Plaintiffs sued TCI for negligence and negligence per se, alleging that decedent was fatally injured because TCI failed to install structural roof anchors, as required by statute, to which decedent could attach a descent apparatus. TCI moved for summary judgment, contending that plaintiffs' suit was barred by Privette v. Superior Court (1993)
We affirm. Privette and its progeny hold that when a property owner hires an independent contractor, the property owner is not liable for injuries sustained by the contractor's employees unless the defendant's affirmative conduct contributed to the injuries. In the present case, the undisputed evidence was that TCI did not direct how the window washing should be done nor otherwise interfere with the means or methods of accomplishing the work. Accordingly, summary judgment was properly granted.
I.
Underlying Facts
TCI owns a three-story commercial building located at 6311 Romaine Street, Hollywood, California (the building). In 2011, TCI contracted with Chamberlin Building Services (CBS), a licensed contractor, to wash the building's windows. Decedent worked as a supervisor/window cleaner for CBS.
On June 20, 2011, while decedent was washing the building's windows, his descent apparatus detached and he fell to his death. He was survived by his wife and children.
Decedent's wife and children filed the present action against TCI on June 20, 2013. The operative complaint alleges that TCI failed to equip the building with structural
II.
TCI's Motion for Summary Judgment
TCI filed a motion for summary judgment on August 27, 2015. It asserted that plaintiffs were barred from recovering by Privette and its progeny because TCI had contracted with CBS to wash the building's windows and had not retained control over the manner in which the work would be done. In support of its motion for summary judgment, TCI introduced evidence of the following:
TCI purchased the building in approximately 1986. In April 2010, TCI contracted with CM Cleaning Solutions, Inc. (CM Cleaning) to provide the building with cleaning/janitorial services.
In 2010, CM Cleaning, on behalf of TCI, solicited a proposal from CBS to wash the building's windows. In 2011, CBS's proposal was accepted. TCI did not provide CM Cleaning or CBS with a written assurance that it had anchor points that could safely support 5000 kilograms of weight.
Chamberlin, Gonzalez, and decedent requested access to the building's roof. There, they determined that one side of the building had adequate anchor points to which they could attach a controlled descent apparatus; the other side did not.
It was CBS's policy that two connectors were required when rappelling off a building: one primary line and one safety line. However, late in the morning of the first day, decedent attached his line to only a single connector-an angle iron bracket supporting the air conditioning unit on the roof, attached to a small piece of wood-which was not an acceptable anchor point. The bracket to which decedent attached his line failed, and decedent fell to his death.
Before CBS began cleaning the building's windows on June 20, 2011, building security had allowed Chamberlin, Gonzalez, and decedent access to the building's roof, but no one from TCI or CM Cleaning accompanied the three men when they inspected the roof. CBS and its employees made all decisions about how the window-washing would be accomplished.
The window-washing equipment used on the job was owned, inspected, and maintained by CBS.
III.
Plaintiffs' Opposition to Motion for Summary Judgment
Plaintiffs opposed the motion for summary judgment. Citing
In support of their opposition, plaintiffs submitted the declaration of Amit Gupta, a senior safety engineer for the California Division of Occupational Safety and Health Research and Standards Development Safety Unit. Gupta's declaration stated in relevant part as follows:
"During the investigation of the death of Salvador Franco, I met with Ana Ramirez, Property Manager of [TCI] and I advised her of the following:
"1. The rigging for the Controlled Descent Apparatus (CDA) gave way causing [decedent] to fall approximately fifty (50) feet to the concrete down below.
"2. California Labor Code Section[s] 7325-7332 require that owners of all buildings three or more stories provide anchors or other equipment detailed in Article 5 and 6 of the General Industrial Safety Orders.
"3. The building referenced is not equipped with roof anchors.
"4. Because of the proximity of electrical lines on at least two sides of the building (East & South) the building may not be cleaned using ground-based equipment.
