Filed 5/20/15 Sponsler v. Kiewit Infrastructure West CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


JOE SPONSLER,

     Plaintiff and Appellant,                                          G049453

         v.                                                            (Super. Ct. No. 30-2012-00570093)

KIEWIT INFRASTRUCTURE WEST                                             OPINION
CO.,

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County,
Luis A. Rodriguez, Judge. Reversed and remanded.
                   Stolpman, Krissman, Elber & Silver, Thomas G. Stolpman and Donna
Silver for Plaintiff and Appellant.
                   G&P│Schick and Malcolm D. Schick for Defendant and Respondent.

                                             *               *               *
                                       INTRODUCTION
                  Joe Sponsler, an employee of KM Industrial, Inc. (KMI), was injured when
he stepped into an 18- to 24-inch depression in the floor of a feed channel in which he
had been working. He sued the general contractor on the project, Kiewit Infrastructure
West Co. (Kiewit), which had hired KMI, and sought recovery on causes of action for
negligence and premises liability. The trial court granted Kiewit’s motion for summary
judgment, and this appeal followed.
                  Central to this appeal are Hooker v. Department of Transportation (2002)
27 Cal.4th 198 (Hooker) and Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman).
In Hooker, supra, 27 Cal.4th at pages 202, 213, the California Supreme Court concluded
that the hirer of an independent contractor may be held liable for injuries sustained by the
contractor’s employee if the hirer retained control over safety conditions at a worksite
and negligently exercised that control in a manner that “affirmatively contributed” to the
employee’s injuries. In Kinsman, supra, 37 Cal.4th at pages 664, 673-674, the California
Supreme Court concluded that a landowner might be liable for injuries sustained by the
contractor’s employee from an obvious hazard if the knowledge of the hazard is
inadequate to prevent injury and the contractor can take reasonable safety precautions but
fails to do so.
                  As to the cause of action for negligence, we conclude there are triable
issues of material fact as to whether Kiewit retained control over safety conditions at the
worksite, whether Kiewit negligently retained such control by creating the depression in
the floor of the feed channel and by later failing to fix it, and whether any such
negligence affirmatively contributed to Sponsler’s injuries. As to the cause of action for
premises liability, we conclude there are triable issues of fact as to whether out of
practical necessity Sponsler might have chosen to encounter the danger presented by the
depression and whether KMI could have taken safety precautions but failed to do so. In
light of these triable issues, we reverse the judgment and remand for further proceedings.

                                                 2
                                          FACTS
              The Orange County Sanitation District (OCSD) hired Kiewit as the general
contractor for the construction of a secondary activated sludge facility on OCSD
premises. Kiewit hired KMI as a subcontractor to perform painting and sandblasting
work at the project. Sponsler was employed by KMI.
              The OCSD project included construction of a feed channel or tunnel. The
feed channel was about five feet wide, eight feet tall, and 220 feet long. In the floor of
the feed channel, about 160 feet from the entrance, was a hole or shaft. Kiewit was
responsible for covering such hole openings and had a company policy to cover and
secure all open holes and to place a sign warning, “Open Hole; Do Not Remove.” Kiewit
carpenters placed a plywood cover over the shaft in the floor of the feed channel. The
plywood cover rested 18 to 24 inches below the walking surface, creating a depression in
the floor of the feed channel.
              Workers in the feed channel walking through the area would have to step
into the depression and back up onto the concrete. Kiewit did not place a warning sign
by the depression. Kiewit’s project manager described such a depression as a “booby
trap.”
              Hector Ochoa, KMI’s foreman at the OCSD project site, had concerns
about pushing wheelbarrows over the depression in the floor of the feed channel. Ochoa
showed the depression to Kiewit’s general foreman for carpenters, Juan Ortiz, and asked
that Kiewit place a new cover over the hole at “grade” (surface) level. Ortiz contacted
his supervisor, Jesse Gridley, who told Ortiz, “he didn’t have time to stop what he was
doing or his men” to place a surface-level cover over the hole in the floor of the feed
channel. Only Kiewit had the authority, the supplies, and the carpenters necessary to
place a surface-level cover over the depression.
              On May 17, 2010, Sponsler and other KMI employees were removing
sandblasting debris inside of the feed channel. Sponsler stepped into the depression

                                              3
while he was walking toward the exit of the feed channel with other KMI crew members.
He was carrying a broom and a shovel and wearing a full-face respirator, and visibility in
the feed channel was impaired by sandblast debris and poor lighting. On stepping into
the depression, Sponsler fell into a wall and suffered injuries to his left knee.
              KMI was insured for workers’ compensation. Sponsler made a claim for
workers’ compensation benefits and received temporary disability benefits.


