In the course of Johnson's maintenance engineering work, he investigated a low water level alarm by looking over the water cooling tower wall. To do so, he used an unsafe partial extension ladder which had been left at the wall by one of Systems XT's subcontractors, and he fell when the ladder slipped. Johnson sued multiple defendants, alleging they were all responsible for the unsafe conditions which led to his fall. Two of the defendants, Raytheon and Systems XT, obtained summary judgment, and Johnson appeals. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Parties
Before we discuss the facts in detail, it is useful to identify all of the entities involved and their contractual relationships.
Johnson was a maintenance engineer employed by ABM Facilities Services, Inc., an independent contractor which provided control room staff to Raytheon. ABM is not a defendant in this case; Johnson received workers' compensation benefits through ABM for the injuries he sustained in his fall.
Separate and apart from Raytheon's contractual relationship with ABM was Raytheon's contractual relationship with Systems XT. Systems XT is a
Two of Systems XT's subcontractors are also defendants in this case, although they are not parties to this appeal. The first is Brownco Construction Company, Inc. which was the concrete subcontractor, and the entity which left the unsafe partial extension ladder at the cooling tower wall. The second is Power Edge Solutions, Inc. The water cooling tower required constant electronic monitoring of its water level. Power Edge Solutions was the subcontractor which installed electronic monitors as the water cooling tower renovation project progressed. This is relevant because Johnson alleges the alarm to which he was responding was a false alarm, which only occurred due to Power Edge Solutions' alleged faulty wiring of the water level monitor.
2. Johnson's Accident
Johnson worked the graveyard shift, monitoring various computers in the control room in Raytheon's Building E5. At around 2:50 a.m. on February 20, 2013, he started receiving low water level alarms pertaining to the water cooling towers. He was unable to resolve the alarms, so he telephoned his ABM supervisor, Robert Whitney. Whitney told him to do whatever he thought he should do. Johnson chose to go to the cooling tower wall directly, and look over the wall to verify the water level.
Whitney later had Power Edge Solutions investigate the water level monitor. Power Edge Solutions reported to him that the connections on the sensor had corroded.
Whitney completed an incident report regarding Johnson's accident. When asked why the unsafe conditions occurred, he responded, "Connections on the level sensor to sump level corroded, rain and tower runoff to wet concrete surface, lack of lighting and poor choice of ladder used."
3. Allegations of the Complaint
Johnson originally brought suit against Raytheon, which removed the case to federal court. The matter was subsequently remanded after Johnson added additional defendants whose presence defeated diversity jurisdiction. The operative complaint is the first amended complaint, which named as defendants Raytheon, Systems XT, Brownco, and Power Edge Solutions.
As against Raytheon, Johnson alleged causes of action for negligence and premises liability.
As to Systems XT, Johnson alleged that it was the general contractor and therefore responsible for all of the work of its subcontractors, including Brownco and Power
Raytheon and Systems XT each moved for summary judgment. Although the briefing was virtually simultaneous, we discuss the proceedings on, and resolution of, each motion separately.
4. Raytheon's Motion for Summary Judgment
In Privette v. Superior Court (1993)
In opposition, Johnson argued that Privette was inapplicable, because his theory of liability against Raytheon was not one of vicarious liability, but direct liability for Raytheon's own breach of duties owed to Johnson. Specifically, the Privette doctrine allows for liability when the hirer of the independent contractor retained control over safety conditions at the worksite, and negligently exercised that retained control in a manner which affirmatively contributed to the employee's injuries. ( Hooker v. Department of Transportation (2002)
Because Johnson's theory of liability against Raytheon was based on Raytheon's alleged failure to leave a platform ladder at the accident scene, evidence was submitted as to the presence and availability of other ladders at the Raytheon plant.
In reply in support of its motion for summary judgment, Raytheon argued that Johnson's concession that it was unknown why there was no platform ladder at the wall at the time of the accident was dispositive. Hooker provides for hirer liability only when the retained control is negligently exercised in a manner that affirmatively contributes to the accident; Raytheon argued there could be no affirmative contribution when there is no evidence that Raytheon itself removed the platform ladder.
