34 Cal. App. 5th 703
Cal. Ct. App. 5th2019Background
- Webcor contracted to rehabilitate UC Berkeley's stadium and retained responsibility for site safety, including designing, installing, and maintaining plywood covers over 12" deep expansion joints.
- Webcor subcontracted ventilation/plumbing work to ACCO; ACCO employees were told Webcor alone would maintain safety covers and subcontractors were prohibited from performing carpentry on covers.
- Prior to the accident, multiple subcontractors reported unsecured/damaged covers in a general access area (line 53); Webcor conducted some inspections but documentation was missing for days immediately before the accident.
- ACCO employee James Strouse fell when a plywood cover at line 53 gave way while he carried pipe, suffering serious injuries; photos showed covers modified and not properly maintained.
- Jury found Webcor exclusively at fault (100%) under a retained-control theory; judgment awarded Strouse damages and ACCO prevailed on Webcor’s indemnity cross-complaint; trial court later awarded ACCO attorney fees.
- Webcor appealed, challenging jury instructions (CACI No. 1009B and negligence per se based on Cal‑OSHA §1632) and the fee award; the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of CACI No. 1009B (retained control/affirmative contribution) | Instruction correctly tracks law requiring retained control and negligent exercise causing injury | CACI 1009B wrongly substitutes "substantial factor" causation for Hooker’s "affirmative contribution" requirement and thus misstates law | Even if wording differed, any error was harmless; evidence showed Webcor affirmatively contributed and jury verdict stands; instruction upheld as not prejudicial |
| Negligence per se based on Cal‑OSHA §1632 | Cal‑OSHA may be used to establish standard of care; Webcor violated §1632 and violation was a substantial factor in injury | Cal‑OSHA compliance was delegated to ACCO, so §1632 cannot ground civil liability against Webcor; and negligence per se should not be given absent affirmative‑contribution instruction | Instruction proper: statute may establish standard/duty; evidence showed Webcor retained responsibility for covers and affirmatively contributed, so negligence per se instruction was not erroneous or prejudicial |
| Application of Privette/Hooker/McKown (third‑party hirer liability) | N/A (issues folded into above) | Webcor argued Privette/Toland bar and Hooker limit liability where hirer didn’t affirmatively contribute | Court applied Privette exceptions: retained control + affirmative contribution permit liability; facts distinguished Hooker and supported liability |
| Attorney fees to ACCO (prevailing party on cross‑complaint) | ACCO sought fees as prevailing party | Webcor challenged fee award | Fee award affirmed by Court of Appeal |
Key Cases Cited
- Privette v. Superior Court, 5 Cal.4th 689 (1993) (hirer of independent contractor generally not liable to contractor’s employee under Privette; workers’ compensation exclusivity rationale)
- Hooker v. Department of Transportation, 27 Cal.4th 198 (2002) (hirer liable only when retained control and hirer’s affirmative contribution caused injury; omission can qualify if hirer promised a safety measure)
- McKown v. Wal‑Mart Stores, Inc., 27 Cal.4th 219 (2002) (hirer who negligently furnishes unsafe equipment may be liable to contractor’s employee)
- SeaBright Ins. Co. v. US Airways, Inc., 52 Cal.4th 590 (2011) (Privette applied where hirer implicitly delegated safety duties to contractor for the specific subject matter of the contract)
- Regalado v. Callaghan, 3 Cal.App.5th 582 (2016) (approved use of CACI No. 1009B and interpreted "affirmative contribution" as requiring causation under a substantial‑factor test)
- Millard v. Biosources, Inc., 156 Cal.App.4th 1338 (2007) (Cal‑OSHA provisions may be used to prove standard of care; discussed interplay with Privette)
Disposition: Judgment affirmed; Strouse and ACCO recover costs on appeal.