                               PROCEDURAL HISTORY
              Sponsler filed a form complaint asserting one cause of action each for
general negligence and premises liability against Kiewit. He alleged Kiewit created a
dangerous condition in the feed channel by “covering a vertical shaft with an unsafe,
dangerous floor hole covering which was below the level of the walking surface of the
tunnel” and, when requested by KMI to place a “proper hole covering over the shaft,”
Kiewit refused to do so, “thereby forcing [Sponsler] and his coworkers to work in close
proximity to the dangerous condition.”
              Kiewit moved for summary judgment or, in the alternative, for summary
adjudication of issues. In support of the motion, Kiewit submitted, among other items of
evidence, a declaration from Ochoa. After Kiewit filed the motion for summary
judgment, Ochoa was deposed, and Sponsler submitted portions of the transcript of
Ochoa’s deposition in opposition to the motion. Kiewit, in its reply papers, also
submitted portions of the transcript of Ochoa’s deposition.
              The trial court granted Kiewit’s motion for summary judgment and
explained its reasons for doing so in a minute order. The trial court found the failure to
cover the hole in the feed channel did not affirmatively contribute to Sponsler’s injuries.
The court stated: “[W]hether [Kiewit]’s initial omission and failure to remedy the
improper hole covering after being requested is not in dispute the evidence is
overwhelming that [Kiewit] denied the request to fix the insufficient cover and plaintiff

                                              4
returned to the tunnel where the hole [was] with full knowledge of his employer that
there was a safety hazard posed by the insufficient cover. . . . The court would find a
material fact if contested facts pointed to whether plaintiff had actual or constructive
knowledge of the hole and its inadequate cover. But that is not the case here[. I]t is
undisputed that plaintiff and his employer specifically knew the condition as they rolled a
[wheelbarrow] over it while working. Further, there is no dispute that the plaintiff
returned to [the] tunnel looking to fix presumably so the crew could return to its painting
and sandblasting work. More importantly the evidence is overwhelming and conclusive
that [Sponsler]’s employer knew that the hole presented a safety hazard when his
supervisor removed the crew from the tunnel when [Kiewit] foreman Gridley told him
that it would not remedy the condition at that time.”
              After judgment had been entered in Kiewit’s favor, Sponsler moved for a
new trial pursuant to Code of Civil Procedure section 657 on the grounds of irregularity
in proceedings, insufficiency of the evidence, and error in law. Sponsler asserted there
were irregularities in proceedings because Kiewit presented, for the first time in its reply
papers, evidence and arguments that were crucial to the trial court’s determination.
Specifically, Sponsler asserted that Kiewit presented passages from the deposition
transcript of Ochoa in which he testified Sponsler went back into the feed channel after
Ochoa had pulled his work crew from the channel because Kiewit would not place a
surface-level cover over the depression in the floor.
              The trial court denied Sponsler’s motion for a new trial on the ground the
alleged irregularity in proceedings did not prevent Sponsler from having a fair hearing
and did not materially affect his substantial rights.


                                STANDARD OF REVIEW
              “A trial court properly grants summary judgment where no triable issue of
material fact exists and the moving party is entitled to judgment as a matter of law.

                                              5
[Citation.] We review the trial court’s decision de novo, considering all of the evidence
the parties offered in connection with the motion (except that which the court properly
excluded) and the uncontradicted inferences the evidence reasonably supports.
[Citation.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We liberally construe
the evidence in support of the party opposing summary judgment and resolve all doubts
about the evidence in that party’s favor. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)


                                       DISCUSSION
                                              I.

