Torres v. Dateland Construction Co. CA4/2 (2023) · DecisionDepot
Torres v. Dateland Construction Co. CA4/2
California Court of Appeal Oct 5, 2023 No. E078625Unpublished
Filed 10/5/23 Torres v. Dateland Construction Co. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
RUDY RAUL TORRES,
Plaintiff and Appellant, E078625
v. (Super.Ct.No. PSC2001806)
DATELAND CONSTRUCTION OPINION COMPANY, INC.,
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Richard Oberholzer,
Judge. Affirmed.
Haffner Law, Joshua H. Haffner, and Trevor Weinberg, and Alfredo Torrijos for
Plaintiff and Appellant.
Berman, Berman, Berman, Schneider & Lowary, Mark E. Lowary, Kelly M.
Henry, and Gina M. Genatempo for Defendant and Respondent.
1
A construction worker fell into a shallow trench while carrying a heavy wood
form across a construction site managed by his employer, a general contractor. He sued
the subcontractor who excavated the trench under theories of premise liability and
negligence. The trial court granted summary judgment on both causes of action because
the subcontractor had no duty to warn employees where the employee could easily have
The authority on which Torres relies concerns the duty of care construction firms
owe to the public when their work affects publicly accessible areas. In Gibbons, for
example, a motorist struck a raised manhole cover on a public street in San Bernardino
that was undergoing repairs by a paving firm. (Gibbons, supra, 108 Cal.App.2d at p. 34.)
The contract between the city and the paving firm required an expanse of surfaced
roadbed for use of the public during the work to permit public traffic to pass through the
construction area, and the raised manhole cover that caused the accident was in this
publicly accessible roadway. (Id. at pp. 34-35.) The Court of Appeal recognized in that
context the paving company “had a duty to warn the traveling public of dangers . . .
which it created in the course of its work,” though the court ultimately held the paving
company could not be liable because it was the city who placed the obstruction in the
roadway. (Id. at p. 35.)
16
Our case does not implicate the same principles because the Villa Hermosa Phase
II construction site was closed to the public, and the party injured was an experienced
construction worker, familiar with the risks inherent in such building projects and with
the risk of open trenches on the jobsite. That familiarity in turn informs whether the
category of harm was foreseeable.
We conclude the trial court correctly concluded that Dateland had no duty to warn
Torres of the open fire riser trench. We therefore affirm the order granting summary
judgment on the negligence and premises liability claims to the extent they are based on
establishing a common law duty of care.
B. Regulatory and Contractual Sources of a Duty
1. Duty to post caution tape under safety policies
As an alternative to a common law duty, Torres locates the source of the duty in
safety policies at the jobsite. He argues Dateland had a safety policy of placing caution
tape around unattended open trenches and that the evidence of this policy creates a
genuine issue of material fact as to whether it breached its duty of care by failing to put
caution tape around the trench Torres fell into.
According to Torres, Dateland’s project manager’s testimony establishes the
existence of a policy to put up caution tape. The project manager agreed that Dateland
puts warning signs near its trenches when the trenches have not been filled. “There would
be caution tape all the way around the trench if we leave the trench open and no workers
are there.” Torres argues Dillenbeck v. City of Los Angeles (1968) 69 Cal.2d 472, 478
17
(Dillenbeck) establishes “[t]he safety rules of an employer are . . . admissible as evidence
that due care requires the course of conduct prescribed in the rule.” In this case, he
argues, “Dateland’s safety rule/policy establishes the standard of care. There are triable
issues as to whether Dateland breached the standard of care by not complying with its
own safety rules for this trench.”
Unlike in Dillenbeck, the trial court here did not exclude evidence of standard
practices. On the contrary, the court admitted the evidence that Dateland would place
caution tape around some trenches and considered whether the testimony could support a
finding that Dateland had a policy that established a duty of care. The court concluded the
project manager “did not testify that such was an established Dateland ‘policy,’ nor was
there any testimony about whether such a ‘policy’ was a written policy or regulation such
that failure to follow the policy/regulation is enforceable by Cal/OSHA.” We agree with
this determination. The testimony did not identify the use of caution tape as a policy or
safety rule, whether written, as in Dillenbeck, or otherwise. Moreover, the testimony did
not identify the kind of trenches Dateland would mark with caution tape, or the
conditions when they would do so.
