Lewis v. Pepper Construction Co. Pacific 2/25/10 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C060212

Case Date: 06/10/2010

Preview:Filed 2/25/10

Lewis v. Pepper Construction CA3

NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---LANIER LEWIS et al., Plaintiffs and Appellants, v. PEPPER CONSTRUCTION COMPANY PACIFIC, Defendant and Respondent. C060212 (Super. Ct. No. 05AS04118)

When the employee of a subcontractor is injured, the general contractor may owe a duty of care to the employee of the subcontractor if the general contractor retained control over the details of the work and affirmatively contributed to the employees injury. (Hooker v. Department of Transportation

(2002) 27 Cal.4th 198, 210 (Hooker), discussing Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and its progeny.) In this case, plaintiff Lanier Lewis, an employee of a subcontractor, was injured when he fell more than 15 feet off an elevated beam while working at the IKEA construction site in West Sacramento. He and his wife seek to recover in tort from

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Pepper Construction Company Pacific (Pepper), the general contractor, alleging that Pepper owed Lewis a duty of care. The

trial court entered summary judgment in favor of Pepper, finding that Pepper did not owe Lewis a duty of care. On appeal, Lewis contends that (1) Pepper owed him a duty of care pursuant to statute and Peppers status as a "controlling employer" under the Labor Code, regardless of whether Pepper retained control over the details of the work and affirmatively contributed to Lewiss injuries, because Labor Code section 6304.5 allows reliance on the Labor Code and related regulations to establish a duty of care and (2) the facts establish that Pepper committed an "affirmative act" that contributed to Lewiss injuries. In part I of the discussion, we conclude, following a recent case of another district (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1349-1352 (Millard)), that Labor Code section 6304.5 was not intended to expand the duty of care owed by a general contractor to a subcontractors employees beyond the limitations of Privette and its progeny. We conclude in part II of the discussion that the facts do not establish that Pepper affirmatively contributed to Lewiss injuries and, therefore, Pepper did not owe Lewis a duty of care under the common law. Lewis additionally asserts that the trial courts reasoning in granting summary judgment was erroneous. In part III of the

discussion, we conclude that the trial courts judgment was correct regardless of the reasoning. 2

In part IV of the discussion, we conclude that we need not consider separately the claim of Lewiss wife for loss of consortium. We therefore affirm.1 STANDARD OF REVIEW Summary judgment is required when a defendant shows the "action has no merit." (Code Civ. Proc.,

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