               Workers’ Compensation Exclusivity and Workplace Tort
                      Liability: the Privette Line of Authority
              In a series of opinions, including Privette v. Superior Court (1993)
5 Cal.4th 689 (Privette), Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253
(Toland), Hooker, supra, 27 Cal.4th 198, McKown v. Wal-Mart Stores, Inc. (2002) 27
Cal.4th 219 (McKown), and Kinsman, supra, 37 Cal.4th 659, the Supreme Court
established the circumstances under which an employee (here, Sponsler) of an
independent contractor (here, KMI) may sue the hirer or landowner (here, Kiewit) of the
independent contractor for workplace injuries.
              In Privette, supra, 5 Cal.4th at page 692, the court held the employee of the
independent contractor may not sue the hirer of the contractor under either version of the
peculiar risk doctrine set forth in the Restatement Second of Torts. In Toland, supra, 18
Cal.4th at pages 257, 270, the court held the employee of the independent contractor may
not sue the hirer of the contractor under either version of the peculiar risk doctrine set
forth in sections 413 and 416 of the Restatement Second of Torts. As explained in
Hooker, supra, 27 Cal.4th at page 201: “Under section 413, a person who hires an
independent contractor to do inherently dangerous work, but who fails to provide in the
contract or in some other manner that special precautions be taken to avert the peculiar


                                              6
risks of that work, can be liable if the contractor’s negligent performance of the work
causes injury to others. Under section 416, even if the hirer has provided for special
precautions in the contract or otherwise, the hirer can nevertheless be liable if the
contractor fails to exercise reasonable care to take such precautions and the contractor’s
performance of the work causes injury to others.”
               Key to understanding Privette and Toland is workers’ compensation
exclusivity. “When an independent contractor causes injury to the contractor’s own
employee, the [Workers’ Compensation] Act’s ‘exclusive remedy’ provision shields the
contractor from further liability for the injury.” (Privette, supra, 5 Cal.4th at p. 698.) It
would create an anomaly if the hirer of the independent contractor could be liable in tort
under the peculiar risk doctrine for the same “injury-causing conduct” of the independent
contractor. (Ibid.) The Privette court concluded: “When, as here, the injuries resulting
from an independent contractor’s performance of inherently dangerous work are to an
employee of the contractor, and thus subject to workers’ compensation coverage, the
doctrine of peculiar risk affords no basis for the employee to seek recovery of tort
damages from the person who hired the contractor but did not cause the injuries.” (Id. at
p. 702.)
               In Hooker, supra, 27 Cal.4th at page 201, the Supreme Court addressed the
issue whether an employee of a contractor may sue the hirer of a contractor for the tort of
negligent exercise of retained control set forth in section 414 of the Restatement Second
           1
of Torts. The court concluded: “[A] hirer of an independent contractor is not liable to
an employee of the contractor merely because the hirer retained control over safety
conditions at a worksite, but . . . a hirer is liable to an employee of a contractor insofar as

 1
    Section 414 of the Restatement Second of Torts states: “One who entrusts work to an
independent contractor, but who retains the control of any part of the work, is subject to
liability for physical harm to others for whose safety the employer owes a duty to
exercise reasonable care, which is caused by his failure to exercise his control with
reasonable care.”