Other evidence established there was no such policy in place for constructing fire
riser trenches. In his declaration, the same project manager represented that Dateland
built the fire riser trenches at Villa Hermosa Phase II to comply with Sun Country’s and
Cal-OSHA safety standards and that neither set of standards included “requirements for
signage, caution tape, cover or bridging over the trench.” Everardo Ortiz, who was in
18
charge of jobsite safety for Sun Country and saw the trench after the incident, testified
that the area did not require caution tape “because it wasn’t that deep of a trench” and
tape was required only for trenches that were four feet deep. We agree with the trial court
that the same project manager’s testimony about caution tape “does not raise a triable
issue of fact as to whether failure to place caution tape around the trench was a breach of
[a] duty.”
2. Duty to warn under Cal-OSHA regulations
Torres also contends “Dateland had a duty under Cal/OSHA regulations to place
warnings around the trench.” He cites Elsner v. Uveges (2004) 34 Cal.4th 915 (Elsner)
for the proposition that “Cal-OSHA provisions are to be treated like any other statute or
regulation and may be admitted to establish a standard or duty of care in all negligence
and wrongful death actions, including third party actions.” (Id. at p. 928)
That much is correct. However, Torres identifies no Cal-OSHA regulations which
create a duty to place warnings around a trench like the one at issue in this case. Instead,
he relies on the purported company policy to put up caution tape discussed in part II.B.1.
above, and argues Cal-OSHA regulations required that policy to be in writing (Cal. Code
Regs., tit. 8, § 3203, subd. (a)), and Elsner and Evidence Code section 669 establish that
violating the policy is negligence per se.
The testimony which addressed policies at the jobsite states unequivocally that the
companies did not have a policy requiring caution tape to be placed around fire riser
trenches. We disagree with Torres’s attempt to conjure a specific duty of care from the
19
project manager’s vague testimony and deem it incorporated into Cal-OSHA regulations
and made enforceable by Evidence Code section 669.
The construction business is heavily regulated precisely because active
construction sites necessarily create dangers for anyone with access to them. Specific
regulations address the dangers of trenches, but none address the kind of trenches at issue
in this case. In the trial court, Torres argued Cal-OSHA Construction Safety Order
sections 1540 and 1541, which define excavations and general safety requirements,
imposed a duty to warn and build fall protection. Section 1541, subdivision (l) requires
fall protection for excavations “[w]here employees or equipment are required or
permitted to cross over excavations over 6-feet in depth and wider than 30 inches.” (Cal.
Code Regs., tit. 8, § 1541, subd. (l).) Section 1540 defines trenches and establishes that
the measurement of a trench’s width concerns the width of the trench at the bottom. (Cal.
Code Regs., tit. 8, § 1540.)
The trial court addressed these provisions in its ruling and rightly concluded they
do not establish a duty applicable to the trench in this case. Torres has not challenged this
portion of the trial court’s ruling in his appellate briefs and has therefore forfeited or
abandoned the issue. (See Eck v. City of Los Angeles (2019) 41 Cal.App.5th 141, 146.)
However, we exercise our discretion to address the merits of the legal issue. Cal-OSHA
section 1541 requires fall protection only for “excavations over 6-feet in depth and wider
than 30 inches.” (Italics added.) Torres’s testimony does not establish the trench was that
large. At his deposition, he was asked, “Do you know approximately how big the trench
20
was?” He responded, “Depth-wise, it was around 5 to 6 feet deep. Wide, I’m not too
sure.” His testimony does not support a finding that the trench was greater than six feet
deep and 30 inches wide. We agree with the trial court that his testimony fails to raise a
factual issue implicating the duties created by the Cal-OSHA fall protection regulations.
Moreover, as the trial court concluded, Torres’s testimony was legally insufficient
to overcome the objective visual evidence that the trench was about two- to three-feet
deep. Photographs of the accident site contradict his testimony that the trench was five- to
six-feet deep. Two photos show boards collapsed in the trench after the incident. They
show a trench that is a few feet deep at most. We agree with the trial court that the
photographic evidence reveals Torres’s testimony to be a “visible fiction.” (See Scott v.
Harris (2007) 550 U.S. 372, 376, 380-381 (Scott) [“When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment”].)
All the other evidence confirms what the photographs depict. Dateland’s
construction industry expert said that two- to three-feet deep fire risers were standard in
the industry and explained digging deeper would interfere with other building
infrastructure. Sun Country’s superintendent for the project said he saw the trench where
Torres fell, and it was about two feet deep. Dateland’s project manager confirmed
Dateland was contracted to install fire risers which required trenches “which are
uniformly no more than two feet deep, and approximately two (2) feet wide.” And
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Dateland built an exemplar fire riser trench of the same design used at the site, and its
expert said it was two- to three-feet deep.
