SeaBright Insurance v. US Airways, Inc.

Filed 8/22/11

IN THE SUPREME COURT OF CALIFORNIA

SEABRIGHT INSURANCE COMPANY, )

)

Plaintiff and Appellant, )

) S182508

v. )

) Ct.App. 1/4 A123726

US AIRWAYS, INC., )

) City and County of San Francisco

Defendant and Respondent; ) Super. Ct. No. CGC-06-458707

)

ANTHONY VERDON LUJAN, )

)

Intervener and Appellant. )

____________________________________)

Generally, when employees of independent contractors are injured in the

workplace, they cannot sue the party that hired the contractor to do the work.

(Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette).) Here, we consider

whether the Privette rule applies when the party that hired the contractor (the

hirer) failed to comply with workplace safety requirements concerning the precise

subject matter of the contract, and the injury is alleged to have occurred as a

consequence of that failure. We hold that the Privette rule does apply in that

circumstance.

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

1

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 requirements.1 Such

delegation does not include the tort law duty the hirer owes to its own employees

to comply with the same safety requirements, but under the definition of

―employer‖ that applies to California‘s workplace safety laws (see Lab. Code,

§ 6304),2 the employees of an independent contractor are not considered to be the

hirer‘s own employees.

The Court of Appeal here erred in reversing the trial court, which had

granted summary judgment for defendant.

I.

Defendant US Airways uses a conveyor to move luggage at San Francisco

International Airport. The airport is the actual owner of the conveyor, but US

Airways uses it under a permit and has responsibility for its maintenance. US

Airways hired independent contractor Lloyd W. Aubry Co. to maintain and repair

the conveyor; the airline neither directed nor had its employees participate in

Aubry‘s work.

The conveyor lacked certain safety guards required by applicable regulations.

Anthony Verdon Lujan, who goes by the name Verdon, was inspecting the

1 Not present here is a situation in which the relevant statutes or regulations

indicate an intent to limit the application of Privette, supra, 5 Cal.4th 689, or

preclude delegation of the tort law duty, if any, that the hirer owes to the

contractor‘s employees.

2 All further undesignated statutory references are to the Labor Code.

2

conveyor as an employee of Aubry, and his arm got caught in its moving parts.

Plaintiff SeaBright Insurance Company, Aubry‘s workers‘ compensation insurer,

paid Verdon benefits based on the injury and then sued defendant US Airways,

claiming the airline caused Verdon‘s injury and seeking to recover what it paid in

benefits. Verdon intervened as a plaintiff in the action, alleging causes of action

for negligence and premises liability.

Defendant US Airways sought summary judgment based on Privette, supra,

5 Cal.4th 689, and Hooker v. Department of Transportation (2002) 27 Cal.4th 198

(Hooker). In Hooker, we held that the hirer of an independent contractor can be

liable for a workplace injury of the contractor‘s employee if the hirer retained

control over the contractor‘s work and exercised that control in a way that

―affirmatively contribute[d]‖ to the employee‘s workplace injury. (Hooker, at

p. 213.) Defendant US Airways argued that it did not ―affirmatively contribute[]‖

to employee Verdon‘s injury.

Insurer SeaBright and employee Verdon (plaintiffs) countered with a

declaration by an accident reconstruction expert, who stated that the lack of safety

guards at ―nip points‖ on the conveyor violated Cal-OSHA regulations (see § 6300

et seq. [Cal. Occupational Safety & Health Act of 1973 (Cal-OSHA)]; Cal. Code

Regs., tit. 8, §§ 3999, 4002 [regulations governing conveyor safety]) and that the

safety guards would have prevented Verdon‘s injury.

The trial court struck plaintiffs‘ declaration insofar as it discussed

causation.3 It found no evidence that US Airways ―affirmatively contribute[d]‖ to

3 The sufficiency of plaintiffs‘ showing on causation might provide an

alternative basis for upholding the trial court‘s grant of summary judgment for

(footnote continued on next page)

3

the accident (Hooker, supra, 27 Cal.4th at p. 213) and granted summary judgment

for defendant US Airways. The Court of Appeal reversed.

The Court of Appeal held that, under Cal-OSHA, defendant US Airways

had a nondelegable duty to ensure that the conveyor had safety guards, and that

the question whether the airline‘s failure to perform this duty ―affirmatively

contribute[d]‖ to plaintiff‘s injury (Hooker, supra, 27 Cal.4th at p. 213) remained a

triable issue of fact, precluding summary judgment. The court noted conflicting

views among the Courts of Appeal as to how our holdings in Privette, supra,

5 Cal.4th 689, and Hooker, supra, 27 Cal.4th 198, apply when the hirer of the

independent contractor failed to comply with Cal-OSHA regulations, and the court

followed a line of decisions holding that such omissions can expose the hirer to

liability.

To resolve the conflict in the Courts of Appeal, we granted defendant US

Airways‘s petition for review.

II.

Two questions govern the assignment of tort liability: Did the defendant owe

the plaintiff a duty of care? If so, what standard of care applied? (Lugtu v.

California Highway Patrol (2001) 26 Cal.4th 703, 718; Ramirez v. Plough, Inc.

