Elizabeth I. Stewart | Low, Ball & Lynch | October 2016
Victor M. Regalado v. Jeffrey M. Callaghan
Court of Appeal, Fourth Appellate District (September 22, 2016)
Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work, but are instead limited to workers’ compensation as their sole remedy. An exception is when the hiring party retains control of workplace safety and “affirmatively contributes to the employee’s injuries.” See Hooker v. Department of Transportation (2002) 27 Cal.4th 198. This case considered whether the hiring party’s failure to act was sufficient “affirmative contribution” for the imposition of liability.
Jeffrey Callaghan (“Callaghan”), a licensed concrete subcontractor, acted as an owner-builder for a home he built in the Coachella Valley. Callaghan hired licensed subcontractors to complete the work but was responsible himself for obtaining all permits and keeping track of the progress daily. Callaghan purchased a pre-engineered underground vault where the pool equipment would be located and connected to a propane line. Callaghan obtained permits for the pool and the site plan submitted depicted the underground vault. Callaghan did not obtain separate permits for the vault and propane line and did not have the County inspect the vault. The vault was installed by Callaghan with the help of another contractor, and he hired someone else to run a propane line to the back yard.
Callaghan hired Dunn’s Designer Pools (“Dunn’s”) to build the pool and spa. Dunn’s designed the layout of the equipment in the vault including where the propane line would enter the vault. Dunn’s employee, Victor Regalado (“Regalado”), installed the pool equipment in the vault. Neither Regalado nor his supervisor read the instruction manuals for the spa heater or the propane conversion kit which warned of a risk of explosion if a propane heater is installed in a pit or low spot where propane gas can collect. After the work was completed, Regalado turned on the propane line, the filter pump, and the heater in preparation for the County’s inspection. An explosion occurred while Regalado was exiting the vault. Regalado was severely burned, injured his back and suffered other substantial injuries.
Regalado sued Callaghan for negligence and premises liability, arguing that Callaghan was liable because he retained control over the project by submitting plans, pulling permits and calling for inspections, furnishing the vault and propane line, asking Dunn’s to install the pool equipment in the vault, and for his failure to obtain separate permits for the vault and propane line.
At trial, all parties had agreed to use the approved jury instruction CACI 1009B, which required a showing that (1) Callaghan owned the property; (2) he retained control over safety conditions; (3) he negligently exercised control over safety conditions; (4) plaintiff was harmed; and (5) Callaghan’s negligent exercise of control was a substantial factor in causing plaintiff’s harm. Callaghan agreed that this was the law, but had argued unsuccessfully that there should be additional instructions given to show that he “affirmatively contributed” to Regalado’s injury. Callaghan sought to amplify CACI 1009B with a special instruction that an owner-builder can only be held liable if they “affirmatively contributed” to the injuries by “direction, induced reliance, or other affirmative conduct.” He had also sought to instruct the jury that “passively permitting an unsafe condition to occur rather than directing it to occur” did not constitute “affirmative contribution.”
The jury found Callaghan was 40 % at fault, compared to 5% for Regalado and 55% for Dunn’s, and judgment was entered against Callaghan in the amount of approximately $3 million. Callaghan appealed.
The Appellate Court upheld the trial court’s ruling and found that CACI 1009B adequately instructed on the applicable law set forth in Hooker, and properly refused Callaghan’s requested special instructions. The Appellate Court found that while drawn directly from case law, Callaghan’s proposed special instructions were misleading in that they suggested that in order for the hirer to “affirmatively contribute” to the plaintiff’s injuries, the hirer must have engaged in some form of active direction or conduct. The Appellate Court found that the instructions had the potential of misleading the jury and did not provide a clear statement of the law. Furthermore, the use notes for CACI 1009B showed that “affirmative contribution” may be found by omission or failure to act.
Here, there was testimony at trial that the vault and propane line installations required a permit, and the reason for the permit was to ensure that the work was done safely. Callaghan was responsible for obtaining permits and calling for inspections, so he clearly retained control over safety conditions. There was testimony that if Callaghan had gone through the appropriate permitting and inspection process, he would not have had a design that included an underground vault with propane piped into it without a proper ventilation system. Based on this evidence, a reasonable trier of fact could conclude that Callaghan negligently exercised his retained control over safety conditions in a manner that affirmatively contributed to Regalado’s injuries.
On a side note, the Appellate Court also upheld the trial court’s finding that payments made to Regalado by his employer were intended to be gifts as his employer was not obligated to make the payments and they were properly excluded from evidence under the collateral source rule.
This case clarified the Hooker exception to the Exclusive Remedy defense regarding “affirmative contribution” to the plaintiff’s injuries. A hirer of an independent contractor, if it retains control of safety for the project, will be found responsible not only for its negligent actions, but for its negligent omissions as well.
For a copy of the complete decision, see: Victor M. Regalado v. Jeffrey M. Callaghan