-DLB Jones et al v. United States America, No. 1:2008cv01137 - Document 61 (E.D. Cal. 2011)
Court Description: ORDER GRANTING 56 Defendant United States of America's Motion to Dismiss signed by Chief Judge Anthony W. Ishii on 5/27/2011. (Jessen, A)
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-DLB Jones et al v. United States America Doc. 61 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RICHARD JONES, JILL JONES, 11 12 13 14 15 ) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________) 1:08-CV-01137 AWI DLB ORDER GRANTING DEFENDANT’S MOTION TO DISMISS [Doc. #56] 16 17 18 BACKGROUND On March 30, 2011, Plaintiffs Richard and Jill Jones filed a Second Amended Complaint 19 (“SAC”) against Defendant United States of America. The SAC alleges causes of action for 20 “Dangerous Condition of Public Property/Direct Negligence” and “Loss of Consortium.” 21 Defendant moves to dismiss the SAC pursuant to Rule 12(b)(6) of the Federal Rules of Civil 22 Procedure. For the reasons that follow, the motion will be granted. 23 24 ALLEGED FACTS The Wawona Hotel is owned by the United States and is managed by Delaware North 25 Companies, Inc. (“DNC”) pursuant to a concession contract. SAC at ¶¶ 4-5. On August 1, 2005, 26 Richard Jones (“Richard”), an employee of DNC, stepped down into the entrance of the Wawona 27 Hotel’s boiler room and fell forward, striking his forehead and left arm on the boiler. Id. at ¶¶ 5, 28 10. The step down into the boiler room is more than twelve inches. Id. at ¶ 10. At the time of Dockets.Justia.com 1 the accident, no warnings were posted and lighting inside the boiler room was poor. Id. As a 2 result of the fall, Richard lost consciousness for a brief period of time and suffered a displaced 3 fracture at the radial neck of his left elbow. Id. at ¶ 11. 4 Under the concession contract, DNC is not free to construct or modify any portion of the 5 Wawona Hotel without first obtaining Defendant’s permission and prior written approval of “the 6 location, plans and specifications thereof.” Id. at ¶ 15. For any structural or functional changes 7 on the property, a final approval letter by Defendant is necessary under the superintendent’s 8 signature. Id. Defendant retains ultimate decisional authority with respect to construction and 9 modifications on the property. Id. at ¶ 16. If Defendant does not approve of a construction 10 project for any reason, then DNC cannot proceed with that project. Id. Further, if Defendant 11 does not pre-approve in writing of the actual construction or modification, Defendant retains the 12 authority to allow the construction to exist or request that DNC remove or re-do/alter the 13 construction. Id. 14 William Rust (“Rust”), an employee of Defendant, was the project coordinator for Project 15 3090. Id. at ¶ 18. The purpose of Project 3090 was to stabilize the six main historic structures 16 that comprise the Wawona Hotel complex. Id. at ¶ 17. In 2004, Rust approved a contract 17 modification of the project to pour and install concrete flooring underneath the Wawona Hotel, 18 including the area leading to the boiler room. Id. at ¶ 18. Rust was never provided any plans or 19 specifications for the contract modification prior to his approval and written approval from the 20 Defendant was not provided before the construction began or was completed. Id. Subsequently, 21 a concrete pour created the step into the boiler room. Id. at ¶ 19. Rust inspected and reviewed 22 the construction and condition after the concrete pour and thus had actual notice of the dangerous 23 condition. Id. Although Rust had the control, ability and authority under the concession contract 24 to request that the dangerous condition be changed, rectified, or in some fashion protected 25 against, he failed to do so. Id. 26 Plaintiffs allege that Defendant negligently owned, controlled, maintained, retained 27 28 2 1 control and designed the boiler room, which caused Richard’s injuries and damages. Id. at ¶ 14. 2 Plaintiffs allege that as a result of Richard’s injuries caused by the dangerous condition, Jill Jones 3 is deprived of the care, companionship and affection of her husband. Id. at ¶ 26. 