(1993) 6 Cal.4th 539, 546.) A plaintiff can rely on statutory law to show that a

defendant owed the plaintiff a duty of care. (See Elsner v. Uveges (2004)

(footnote continued from previous page)

defendant US Airways. (See conc. opn. of Werdegar, J., post, pp. 1-3.) Like the

Court of Appeal, we express no view on the question.

4

34 Cal.4th 915, 927 & fn. 8.) Here, plaintiffs contend (1) that Cal-OSHA imposed

on defendant US Airways a duty of care, (2) that this duty of care extended to

hired contractor Aubry‘s employees, and (3) that defendant could not delegate the

duty to Aubry. Plaintiffs rely on a principle set forth in the Restatement Second of

Torts: ―One who by statute or by administrative regulation is under a duty to

provide specified safeguards or precautions for the safety of others is subject to

liability to the others for whose protection the duty is imposed for harm caused by

the failure of a contractor employed by him to provide such safeguards or

precautions.‖ (Rest.2d Torts, § 424.)

Defendant US Airways assumes that Cal-OSHA imposed on it a duty of care

that extended to the employees of Aubry, an independent contractor, arguing that

even if it had such a duty, our decisions, beginning with Privette, supra, 5 Cal.4th

689, reflect a strong policy ―in favor of delegation of responsibility and assignment

of liability‖ to independent contractors. (Kinsman v. Unocal Corp. (2005)

37 Cal.4th 659, 671 (Kinsman).)

Whether Cal-OSHA imposes on an employer like US Airways a tort law

duty of care that extends to the employees of other parties such as independent

contractors is a question that remains unsettled. In De Cruz v. Reid (1968)

69 Cal.2d 217, 228–229 (De Cruz), this court answered the question in the

affirmative, holding that an employer can be liable in tort to the employees of other

parties for violations of Cal-OSHA and its regulations. But the statutory basis of

that 1968 holding was arguably undermined by significant changes in the law in

1971 (see Stats. 1971, ch. 1751, §§ 2–3, pp. 3780–3781 [amending § 6304 and

adding § 6304.5]) and in 1999 (see Stats. 1999, ch. 615, § 2, p. 4337 [amending

§ 6304.5]).

Under current law, a plaintiff may rely on Cal-OSHA requirements, in the

same manner that it can rely on other statutes and regulations, in an attempt to

5

show that a defendant owed the plaintiff a duty of care (§ 6304.5), but the law now

defines ―employer‖ more narrowly than it did before 1971. Before 1971, the

Legislature‘s definition of the term ―employer‖ included ―every person having

direction, management, control, or custody of any employment, place of

employment, or any employee.‖ (Stats. 1937, ch. 90, § 6304, p. 306.) This broad

definition of employer was an underpinning of this court‘s 1968 holding in De Cruz,

supra, 69 Cal.2d 217, that employers can be liable in tort to the employees of other

parties for violations of workplace safety requirements. (See id. at pp. 228–229.)

Through a 1971 amendment to section 6304, the Legislature narrowed its previous

broad definition of employer, leaving simply a cross-reference to section 3300.

(See Stats. 1971, ch. 1751, § 2, p. 3780.) As relevant here, section 3300 defines an

employer as ―[e]very person . . . which has any natural person in service.‖ (§ 3300,

subd. (c).) The effect of these changes on our holding in De Cruz is uncertain, but

we have never held under the present law that a specific Cal-OSHA requirement

creates a duty of care to a party that is not the defendant‘s own employee.

Here, however, as noted earlier (see p. 5, ante), US Airways assumes that

Cal-OSHA imposed on it a tort law duty of care that extended to Aubry‘s

employees, and it argues that it delegated any such duty to Aubry as part of its

contract hiring Aubry to maintain and repair the conveyor. Thus, the issue here

turns on whether defendant US Airways could and did delegate to independent

contractor Aubry any duty it owed to Aubry‘s employees to comply with the

safety requirements of Cal-OSHA.

In analyzing this issue, we first consider (in pt. II.A., post) our decisions,

beginning with Privette, supra, 5 Cal.4th 689, that have addressed the liability of

an independent contractor‘s hirer for workplace injuries to the contractor‘s

employees. Our decisions recognize a presumptive delegation of responsibility for

workplace safety from the hirer to the independent contractor, and a concomitant

6

delegation of duty. We next consider (in pt. II.B., post) the applicability of the

nondelegable duties doctrine under which certain duties may not be delegated to an

independent contractor. We find that doctrine inapplicable here, and we therefore

conclude that an independent contractor‘s hirer implicitly delegates to that

contractor its tort law duty, if any, to provide the employees of that contractor a safe

workplace.4

A.

Our 1993 decision in Privette, supra, 5 Cal.4th 689, explained: ―At common

law, a person who hired an independent contractor generally was not liable to third

parties for injuries caused by the contractor‘s negligence in performing the work.

[Citations.] 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.‖ ‘ ‖ (Id. at p. 693.) That was the common law rule,

but ―[o]ver time, the courts . . . created so many exceptions to this general rule of

4 We are only discussing the delegation of any tort law duty the hirer might

have. The concurring opinion argues that the delegation-of-duty issue we decide

here is ―at least partly a function of legislative intent,‖ because the hirer‘s tort law

duty, if any, is one based on a statute. (Conc. opn. of Werdegar, J., post, p. 4.)