"5. There is no safe method of cleaning that building that we have been made aware of[.] [T]herefore[,] as authorized by Labor Code Section 7331[
"7. [T]he building must have an OPOS [Operating Procedures Outline Sheet] when using a CDA [controlled descent apparatus] to clean windows.
Plaintiffs also submitted the declaration of Brad Avrit, a civil engineer and safety expert. Avrit's declaration stated, in pertinent part:
"9. Section 3282 applies to building owners as well as companies who provide window washing services. (See 8 CCR § 3282(p)(1)(A).)
"10. As part of making the building safe for window washers to wash the windows of a building, the building owner has a statutory duty to install approved anchors on the building for window washers to hook their gear. (See 8 CCR § 3283.)
"11. Anchor points are tools/equipment affixed to buildings which window washers use to attach their equipment to descen[d] the side of a building. Anchor points are considered safety devices for window washers, as they are used to connect the gear, like ropes and cables to the building.
"12. Window washers do not provide their own anchor points.
"13. Building owners in the State of California have a duty to provide approved anchor points.
"14. On the date that Mr. Franco fell to his death, June 20, 2011, Defendant [TCI]'s building ... did not have approved anchor points.
"15. California Code of Regulations Section 3282(p)(1)(A) states in relevant part: 'Building owners shall provide the employer written assurance, before use, that all their building's safety devices and equipment meet the provisions of these orders. The written assurance shall consider, but not be limited to: window anchors and fittings....' ... [¶] ... [¶]
"32. The proximity of the powerlines on the southern side of the building made it unsafe to wash the windows on the southern side of the building from the ground.
"33. The only other option for cleaning the windows above the first floor would be to rappel off the side of the building."
Trial Court's Grant of Summary Judgment
The trial court granted summary judgment for TCI on January 15, 2016, and judgment was entered on March 4, 2016. The court found that TCI met its burden as moving party to show that it hired CBS to clean the building's windows and did not either retain control over the window cleaning or affirmatively contribute to decedent's fall. The court found that plaintiffs attempted to demonstrate a triable issue of material fact by arguing that TCI provided defective equipment in connection with the fall; TCI retained control over the roof from which decedent fell; and TCI breached nondelegable duties in connection with the fall. The trial court rejected each of these theories, concluding that, as a matter of law, roof anchors were not "equipment;" restricting roof access did not constitute retained control over a window-washing job; and TCI's duty to provide a safe workplace for its contractor's employees was delegable.
Plaintiffs timely appealed from the judgment.
STANDARD OF REVIEW
"A trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. ( Code Civ. Proc., § 437c, subd. (c).) 'The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite
"A defendant who moves for summary judgment bears the initial burden to show the action has no merit-that is, 'one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.' ( Code Civ. Proc., § 437c, subds. (a), (p)(2).) Once the defendant meets this initial burden of production, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of material fact. [Citation.] 'From commencement to conclusion, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law.' [Citation.] We review the trial court's ruling on a summary judgment motion de novo, liberally construing the evidence in favor of the party opposing the motion and resolving all doubts about the evidence in favor of the opponent. [Citation.] We consider all of the evidence the parties offered in connection with the motion, except that which the court properly excluded.
DISCUSSION
I.
Background
At common law, a person who hired an independent contractor to perform a task generally was not liable to third parties for injuries caused by the independent contractor's negligence. Central to this rule of nonliability " 'was the recognition that a person who hired an independent contractor had " 'no right of control as to the mode of doing the work contracted for.' " ' " ( SeaBright Ins. Co. v. US Airways, Inc. (2011)
One exception to the common law rule that a hirer is not liable for the torts of an independent contractor is the doctrine of peculiar risk. Under this doctrine, "a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor's negligent performance of the work causes injuries to others. By imposing such liability without fault on the person who hires the independent contractor, the doctrine seeks to ensure that injuries caused by inherently dangerous work will be compensated, that the person for whose benefit the contracted work is done bears responsibility for any risks of injury to others, and that adequate safeguards are taken to prevent such injuries." ( Privette , supra ,
In its 1993 decision in Privette , supra ,
In subsequent cases, the Supreme Court expanded the Privette doctrine to hold that a hirer could not be held vicariously liable to an independent contractor's employees under a variety of tort theories. (E.g., Toland v. Sunland Housing Group, Inc. (1998)
In the present case, it is undisputed that under Privette and its progeny, TCI is not vicariously liable to plaintiffs for the negligence of CBS or its employees. Plaintiffs urge, however, that Privette does not bar their direct liability claims against TCI under the doctrines of (1) nondelegable duties, and (2) negligent exercise of retained control. We consider these issues below.
