Tverberg v. Fillner Construction, Inc.
202 Cal. App. 4th 1439
| Cal. Ct. App. | 2012Background
- Fillner was the general contractor on a 2006 Dixon project to expand a commercial fuel facility and construct a metal canopy over fuel-pumping units.
- Perry Construction hired Tverberg as foreman; Tverberg was an independent contractor with over 20 years of structural steel experience under the sole proprietorship J.T. Construction.
- Alexander Concrete erected eight bollards with footings holes next to the canopy area; Tverberg had no need for or awareness of these holes for his canopy work.
- Tverberg asked Fillner’s lead man Steve Richardson to cover the holes; Richardson lacked equipment, and the crew used a tractor to flatten surrounding dirt while Tverberg removed some bollard-hole stakes.
- Tverberg fell into an uncovered bollard hole while walking toward the canopy on the second day of work, injuring himself and affecting his relationship with his wife.
- The Tverbergs sued for negligence and premises liability; after initial summary judgment for Fillner, the California Supreme Court later held against a broad nondelegable regulatory duty theory, while the appellate court was directed to reconsider retained control issues; the case was remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Nondelegable regulatory duty liability | Tverbergs contend Fillner breached Cal-OSHA duties by permitting unprotected holes. | SeaBright precludes such direct liability; hirer delegates duties to independent contractor, removing duty to the hirer. | Not liable; nondelegable duty claims barred. |
| Retained control and affirmative contribution | Fillner retained safety control and affirmatively contributed to injury via policies and actions. | No affirmative contribution; mere retention or passive prevention is insufficient. | Triable issue; summary judgment reversed; remanded for trial on affirmative contribution. |
Key Cases Cited
- SeaBright Ins. Co. v. US Airways, Inc., 52 Cal.4th 590 (Cal. 2011) (rejected nondelegable regulatory duty liability for independent contractors)
- Privette v. Superior Court, 5 Cal.4th 689 (Cal. 1993) (peculiar risk doctrine; vicarious liability for hirer not contractor)
- Tverberg v. Fillner Construction, Inc., 49 Cal.4th 518 (Cal. 2010) (retained control/peculiar risk framework; scope clarified)
- Hooker v. Department of Transportation, 27 Cal.4th 198 (Cal. 2002) (affirmative contribution required for retained control liability)
- Kinsman v. Unocal Corp., 37 Cal.4th 659 (Cal. 2005) (retained control and affirmative contribution analyzed)
- Ruiz v. Herman Weissker, Inc., 130 Cal.App.4th 52 (Cal. App. 2005) (failure to implement safety measures; need for evidence of agreement)
- Gravelin v. Satterfield, 200 Cal.App.4th 1209 (Cal. App. 2011) (premises liability; not controlling for retained control theory here)