We see no indication, however, ―that the Legislature intended to bring about a

sweeping enlargement of the tort liability of those hiring independent contractors

by making them civilly liable for Cal-OSHA or other safety violations resulting in

injuries to the contractors‘ employees.‖ (Madden v. Summit View, Inc. (2008) 165

Cal.App.4th 1267, 1280.) We agree that US Airways‘s tort law duty, if any, to

Aubry‘s employees is one derived by the courts from a statute. Nevertheless, it

remains a tort law duty, and whether it is delegable is a common law question.

Here, the statute only comes into play by way of the common law doctrine that

permits courts to use a statute to establish the existence of a tort law duty of care.

(See, e.g., Elsner v. Uveges, supra, 34 Cal.4th at p. 927; Clinkscales v. Carver

(1943) 22 Cal.2d 72, 75.)

7

nonliability that ‗ ― ‗the rule [came to be] primarily important as a preamble to the

catalog of its exceptions.‘ ‖ ‘ ‖ (Ibid.) Privette began limiting those exceptions.

In Privette, supra, 5 Cal.4th 689, a property owner hired a roofing company

to install a new roof, and an employee of the roofing company was burned when

attempting to carry a bucket of hot tar up a ladder. At issue was the ―peculiar risk‖

exception to the general rule of nonliability. The peculiar risk exception allows

lawsuits against those who hire contractors, if the work is ―likely to create . . . a

peculiar risk of physical harm to others unless special precautions are taken . . . .‖

(Rest.2d Torts, § 416.) In this context, the phrase ―peculiar risk‖ is used to mean a

risk that is particular to the situation, not a risk that is odd or weird. (Privette, at

p. 695.) The peculiar risk doctrine ensured that ―a landowner who chose to

undertake inherently dangerous activity on his land [c]ould not escape liability for

injuries to others simply by hiring an independent contractor . . . .‖ (Id. at p. 694.)

The rule ―fairly allocated [the risk of injury] to the person for whose benefit the

job was undertaken,‖ thereby promoting workplace safety and ensuring

compensation for ―innocent third parties‖ injured by such work. (Ibid.)

At first, the peculiar risk doctrine permitted only lawsuits by injured

neighbors or innocent bystanders, not lawsuits by injured employees of the

independent contractor hired to do the work. Eventually, however, this court

expanded the doctrine to include the latter type of suits. (See Woolen v. Aerojet

General Corp. (1962) 57 Cal.2d 407, 410–411 (Woolen); Van Arsdale v. Hollinger

(1968) 68 Cal.2d 245, 255 (Van Arsdale).)

In Privette, supra, 5 Cal.4th 689, we changed course and overruled Woolen,

supra, 57 Cal.2d 407, and its progeny. (Privette, supra, at p. 702, fn. 4.) We noted

that work-related injuries are compensable under our state‘s Workers‘

Compensation Act (§ 3200 et seq.). (Privette, supra, at pp. 696–698.) Moreover,

that act affords ― ‗the exclusive remedy . . . for injury or death of an employee‘ ‖

8

against an employer who obtains workers‘ compensation insurance coverage. (Id.

at p. 697.) In light of that limitation on the independent contractor‘s liability to its

injured employee, Privette concluded that it would be unfair to permit the injured

employee to obtain full tort damages from the hirer of the independent contractor.

That was especially so because (1) the hirer likely paid indirectly for the workers‘

compensation insurance as a component of the contract price (id. at pp. 698–699),

(2) the hirer has no right to reimbursement from the contractor even if the latter

was primarily at fault (id. at p. 701, citing § 3864), and (3) those workers who

happen to work for an independent contractor should not enjoy a tort damages

windfall that is unavailable to other workers (Privette, supra, at pp. 699–700). We

further noted that workers‘ compensation serves the same policies as the peculiar

risk doctrine: It ensures the availability of compensation to injured employees,

spreads the risk created by a contractor‘s work to those who benefit from the

work, and encourages workplace safety. (Id. at p. 701.)

We next discussed the peculiar risk doctrine in Toland v. Sunland Housing

Group, Inc. (1998) 18 Cal.4th 253 (Toland), in which we considered whether our

holding in Privette, supra, 5 Cal.4th 689, applied when the hirer of the

independent contractor failed to specify as part of the contract that the contractor

should take special precautions to avert the peculiar risk. We noted that the hirer

―has no obligation to specify the precautions an independent hired contractor

should take for the safety of the contractor’s employees‖ and ―[a]bsent an

obligation, there can be no liability in tort.‖ (Toland, supra, at p. 267, original

italics.) We also said that subjecting those who hire contractors to peculiar risk

liability in such circumstances would negate their ―right to delegate to independent

contractors the responsibility of ensuring the safety of their own workers.‖ (Id. at

p. 269.) Thus, in Toland, we recognized the principle of delegation of duty as a

rationale for our decision.