II.
Breach of Nondelegable Duties
The nondelegable duties doctrine " 'prevents a party that owes a duty to others from evading responsibility by claiming to have delegated that duty to an independent contractor hired to do the necessary work.' [Citation.]"
For the reasons that follow, we conclude that under SeaBright , supra ,
A. SeaBright Ins. Co. v. US Airways, Inc.
SeaBright addressed the application of Privette to a nondelegable duty claim. In that case, an employee of Aubry Co., an independent contractor, was injured while repairing a luggage conveyor controlled by US Airways, allegedly because the conveyor lacked safety guards required by the California Occupational Safety and Health Act (Cal-OSHA) ( Lab. Code, § 6300 et seq. ). Aubry's insurer paid workers' compensation benefits to the injured employee and then sued US Airways, contending that the airline was responsible for the employee's injuries under the nondelegable duty doctrine because the duty to provide safety guards derived from a " 'statute or by administrative regulation.' " ( SeaBright , supra , 52 Cal.4th at pp. 594, 596,
The trial court granted summary judgment for US Airways; the Court of Appeal reversed, concluding that US Airways's duty under Cal-OSHA to ensure that the conveyor had safety guards was nondelegable. ( SeaBright , supra , 52 Cal.4th at pp. 594-595,
The Supreme Court held that the Privette rule applied to the case before it, and therefore US Airways was not liable to the injured employee or, derivatively, to the workers' compensation insurer. The court explained that by hiring an independent contractor, "the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor's employees to ensure the safety of the specific workplace that is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor's employees to comply with applicable statutory or regulatory safety
In reaching this conclusion, the high court rejected the distinction drawn by the Court of Appeal between the safety requirements that arose from the work performed by the independent contractor, and that which predated the contractor's hiring and applied to the hirer by virtue of its role as property owner. The court explained: "In the view of the Court of Appeal, the latter requirements are nondelegable. Conversely, tort law duties that 'only exist because construction or other work is being performed' can be delegated to the contractor hired to do the work. We acknowledge the distinction, but for the reasons given below, we conclude that the Court of Appeal did not apply the distinction correctly.
"Before hiring independent contractor Aubry, defendant US Airways owed its
The court further noted that the policy favoring delegation in the case before it was bolstered by the same factors it considered persuasive in Privette . It explained: " Privette noted that the cost of workers' compensation insurance for an independent contractor's employees is presumably included in the contract price the hirer pays to the contractor, and therefore the hirer indirectly pays for that insurance. ( Privette , at p. 699,
B. SeaBright Is Dispositive of Plaintiffs' Nondelegable Duty Claim
In the present case, plaintiffs contend that TCI had a statutory duty as a building owner to install structural roof anchors to which window washers could attach their controlled descent equipment. They identify several sources for the asserted duty to provide building anchors, including California Code of Regulations, title 8, sections 3281 to 3289 ; Health and Safety Code section 17920.3 ; Labor Code sections 7326 to 7329 ; Los Angeles Municipal Code section 91.8104; and International Window Cleaning Association I-14.1 guidelines, section 3.9.
