Premises Liability: Non-Delegable Statutory Duties

Posted in Premises Liability on January 26, 2009

Padilla v. Pomona College, (2nd District, September 3, 2008) 166 Cal.App.4th 661, 82 Cal.Rptr.3d 869

An employee of a subcontractor who was demolishing water pipes in a dormitory basement was injured when a gusher or water from a broken pipe knocked him off a ladder. The plaintiff filed suit against the property owner as well as the general contractor, alleging that the defendants had violated common law and statutory duties to insure that there was no water pressure in the pipes in the area he was working. The plaintiff also contended that the defendants had failed to follow a Cal-OSHA regulation which required utilities to be shut off, capped, or otherwise controlled during demolition, or protected if use was necessary. (Cal.Code Regs. Title 8, section 1735)

The trial court granted the defendants’ motion for summary judgment under Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, finding that the defendants had fully delegated the task of providing a safe work environment to the plaintiff’s employer, and that the regulation did not impose a duty on the defendants independent of the retained control theory of liability.

The court of appeal affirmed, holding that regulation 1735(a) did not impose a non-delegable duty on the defendants:

“Notwithstanding Evard’s conclusion that the regulation at issue imposed a non-delegable duty, we do not agree with plaintiff’s inference from that case that in every instance Cal-OSHA regulations impose a non-delegable duty. While a non-delegable duty may arise when a statute or regulation requires specific safeguards or precautions to insure others’ safety (Evard, supra, 153 Cal.App.4th at p. 146, 62 Cal.Rptr.3d 479; see also Felmlee, supra, 36 Cal.App.4th at p. 1038, 43 Cal.Rptr.2d 158 [under Privette, a worker may sue the general contractor for specific, nondelegable duties in certain cases] ), it is the nature of the regulation itself that determines whether the duties it creates are non-delegable.

As a result, to determine whether Regulation 1735(a) imposes a non-delegable duty, we must look at the language of the regulation itself. Nothing in Regulation 1735(a) mandates that it imposes safety precautions that cannot be delegated from the landowner to the general contractor to subcontractors, as was done in this case.
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The language, however, nowhere indicates who must perform these acts and does not expressly place the obligation on the landowner.
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Here, Regulation 1735(a) pertained solely to the preparation of the worksite when specific work was being done, that is at a time when contractors were necessarily present. Therefore, there is no basis in Regulation 1735(a) to conclude the duties could not be delegated.

Even if there were such a duty, the liability of a hirer for injury to employees of independent contractors caused by breach of a non-delegable duty imposed by statute or regulation remains subject to the Hooker test.
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Under that test, the hirer will be liable if its breach of regulatory duties affirmatively contributes to the injury of a contractor’s employee.
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Hence, in any event, plaintiff is required to show that defendants’ conduct affirmatively contributed to his injury. Because there is no nondelegable duty, plaintiff must show conduct other than an asserted failure to comply with the regulation. All of the evidence on which plaintiff relies, however, pertains to the regulation.
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Absent evidence that is not found in this record that Pomona or Gordon & Williams entered the basement area and in any way altered or interfered with the safety measures or directed plaintiff’s work, plaintiff cannot establish liability.”