                                               7
a hirer’s exercise of retained control affirmatively contributed to the employee’s injuries.”
(Hooker, supra, at p. 202.)
              In Hooker, a crane operator was employed by an independent contractor
hired by the California Department of Transportation (Caltrans) to assist in the
construction of a freeway overpass. (Hooker, supra, 27 Cal.4th at p. 202.) The crane
operator habitually retracted the crane’s stabilizing outriggers to allow other construction
vehicles to pass. (Ibid.) When the crane operator tried to swing the boom of the crane
without first extending the outriggers, the weight of the boom caused the crane to tip
over. The crane operator was thrown to the ground and killed. (Ibid.) According to the
Caltrans construction manual, Caltrans was responsible for compliance with safety laws
and regulations and its construction safety coordinator was supposed to “‘recognize and
anticipate unsafe conditions’” on Caltrans’s projects. (Ibid.) The senior Caltrans
representative on the jobsite, whose responsibilities included safety, had seen the crane
operators retract their outriggers to let other vehicles pass and knew a crane would be
unstable if its boom were extended over its side while the outriggers were retracted. (Id.
at pp. 202-203.) The Caltrans engineer on the project had the power to shut the project
down because of safety conditions and to remove employees. (Id. at p. 203.)
              The Supreme Court rejected Caltrans’s argument that the contractor’s
employee should never be allowed any recovery even when the hirer retains control over
safety conditions. (Hooker, supra, 27 Cal.4th at pp. 206-213.) Instead, imposition of tort
liability on the hirer of the contractor depends on whether the hirer exercised the retained
control in a manner that “affirmatively contributed” to the injury sustained by the
contractor’s employee. (Id. at pp. 213-214.) “Imposing tort liability on a hirer of an
independent contractor when the hirer’s conduct has affirmatively contributed to the
injuries of the contractor’s employee is consistent with the rationale of our decisions in
Privette, Toland and Camargo[ v. Tjaarda Dairy (2001) 25 Cal.4th 1235] because the
liability of the hirer in such a case is not ‘“in essence ‘vicarious’ or ‘derivative’ in the

                                               8
sense that it derives from the ‘act or omission’ of the hired contractor.”’” (Id. at
pp. 211-212, fn. omitted.)
              Affirmative contribution occurs when the hirer “‘is actively involved in, or
asserts control over, the manner of performance of the contracted work.’” (Hooker,
supra, 27 Cal.4th at p. 215.) “Such affirmative contribution need not always be in the
form of actively directing a contractor or contractor’s employee. There will be times
when a hirer will be liable for its omissions. 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.” (Id. at p. 212, fn. 3.)
When the tort liability of the hirer is based on the hirer’s own affirmative conduct, the
rule of workers’ compensation exclusivity does not preclude the contractor’s employee
from seeking recovery directly from the hirer. (Id. at p. 214.)
              The Supreme Court concluded that Caltrans did not affirmatively contribute
to the crane operator’s death merely by permitting traffic to use the overpass while the
crane was being operated. (Hooker, supra, 27 Cal.4th at p. 215.) Caltrans did not direct
the crane operator to retract his outriggers to permit traffic to pass and “[t]here was, at
most, evidence that Caltrans’s safety personnel were aware of an unsafe practice and
failed to exercise the authority they retained to correct it.” (Ibid.)
              In McKown, supra, 27 Cal.4th at page 225, a companion case to Hooker,
the California Supreme Court held, “when a hirer of an independent contractor, by
negligently furnishing unsafe equipment to the contractor, affirmatively contributes to the
injury of an employee of the contractor, the hirer should be liable to the employee for the
consequences of the hirer’s own negligence.”
              Finally, in Kinsman, supra, 37 Cal.4th 659, the Supreme Court addressed
the circumstances under which a landowner may be held liable to a subcontractor’s
employees for hazardous conditions on the landowner’s premises. The court concluded,
“a landowner that hires an independent contractor may be liable to the contractor’s

                                               9
employee if the following conditions are present: the landowner knew, or should have
known, of a latent or concealed preexisting hazardous condition on its property, the
contractor did not know and could not have reasonably discovered this hazardous
condition, and the landowner failed to warn the contractor about this condition.” (Id. at
p. 664, fn. omitted.)
              As explained in Kinsman, supra, 37 Cal.4th at page 671: “A useful way to
view the above cases is in terms of delegation. As suggested by Privette, at common law
it was regarded as the norm 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. (Privette, supra, 5
Cal.4th at p. 693.) For various policy reasons discussed in Privette, courts have severely
limited the hirer’s ability to delegate responsibility and escape liability. (Id. at p. 694.)
But in Privette and its progeny, we have concluded that, principally because of the
availability of workers’ compensation, these policy reasons for limiting delegation do not
apply to the hirer’s ability to delegate to an independent contractor the duty to provide the
contractor’s employees with a safe working environment. In fact, the policy in favor of
delegation of responsibility and assignment of liability is so strong in this context that we
have not allowed it to be circumvented on a negligent hiring theory. Nonetheless, 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.”