For purposes of this appeal, we assume that these sections required TCI to equip its building with structural roof anchors, and that TCI failed to do so. We nonetheless do not agree that there were triable issues as to whether TCI's breach of its statutory duties gave rise to liability not barred by the Privette doctrine. To the contrary, SeaBright compels the conclusion that when TCI hired CBS, an independent contractor, to provide window washing services, it delegated to CBS its duty to provide a safe workplace for CBS's employees. Accordingly, TCI's alleged breach of a statutory duty to provide safety
Plaintiffs urge that the present case is distinguishable from SeaBright because their claims "[are] not exclusively based upon OSHA violations." We are not persuaded that TCI had a statutory duty, independent of the duty imposed by OSHA regulations, to provide roof anchors-but even if TCI had such a duty, we do not agree that SeaBright 's holding is properly limited to Cal-OSHA. SeaBright holds that by hiring an independent contractor, a hirer implicitly delegates to the contractor the tort law duty the hirer owes to the contractor's employees "to comply with applicable statutory or regulatory safety requirements " to ensure workplace safety-including a duty to "identify the absence of safety guards" and "take reasonable steps to address
Thus, the trial court properly granted TCI's motion for summary judgment on the breach of nondelegable duties theory of recovery.
III.
Negligent Exercise of Retained Control
Plaintiffs assert in the alternative that there were triable issues of fact as to whether TCI affirmatively contributed to decedent's death by negligently exercising retained control over decedent's worksite. In support, they rely on McKown , supra ,
A. McKown v. Wal-Mart Stores, Inc.
Plaintiff McKown was an employee of an independent contractor hired by Wal-Mart to install speakers in the ceilings of Wal-Mart stores. Wal-Mart requested that the contractor use Wal-Mart's forklifts whenever possible and furnished the plaintiff a forklift for use. ( McKown , supra ,
The Supreme Court explained that in
B. McKown Does Not Govern the Present Case
Plaintiffs contend that in opposition to TCI's motion for summary judgment, they provided evidence through the declarations of Gupta and Avrit that anchor points were "equipment" within the meaning of McKown , and therefore a jury should have been permitted to decide whether TCI "negligently provided unsafe equipment that contributed to [decedent's] injuries." We do not agree that plaintiff's summary judgment evidence raised a triable issue of fact, because the relevant issue under McKown and subsequent cases is not whether "equipment" caused an employee's injury, but rather whether the hirer retained control over the worksite "in a manner that affirmatively contributed to the injury." ( Tverberg , supra ,
As one Court of Appeal has explained, an affirmative contribution to injury occurs "[w]hen the [hirer] directs that work be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work.... ( Hooker , supra ,
In the present case, while TCI arguably "provided" the inadequate anchor points to CBS, it did not suggest or request that CBS use the anchor points to wash the building's windows. To the contrary, the undisputed evidence before the trial court was that "[CBS] and its employees made all decisions as to how the job was to be done." Further, it was undisputed that when CBS decided on June 20, 2011, to change the method by which the building's windows would be washed-that is, to have CBS employees rappel off the roof using structural anchor points and a tie-back anchor system, rather than clean the windows from the ground using water-fed poles-it did so without direction by, consultation with, or notice to TCI. Accordingly, there is no evidence that TCI directed how the window washing should be performed or otherwise interfered with the means or methods of accomplishing the work.
The judgment is affirmed. TCI is awarded its appellate costs.
We concur:
LAVIN, J.
DHANIDINA, J.
Notes
Plaintiffs dispute that there were any adequate roof anchor points.
Plaintiffs dispute this assertion only insofar as they contend that the building's structural anchor points are window washing equipment.
Labor Code section 7331 provides: "The division may make and enforce such safety orders and rules as it considers necessary and proper to carry into effect the purposes and provisions of this chapter. [¶] The division shall give notice to the owner or person entitled to possession of any building that is existing in violation of this chapter or of any rules issued under this chapter. Failure of the person so notified to comply with this chapter and rules issued under it, within 15 days, shall be authority for the division to proceed against such person as authorized in this chapter."
SeaBright suggests that the result might be different in a situation "in which the relevant statutes or regulations indicate an intent to limit the application of Privette ... or preclude delegation of the tort law duty, if any, that the hirer owes to the contractor's employees." (SeaBright , supra ,
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.