9

In 2002, we further refined those principles in Hooker, supra, 27 Cal.4th

198, holding that an independent contractor‘s employee can sometimes recover in

tort from the contractor‘s hirer if the hirer retained control of the contracted work

and ― ‗fail[ed] to exercise his control with reasonable care . . . .‘ ‖ (Id. at p. 206,

quoting Rest.2d Torts, § 414.) We noted that our holding in Privette, supra,

5 Cal.4th 689, was based on the principle that the hirer of an independent

contractor generally has ― ‗ ― ‗no right of control as to the mode of doing the work

contracted for . . . .‘ ‖ ‘ ‖ (Hooker, supra, at p. 213, italics omitted.) We held in

Hooker that the hirer cannot be liable ―merely because [it] retained the ability to

exercise control over safety at the worksite,‖ but that it is fair to make the hirer

liable if it ―exercised the control that was retained in a manner that affirmatively

contributed to the injury of the contractor‘s employee.‖ (Id. at p. 210.)

Thereafter, our 2005 decision in Kinsman, supra, 37 Cal.4th 659, stressed the

―framework of delegation‖ (id. at p. 671) to explain our holdings in Privette, supra,

5 Cal.4th 689, Toland, supra, 18 Cal.4th 253, and Hooker, supra, 27 Cal.4th 198.

Those decisions, we observed, were grounded on a common law principle ―that

when a hirer delegated a task to an independent contractor, it in effect delegated

responsibility for performing that task safely, and assignment of liability to the

contractor followed that delegation.‖ (Kinsman, supra, at p. 671.) For ―policy

reasons,‖ Kinsman noted, ―courts have severely limited the hirer‘s ability to

delegate responsibility [to a contractor] and escape liability‖ to a bystander who is

injured by the contractor‘s negligence. (Ibid.) But, Kinsman pointed out, if the

injured party is the contractor‘s employee, and therefore entitled to workers‘

compensation benefits, those policy concerns do not apply. Hence, Kinsman said, a

hirer is presumed ―to delegate to an independent contractor the duty to provide the

contractor‘s employees with a safe working environment.‖ (Ibid.)

10

Most recently, in Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th

518, we again focused on delegation of duty as an important principle underlying

Privette, supra, 5 Cal.4th 689, and its progeny. Tverberg held that an independent

contractor‘s hirer is not liable in tort even if the contractor himself, rather than the

contractor‘s employee, is the one that is injured in the workplace. (Tverberg, supra,

at pp. 528–529.) Although the contractor in Tverberg was not entitled to workers‘

compensation benefits, his claim against the hirer nevertheless failed because of the

hirer‘s presumed delegation to the contractor of responsibility for workplace safety.

(Id. at pp. 527–528.) The independent contractor, Tverberg said, ―has authority to

determine the manner in which inherently dangerous . . . work is to be performed,

and thus assumes legal responsibility for carrying out the contracted work, including

the taking of workplace safety precautions.‖ (Id. at p. 522.)

The Privette line of decisions discussed above establishes that an

independent contractor‘s hirer presumptively delegates to that contractor its tort

law duty to provide a safe workplace for the contractor‘s employees. At issue here

is whether the hirer can be liable to the contractor‘s employees for workplace

injuries allegedly resulting from the hirer‘s failure to comply with safety

requirements of Cal-OSHA and its regulations. That raises the question whether

the tort law duty, if any, to comply with Cal-OSHA and its regulations for the

benefit of an independent contractor‘s employees is nondelegable, an issue we

discuss below.

B.

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. The doctrine applies when

the duty preexists and does not arise from the contract with the independent

contractor. (See Eli v. Murphy (1952) 39 Cal.2d 598, 600; Knell v. Morris (1952)

11

39 Cal.2d 450, 456.) In Maloney v. Rath (1968) 69 Cal.2d 442 (Maloney), for

example, this court held that car owners cannot delegate their duty to ensure that

their cars have working brakes. Hence, an owner cannot avoid liability for an

accident by arguing that the mechanic hired to inspect the brakes failed to discover

the brake problem. (Id. at pp. 446–447.)

After our 2002 decision in Hooker, supra, 27 Cal.4th 198 (in which we

allowed actions in tort against an independent contractor‘s hirer if the hirer retained

control over the work and exercised that control negligently, thereby affirmatively

contributing to the worker‘s injury), several Courts of Appeal have concluded that

the hirer‘s statutory or regulatory duties constitute retained control if those duties

are nondelegable. The courts disagree, however, about the effect of a breach.

Some courts — including the Court of Appeal here — have held that the breach of a

nondelegable statutory or regulatory duty can, by itself, create a triable issue as to

whether the hirer ―affirmatively contributed‖ (Hooker, at p. 210) to the injury of the

independent contractor‘s employee. (Padilla v. Pomona College (2008) 166

Cal.App.4th 661, 672; Evard v. Southern California Edison (2007) 153 Cal.App.4th

137, 147; Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281,

295, 301.) Other courts have held that if the breach is merely an omission, that

breach alone cannot qualify as the ―affirmative[] contribut[ion]‖ required for

liability under Hooker, supra, 27 Cal.4th at page 210. (Madden v. Summit View,

Inc., supra, 165 Cal.App.4th at pp. 1279–1280; Millard v. Biosources, Inc. (2007)

156 Cal.App.4th 1338, 1344, 1348.)

These cases are inapposite here because we reject the premise that the tort

law duty, if any, that a hirer owes under Cal-OSHA and its regulations to the

employees of an independent contractor is nondelegable. When in this case

defendant US Airways hired independent contractor Aubry to maintain and repair

the conveyor, US Airways presumptively delegated to Aubry any tort law duty of

12

care the airline had under Cal-OSHA and its regulations to ensure workplace

safety for the benefit of Aubry‘s employees. The delegation — which, as noted on

page 11, ante, is implied as an incident of an independent contractor‘s hiring —

included a duty to identify the absence of the safety guards required by Cal-

OSHA regulations and to take reasonable steps to address that hazard.