The trial court granted the motion, concluding that the Privette doctrine barred Johnson's suit against Raytheon. The court specifically held that Johnson failed to raise a triable issue of fact that any retained control (in terms of providing a platform ladder at the wall) affirmatively contributed to his injuries. The mere facts that (1) Johnson had used Raytheon's platform
5. Systems XT's Motion for Summary Judgment
Like Raytheon, Systems XT moved for summary judgment on the basis of Privette . However, it was something of a challenge for Systems XT to put itself in the legal position of a hirer of an independent contractor whose employee was injured. To be sure, Johnson sought to hold Systems XT vicariously liable for the negligence of its subcontractors, Brownco and Power Edge Solutions. But Johnson was not an employee of those subcontractors, or any other subcontractor who ultimately reported to Systems XT. Although Johnson was employed by ABM, a contractor on the Raytheon campus, ABM was not part of the water cooling tower renovation project and did not answer to Systems XT. Systems XT argued that it was Raytheon's agent, and therefore entitled to Raytheon's Privette immunity when it stood in Raytheon's shoes, but we believe the more correct argument was Systems XT's alternative one: that even assuming Privette does not apply, Systems XT simply owed
As we have noted, in Johnson's complaint, he identified two purported duties he believed were owed to him and breached by Systems XT: (1) a duty to ensure the sensor was properly hooked up by Power Edge Solutions and not generating false alarms; and (2) a duty to ensure Brownco put its ladders away at the end of each day. In his opposition to Systems XT's motion for summary judgment, he again identified each of these duties, and alleged that they were owed him based on general principles of foreseeability, as well as the terms of Systems XT's contract with Raytheon. In addition, Johnson added to his opposition a new duty not previously alleged: (3) a duty to provide temporary lighting at the worksite.
On the issue of lighting, there was evidence that Johnson had a flashlight with him. There was some evidence that Raytheon had told Systems XT to install temporary lighting, which had been placed on the roof of the E5 building and shone downward into the water cooling tower construction area while work was being done outside of daylight hours. There was also evidence that the lights were still on the roof at the time of the accident, but had been disconnected.
The trial court granted Systems XT's motion for summary judgment.
6. Judgment and Appeal
Judgments were entered in favor of Raytheon and Systems XT. Johnson filed timely notices of appeal.
1. Standard of Review
A defendant moving for summary judgment must show "that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action." ( Code Civ. Proc., § 437c, subd. (p)(2).) Summary judgment is appropriate where "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Id ., subd. (c).)
Our Supreme Court has made clear that the purpose of the 1992 and 1993 amendments to the summary judgment statute was " 'to liberalize the granting of [summary judgment] motions.' " ( Perry v. Bakewell Hawthorne, LLC (2017)
a. Brief overview of Privette and its progeny
To understand Privette , one must begin with the general principle that, historically, a hirer of an independent contractor was not liable for the negligence of the independent contractor. ( Privette, supra,
After Privette came a series of cases extending it. Privette renders the hirer of an independent contractor immune from liability to the independent contractor's employee even when the basis for liability was that the hirer failed to provide in the contract that the contractor must take special precautions to avert the risks of the work. ( Toland v. Sunland Housing Group, Inc. (1998)
There are, however, two circumstances in which Privette does not apply, and an injured employee of an independent contractor may recover in tort from the party which hired that independent contractor. The first, which we have already alluded to, was set forth in Hooker , and was based on the concept of negligent exercise of retained control. "[A] hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but ... a hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries." ( Hooker, supra,
The second Privette exception was discussed in Kinsman v. Unocal Corp. (2005)
In this case, Raytheon obtained summary judgment on the basis of Privette . We agree that the undisputed facts establish the initial applicability of Privette and its progeny: Raytheon hired ABM as an independent contractor; Johnson is an ABM employee seeking to pursue Raytheon for injuries he suffered in the course of his employment and for which he obtained workers' compensation. That Johnson was injured allegedly due to the negligence of another independent contractor also retained by Raytheon does not prevent Privette 's application to Raytheon. ( Smith v. ACandS, Inc. (1994)