As the trial court held, a party cannot create a material dispute of fact warranting
trial by contradicting what can be plainly observed. (Scott, supra, 550 U.S. at p. 380; see
also Mezger v. Bick (2021) 66 Cal.App.5th 76, 88.) Scott and Mezger involved video
recordings, not photographic evidence. However, the photographic evidence in this case
is sufficient to do the same work because the factual question is so simple. (See Marrero
v. Air Brook Limousine (S.D.N.Y. Apr. 23, 2014) 2014 WL 1623706, [1], 5 [holding
plaintiff failed to present a genuine issue of material fact in part because “damage to the
cars shown in the photograph is inconsistent with Plaintiff’s assertion”].)
We reach the same conclusion in this case about Torres’s vague estimate of the
depth of the trench. Torres’s testimony was not sufficient to create a triable issue of fact
as to whether Dateland had a duty to provide fall protection under Cal-OSHA section
1541 because it is blatantly contradicted by objective photographic evidence as well as
the testimony of eyewitnesses and experts. No reasonable jury could believe Torres’s
testimony about the size of the trench. (Scott, supra, 550 U.S. at p. 376.)
3. Duty to assign someone to perform daily inspections
Finally, Torres argues Dateland had a duty to inspect the site of the fire riser
trenches and failed to do so, which led to him suffering an injury the inspection
requirement is designed to prevent. He argues Cal-OSHA section 1541, subdivision
(k)(1), requires daily inspections of excavations “for evidence of a situation that could
22
result in possible cave-ins, indications of failure of protective systems, hazardous
atmospheres, or other hazardous conditions.” (Cal. Code Regs., tit. 8, § 1541, subd.
(k)(1).)
We have already concluded the fire riser trench was not a hazardous or dangerous
condition that required special precautions under Cal-OSHA regulations. For example,
these small trenches did not require structural ramps under section 1541, subdivision (c)
or fall protection under section 1541, subdivision (l). There’s no suggestion that the
excavation occurred during rainfall (see § 1541, subd. (h)), next to an adjacent structure
(see § 1541, subd. (i)), or contained loose rock or soil that could endanger a worker in the
trench (see § 1541, subd. (j)). Indeed, on appeal, Torres has identified no regulation and
no dangerous condition against which an inspection could have protected him. Thus, the
only danger an inspection could have turned up was the fact that someone had placed
boards across the trench, allowing a worker, like Torres, to attempt to walk across it.
It is uncontested the parties do not know who placed the boards across the fire
riser trench. The evidence suggested Sun Country employees were the only ones using
boards of the sort used, but also shows Sun Country had a policy against building bridges
out of boards to allow access over trenches. A Sun Country employee said he saw Torres
place the lumber over the trench for his own convenience, but Torres denied that.
Regardless, there is no evidence to support a finding that Dateland created the hazard
presented by the board.
23
The evidence is also uncontested that Sun Country employed a safety officer for
the jobsite, Everardo Ortiz, and that he conducted daily inspections. Ortiz testified that he
conducted safety inspections on June 20 and June 21 and noted no safety issues. Though
the safety inspection on the day of the incident occurred at 10:00 a.m., after Torres’s fall,
there is no support for Torres’s contention that no inspection occurred. Torres argues
Dateland was required to hire its own inspector for the jobsite under its agreement with
Sun Country. However, the agreement says only that Dateland was required to have a
supervisor on site and make regular reports to Sun Country, and Dateland’s project
manager said Dateland relied on Sun Country’s safety officer for inspections. We agree
with the trial court’s conclusion that there is no triable issue of fact as to whether
Dateland’s failure to have its own daily inspections was a breach of duty.
III
DISPOSITION
We affirm the judgment. Dateland is entitled to recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J. We concur:
RAMIREZ P. J.
McKINSTER J.
24
AI Brief
AI-generated · verify before citing
Holding. The court held that a subcontractor has no duty to warn or protect a general contractor's employee from an open and obvious fire riser trench on a construction site, as the condition was not inherently dangerous and the employee was not compelled to encounter it. Furthermore, the court concluded that premises liability does not apply to this suit against a subcontractor because the claim sounds in simple negligence rather than the management of property.
Issues
Whether a subcontractor owes a duty of care to a general contractor's employee regarding an open and obvious trench on a private construction site.
Whether premises liability is a viable cause of action for a subcontractor's employee against a subcontractor.
Whether internal safety practices or testimony regarding caution tape usage establish a mandatory duty of care.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court granted summary judgment on both causes of action because the subcontractor had no duty to warn employees where the employee could easily have avoided the open and obvious condition”
“The trench therefore falls into the general category of an open and obvious condition for which there is no duty to warn.”