As discussed earlier (pt. II.A., ante), Privette, supra, 5 Cal.4th 689, and its

progeny recognize a presumption that an independent contractor‘s hirer delegates

to that contractor the responsibility to perform the specified work safely. The

policy favoring ―delegation of responsibility and assignment of liability‖ is very

―strong in this context‖ (Kinsman, supra, 37 Cal.4th at p. 671), and a hirer

generally ―has no duty to act to protect the [contractor‘s] employee when the

contractor fails in that task . . .‖ (id. at p. 674).

Nevertheless, the Court of Appeal here held that defendant US Airways

could not delegate to independent contractor Aubry the tort law duty, if any, the

airline owed to Aubry‘s employees to ensure that the conveyor met Cal-OSHA

safety standards. The Court of Appeal quoted our comment — made in a decision

some 25 years before Privette, supra, 5 Cal.4th 689 — that the category of

nondelegable duties includes ―the duty of employers and suppliers to comply with

the safety provisions of the Labor Code.‖ (Maloney, supra, 69 Cal.2d at p. 447.)

Maloney, which did not involve workplace safety, based its nondelegable duty

analysis on our then recent decision in Van Arsdale, supra, 68 Cal.2d 245, which

did involve workplace safety.

In Van Arsdale, supra, 68 Cal.2d 245, a city hired an independent contractor

and expressly delegated to the contractor the responsibility for the safety of the

contractor‘s workers. This court held that the city ―had a nondelegable duty to

exercise due care,‖ and it ―could not avoid [this] duty by hiring an independent

13

contractor.‖ (Id. at p. 255.) Therefore, Van Arsdale concluded, an injured

employee of the contractor could sue the city.

In holding the city‘s tort law duty to be nondelegable, Van Arsdale relied

on the peculiar risk doctrine. (Van Arsdale, supra, 68 Cal.2d at pp. 253–254.) But

as already discussed (see pp. 7–9, ante), our 1993 decision in Privette, supra,

5 Cal.4th 689, rejected application of the peculiar risk doctrine in the context of

tort actions by employees of independent contractors, and it overruled

Van Arsdale. (Privette, at pp. 696, 702, fn. 4.) Therefore, Van Arsdale is no help to

plaintiffs here, and neither is our statement in Maloney, supra, 69 Cal.2d at page

447, which was based on Van Arsdale.

In trying to fit this case within the nondelegable duties doctrine, the Court of

Appeal here distinguished between those Cal-OSHA requirements that arise from

the work performed by the independent contractor and those that predate the

contractor‘s hiring and apply to the hirer ―by virtue of [its] role as property owner.‖

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 own employees a duty to provide a safe workplace. We do not suggest that

defendant could delegate that preexisting duty to Aubry (such that defendant could

avoid liability if the conveyor had injured defendant’s own employee). But under

the definition of ―employer‖ that applies to California‘s workplace safety laws

(see § 6304), the employees of an independent contractor like Aubry are not

considered to be the hirer‘s own employees, and the issue here is whether

defendant US Airways implicitly delegated to contractor Aubry the tort law duty, if

14

any, that it had to ensure workplace safety for Aubry’s employees. The latter duty

did not predate defendant‘s contract with Aubry; rather, it arose out of the contract.

Any tort law duty US Airways owed to Aubry‘s employees only existed because of

the work (maintenance and repair of the conveyor) that Aubry was performing for

the airline, and therefore it did not fall within the nondelegable duties doctrine.

The policy favoring delegation in this case is bolstered by the same factors

we considered persuasive in Privette, supra, 5 Cal.4th 689. (See pp. 8–9, ante.)

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.) Privette further noted that workers‘ compensation guarantees

compensation for injured workers, ―spreads the risk created by the performance of

dangerous work to those who . . . benefit from such work,‖ and ―encourages

industrial safety.‖ (Id. at p. 701.) Also, in light of the limitation that the workers‘

compensation law places on the independent contractor‘s liability (shielding the

latter from tort liability), it would be unfair to permit the injured employee to

obtain full tort damages from the hirer of the independent contractor — damages

that would be unavailable to employees who did not happen to work for a hired

contractor. This inequity would be even greater when, as is true here, the

independent contractor had sole control over the means of performing the work.

(See id. at pp. 698–700.) In sum, we see no reason to limit our holding in Privette

simply because the tort law duty, if any, that the hirer owes happens to be one

based on a statute or regulation.

