Unpublished Disposition, 869 F.2d 1497 (9th Cir. 1986)

MEMORANDUM^* 

Plaintiffs-appellants Harry Hurston and Earl Olson, employees of an independent contractor, sought damages for personal injuries arising from a construction site accident. They appeal in timely fashion from a special jury verdict in favor of all defendants. We affirm.

* FACTS

Plaintiffs' employer, McGray Construction Company ("McGray"), had contracted with defendant Phillips Petroleum Company ("Phillips") to rebuild a damaged seawall at Phillips' Ellwood facility in Santa Barbara County. Among other things, McGray contracted to drive a new sheet pile wall around the face and sides of the pier.

Plaintiffs' injuries occurred in the course of their employment as pile drivers when a partially suspended length of sheet pile which was being lifted by a crane owned and operated by McGray came loose and fell sideways onto Hurston and Olson.

Plaintiffs filed their action on March 13, 1986, claiming the accident was caused by the negligence of their employer, for which they sought to hold the owner of the construction site, defendant Phillips, vicariously liable under the "peculiar risk" doctrine.¹  They also alleged design defects in the ground release shackle used to attach the pilings to the crane, for which they sought to hold defendant Dawson Construction Plant, Ltd. ("Dawson"), as manufacturer, and defendant L.B. Foster Company, as distributor, strictly liable.

The evidence adduced at trial suggested a number of possible causes for the accident, including negligence attributable to plaintiffs themselves. After a five-day trial, the jury returned a special verdict in favor of all defendants, specifically finding that McGray was negligent in performing its work; there was comparative fault on the part of plaintiffs which proximately caused their injuries; the work which Phillips hired McGray to perform was not likely to create a peculiar risk of bodily harm; and there was no defect in the design of the ground release shackle.

II

ISSUES

On appeal, plaintiffs contend that (1) the trial court erred in refusing to instruct the jury that the "peculiar risk" doctrine was applicable as a matter of law; (2) the trial court erred in excluding testimony concerning another accident with the ground release shackle; and (3) the trial court erred in refusing to instruct that work in a dangerous location limited the amount of caution required of plaintiffs.² 

III

STANDARD OF REVIEW

Evidentiary rulings are reviewed for abuse of discretion and will not be reversed absent some prejudice. Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340 (9th Cir. 1986). To reverse, it must be said that more probably than not, the error tainted the verdict. Id.

The trial court has broad discretion in formulating instructions and will be reversed only upon a showing of an abuse of discretion. United States v. Wellington, 754 F.2d 1457, 1463 (9th Cir.), cert. denied, 474 U.S. 1032 (1985).

IV

DISCUSSION

Plaintiffs contend that the evidence presented no substantial issue of fact on whether the peculiar risk doctrine applied to this case and that it was, therefore, reversible error for the trial court to permit the jury to consider that question. We disagree with plaintiffs' conclusion that the evidence presented here required the trial court to instruct that the peculiar risk doctrine applied as a matter of law.

The peculiar risk doctrine is a well-established exception to the general rule that one who employs an independent contractor is not liable for injuries caused by the negligence of the contractor. Aceves v. Regal Pale Brewing Co., 24 Cal. 3d 502, 156 Cal. Rptr. 41, 595 P.2d 619 (1979).

California has adopted the peculiar risk doctrine as expressed in sections 413 and 416 of the Restatement (Second) of Torts. Griesel v. Dart Industries, Inc., 23 Cal. 3d 578, 153 Cal. Rptr. 213, 591 P.2d 503 (1979). The doctrine, as explained by the court in Griesel, provides:

[O]ne who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.

591 P.2d at 507.

Application of the doctrine "depends upon the particular facts developed on a case-by-case basis." Hughes v. Atlantic Pacific Const. Co., 194 Cal. App. 3d 987, 240 Cal. Rptr. 200, 206 (1987). In determining whether the doctrine applies to a particular fact situation, the California courts examine two elements: "(1) whether the work is likely to create a peculiar risk of harm unless special precautions are taken; and (2) whether the employer should have recognized that the work was likely to create such a risk." Jimenez v. Pacific Western Const. Co., Inc., 185 Cal. App. 3d 102, 229 Cal. Rptr. 575, 578 (1986). "These questions are ordinarily resolved by the trier of fact." Id.; Mackey v. Campbell Const. Co., 101 Cal. App. 3d 774, 162 Cal. Rptr. 64, 69 (1980). With respect to the second element, " [t]he determination of whether a danger is recognizable requires consideration of the employer's knowledge and experience in the field of work to be done." Aceves, 595 P.2d at 622.

