Judge: Martha K. Gooding, Case: 2018-00992678, Date: 2022-12-05 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

The Motion by Defendant OHL-USA, Inc. (“Defendant”) for summary judgment on the Complaint of Plaintiff Ryan Gaskins (“Plaintiff”) is DENIED.

This action stems from an accident on a large construction project, the Santa Ana Bus Operations and Maintenance Base (the “Santa Ana Project”).  On the day of the accident, Plaintiff was driving a water truck for his employer, Wet Dirt, Inc., which had been hired to water the dirt on the construction site in order to control dust.  The water truck overturned when it drove close to the edge of the “haul road” Plaintiff was driving on, and Plaintiff alleges he sustained injuries as the result of the “roll-over.” 

Plaintiff brought this action against, among others, OHL-USA, Inc., which was the general contractor for the project.  Plaintiff alleges a single cause of action for negligence.  Plaintiff contends his accident was caused by OHL’s negligent failure to maintain and properly grade the haul road.

Plaintiff’s Request for Judicial Notice

As an initial matter, the Court denies Plaintiff’s request for judicial notice of the Complaint, as it is unnecessary to ask the court to take judicial notice of materials previously filed in this case.  “[A]ll that is necessary is to call the court’s attention to such papers.”  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶9.53.1a.) 

Legal Standard for Summary Judgment

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “A prima facie showing is one that is sufficient to support the position of the party in question.”  (Id. at p. 851.)  A defendant moving for summary judgment satisfies his or her initial burden by showing 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).)  The scope of this burden is determined by the allegations of the plaintiff’s complaint.  (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)

A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law.  (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.)  Alternatively, a moving defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action.  (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].)  Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action.  (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)

Analysis

The following facts are not disputed:

OHL was the general contractor on the project. (UMF 2.). Wet Dirt, Inc. (“Wet Dirt”) was hired to water the dirt to control dust on the project. (UMF 3.) Wet Dirt employed Plaintiff on the project as a water truck operator. (UMF 4.) Plaintiff was acting in the course and scope of his employment with Wet Dirt at the time of the incident. (UMF 5.) Plaintiff alleges he had been instructed to water the dirt on the haul road leading to and from the water tanks in the excavation area, and was instructed to water both the roads and the edges of the road, which required his vehicle to be in close proximity to the edge of the haul path.  Plaintiff alleges that as he was riding the edge, the wheel of the water truck caught the soft edge and flipped to the right. (UMF 6.)

The controlling law is also well-established.

“An employee of an independent contractor generally may not sue the contractor’s hirer for work-related injuries.  [citation] Instead, the injured employee is generally limited to worker’s compensation remedies against his employer. [citation]” (Khosh v. Staples construction Company, Inc., (2017) 4 Cal.App.5th 712, 717 (citing Privette v. Superior Court (1993) 5 Cal.4th at 698-700, 702).) 

As the Supreme Court explained in Privette, when “the injuries resulting from an independent contractor’s performance on inherently dangerous work are to an employee of the contractor, and thus subject to workers’ compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries.”  5 Cal.4th at 703.

There are, however, two exceptions to the application of the Privette rule:  the doctrines of “retained control” and “concealed condition.”  Defendant OHL contends that, based on the undisputed facts, neither exception applies here and it therefore cannot be liable for Plaintiff’s injuries as a matter of law.

            The “Retained Control” Exception

For the retained-control exception to apply, the plaintiff “must establish not only that the hirer retained control over the contracted work, but also that the hirer actually exercised that retained control in a manner that affirmatively contributed to the contract worker’s injury.” (Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 274.)

“A hirer ‘retains control’ where it retains a sufficient degree of authority over the manner of performance of the work entrusted to the contractor.” (Id.)

If control is shown, the plaintiff must also demonstrate that the defendant’s actions “affirmatively contributed” to the accident. (See McCullar v. SMC Contracting, Inc. (2022) 83 Cal.App.5th 1005, 1015.)  “[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 v. Dept. of Transportation (2002) 27 Cal.4th 198, 218, fn. 3.)

The evidence here demonstrates that OHL was responsible for the construction and maintenance of the haul roads on the site of the Santa Ana Project, including the road on which Plaintiff’s truck rolled over. (PUMF 33; Ruder Depo at 30:18-20; 31:5-11.)   OHL’s foreman, Joshua Ruder, was Plaintiff’s supervisor.  He testified his responsibilities included ensuring that the work was getting done properly, that the workers knew what they were supposed to be doing for the day, and “safety requirements.” (Ruder Depo at 18:11-17 [emphasis added]).  Mr. Ruder also testified that it was his responsibility to give out the work assignments. (Ruder Depo at 26:7-10.).  He confirmed that he “probably gave [Gaskins] instructions,” but could not recall specific conversations. He also testified that, as far as he understood, Gaskins was working for OHL. (Ruder Depo. At 76:5-13.)

Plaintiff testified that typically OHL would instruct him on where to water the dirt, and that Burrell Co. (the grading contractor) never told him how to perform the work at the jobsite. (Gaskins Depo at 123:23-124:8.). Rather, Jeremy Burrell only trained Plaintiff on how to operate the switches in the truck. (Burrell Depo at 26:19-27:13.) 

Given the above evidence, the Court finds there is a triable issue of material fact as to whether OHL retained control of the manner and methods of Plaintiff’s work.

In addition, the Court finds there is a triable issue of material fact regarding whether OHL exercised retained control in a manner that affirmatively contributed to Plaintiff’s injury.

Plaintiff has presented evidence from both civil engineering experts, as well as third party witnesses, that the road on which the accident occurred did not have proper safety measures in place. In particular, while it perhaps was not custom to use flags, there is evidence that there should have been ribbons and grade stakes put up. (Burrell depo at 54:19-55:7; 94:2-12; Ruder Depo at 83:13-20.) Austin Scott Marshall, one of Plaintiff’s civil engineering experts, testified the accident would have been prevented if certain specified proper safety measures were taken. (Marshall Decl., ¶ 22-23.)  In addition, Plaintiff’s other civil engineering expert, George Stepanchak, testified that the haul road should have had adequate safety berms and curbs. (Stepanchak Decl., ¶¶ 5-8.)

          The “Concealed Condition” Exception

An alleged dangerous condition on the premises can only defeat Privette if the condition was not only concealed but also not ascertainable. “[T]he hirer as landowner may be independently liable to the contractor’s employee, even if it does not retain control over the work, if: (1) it knows or reasonably should know of a concealed, preexisting hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675.)  A condition is not concealed if it is “known,” “reasonably ascertainable,” or “apparent to a reasonable person.” (Id.)

Plaintiff argues that this exception to Privette applies (or at least that there are disputed issues of material fact about whether it applies) because (1) the hazardous condition consisted of the loose, uncompacted, soft soil at the edge of the haul road and (2) that constituted a hidden danger that was not reasonably ascertainable by Plaintiff’s employer, Wet Dirt, in part because the location of the haul roads on the large construction site were constantly changing. (PUMF 34; Ruder Depo 31:1-4.)

The Court concludes that whether the loose, uncompacted soil at the edge of the haul road was a concealed condition that OHL knew or should have known about, and whether Wet Dirt did not know and could not reasonably have ascertained the existence of that condition, are issues for the jury to determine.

Finally, the Court overrules Defendant’s evidentiary objections 1-4, 14-16, and 19.  The Court declines to rule on objections 5-13, 17, 18 as they are not material to the decision.

Based on the foregoing, OHL’s Motion for Summary Judgment is denied.

Plaintiff is ordered to give notice.