                                              II.
                         Negligent Exercise of Retained Control
              Under Privette and Toland, Sponsler cannot sue Kiewit under the peculiar
risk doctrine, but, under Hooker, may sue Kiewit for the tort of negligent exercise of

                                              10
retained control. As framed by Hooker, did Sponsler raise triable issues of material fact
as to whether (1) Kiewit retained control over safety conditions at the worksite,
(2) Kiewit negligently exercised such retained control, and (3) Kiewit’s negligent
exercise of retained control “affirmatively contributed” to Sponsler’s injuries? (Hooker,
supra, 27 Cal.4th at p. 202.)
              There is a triable issue of material fact as to whether Kiewit retained control
over safety conditions at the feed channel worksite. To be sure, Sponsler reported to
Ochoa, who was the KMI supervisor at the worksite, and nobody from Kiewit supervised
Sponsler or directed him on performing his job duties. KMI’s subcontract required KMI
to “take all reasonable safety precautions pertaining to its [w]ork and the conduct
thereof” and to comply with the owner’s and Kiewit’s safety rules.
              But the evidence also showed that Kiewit retained exclusive control over
the floor of the feed channel and did not delegate that control to KMI. In particular,
Kiewit had the responsibility for placing a cover over the depression in the feed channel
floor. Ochoa testified that, based on his 24 years of work, he understood the custom and
practice to be that the general contractor, not the painting contractor, was responsible for
appropriate floor hole coverings. Kiewit’s company policy was to cover and secure all
open holes in the floor, and to place a sign warning, “Open Hole; Do Not Remove,”
nearby. KMI’s carpenters had placed the plywood cover over the shaft at below ground
level, and, viewing the evidence in the light most favorable to Sponsler, only Kiewit had
the authority, the supplies, and the carpenters to place a surface-level cover over the
depression.
              Thus, the evidence established that, in exercising its retained control,
Kiewit created the depression in the floor of the feed channel, then declined to place a
surface-level cover over the depression when requested to do so by KMI. Under Hooker,
Kiewit could be liable for its active negligence in creating the depression and for its
omission in failing to fix it. (Hooker, supra, 27 Cal.4th at p. 212, fn. 3.) There are triable

                                             11
issues as to whether Kiewit followed its own safety policies in covering the hole and
creating the depression.
              There are differing versions of the events leading to Sponsler’s injuries.
Under one version, asserted by Kiewit, Sponsler went back into the feed channel after he
and the other members of the KMI work crew had left the channel on Ochoa’s orders.
Ochoa testified at his deposition that, after having spoken with Ortiz, he removed the
                                                               2
work crew from the feed channel out of concern over safety. After leaving the feed
channel, Sponsler went into the worksite office and spoke with Ochoa. Sponsler said,
“he wanted to see what he could do as far as make—doing something himself to make it
work.” Sponsler then went back into the feed channel on his own volition and fell into
the depression in the floor. When Ochoa was asked whether he should have told
Sponsler not to go back into the feed channel, Ochoa replied, “[n]o” because “he’s been
there so many times that he should have known where the hole was at.” Ochoa added, “I
didn’t think it was a safety issue as far as walking through it.”
              Under the other version, asserted by Sponsler, he fell into the depression as
he was heading out of the feed channel with other members of the KMI work crew. They
had been in the feed channel to remove sand debris and, when Sponsler fell into the
depression, he was carrying work tools—a shovel and a broom. He testified that he had
been sweeping sand in the feed channel just before falling into the depression.
              Sponsler’s testimony and Ochoa’s testimony created a triable issue of
material fact. Sponsler did not testify that he returned to the feed channel on his own


 2
    Ochoa signed a declaration in which he stated that on May 17, 2010, he was aware of
the depression but had no safety concerns about KMI employees working near it. Ochoa
declared he spoke with Ortiz about putting a different cover over the depression so that a
wheelbarrow could be pushed over it. Kiewit told Ochoa it did not have time to cover the
depression, and Ochoa “had no expectation that KIEWIT would cover the hole.” But, at
his deposition, Ochoa testified that he was aware that if a cover had been placed over the
depression in the floor of the feed channel, Sponsler’s accident would not have happened.