Accordingly, plaintiffs here cannot recover in tort from defendant US

Airways on a theory that employee Verdon‘s workplace injury resulted from

defendant‘s breach of what plaintiffs describe as a nondelegable duty under Cal-

15

OSHA regulations to provide safety guards on the conveyor. Hence, the Court of

Appeal erred in reversing the trial court‘s grant of summary judgment for defendant.

DISPOSITION

The judgment of the Court of Appeal is reversed.

KENNARD, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

BAXTER, J.

CHIN, J.

CORRIGAN, J.

JOHNSON, J.*

* Associate Justice of the Court of Appeal, Second Appellate District,

Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

16

CONCURRING OPINION BY WERDEGAR, J.

I agree with the majority that defendant US Airways, Inc., is entitled to

summary judgment. I do not agree with the majority‘s reasoning.

I

We originally granted review to resolve a conflict between various

divisions of the Court of Appeal concerning nondelegable duties. Decisions of

this court beginning with Privette v. Superior Court (1993) 5 Cal.4th 689

(Privette) generally prevent employees who are injured at work from suing the

person who hired their employer,1 subject to certain exceptions.2 Under one of

those exceptions, liability can still exist when the injury was caused by the hirer‘s

breach of a nondelegable duty articulated in a safety statute or regulation.3 Courts

1 E.g., Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1238; and Toland

v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 267.

2 E.g., Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 674-675 (hirer fails

to warn of latent or concealed hazardous condition); McKown v. Wal-Mart Stores,

Inc. (2002) 27 Cal.4th 219, 225 (hirer furnishes unsafe equipment); and Hooker v.

Department of Transportation (2002) 27 Cal.4th 198, 210-212 (hirer retains

control and affirmatively contributes to injury).

3 E.g., Evard v. Southern California Edison (2007) 153 Cal.App.4th 137,

147-149 (industry safety order for elevated billboards); and Barclay v. Jesse M.

Lange Distributor, Inc. (2005) 129 Cal.App.4th 281, 296-298 (fire code provision

concerning fire extinguishers).

1

have differed, however, on the question whether liability can be predicated simply

on the hirer‘s passive omission to comply with a such a duty, or whether liability

also requires a showing that the hirer made some additional, affirmative

contribution to the injury.4 The former view is somewhat closer to strict liability,

the latter less so. It was to resolve this conflict that we granted review.

The Court of Appeal, ostensibly taking the former view but arguably

moving further in the direction of strict liability, concluded defendant‘s failure to

comply with regulations requiring safety guards on conveyor belts (Cal. Code

Regs., tit. 8, §§ 3999, 4002) created a potential for liability justifying the case‘s

submission to a jury, even though no admissible evidence showed how the

accident had occurred. Anthony Verdon, the injured employee, claimed not to

know how his arm had become caught in the machine. Immediately after the

accident, Verdon‘s supervisor and coworker filed incident reports asserting that

Verdon had violated safety rules by inserting his hand into the machinery to

remove debris without first turning it off. Later, however, the same employees

signed declarations repudiating their reports, stating they had not witnessed the

accident or discussed it with Verdon and had instead based their reports on ―a

guess as to what may have caused the accident.‖ The superior court excluded for

4 Compare Evard v. Southern California Edison, supra, 153 Cal.App.4th

137, 147 (passive omission suffices); and Barclay v. Jesse M. Lange Distributor,

Inc., supra, 129 Cal.App.4th 281, 298 (same); with Madden v. Summit View, Inc.

(2008) 165 Cal.App.4th 1267, 1280 (other affirmative contribution required);

Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1352 (same); and Park v.

Burlington Northern Santa Fe Railway Co., supra, 108 Cal.App.4th 595, 610

(same).

2

lack of foundation the only other evidence concerning causation — an accident

reconstruction expert‘s opinion that safety guards would have prevented the

accident, based on supposed deposition testimony that turned out not to exist. On

this record, the superior court properly held that no evidence raised a triable issue

of fact as to causation and thus granted summary judgment for defendant. This

ruling was correct no matter which of the competing rules one favors, because the

hirer‘s failure to comply with a nondelegable duty, in order to create liability, must

still be a proximate cause of the injury. (E.g., Madden v. Summit View, Inc.,

supra, 165 Cal.App.4th 1267, 1280-1281.) This essential principle of tort law

disposes of the case before us.

II

In concluding summary judgment for defendant was proper, the majority

does not answer the specific question about nondelegable duties that prompted us

to grant review. Instead, addressing a different question and adopting a rule

broader than any party has proposed, the majority holds that an employer‘s duties

under the California Occupational Safety and Health Act of 1973 (Cal-OSHA)

(Lab. Code, § 6300 et seq.)5 and the regulations issued under its authority are

delegable and, moreover, are presumptively delegated to independent contractors.

In so holding, the majority treats Cal-OSHA statutes and regulations differently,

and less deferentially, than other laws imposing safety obligations on actors

subject to governmental oversight — a category of laws that has long been

considered to impose nondelegable duties for purposes of tort law. (See generally

5 All further citations to statutes are to the Labor Code, except as noted.

3

Maloney v. Rath (1968) 69 Cal.2d 442, 446-448.) Given the factual record and the

manner in which this case has been presented, I question whether it offers an

appropriate occasion for such a holding. Moreover, the holding may well be

wrong for reasons the majority does not consider.

