Case Name:??? Michael Zapata v. Sundt Construction, Inc., et al.
Case No.:??????? 2015-1-CV-279109
Motion by Defendant Sundt Construction, Inc. for Summary Judgment of the Complaint of Plaintiff Michael Zapata
Factual and Procedural Background
This is a slip and fall action. On January 11, 2015, plaintiff Michael Zapata (?Plaintiff?) was working as an ironworker, in the course and scope of his employment with Viking Steel, at a San Jose University construction project. (Complaint, ? 11.) Defendant Sundt Construction, Inc. (?Sundt?) acted as the general contractor and defendant Urata & Sons Concrete, Inc. (?Urata?) (collectively, ?Defendants?) provided concrete services on the construction project. (Id., at ?? 12-13.) Plaintiff allegedly sustained injuries ?when he was walking on a ramp created, controlled, and maintained by Defendants and he lost his footing and fell.? (Id., at ? 26.)
Plaintiff alleges that Defendants owed him a duty of reasonable care and ?breached said duty by negligently, carelessly and recklessly constructing, coordinating, inspecting, maintaining, contracting, subcontracting, supervising, controlling[,] engineering, designing, performing, planning and holding out for bid, construction work and supplying men and materials for the job site ?, in that Defendants failed to coordinate and control the work being performed on said job site in a safe and proper manner, thereby creating a risk of injury to men working on said job site.? (Complaint,??? ? 18.) Plaintiff further alleges that Defendants ?were statutory employers, pursuant to Labor Code 6400, 6401, 6403, as Defendants ? created the subject dangerous condition, had the authority to correct the subject dangerous condition, were aware of the subject dangerous condition, or were responsible for remedying the subject dangerous condition to which Plaintiff was exposed.? (Id., at ? 20.) Lastly, Plaintiff alleges that Defendants? conduct violated various provisions of the California Occupational Safety and Health Act of 1973. (Id., at ? 25.)
Based on the foregoing, on April 8, 2015, Plaintiff filed a complaint against Defendants, alleging a single cause of action for negligence.[1]
On March 1, 2016, Sundt filed the instant motion for summary judgment of the complaint. Plaintiff filed papers in opposition to the motion on May 5, 2016. On May 13, 2016, Sundt filed a reply.
Discussion
Sundt?s request for judicial notice is GRANTED. (See Evid. Code ? 452, subd. (d); see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [a precondition to taking judicial notice is that the matter is relevant to an issue under review].)
Plaintiff?s request for judicial notice is GRANTED. (See Evid. Code ? 451, subd. (a); see also County of Lassen v. The State of California (1992) 4 Cal.App.4th 1151, 1154?1155; California Dental Assn. v. California Dental Hygienists? Assn. (1990) 222 Cal.App.3d 49, 54, fn. 3.)
The Court declines to rule on Plaintiff?s evidentiary objections because they do not comply with the California Rules of Court. (See Cal. Rules of Court, rule 3.1354(b), (c); see also Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 (?Vineyard?) [trial courts only have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8 [trial court not required to rule on objections that do not comply with Rule of Court 3.1354 and not required to give objecting party a second chance at filing properly formatted papers].)
The Court declines to rule on Sundt?s Objection Nos. 4-6, 9, 11-12, and 15-21 because they are not material to the disposition of the motion. (See Code Civ. Proc., ? 437c, subd. (q) [?In granting or denying a motion for summary judgment ?, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.?].) Furthermore, Objection Nos. 1-3, 7-8, 10, and 13 lack merit and are overruled.?Lastly, Objection No. 14 is sustained on the grounds of lack of personal knowledge and speculation.
Turning to the merits of the motion, Sundt argues that it is entitled to summary judgment of the complaint because Plaintiff?s claim for negligence is precluded by Privette v. Super. Ct. (Contreras) (1993) 5 Cal.4th 689, 698 and its progeny, a series of cases that have defined and limited the circumstances in which an independent contractor?s employee may recover in tort from the party hiring the contractor.
In opposition, Plaintiff argues that the retained control theory recognized by these cases allows him to recover against Sundt.?Under this theory, a contractor?s hirer is liable to the contractor?s employee insofar as the hirer?s exercise of retained control over work leading to an accident affirmatively contributed to the employee?s injuries.?(See Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 212-213 (?Hooker?).) Plaintiff also asserts that Sundt is directly liable for his harm based on its breach of statutory and regulatory duties.
The Court finds that Sundt?s evidence is sufficient to meet its initial burden. (See Undisputed Material Facts (?UMF?) Nos. 1-11; see also Hetherington Dec., Ex. K, pp. 41:15-25, 42:1-14.) While Sundt?s evidence shows that Sundt generally retained control over the construction of the subject ramp, it also demonstrates that Sundt originally directed Urata to construct the ramp with CDX plywood (not MDO plywood), the ramp was later altered, portions were replaced with MDO plywood, and MDO plywood was not used in the modified ramp at Sundt?s direction. Thus, the evidence shows that Sundt did not exercise its retained control in a manner that affirmatively contributed to Plaintiff?s harm. (See SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 601 [Hooker ?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?].)
In opposition, Plaintiff presents evidence which raises a triable issue of material fact as to whether Sundt exercised its retained control in a manner that affirmatively contributed to his harm. Plaintiff offers testimony from Viking Steel?s project manager and foreman (respectively Dave Couper and Scott Summers) that Sundt as the general contractor had control over and was responsible for providing safe access to the construction site. (See Osborne Dec., Ex. 7, pp. 32:13-25, 33:1-11, Ex. 8, p. 27:4-25.)