b. No triable issue of fact under Hooker
There are three elements to the Hooker exception: (1) the hirer retains control over any part of the work; (2) the hirer negligently exercises that control; and (3) the hirer does so in a manner that affirmatively contributes to the employee's injury. ( Khosh v. Staples Construction Co., Inc. (2016)
There is no evidence that Raytheon placed the Brownco partial extension ladder at the cooling tower wall, and Johnson did not oppose summary judgment on the basis that Raytheon affirmatively contributed to his fall by replacing the platform ladder with the Brownco partial extension ladder. Instead, he argued that Raytheon affirmatively contributed to his injury by omitting to have its usual platform ladder present at the wall. "[A]ffirmative contribution need not always be in the form of actively directing a contractor or contractor's employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer's negligent failure to do so should result in liability if such negligence leads to an employee injury." ( Hooker, supra,
We assume, without deciding, that Johnson has raised a triable issue of fact that the usual presence of a platform ladder at the cooling tower wall constituted an affirmative promise to provide one. Nonetheless, Johnson has failed to raise a triable issue of fact that Raytheon's failure to ensure the presence of a platform ladder on the night of the accident affirmatively contributed to his fall. This is so because of the undisputed evidence that
In this respect, this case is to be distinguished from Browne v. Turner Construction Co. (2005)
In short, in Browne , summary judgment was reversed because there was evidence the defendant abruptly removed the only remaining safe way for the plaintiff to do his job, demanding the work be finished without delay and possibly even preventing the plaintiff from bringing the safety equipment back. In contrast, in this case, Johnson can only establish that someone removed the platform ladder from the wall, but there were numerous other A-frame ladders freely available nearby. While Johnson suggests the alarm could have reflected a critical cooling tower failure which could result in substantial financial loss to Raytheon, there is no evidence that Raytheon demanded Johnson investigate the alarm with such expediency that he could not stop in the chiller room and obtain an A-frame ladder to do the job safely. (Cf. Ray v. Silverado Constructors (2002)
In his opening brief on appeal, Johnson argues that the removal of the platform ladder created "a situation where [Johnson] was left with no safe means of performing his work." After Raytheon pointed out the availability of other ladders in its respondent's brief, Johnson argued, in reply, that he had believed the ladder he found at the wall had been left by Raytheon, so had assumed it was safe, and that the area was not sufficiently well lit for him to have appreciated the danger posed by the partial extension ladder. While these arguments go some way to explaining why Johnson chose to use the partial extension ladder he discovered at the wall, they do not raise a triable issue of fact as to Raytheon's alleged affirmative contribution to his injury. Raytheon did not represent that the partial extension ladder was a safe replacement for the platform ladder, nor did Raytheon promise to provide ABM's employees with light fixtures at the water cooling tower - and Johnson cannot suggest for the first time in its reply brief on appeal that it did.
c. No triable issue of fact under Kinsman
In the alternative to his argument that Raytheon is liable under the Hooker exception
Under Kinsman , the hiring defendant is liable only if: (1) it knew, or should have known, of a latent or concealed preexisting hazardous condition on its property; (2) the independent contractor did not know and could not reasonably have discovered the hazardous condition; and (3) the landowner failed to warn the contractor about the condition. ( Kinsman, supra,
The Kinsman opinion noted, however, that there may be situations "in which an obvious hazard, for which no warning is necessary, nonetheless gives rise to a duty on a landowner's part to remedy the hazard because knowledge of the hazard is inadequate to prevent injury." ( Kinsman, supra ,
In this regard, Johnson argues that his own failure to use due care would be relevant only to comparative negligence, and would not absolve Raytheon from liability, citing
In Johnson's appeal of the summary judgment in favor of Systems XT, he argues both that Systems XT is not entitled to the benefit of Privette and that Systems XT is otherwise liable to him in negligence, for breach of a duty of care. We need not reach the first issue, because we conclude Johnson is wrong on the second. Systems XT owed him no duty.