                                             12
                                                                      3
volition after having left it on Ochoa’s orders, as Ochoa testified. If, as Sponsler
testified, he fell into the depression in the floor of the feed channel as he was walking out
with other KMI employees, then the jury must decide whether Kiewit’s retained control
affirmatively contributed to Sponsler’s injuries. As part of its exercise of retained
control, Kiewit had its carpenters place the plywood covering over the shaft at 18 to 24
inches below surface level, creating the depression in the floor of the feed channel. The
evidence was that Kiewit did not follow its own policy and did not place a sign warning,
“Open Hole; Do Not Remove,” near the depression. Whether Kiewit was negligent in
creating this safety hazard, and whether such negligence proximately caused Sponsler’s
injuries, are factual issues which the jury must decide.
              Kiewit ignores the conflict between Sponsler’s testimony and Ochoa’s
testimony. Instead, Kiewit relies on Ochoa’s testimony as establishing without dispute
that it was the decision by Sponsler to go back into the feed channel, and Ochoa’s failure
to stop him, that caused the injuries. Under the relevant standard of review, we liberally
construe the evidence in support of Sponsler and resolve all doubts about the evidence in
his favor. (Hughes v. Pair, supra, 46 Cal.4th at p. 1039.) Sponsler’s testimony created a
triable issue of fact as to causation. Kiewit’s failure to address Sponsler’s testimony and
the triable issue of material fact created by that testimony completely undermine Kiewit’s
                                                                   4
argument it did not, as a matter of law, cause Sponsler’s injuries.



 3
     Sponsler testified Ortiz did not put a ramp over the depression because he received a
radio dispatch from Gridley, who told Ortiz there was not time to build a ramp because
“he had other things to do, removing lifts.”
  4
    It was also undisputed that KMI could have pulled its employees from working inside
the feed channel if at any point in time it had concern about safety conditions. When
Kiewit declined to place a ramp over the depression to allow wheelbarrows to pass over
it, Ochoa, KMI’s worksite foreman, quickly pulled the KMI work crew from the feed
channel. Those are facts the jury should consider in determining whether Kiewit’s
exercise of retained control affirmatively contributed to Sponsler’s injuries.

                                             13
              We agree with Sponsler that Ray v. Silverado Constructors (2002) 98
Cal.App.4th 1120 (Ray) is analogous and supports reversal. In Ray, an employee of an
independent contractor was killed when construction materials blew off a bridge in high
winds and struck him in the back of the head while he was clearing debris from a
roadway. (Id. at pp. 1123-1124.) The employee’s wife sued the project owner and the
general contractor and, in opposing their motion for summary judgment, argued their
active negligence caused the employee’s death. (Id. at p. 1124.) The trial court granted
the motion for summary judgment, and a panel of this court reversed. (Id. at pp. 1123,
1125.) Based on, and distinguishing Hooker, the panel concluded the project owner and
the general contractor could have closed the roadway on which the employee was killed
by windblown debris, while, in contrast, the independent contractor was contractually
barred from doing so. (Ray, supra, at pp. 1133-1134.) Thus, the project owner and the
general contractor retained control over safety conditions at the worksite, and, by failing
to barricade the roadway, affirmatively contributed to the employee’s death. (Id. at
pp. 1134, 1138-1139.)
              This case presents a stronger argument for imposing liability against the
hirer than does Ray because Kiewit created the depression into which Sponsler fell.
Here, as in Ray, the general contractor/hirer retained control over safety conditions at the
worksite, and Kiewit could have closed off the feed channel until a surface-level cover
had been placed over the depression in the floor. Had Kiewit closed off the feed channel,
Sponsler would not have fallen into the depression and suffered injuries. Like the
independent contractor in Ray, KMI was contractually barred from fixing the safety
problem: Only Kiewit could place a surface-level cover over the depression and Kiewit
had an express company policy requiring it to do so. Ochoa testified: “I couldn’t do
anything to fix [the depression] or modify it or—because it’s not my—it wasn’t my job
or—for insurance purposes.”



