Advisory
Real Estate
Real Estate
Litigation
January 19, 2010
Contractor Must Report Nonobvious Hazards
Even If It Did Not Create Them
by Robert A. James, Wesley C.J. Ehlers, Amy L. Pierce and Amanda G. Alley
California’s First District Court of Appeal in Suarez v. Pacific Northstar
Mechanical, Inc., found that Cal-OSHA provisions, Labor Code §§ 6304.5 and
6400, “impose a duty on each employer, at a multiemployer worksite, to report
all nonobvious 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.”
The First District Court of Appeal in Suarez v. Pacific Northstar Mechanical, Inc., --- Cal. App. 4th--- (Dec.
18, 2009), held that, although Pacific Northstar Mechanical, Inc. (“PNM”) had neither a common law nor
a contractual duty to take affirmative steps to protect those working for other employers from hazards it did
not create, PNM did have a statutory duty under Labor Code sections 6304.5 and 6400 to report the nonobvious hazard to which it learned that its employees were exposed.
In Suarez, plaintiffs Miguel Suarez and Luis Avila were employed by the general contractor on a tenant
improvement project. The general contractor had hired PNM as a subcontractor to install the heating, ventilation and air conditioning components. Prior to work beginning on the project, an unguarded electrical
circuit, to which an ungrounded light fixture was wired, was installed on the premises. Neither the general
contractor nor any of the subcontractors had been hired to install the fixture or work with it. During work
on the project, plaintiff Suarez climbed to the top of a ladder inside the building that was being remodeled
and, to steady himself, grabbed an I-bolt. Unbeknownst to him, the ungrounded light fixture was hanging
from the I-bolt. Suarez immediately received an electric shock, fell off the ladder and landed on plaintiff
Avila who was standing on the floor holding the ladder. Both men were injured.
The plaintiffs filed a complaint against the owner of the property for premises liability and general negligence. They later amended the complaint to add PNM as a defendant. The plaintiffs alleged that before
they were injured, a PNM employee suffered a minor injury from coming into contact with the ungrounded
light fixture. A PNM foreman knew of the injury; PNM thus had knowledge of the ungrounded light fixture,
and PNM failed to report it to other contractors or the property owner.
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Advisory
Real Estate
PNM filed a motion for summary judgment or, in the alternative, for summary adjudication denying liability.
The trial court granted PNM’s motion and later entered judgment in its favor. The plaintiffs appealed.
No Common Law Duty to Protect Non-Employees
The Suarez court confirmed the applicability of the “no duty to aid rule,” the common law principle that a
person “who has not created a peril is not liable in tort merely for failure to take affirmative action to assist
or protect another unless there is some relationship between them which gives rise to a duty to act.” The
court further recognized that the common law has not recognized such a special relationship between an
employer, such as PNM, and the employees of another employer who are present at the same worksite.
Thus it declined to find a common law special relationship between plaintiffs and PNM.
No Contractual Duty to Take Action to Protect Non-Employees
Recognizing that a special relationship giving rise to a duty to take affirmative action to protect another
may be created by contract, the Suarez court looked to whether PNM owed a contractual duty to nonemployees. The contract between the general contractor and PNM included a paragraph entitled “precautions” that addressed PNM’s duties with regard to safety on the project. The provision read in part: “[PNM]
shall promptly take all precautions which are necessary and adequate against any conditions created
during the progress of the work which conditions involve a risk of bodily harm to others or a risk of damage to property, including the property of [the premises owner] and [general contractor]. [PNM] shall continuously inspect the work and all facilities utilized by [PNM] in performing the work to discover and
determine any such conditions” (original capitalization omitted; emphasis added). It was undisputed that
the hazard of the ungrounded light fixture was neither “created during the progress of the work” nor “facilities utilized by [PNM] in performing the work.” As read by the Suarez court, the hazards presented by the
ungrounded light fixture did not fall within the ambit of “such conditions” in the contract provision requiring
PNM to “continuously inspect the work . . . to discover and determine any such conditions.” Accordingly,
the court concluded that the contract did not create a duty on PNM’s part to protect non-employees from
the ungrounded light fixture.