" 'Actionable negligence is traditionally regarded as involving the following: (1) a legal duty to use due care; (2) a breach of that duty; and (3) the breach as the proximate or legal cause of the resulting injury.' [Citation.] ' " 'The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. [Citations.] Whether this essential prerequisite to a negligence cause of action has been satisfied in a particular case is a question of law to be resolved by the court.' " ' " ( Suarez v. Pacific Northstar Mechanical, Inc. (2009)
Johnson argues that there were three duties owed: (1) a duty to ensure Power Edge Solutions properly installed the sensor and it was not generating false alarms; (2) a duty to ensure Brownco put its ladders away at the end of each day; and (3) a duty to provide temporary lighting at the worksite. Johnson argues each of these duties is owed under general tort principles (see Rowland v. Christian (1968)
Momentarily setting to one side the duty to provide temporary lighting (which Johnson did not allege in the operative complaint), the duties on which Johnson relies are, in effect, an attempt to hold Systems XT vicariously liable for the acts and omissions of its independent contractors. But Johnson makes no argument that Systems XT should be liable for the acts of its subcontractors under the peculiar risk doctrine or any other exception to the general rule of nonliability for the negligence of one's independent contractors. Instead, he simply argues that a duty is owed because it was foreseeable that, as an employee of another contractor on the same jobsite, he might be injured by responding to a false alarm and/or using a partial extension ladder left on the premises. Additionally, he finds a duty for Systems XT to take responsibility for its subcontractors in the contract between Systems XT and Raytheon.
Johnson's foreseeability argument has its roots in Rowland . Johnson suggests that the Rowland factors, of which there are seven (see
Johnson next would find a duty in the contract between Raytheon and Systems XT. To be sure, the common law did recognize "that a special relationship of the type that gives rise to a duty to take affirmative action to protect another may be created by contract ...." ( Suarez, supra,
The first duty Johnson would impose is a duty to ensure Power Edge Solutions installed the monitor correctly such that it generated no false alarms. For this, Johnson relies on an August 9, 2011 "Statement of Work" for the water cooling tower project, which provides that the water cooling plant "must be a 24 x 7 'Fail-Safe' operation" because it "supports the Critical Labs, Clean Rooms and Computer Centers" throughout Raytheon's campus. We have no doubt that Raytheon hired Systems XT to install a "24 x 7 'Fail-Safe' operation," as this was necessary for Raytheon's purpose, as the document itself explains. But Johnson has identified no contractual term which provided that Systems XT's contractual duty to deliver to Raytheon a fail-safe operation created a duty to maintenance engineers who may be working on Raytheon's premises to provide a system which never generated a false alarm in need of investigation. For example, there is no suggestion that Raytheon had previously promised ABM there would be no false alarms and that it contracted with Systems XT to assume its contractual duty. Johnson is simply not a third party beneficiary of this contract ( Civ. Code, § 1559 ) and the agreement therefore does not give rise to a duty owed to him.
The second duty Johnson would impose is a duty on Systems XT to ensure that Brownco put its ladders away at the end of each day. Here, Johnson relies on multiple provisions of Raytheon's "Contractor Safety Handbook [for] Outside Contractors." These include that general contractors "assume[ ] responsibility to ensure that subcontractors adhere to ... the requirements described in this handbook. The general contractor will be held responsible
The law is not so broad. In West v. Guy F. Atkinson Constr. Co. (1967)
Finally, we return to the one duty which Johnson suggests Systems XT breached with its own conduct, not simply vicariously: Johnson argues that Systems XT owed him a duty to keep the area lit. Nowhere in the operative complaint did Johnson allege that Systems XT owed him any such duty. A plaintiff may not oppose summary judgment by raising a theory not pleaded. Here, that is exactly what Johnson sought to do. Systems XT pointed out in its reply in the trial court that it was too late for Johnson to submit this new theory.