4 LEGAL STANDARD 5 Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the 6 plaintiff’s “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A 7 dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the 8 absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside 9 Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th 10 Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are 11 taken as true and construed in the light most favorable to the non-moving party. Marceau v. 12 Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 13 1077 (9th Cir. 1999). The Court is not required “to accept as true allegations that are merely 14 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. 15 Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 16 988 (9th Cir. 2001). As the Supreme Court has explained: 17 18 19 While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact). 20 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 21 To avoid a Rule 12(b)(6) dismissal, “a complaint must contain sufficient factual matter, 22 accepted as true, to state a claim to relief that is plausible on its face[.]” Telesaurus VPC, LLC v. 23 Power, 623 F.3d 998, 1003 (9th Cir. 2010) (citations omitted). “In sum, for a complaint to 24 survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from 25 that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. 26 United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 27 28 3 1 If a Rule 12(b)(6) motion to dismiss is granted, “[the] district court should grant leave to 2 amend even if no request to amend the pleading was made, unless it determines that the pleading 3 could not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 4 497 (9th Cir. 1995). In other words, leave to amend need not be granted when amendment would 5 be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002). 6 7 DISCUSSION Under the Federal Tort Claims Act (“FTCA”), the government is liable for claims to the 8 extent a private party would be liable under similar circumstances. 28 U.S.C. § 1346(b). The 9 law of the state where the act or omission occurred determine whether an actionable duty exists 10 under the FTCA. Henderson v. United States, 846 F.2d 1233, 1234 (9th Cir. 1988). 11 1. 12 Under California law, the “hirer of an independent contractor is not liable to an employee 13 of the contractor merely because the hirer retained control over safety conditions at a worksite[.]” 14 Hooker v. Dep’t of Transp., 27 Cal. 4th 198, 202 (2002). However, the hirer of an independent 15 contractor is liable to an employee of the contractor if the “hirer’s exercise of retained control 16 affirmatively contributed to the employee’s injuries.” Id. An “affirmative contribution” occurs 17 when the hirer is “actively involved in, or asserts control over, the manner of performance of the 18 contracted work.” Id. at 215. “Such an assertion of control occurs, for example, when the [hirer] 19 directs that the contracted work be done by use of a certain mode or otherwise interferes with the 20 means and methods by which the work is to be accomplished.” Id. An “affirmative contribution 21 need not always be in the form of actively directing a contractor or contractor’s employee.” Id. at 22 198 n.3. “There will be times when a hirer will be liable for its omissions” such as when “the 23 hirer promises to undertake a particular safety measure” and then fails to do so. Id. 24 Negligent Exercise of Retained Control For example, in Hooker, the employee served as a crane operator for a general contractor. 25 Id. at 198. The general contractor was hired by the California Department of Transportation 26 (“Caltrans”) to construct an overpass. Id. “The overpass was 25 feet wide, and the crane with 27 28 4 1 the outriggers extended was 18 feet wide, so [the employee] would retract the outriggers to allow 2 other construction vehicles or Caltrans vehicles to pass.” Id. Prior to the fatal accident, the 3 employee retracted the outriggers and left the crane. Id. When the employee returned, he 4 attempted to swing the boom without first extending the outriggers. Id. The weight of the boom 5 caused the crane to tip over and the employee was thrown to the pavement and killed. Id. 6 The plaintiff in Hooker, the employee’s widow, contended that Caltrans affirmatively 7 contributed to her husband’s death. Id. at 202. Plaintiff argued that Caltrans was aware that the 8 crane operators retracted their outriggers in order to let vehicles pass and knew “that a crane 9 would be unstable if its boom were extended over its side when its outriggers were retracted.” 