsupported; guiding procedure for remittitur/new trial)