"To create a triable issue of material fact, the opposition evidence must be
Here, Johnson never sought to amend the operative complaint with his new factual assertion that Systems XT owed him any duty to provide lighting. No evidence supports any such duty, in any event. Johnson relies on a provision of the contract between Raytheon and Systems XT which pertains to the work as finished, not any temporary lighting to be provided while work is in progress. Moreover, as discussed above, there is no indication that Systems XT's contract with Raytheon was intended to benefit Johnson. Johnson's Hooker -type argument, suggesting that Systems XT voluntarily undertook the duty to provide temporary lighting as a safety measure, but abruptly removed that lighting just prior to his fall, also has no evidentiary support. Systems XT did not leave Johnson in the dark with no way to perform his task. Johnson had a flashlight; he simply chose not to use it when he inspected the water level.
The judgments in favor of Raytheon and Systems XT are affirmed. Raytheon and Systems XT shall recover their costs on appeal.
WE CONCUR:
STRATTON, J.
WILEY, J.
Notes
At deposition, the president of Systems XT explained that it was the "prime," rather than the "general" contractor on the job. Systems XT distinguishes between the two on the basis that it did not have a general contractor's license, and did all the work through subcontractors.
We take our discussion of the facts largely from the undisputed facts and those facts on which Johnson relies. We discuss disputes in the facts where necessary.
A platform ladder has four legs, and steps leading up to a platform with handrails.
Although not relevant to the issues on appeal, this fact is disputed. ABM's log book states that Power Edge Solutions found corrosion. However, the Power Edge Solutions employee who actually troubleshot the sensor did not see any corrosion. He testified that the wires did not look bad to him, but he followed "good practice," and cut the wires, cleaned them off, and reattached them.
Johnson also alleged a cause of action for negligence per se, which is not pursued on appeal.
Johnson alleged that Systems XT was also negligent for failing to install a "visual water level monitoring system," which would enable the maintenance engineers to see the water level in the water cooling tower without looking over the wall. It immediately installed such a system after Johnson's accident. Perhaps in recognition that such a visual monitor was not required in the water tower contract specifications, and that subsequent remedial measures are not admissible (Evid. Code, § 1151 ), Johnson does not pursue this theory on appeal.
Raytheon also submitted evidence regarding the ladder training Johnson had received, to establish that Johnson was at fault for using the partial extension ladder without first inspecting it. It was undisputed that ABM had given Johnson ladder training via a PowerPoint presentation from Summit Training Source, Inc. The training included a slide on Ladder Selection, which stated, "Inspect feet for damage, and check that slip-resistant pads are secure." It also says, "Finally, when choosing a ladder always inspect for damage." Johnson completed his ladder training in August 2012, some six months prior to his accident, and received 100 percent on his test.
Raytheon did not include in its separate statement anything regarding the availability of other ladders; this was likely because it was not until Johnson's summary judgment opposition that he first raised the theory that Raytheon affirmatively contributed to the accident by not making a platform ladder available at the wall.
In his opening brief, Johnson states that he is only addressing the theories on which trial court based its summary judgment ruling, not all of the theories on which Raytheon and Systems XT sought summary judgment. As our review is de novo, we may affirm for reasons different from the trial court's reasons. (Bunnell v. Department of Corrections (1998)
In his reply brief, Johnson argues that there was nothing on the "caution" label "to notify [Johnson] that the ladder posed a safety hazard such that it would cause him to fall or inflict serious bodily injury if used." On the contrary, the caution label states, "CAUTION. THIS LADDER SECTION IS NOT DESIGNED FOR SEPARATE USE." To the extent Johnson suggests that the label must specifically warn of serious bodily injury, we disagree.