10 Id. at 202-03. Further, plaintiff argued that Caltrans was responsible for safety on the worksite 11 and had the power to correct any unsafe conditions, but failed to correct the hazardous condition 12 that killed her husband. Id. at 202. 13 The California Supreme Court held that Caltrans did not affirmatively contribute to the 14 employee’s death by permitting traffic to use the overpass while the crane was being operated. 15 Id. at 215. The court stated that there was at most evidence that Caltrans was “aware of an 16 unsafe practice and failed to exercise the authority they retained to correct it.” Id. The court 17 emphasized that Caltrans “did not direct the crane operator to retract his outriggers to permit 18 traffic to pass.” Id. 19 Another instructive case is Tverberg v. Fillner Construction, Inc., No. A120050, 2011 20 WL 670247, at *1 (Cal. App. 1 Dist. Apr. 5, 2011). In Tverberg, defendant was the general 21 contractor on a project to expand a commercial fuel facility. Id. The project required 22 construction of a metal canopy over the fuel-pumping units. Id. Defendant hired a 23 subcontractor, which delegated the work to a second subcontractor. Id. The second 24 subcontractor then hired plaintiff to be foreperson of the crew to construct the canopy. Id. 25 Defendant hired another subcontractor to erect eight bollards, which are “concrete posts 26 intended to prevent vehicles from colliding with fuel dispensers.” Id. On plaintiff’s first day of 27 28 5 1 work, eight holes for the bollard footings had already been dug. Id. The bollard holes, marked 2 with stakes and safety ribbons, were next to the area where plaintiff was to erect the canopy. Id. 3 Plaintiff asked defendant to cover the bollard holes with large metal plates that were on site, but 4 defendant stated that he did not have the necessary equipment to do so that day. Id. The 5 following day, with the bollard holes still uncovered, plaintiff began work on the canopy. Id. 6 Plaintiff again asked defendant to cover the bollard holes, but defendant failed to do so. Id. A 7 short while later, plaintiff fell into a bollard hole and was injured. Id. 8 The California Court of Appeal held that plaintiff “offered sufficient evidence of a triable 9 issue on affirmative contribution to overcome a motion for summary judgment on a retained 10 control theory of direct liability.” Id. at *5. The court noted that defendant’s employee “in 11 charge of the jobsite testified that he concluded that the stakes and safety ribbon that were 12 provided constituted sufficient worker protection.” Id. at *4. The court stated that this “evidence 13 allows an inference that [defendant] affirmatively assumed the responsibility for the safety of the 14 workers near the bollard holes, and discharged that responsibility in a negligent manner, resulting 15 in injury.” Id. 16 In the opposition, Plaintiffs contend that they state a claim for negligent exercise of 17 retained control, relying on the Tverberg case. Opposition at 7:16-18. Like Tverberg, Plaintiffs 18 argue that Rust approved of the dangerous step into the boiler room and therefore assumed 19 responsibility for the safety of workers near that condition and discharged that responsibility in a 20 negligent manner. Id. at 9:1-3. In Defendant’s reply to Plaintiffs’ opposition, Defendant states 21 that the facts of Tverberg “are too dissimilar to support Plaintiffs’ argument that approval of the 22 work completed by DNC is actionable” as an affirmative contribution. Reply at 8:24-25. 23 Defendant argues that Tverberg is distinguishable because in this case there are no factual 24 allegations “that a U.S. employee was making determinations as to what safety precautions 25 should be taken at the worksite to protect DNC’s employees from the hazards of the worksite.” 26 Id. at 9:1-3. 27 28 6 1 The Court agrees with Defendant that Tverberg is factually distinguishable from the 2 allegations in this case. In Tverberg, there was evidence that the defendant was actively involved 3 in and asserted control over the safety conditions at the worksite. Defendant’s employee in 4 Tverberg testified that the stakes and safety ribbon around the bollard holes constituted sufficient 5 worker protection. However, in this case, there is no allegation that Defendant chose one form of 6 worker safety protection over another. The SAC merely alleges that Rust approved of the step 7 into the boiler room after an inspection. SAC at ¶ ¶ 19 and 23. Therefore, Plaintiffs’ reliance on 8 Tverberg is unpersuasive. 