Dean Blankartz?Sundt?s superintendent?also confirmed during his testimony that providing access to the job site was Sundt?s responsibility. (See Osborne Dec., Ex. 5, p. 31:12-19.) He further testified that: Urata built the original ramp to provide access to Building C-1 (Hetherington Dec., Ex. C, p. 22:11-19; see also Osborne Dec., Ex. 5, p. 28:11-12); Urata built the ramp because they were the carpenters that Sundt had on site and ?when we ask them to do something for us they do it? (Hetherington Dec., Ex. C, p. 22:20-24, Ex. K, p. 41:15-20); he oversaw and/or watched Urata?s construction of the original access ramp (Hetherington Dec., Ex. C, p. 26:16-22); as part of his oversight of the construction of the ramp, he told Urata that they did a ?good job? building the ramp (Osborne Dec., Ex. 5, p. 31:8-11); the ramp was originally built on December 5, 2014 (Hetherington Dec., Ex. C, p. 35:12-18); the access ramp was changed by Urata because there might have been some damage and/or wear and tear to the lower segment of plywood (id., at p. 43:4-16); if there was a damaged piece of plywood on the ramp, he ?told them to rip that thing out and get [him] a new piece of plywood and [he] said fix that so we have something to walk on? because he did not ?want guys walking in the mud? (id., at p. 43:17-23); he did not have a specific recollection of watching Urata make those changes (id., at pp. 43:24-25, 44:1-2); and those changes were made between the day the ramp was originally built and the date prior to the incident (id., at p. 44:3-13; see also Osborne Dec., Ex. 5, p. 36:8-25).
Furthermore, one of Urata?s carpenter foremen?Joe Crosswhite?testified that he was asked by one of Sundt?s superintendents to build a ramp; he would not have built the ramp absent instruction from the superintendent to do so; after he built the ramp, Sundt went through a checklist with him to approve the ramp and typically did so on all his tasks; and it is his understanding that Urata would not build or modify a ramp on any part of the construction project unless Sundt told Urata to do so. (Osborne Dec., Ex. 9, pp. 60:5-25, 61:1-9, 74:9-14.)
Additionally, a ?Daily Time & Materials Accounting Report? signed by a carpenter foreman for Urata Carpenter (Dennis Crapo) and Blankartz states that on December 23, 2014, Urata built a temporary access ramp into Building C-1. (See Osborne Dec., Ex. 17.) The ?Time & Material Invoice? for that ?Daily Time & Materials Accounting Report? further states that the subject ?work has been performed at the direction and authorization of Sundt ?.? (Ibid.)
Taken together the foregoing evidence supports the reasonable inference that Sundt retained control over the construction of access ramps on the project site; Sundt exercised this control by directing, overseeing, and approving the construction of the original access ramp to Building C-1; Sundt further exercised this control by directing Urata to change, modify, and/or repair the access ramp to Building C-1 sometime before Plaintiff?s slip-and-fall; as a result of the modification to the ramp, MDO form plywood was used to construct a portion of the ramp; and Sundt either approved these changes, as was its practice to do so, or it negligently failed to oversee and/or approve the changes ramp despite the fact that it undertook the duty to do so. (See Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 671 [?when the hirer does not fully delegate the task of providing a safe working environment, but in some manner actively participates in how the job is done, and that participation affirmatively contributes to the employee?s injury, the hirer may be liable in tort to the employee.?]; see also Hooker, supra, 27 Cal.4th at p. 212, fn. 3 [?[s]uch affirmative contribution need not always be in the form of actively directing a contractor or contractor?s employee? 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.?]; Browne v. Turner Const. Co. (2005) 127 Cal.App.4th 1334 [evidence that the general contractor furnished and then removed safety equipment that would have prevented the plaintiff?s fall ?readily suggest[s] that defendants may be liable under general tort principles for breaching a duty of care arising from their own voluntary endeavor to protect plaintiff and others from injury. ? Whether defendants furnished these systems gratuitously or out of obligation, once they did so they assumed a duty not to increase the risk of harm to plaintiff either by acting negligently or by inducing reliance which increased the harm.?].) Thus, there is a triable issue of material fact as to whether Sundt?s participation in the modification of the access ramp affirmatively contributed to Plaintiff?s injury.
For these reasons, the motion for summary judgment is DENIED.
Footnotes:
[1] In its memorandum of points and authorities, Sundt refers to an ?added claim by Plaintiff?s spouse Katrina Zapata for loss of consortium? even though no such claim is alleged in the complaint. (Mem. Ps. & As., p. 4:23-24.) The declaration by Sundt?s counsel, James Hetherington, clarifies that ?[i]n advance of a medication [sic] status review and trial setting [he] met and conferred with Plaintiff [sic] counsel as to ? Plaintiff?s proposal to stipulate to add Mr. Zapata?s spouse as a plaintiff with a loss of consortium claim? and ?[he] agreed to stipulate to this request.? (Hetherington Dec., ? 13.) While the parties may have come to an agreement regarding the addition of new parties and/or claims to the complaint, to date, no such stipulation has been filed with or become an order of the court. Additionally, Plaintiff has not moved or otherwise attempted to amend the complaint. Thus, the complaint, as pleaded, only sets forth a claim for negligence on behalf of Plaintiff.