                                             14
              Kiewit argues an analogous case is Madden v. Summit View, Inc. (2008)
165 Cal.App.4th 1267 (Madden). In Madden, the plaintiff, an electrician employed by a
subcontractor at a home construction site, sustained injuries after falling from a raised
unenclosed patio area. (Id. at p. 1270.) The plaintiff asserted a cause of action against
the general contractor based on the theory his injuries were proximately caused by the
general contractor’s negligence in failing to place a guardrail along the open side of the
patio from which he fell. (Id. at pp. 1270, 1276.) About a year before the accident, a
subcontractor had built a retaining wall for the patio, but the patio floor remained covered
with dirt until the month before the accident. (Id. at p. 1271.) Between the time the
retaining wall was built and the time the patio floor was cemented over, the patio was
used as a walkway and platform for workers at the site, including the plaintiff. (Ibid.)
There was no railing along the unprotected retaining wall side of the patio, and no railing
was built until after the accident. (Ibid.) The project supervisor could not install a railing
without the general contractor’s approval. (Ibid.) The trial court granted summary
judgment in favor of the general contractor, and the Court of Appeal affirmed. (Id. at
pp. 1270, 1271.)
              The Court of Appeal concluded the plaintiff produced no evidence the
general contractor retained control over general safety conditions at the worksite.
(Madden, supra, 165 Cal.App.4th at p. 1276.) Although the general contractor had
retained a project supervisor, he did not understand his responsibilities to include jobsite
safety. (Ibid.) Assuming the general contractor did retain control, the court concluded
the general contractor did not contribute to the absence of a guardrail along the open side
of the patio for three reasons. (Ibid.) First, there was no evidence that the general
contractor or its agents directed that no guardrailing or other protection against falls be
placed along the raised patio. (Ibid.) Second, “the absence of a guardrail was open and
obvious to all of the contractors who worked at the site” and “[i]t was undisputed that
[the plaintiff] had worked in the area where the fall occurred many times before.” (Id. at

                                             15
p. 1277.) Third, there was no evidence that the general contractor or the project
supervisor directed the plaintiff “to perform his work in a manner that was especially
dangerous due to the absence of a railing.” (Ibid.)
               Although Madden does bear similarities to this case, it is different in two
critical respects. First, there is at least a disputed issue of material fact as to whether
Kiewit, the general contractor, retained control over safety conditions in the feed channel.
Second, Kiewit created the unsafe depression in the floor of the feed channel, while in
Madden, the general contractor was not responsible for the lack of guardrails. The
depression in the floor of the feed channel was known to KMI before Sponsler was
injured, and was, like the lack of a guardrail in Madden, “open and obvious.” (Madden,
supra, 165 Cal.App.4th at p. 1277.) But “[t]he obviousness of the hazard does not in and
of itself relieve [the hirer] of any duty it might have to eliminate it.” (Ibid., fn. 3.)


                                              III.
                                      Premises Liability
               Sponsler also sought recovery from Kiewit under a cause of action for
premises liability. In Kinsman, supra, 37 Cal.4th at page 664, the California Supreme
Court addressed whether and under what circumstances a landowner that hires an
independent contractor may be liable to that contractor’s employee who is injured as a
result of hazardous conditions on the landowner’s property. The Kinsman court stated
the general principles: “‘[I]f a danger is so obvious that a person could reasonably be
expected to see it, the condition itself serves as a warning, and the landowner is under no
further duty to remedy or warn of the condition. [Citation.] However, this is not true in
all cases. “[I]t is foreseeable that even an obvious danger may cause injury, if the
practical necessity of encountering the danger, when weighed against the apparent risk
involved, is such that under the circumstances, a person might choose to encounter the
danger.”’ [Citations.]” (Id. at p. 673.)