9 Similar to the First Amended Complaint, Plaintiffs’ SAC fails to allege how Defendant 10 was actively involved in or asserted control over DNC’s work. Therefore, Plaintiffs have failed 11 to state a claim for negligent exercise of retained control. Accordingly, Defendant’s motion to 12 dismiss Plaintiffs’ claim for negligent exercise of retained control is GRANTED. Since 13 Plaintiffs have again failed to allege any facts with respect to Defendant’s affirmative 14 contribution, it is apparent that Plaintiffs cannot rectify this claim through additional allegations. 15 Therefore, dismissal is with prejudice and without leave to amend. 16 2. Premises Liability 17 In the opposition, Plaintiffs argue that they have stated a “dangerous condition claim” 18 under California law. Opposition at 4:15-16. Plaintiffs rely on California Civil Jury Instruction 19 No. 1100, which requires that (1) the defendant own the property; (2) the property was in a 20 dangerous condition at the time of the incident; (3) the dangerous condition created a reasonably 21 foreseeable risk of the kind of incident that occurred; (4) the defendant had notice of the 22 condition for a long enough time to have protected against it; (5) plaintiff was harmed; and (6) 23 the dangerous condition was a substantial factor in causing plaintiff’s harm. Id. at 4:27-28 and 24 5:1-5. This law, however, is not applicable to this case. 25 26 In Kinsman v. Unocal Corp., 37 Cal. 4th 659 (2005), the Supreme Court of California addressed the issue of when a landowner that hires an independent contractor may be liable to the 27 28 7 1 contractor’s employees. The court noted that the “hirer generally delegates to the contractor 2 responsibility for supervising the job, including responsibility for looking after employee safety.” 3 Id. at 673. “When the hirer is also a landowner, part of that delegation includes taking proper 4 precautions to protect those obvious hazards in the workplace.” Id. “Thus, when there is a 5 known safety hazard on a hirer’s premises that can be addressed through reasonable safety 6 precautions on the part of the independent contractor . . . the hirer generally delegates the 7 responsibility . . . to the contractor, and is not liable to the contractor’s employee if the contractor 8 fails to do so.” Id. at 673-74. The court, however, concluded that the landowner is liable to the 9 contractor’s employee if the employee’s injury is attributable to an undisclosed hazard. Id. at 10 674. The court’s rationale was that a “landowner cannot effectively delegate to the contractor 11 responsibility for the safety of its employees if it fails to disclose critical information needed to 12 fulfill that responsibility[.]” Id. Therefore, the court held that a landowner that hires an 13 independent contractor may be liable to the contractor’s employees if the following conditions 14 are present: the landowner knew, or should have known, of a latent or concealed preexisting 15 hazardous condition on its property, the contractor did not know and could not have reasonably 16 discovered this hazardous condition, and the landowner failed to warn the contractor about this 17 condition. Id. at 664. 18 In this case, Plaintiffs have again failed to allege that the hazardous condition was 19 unknown to DNC or that DNC could not have reasonably discovered the hazardous condition. 20 Further, Plaintiffs have not alleged that Defendant failed to warn DNC about the hazardous 21 condition. Accordingly, Defendant’s motion to dismiss Plaintiffs’ premises liability claim is 22 GRANTED. In the Court’s previous order dismissing Plaintiffs’ First Amended Complaint, the 23 Court explained to Plaintiffs that Kinsman was the applicable premises liability law to this case. 24 Order at 7:10-16. Therefore, it is clear that Plaintiffs cannot rectify this claim through additional 25 factual allegations. Dismissal is with prejudice and without leave to amend. 26 27 28 8 1 CONCLUSION 2 IT IS HEREBY ORDERED that Defendant’s motion to dismiss Plaintiffs’ Second 3 Amended Complaint is GRANTED with prejudice and without leave to amend. 4 5 IT IS SO ORDERED. 6 7 Dated: 0m8i78 May 27, 2011 CHIEF UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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