Whether a person upon whom the Legislature has imposed the duty to

maintain a safe workplace (§ 6400, subd. (a)) may delegate that duty ought to be at

least partly a function of legislative intent. Implicitly recognizing this, the

majority attempts to claim for its holding — if not legislative authority — at least

legislative neutrality. ―Not present here,‖ the majority writes, ―is a situation in

which the relevant statutes or regulations indicate an intent to limit the application

of Privette, supra, 5 Cal.4th 689, or preclude delegation of the tort law duty, if

any, that the hirer owes to the contractor‘s employees.‖ (Maj. opn., ante, at p. 2,

fn. 1.)

To the contrary, nondelegability is the clear, unavoidable import of section

6400, subdivision (b), which confirms that Cal-OSHA authorizes the DOSH to

issue citations to employers at multiemployer worksites when an employee has

been exposed to a hazard ―in violation of any requirement enforceable by the

[DOSH],‖ ―regardless of whether their own employees were exposed to the

hazard.‖ The list of employers who may be cited for hazards endangering the

employees of other employers includes, among others, ―[t]he employer who

actually created the hazard‖ (id., subd. (b)(2)) and ―[t]he employer who was

responsible, by contract or through actual practice, for safety and health conditions

on the worksite, which is the employer who had the authority for ensuring that the

hazardous condition is corrected‖ (id., subd. (b)(3)). While the most common

multiemployer worksite is perhaps the construction site, the statute expressly

covers ―both construction and nonconstruction‖ worksites. (Id., subd. (b).) That

4

the employer‘s duties under these circumstances extend to the employees of other

employers is necessarily implicit in the statute, as no citation can logically issue

unless a duty has been breached. A contrary interpretation would defeat the

statute‘s purpose.

The statutory language addressing multiemployer worksites (§ 6400, subd.

(b)) is part of the statute that articulates the fundamental duty of employers to

provide a safe workplace (id., subd. (a)) and thus speaks at the same high level of

authority. The 1999 act that added this language to the Labor Code (Stats. 1999,

ch. 615, § 4, pp. 4338-4339) also added the language already mentioned

(§ 6304.5) making clear that Cal-OSHA statutes and regulations are admissible to

prove negligence in tort actions (Stats. 1999, ch. 615, § 2, p. 4337) and deleted

language that previously had barred the use of Cal-OSHA statutes and regulations

in tort actions ―except as between an employee and his own employer‖ (former

§ 6304.5, as added by Stats. 1971, ch. 1751, § 3, p. 3780, italics added; see Elsner

v. Uveges (2004) 34 Cal.4th 915, 930-931 (Elsner)). Considered together, the

1999 amendments leave no doubt that the Legislature understood and intended

that the employer‘s Cal-OSHA duties at multiemployer worksites would extend

not just to the employer‘s own employees, but also to those of other employers.

Based on the 1999 amendments, we unanimously concluded in Elsner that

―plaintiffs may use Cal-OSHA provisions to show a duty or standard of care to the

same extent as any other regulation or statute, whether the defendant is their

employer or a third party.‖ (Elsner, at pp. 935-936, italics added.)

Ignoring the 1999 multiemployer worksite statute (§ 6400, subd. (b)), the

majority suggests the Legislature‘s intent to permit delegation of Cal-OSHA

responsibilities can be inferred from an earlier statute defining an employer as

―[e]very person . . . which has any natural person in service.‖ (§ 3300, subd. (c);

5

see § 6304 [referring to § 3300], as amended by Stats. 1971, ch. 1751, § 2,

p. 3780.) The definition will not bear the weight the majority would place upon it.

The more recent enactment concerning multiemployer worksites operates not

through the legal fiction that an employer employs a third party‘s employees (cf.

maj. opn., at p. 2), but instead by expressly recognizing that employers in shared

worksites owe duties to the employees of other employers. For the same reason, it

is of no consequence that judicial decisions relying on a former definition of

employer to reach a similar conclusion (e.g., De Cruz v. Reid (1968) 69 Cal.2d

217, 228-229; see maj. opn., ante, at p. 5) may have prompted the Legislature to

adopt the present definition (§§ 3300, 6304). The duties recognized in the

multiemployer worksite statute (§ 6400, subd. (b)) do not in any way depend on

the definition of employer.

To observe that an employer subject to Cal-OSHA has violated a statutory

or regulatory duty to an independent contractor‘s employee certainly does not

suffice, without further analysis, to establish liability in tort for any injuries the

employee may have suffered as a result. But the duty’s existence is the essential

starting point of the analysis. As explained, Cal-OSHA duties play a role in

negligence cases because of section 6304.5, which provides that ―[s]ections 452

and 669 of the Evidence Code shall apply to this division and to occupational

safety and health standards adopted under this division in the same manner as any

other statute, ordinance, or regulation.‖ In other words, Cal-OSHA statutes and

regulations are admissible to show negligence per se in tort actions (see Evid.

Code, § 669; Elsner, supra, 34 Cal.4th 915, at pp. 927-928, 935-936) and are

subject for this purpose to judicial notice (see Evid. Code, § 452; Elsner, at

p. 927). Evidence Code section 669, which codifies the common law doctrine of

negligence per se (Elsner, at p. 927), does not negate or repeal the doctrine of

6

nondelegable duties (California Assn. of Health Facilities v. Department of Health

Services (1997) 16 Cal.4th 284, 298).