                                               16
              The Kinsman court then asked how those general principles applied “when
a landowner hires an independent contractor whose employee is injured by a hazardous
condition on the premises.” (Kinsman, supra, 37 Cal.4th at p. 673.) As to obvious
hazards, the Supreme Court explained: “[T]he hirer generally delegates to the contractor
responsibility for supervising the job, including responsibility for looking after employee
safety. When the hirer is also a landowner, part of that delegation includes taking proper
precautions to protect against obvious hazards in the workplace. There may be situations,
as alluded to immediately above, in which an obvious hazard, for which no warning is
necessary, nonetheless gives rise to a duty on a landowner’s part to remedy the hazard
because knowledge of the hazard is inadequate to prevent injury. But that is not this case,
since [Ray] Kinsman acknowledges that reasonable safety precautions against the hazard
of asbestos were readily available, such as wearing an inexpensive respirator. Thus,
when there is a known safety hazard on a hirer’s premises that can be addressed through
reasonable safety precautions on the part of the independent contractor, a corollary of
Privette and its progeny is that the hirer generally delegates the responsibility to take such
precautions to the contractor, and is not liable to the contractor’s employee if the
contractor fails to do so. We see no persuasive reason why this principle should not
apply when the safety hazard is caused by a preexisting condition on the property, rather
                                                                                5
than by the method by which the work is conducted.” (Id. at pp. 673-674.)




 5
     As to concealed hazards, the Supreme Court explained: “[I]f the hazard is concealed
from the contractor, but known to the landowner, the rule must be different. A landowner
cannot effectively delegate to the contractor responsibility for the safety of its employees
if it fails to disclose critical information needed to fulfill that responsibility, and therefore
the landowner would be liable to the contractor’s employee if the employee’s injury is
attributable to an undisclosed hazard. Nothing in the Privette line of cases suggests the
contrary.” (Kinsman, supra, 37 Cal.4th at p. 674.)

                                               17
              Here, we will assume for purpose of analysis that the depression in the floor
                                  6
of the feed channel was obvious. Sponsler testified that before the incident on May 17,
he had been inside the feed channel on three or four occasions, knew about the
depression, and had spoken with an Orange County inspector about it.
              Kiewit delegated to KMI responsibility for looking after employee safety
but retained exclusive control over the floor of the feed channel. Thus, Kiewit did not
delegate the responsibility to remedy safety hazards such as the depression in the floor of
the feed channel. Based on a theory of premises liability, Kiewit might be liable for
injuries caused by the depression in the floor of the feed channel, even though the
depression was an obvious danger, if Sponsler and the other KMI crew members had
chosen to encounter the apparent risk out of practical necessity. That situation might
have arisen if, for example, the KMI work crew had no practical choice but to work
around (encounter) the depression in the floor of the feed channel to perform their
assigned tasks. We conclude there is a triable issue whether the “‘“practical necessity of
encountering the [depression], when weighed against the apparent risk involved, is such
that under the circumstances, [Sponsler] might choose to encounter the danger.”’”
(Kinsman, supra, 37 Cal.4th at p. 673.)
              Kiewit would not be liable to Sponsler for premises liability if KMI could
have taken safety precautions but failed to do so. This also is a triable issue of material
fact. KMI had neither the authority nor the ability to place a surface-level cover over the
depression in the floor of the feed channel. Only Kiewit could remedy the hazard created
by the depression.

 6
    There appears to be no dispute that Kiewit was a landowner for purposes of premises
liability. The term “landowner” for purposes of premises liability refers to “an owner or
a possessor of land that owes some kind of duty of care to keep the premises safe.”
(Kinsman, supra, 37 Cal.4th at p. 664, fn. 1.) The latter category includes one who has
supervisory control over activities conducted upon, and the condition of, the land.
(Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1157-1158.)

                                             18
                                            IV.
                                 Motion for a New Trial
              Sponsler argues the trial court erred by denying his motion for a new trial
because Kiewit submitted new evidence in its reply in support of its summary judgment
motion, and the new evidence caused Sponsler to suffer “extreme prejudice.” Because
we are reversing the judgment as to the negligence cause of action, we need not resolve
whether the trial court erred by denying Sponsler’s motion for a new trial.


                                     DISPOSITION
              The judgment is reversed and the matter remanded for further proceedings.
Appellant shall recover costs incurred on appeal.




                                                  FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.




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