Duty Under Labor Code § 6400 of Cal-OSHA1
Recognizing that a special relationship may also be created by statute, the Suarez court looked to whether
PNM had a statutory duty to take action to protect non-employees. Labor Code section 6400 provides:
(a) Every employer shall furnish employment and a place of employment that is safe and healthful for
the employees therein. [¶] (b) On multiemployer worksites, both construction and nonconstruction,
citations may be issued only to the following categories of employers when the division has evidence
that an employee was exposed to a hazard in violation of any requirement enforceable by the division: [¶] (1) The employer whose employees were exposed to the hazard (the exposing employer). [¶]
(2) The employer who actually created the hazard (the creating employer). [¶] (3) The 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 (the controlling employer). [¶] (4) The employer who had the responsibility for actually correcting the hazard (the correcting employer). [¶] The employers listed in paragraphs (2) to (4), inclusive,
of this subdivision may be cited regardless of whether their own employees were exposed to the
hazard.
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Advisory
Real Estate
The Suarez court, assuming that PNM’s employee was injured by contact with the ungrounded light fixture,
concluded that PNM was an “exposing employer” under Section 6400(b)(1) because its “employees were
exposed to the hazard.” The court further interpreted Section 6400(b)(1) to protect non-employees from
exposure to a nonobvious hazard, finding that broad coverage was extended by the language in Section
6400(b) that “citations may be issued only to the following categories of employers when the division has
evidence that an employee was exposed to a hazard” (emphasis added).2
The Suarez court further found instructive the legislative history of Assembly Bill 1127, an amendment
to the Cal-OSHA statutory scheme “designed to prevent injuries and close loopholes in various laws relating to workplace safety standards.” According to the court, the “net effect” of the proposed reforms was
to “increase significantly the sanctions available against those in control of workplace safety, with the goal
of deterring unsafe practices and reducing the number and severity of future accidents.” It recognized 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.” Lastly, it noted that
Section 6400 was enacted as part of AB 1127 with the same goal of “expand[ing] civil and criminal penalties for failure to maintain a safe workplace.” Relying on amendments made by AB 1127 to section 6304.5,
the court concluded that Section 6400(c)3 does not preclude interpretation of Section 6304.5 as creating
a duty on the part of employers to comply with the safety standards codified in Section 6400(b).
Accordingly, the court held that Sections 6304.5 and 6400 “impose a duty on each employer, at a multiemployer worksite, to report all nonobvious 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.” The case was remanded to the trial court for further proceedings.
If you have any questions about the content of this advisory please contact the Pillsbury attorney with
whom you regularly work, or the authors of this advisory.
Robert A. James (bio)
San Francisco
+1.415.983.7215
[email protected]
Wesley C.J. Ehlers (bio)
Sacramento
+1.916.329.4758
[email protected]
Amy L. Pierce (bio)
Sacramento
+1.916.329.4765
[email protected]
Amanda G. Alley (bio)
Sacramento
+1.916.329.4783
[email protected]
J
1
The statutes governing workplace safety are Labor Code sections 6300, et seq. (“Cal-OSHA”). For purposes of the appeal,
it was assumed that the ungrounded light fixture violated Cal-OSHA’s workplace safety requirements.
2
The Suarez court further looked to California Code of Regulations, title 8, section 336.11, which provides that an employer
subject to the issuance of a citation for a violation of Section 6400 (b)(1) can avoid being cited if it can demonstrate, among
other things, “that the creating, the controlling and/or the correcting employers, as appropriate, were specifically notified or
were aware of the hazards to which his/her employees were exposed.” It found that the reference to the “exposing employer”
notifying the “creating employer” about the hazard “makes clear that an exposing employer can be cited for failing to give
notice of a hazard even if the exposing employer did not create it.”
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Section 6400(c) states: It is the intent of the Legislature, in adding subdivision (b) to this section, to codify existing regulations
with respect to the responsibility of employers at multiemployer worksites. Subdivision (b) of this section is declaratory of
existing law and shall not be construed or interpreted as creating a new law or as modifying or changing an existing law.
This publication is issued periodically to keep Pillsbury Winthrop Shaw Pittman LLP clients and other interested parties
informed of current legal developments that may affect or otherwise be of interest to them. The comments contained herein
do not constitute legal opinion and should not be regarded as a substitute for legal advice.
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