Judge: Lee W. Tsao, Case: 22STCV16261, Date: 2024-06-27 Tentative Ruling

Case Number: 22STCV16261    Hearing Date: June 27, 2024    Dept: C

ALVARADO v. CHEMICAL DATA MANAGEMENT SYSTEM, INC.

CASE NO.:  22STCV16261

HEARING:  06/27/24

#5

Defendant TRADEMARK HOIST & CRANE’s Motion for Summary Judgment is DENIED. The Alternative Motion for Summary Adjudication is DENIED.

Opposing Party to give notice.

This action for wrongful death was filed by Plaintiffs EDWAR ALVARADO and ANDREA ALVARADO, individually and as successors and heirs of CESAR ALVARADO, Deceased, and ISAAC ALVARDO (collectively “Plaintiffs”) on May 17, 2022. Plaintiffs allege that their claims arise out of a workplace accident that occurred on June 22, 2020 at the Atlas Galvanizing Plant (“Subject Incident”), which caused the death of Cesar Alvarado (“Decedent”). (Complaint ¶1.) Decedent was the father of Edwar Alvarado and Andrea Alvarado, and the son of Isaac Alvarado. (Id. ¶3.)

The relevant facts, as alleged, are as follows: “On June 22, 2020, DEFENDANT CHEMICAL DATA MANAGEMENT SYSTEMS, INC. was employed by Atlas Galvanizing, Inc., at its facility….” (Complaint ¶9.) “On June 22, 2020, DECEDENT was assisting another employee of Atlas Galvanizing, Inc. in utilizing a crane to transport eight steel fence sections weighing approximately 1,850 lbs. to a location where they were to be dipped in an acid bath as part of the process of galvanizing the eight fence sections.” (Id. ¶11.) “At said time and place, DEFENDANTS and each of them, had a duty to exercise reasonable care in the training and supervision of the employees of Atlas Galvanizing so as to not create an unreasonable risk of harm to others by the behavior of the employees of Atlas Galvanizing in operating the crane and securing the objects which were being transported by the crane to the galvanizing pit. In spite of these duties, DEFENDANTS TRADEMARK HOIST & CRANE, CHEMICAL DATA MANAGEMENT SYSTEM, INC. AND IVY NUNEZ and DOES 1 through 50, and each of them, negligently, reckless and carelessly, managed, trained and supervised the employees of Atlas Galvanizing so as to cause them to improperly secure the fence sections with wire along instead of chain. They improperly failed to advise Atlas Galvanizing to use allow chain slings that were embossed and legible with the load limitations of the slings and they failed to provide a written set of procedures for operating the crane and securing the loads that the crane would carry to the bathe and galvanizing pit, so as to directly and proximately cause the accident and injures and ultimately death of Cesar Alvarado.” (Id. ¶12.) “At said time and place, the co-employee of Mr. Alvarado negligently secured the eight fence sections by tying them with 12-gauge steel wire instead of using chains. Once tied, the 12 fence sections were lifted by a one hook crane, which had a capacity of 2,000 lbs. Mr. Alvarado was assisting in this operation. As the eight fence sections were lifted approximately three feet off the ground, the wire that was supposed to connect the eight fence sections together broke and the eight fence sections fell onto Cesar Alvarado seriously injuring him. He died six days later on June 28, 2020, as a result of his injuries sustained from the falling eight fence sections.” (Id. ¶13.) “DEFENDANT HOIST & CRANE failed to adequately train the employees in how to properly secure the fence sections when they came to the Atlas Galvanizing facility in 2014 and 2017. They failed to provide a written set of procedures for employees to use in handling the crane when it lifted objects like the fence sections. They failed to advise Atlas Galvanizing that under 8CCR Section 5044, they were required to use allow steel chain slings which have permanently affixed and legible markings that indicate the recommended safe working load for they type of hitches used, the angle upon which it is based and the number of legs, if more than one.” (Id. ¶15.) “As a result of these failures, on the part of DEFENDANT TRADEMARK HOIST & CRANE, DECEDENT suffered severe, traumatic, debilitating and ultimately fatal injuries that necessitated significant medical care until his death….” (Id. ¶15.)

Plaintiffs’ Complaint asserts the following causes of action:

(1) Negligence – Wrongful Death

(2) Negligence – Survival Action

Defendant TRADEMARK HOIST & CRANE (“Defendant” or “Trademark”) moves for summary judgment, or alternatively, summary adjudication as to Plaintiffs’ first and second causes of action. Trademark requests that this Court grant summary judgment, arguing that it did not owe a legal duty of care to Decedent Specifically, Trademark maintains that it did not owe a duty to provide the cables or chains that Atlas used to handle materials, provide the written procedures for Atlas personnel to use, or train Atlas employees on how to safely attach cables. Rather, Trademark argues that the only duty owed to Decedent/Atlas was to provide proper maintenance of the subject crane and to provide safety training as to the crane’s use in an appropriate manner, when requested. As argued by Trademark, “the duty to ensure Atlas’s personnel were qualified in using the crane, cables, and chains rested with Atlas, not Trademark.” (Motion 7:21-22.)