The plain language of Evidence Code section 669 applies without any

difficulty when an employer‘s violation of a Cal-OSHA provision at a

multiemployer worksite causes injury to another employer‘s employee. More

specifically, the employer violating the regulation has ―violated a statute . . . or

regulation of a public entity,‖ the violation has ―proximately caused . . . injury to a

person,‖ the injury has ―resulted from an occurrence of the nature which the

statute . . . or regulation was designed to prevent,‖ and ―[t]he person suffering . . .

the injury . . . was one of the class of persons for whose protection the statute . . .

or regulation was adopted.‖ (Evid. Code, § 669, subd. (a)(1)-(4)). Finally, at a

multiemployer worksite, section 6400, subdivision (b), establishes that the injured

employee ―was one of the class of persons for whose protection the . . . regulation

was adopted‖ (Evid. Code, § 669, subd. (a)(4)).

As the majority correctly observes (ante, at p. 2, fn. 1), the Legislature has

not expressly addressed the interaction between Cal-OSHA and the rule of

Privette, supra, 5 Cal.4th 689. But the Legislature has had no reason to do so

because, until today, this court‘s decisions applying and extending that rule have

concerned duties arising under the common law and not under Cal-OSHA. What

matters for present purposes is that the Legislature has determined that the Cal-

OSHA duties of employers at multiemployer worksites extend to the employees of

other employers. (§ 6400, subd. (b).) I recognize that the Legislature‘s decision to

place Cal-OSHA provisions on an equal footing with other statutes and regulations

in the context of tort law (§ 6304.5) permits courts, at least in theory, to guide the

use of such provisions in civil actions by applying applicable common law

doctrines, insofar as those doctrines are consistent with the Legislature‘s intent in

7

creating the relevant duty. In contrast, to apply a common law doctrine like

Privette in tort actions to selectively negate one aspect of an employer‘s Cal-

OSHA duty (i.e., the employer‘s duty to other employers‘ employees), while

enforcing other aspects of that duty (i.e., the employer‘s duty to its own

employees; see maj. opn., ante, at p. 14), is plainly inconsistent with legislative

intent.

In summary, to the extent delegability is a function of legislative intent, the

majority does not convince me the Legislature intended to treat duties created by

Cal-OSHA statutes and rules, unlike other regulatory safety duties, as delegable

and presumptively delegated whenever the person upon whom the Legislature has

imposed such a duty hires an independent contractor. A rule that threatens an

erosive effect on workplace safety deserves a more solid grounding in legislative

intent than a statutory definition of employer (§§ 3300, 6304; see maj. opn., ante,

at pp. 2, 5) that, as explained, is not the provision in which the Legislature has

addressed the scope of employers‘ duties in multiemployer worksites (see § 6400,

subd. (b)). I thus do not join in the majority‘s analysis.

WERDEGAR, J.

8

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Seabright Insurance Company v. U.S. Airways, Inc.

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 183 Cal.App.4th 219

Rehearing Granted

__________________________________________________________________________________

Opinion No. S182508

Date Filed: August 22, 2011

__________________________________________________________________________________

Court: Superior

County: San Francisco

Judge: Peter J. Busch

__________________________________________________________________________________

Counsel:

England Ponticello & St. Clair, Barry W. Ponticello, Renee C. St. Claire and Nadine D. Y. Adrian for

Plaintiff and Appellant.

The Arns Law Firm, Robert S. Arns, Jonathan E. Davis and Steven R. Weinmann for Consumer Attorneys

of California as Amicus Curiae on behalf of Plaintiff and Appellant.

Hodson & Mullin, Samuel C. Mullin; O‘Mara & Padilla and Michael D. Padilla for Intervener and

Appellant.

Dimalanta Clark, Lee W. Clark, Lisa A. Lenoci; Kenney & Markowitz, Stephan E. Kyle, Kymberly E.

Speer and Elizabeth D. Rhodes for Defendant and Respondent.

Archer Norris, Gary Watt; and Nick Cammarota for The California Building Industry Association as

Amicus Curiae on behalf of Defendant and Respondent.

Horvitz & Levy, David M. Axelrod and Stephen E. Norris for Fillner Construction, Inc., as Amicus Curiae

on behalf of Defendant and Respondent.

Murphy, Pearson, Bradley & Feeney and William A. Munoz for Air Transport Association of America,

Inc., as Amicus Curiae on behalf of Defendant and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Barry W. Ponticello

England Ponticello & St. Clair

701 B Street, Suite 1790

San Diego, CA 92101-8104

(619) 255-6450

Michael D. Padilla

O‘Mara & Padilla

12770 High Bluff Drive, Suite 200

San Diego, CA 92130

(858) 481-5454

Kymberly E. Speer

Kenney & Markowitz

255 California Street, Suite 1300

San Francisco, CA 94111

(415) 397-3100

Gary A. Watt

Archer Norris

2033 North Main Street, Suite 800

Walnut Creek, CA 94596-3759

(925) 930-6600