|
|
Publications
Employer on Multi-Employer Worksite Has Duty to Warn Other Companies' Employees
Sedgwick's Real Estate Newsletter
Those involved in real estate are often, or at least from time to time, involved in construction projects on their properties. Such persons should be aware of the decision in Miguel Suarez, et al. v. Pacific Northstar Mechanical, Inc., 180 Cal.App.4th 430 (2009). There, a California court of appeal ruled that a subcontractor had a statutory duty of care, created by workplace safety statutes and regulations, to report hazards that could injure its employees or the employees of other contractors on the project. A failure to meet that duty of care could make the subcontractor liable to another contractor's employee who is injured as a result of that hazard.
In Miguel Suarez, an employee of a subcontractor received an electrical shock from an ungrounded fixture—an I-bolt on the ceiling—but only received minor injuries. He reported it to his foreman but no one from the subcontractor reported the incident to the general contractor or the project owner. A few weeks later, two employees of the general contractor, one on a ladder and the other below, suffered injuries when the employee on the ladder grabbed the I-bolt, received an electrical shock, fell off the ladder and landed on the other employee.
The general contractor's injured employees sued the subcontractor alleging negligence. The employees did not name the general contractor, their employer, because of workers compensation exclusivity. The claims against the subcontractor were premised on the theory that, although the subcontractor was aware of the hazard, it failed to report it to other contractors or the property owner.
The subcontractor brought a summary judgment motion requesting dismissal of the claims, arguing it did not own, lease, occupy, or control the property where the accident occurred, its work did not create the hazardous condition, its scope of work did not include the inspection of or work on the ungrounded fixture, and it did not work on or use the ungrounded fixture. The trial court granted that summary judgment and the two employees appealed.
Under "common law tort principles," in order to bring a negligence action, the plaintiff must establish a legal duty of care toward the plaintiff, a breach of that duty, and a resulting injury. At the trial level, the employees unsuccessfully argued that the subcontractor's actual knowledge of the hazardous conditions created the duty to inform others on the project.
The court of appeal likewise considered application of the common law "no duty to aid" rule, which provides that a person has no duty to come to the aid of another if the person did not create the peril at hand. The employees argued that the rule did not apply because the subcontractor's knowledge of the hazardous condition created a "special relationship," requiring action. The court concluded there is no common law "special relationship" between an employer and the employees of another employer on a work-site.
The employees also argued that the subcontract required the subcontractor to take precautions against any conditions created during the progress of the work that involved a risk of bodily harm to others, and further required the subcontractor to continuously inspect the work and all "facilities" that it used in performing its work so as to discover any such conditions. The court of appeal rejected that argument as well, because the "conditions" that injured the employees were not created during the progress of the subcontractor's work or with facilities that it used in performing its work.
The court of appeal did agree with the employees on their Cal-OSHA argument, however. Cal-OSHA requires all employers to furnish a place of employment "that is safe and healthful for the employees therein." Specifically, on multi-employer work sites, Cal-OSHA can issue citations for violations when there is evidence that "an employee" was exposed to a covered hazard and that citation is against "the employer whose employees were exposed to the hazard (the exposing employer)."
The subcontractor's employee that originally suffered a minor injury qualified the subcontractor as an "exposing employer" under Cal-OSHA. Rejecting the subcontractor's argument that the rule applied only to its employees, the court of appeal found that the statute refers to citations being issued when "an" employee not "their" employee is exposed, flatly rejecting the idea that the Cal-OSHA provisions be interpreted so narrowly that the subcontractor had no duty to protect employees other than its own from exposure to work site hazards.
Finally, the court of appeal noted that the Legislature, in its 1999 amendments, intended "to increase significantly the sanctions available against those in control of workplace safety" and "change existing law to make [Cal-OSHA] statutes and regulations...admissible in personal injury and wrongful death lawsuits so that litigants in these actions could use these provisions as standards for determining negligence...." As a result, the court of appeal concluded that these Cal-OSHA provisions "impose a duty on each employer, at a multi-employer work site, to report all non-obvious hazards about which the employer learns because its employees were exposed to them during the course of their work, even if the employer in question did not create the hazard."
|
Related People
Related Offices
Related Practices
|