In Opposition, Plaintiffs argue there are triable issues as to whether Trademark was responsible for training Atlas employees about proper rigging practices. Plaintiffs contend that teaching safe rigging practices are included in Trademark’s duty to provide safety training as to the crane’s use. 

First Cause of Action – Wrongful Death

Wrongful death requires the wrongful act or negligence to cause to cause the death of another. (Nogart v. Upjohn Co. (1999) 21 Cal.4th 383, 404.) The elements of negligence are: (1) legal duty owed to plaintiffs to use due care; (2) breach of that duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

Whether a duty of care is owed to a plaintiff is a question of law for the courts determination. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434.)

          General Duty of Care

As stated above, Trademark argues that it did not owe the Decedent a legal duty of care.

In Opposition, Plaintiff argues that triable issues preclude summary adjudication of this issue.

Cal. Civ. Code §1714 states that “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person….”

In support of the Motion, Trademark proffers evidence to show that the training provided by Trademark to Atlas was limited to the use of the crane alone, and did not address the specific use of chains, cables, slings, or the weight limits applicable to each. (SS No. 5.)

In Opposition, Plaintiffs proffer evidence to show that “[t]he training provided by Trademark to operators and other employees of [Atlas] included training in safe rigging procedures, including the use of proper and safe use of chains, cables, or slings and the weight limits applicable to each method.” (AMF No. 5; see also AMF No. 4.)

The Court finds that triable issues exist as to whether Trademark was responsible for training Atlas employees on safe rigging practices.

          Negligent Undertaking

In addition, Plaintiffs also argue in Opposition that Trademark undertook the duty to train Atlas employees safe rigging procedures. A legal duty may be “an affirmative duty where the person occupies a particular relationship to others… [and] he may be liable for failure to act affirmatively to prevent harm. (Peredia v. HR Mobile Services (2018) 25 Cal.App.5th 680, 687.) Under this “negligent undertaking theory,” someone “who assumes to act, even though gratuitously, may thereby become subject to a duty of acting carefully, if at all.” (Artiglio v. Corning (1998) 18 Cal.App.4th 604, 613.) “If the defendant enters upon an affirmative course of conduct affecting the interests of another, he is regarded as assuming a duty to act, and will thereafter be liable for negligent acts or omissions.” (Id.)

To state a cause of action for liability under the negligent undertaking theory, a plaintiff must show: (1) the defendant undertook to render services to another; (2) those services where of a kind the defendant should have recognized as necessary for the protection of third parties; (3) the defendant failed to exercise reasonable care in the performance of the undertaking; (4) the failure to exercise reasonable care resulted in physical harm to the third persons and (5) either (a) the defendant’s carelessness increased the risk of such harm; (b) the undertaking was to perform a duty owed by the other to the third party; or (c) the harm was suffered because of the reliance of the other or the third person upon the undertaking. (Id. at 614.)  The question of whether a defendant’s actions constitute an undertaking sufficient to give rise to an actionable duty of care is a legal question. (Id. at 615.) “However,… there may be fact questions about precisely what it was that the defendant undertook to do… [t]hus, if the record can support competing inferences… an ultimate finding on the existence of a duty can not be made prior to a hearing on the merits, and summary judgment is precluded.” (Id.)

Trademark agreed to provide crane operation and safety training classes to employees of Atlas Galvanizing. (See Mercado Decl., ¶5,  Ex. A.) In light of this, the Court concludes that Plaintiffs have raised a triable issue of material fact that Trademark undertook to provide services to Atlas that directly relate to the accident that is the subject of this litigation. There is sufficient evidence to show that Trademark agreed to provide safety training, which may have included safe rigging procedures. A genuine issue of material fact exists because it is reasonable to infer that the safety procedures which Trademark voluntarily agreed to provide would include training on how to safely handle materials when using the crane. Construing the evidence in a light most favorable to the opposing party, the Court finds that Plaintiff has adequately raised a triable issue of fact as to whether Trademark undertook and owed the Decedent a duty of care.

Summary adjudication of the first cause of action is DENIED.

Second Cause of Action – Survival Action

Plaintiffs’ second cause of action is a survival cause of action. Since Decedent died, “his… injury cause of action ‘survives’ to the estate and may be prosecuted by a duly appointed executor or administrator for the estate.” (See CCP §377.30.) Plaintiffs’ second cause of action against Trademark survives or fails dependent upon Plaintiffs’ first cause of action. Given the Court’s ruling above, summary adjudication of this claim is also DENIED.

Defendant TRADEMARK HOIST & CRANE’s Evidentiary Objections:

Nos. 1-6: Overruled. The Court notes that Exhibits J, L, and M are attached to the Declaration of John Davis, which is attached as Exhibit 3 to the Declaration of Federico C. Sayre.