In this case, Phillips was an oil exploration and production company. As such, it had little, if any, knowledge or experience in seawall construction. Its on-site representative, Tom Kennedy, had no prior experience with driving piles or building seawalls. Phillips simply had to rely upon the expertise of McGray to oversee the technical aspects of the operation.

The pertinent risks in this case involved such technical details as the inner workings of a ground release shackle, the methods for testing that it was properly engaged, and the appropriate length of its release line. Phillips could hardly be expected to appreciate these specific risks, much less be in a position to dictate special procedures for avoiding them.

Plaintiffs rely on two cases, Van Arsdale v. Hollinger, 68 Cal. 2d 245, 66 Cal. Rptr. 20, 437 P.2d 508 (1968), and Jimenez, supra, to support their contention that the peculiar risk doctrine should have applied as a matter of law. Both cases are distinguishable.

In Van Arsdale, the plaintiff was a street improvement contractor's employee who was struck by a passing vehicle. At the time of the accident, plaintiff was eradicating the markings of traffic lane lines on a busy street. No precautions had been taken to divert traffic away from the work area. Based on the "undisputed facts," the court held " [t]he necessity for such precautions was inherent in the work and was obvious before the work commenced." 437 P.2d at 514. Clearly, under the facts as existed in Van Arsdale, any reasonable employer would have recognized the work was likely to create a peculiar risk of harm and would have foreseen the need for taking special precautions.

Similarly, in Jimenez, the court held the employer had affirmatively demonstrated its knowledge that trenching work was likely to create a peculiar risk of harm such that special precautions be taken. In Jimenez, the employer was aware that (1) a permit was required to perform trenching work; (2) applicable industry safety instructions would need to be followed; and (3) applicable industry safety standards required trenches deeper than five feet be shored or sloped. 229 Cal. Rptr. at 579. Unlike here, the employer in Jimenez was fully aware that particular, defined precautions would have to be taken against known risks.³ 

While we cannot say, as a matter of law, that the peculiar risk doctrine should not have been presented to the jury, see, e.g., LaCount v. Hensel Phelps Const. Co., 79 Cal. App. 3d 754, 145 Cal. Rptr. 244, 252 (1978) (" [T]his court cannot state as a matter of law that the use of a crane ... is not ... [a] peculiar risk activity"), we are reluctant to assume the opposite to be true. Accordingly, the trial court did not err in refusing to instruct the jury that the peculiar risk doctrine applied as a matter of law.

Plaintiffs sought to offer testimony concerning a subsequent occurrence in which a load of sheet piling fell, allegedly as a result of a snagged shackle release line. It was proffered at trial for the "sole purpose" of raising an inference that the "snagging defect" purportedly established by the subsequent accident existed at the time of plaintiffs' injury. The trial court excluded this evidence under Fed.R.Evid. 403, finding that the prejudicial effects of this evidence outweighed its marginal relevance.

We assume for purposes of this case that evidence of a similar accident may be relevant on the issue of whether the ground release shackle contained a specific defect. See, e.g., Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987); Slovick v. Barnes Constr. Co., 142 Cal. App. 2d 618, 298 P.2d 923, 929 (1956); Blank v. Coffin, 20 Cal. 2d 457, 126 P.2d 868, 871 (1942).

A foundational requirement for the admission of similar accident evidence is that the proffered accident be substantially similar to the accident at bar. See Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1268 (7th Cir. 1988); Ponder, 834 F.2d at 1560. This is of particular importance in cases such as this where the evidence is proffered to show the existence of a defective condition or causation. Nachtsheim, 847 F.2d at 1268.

Defendant-appellee Dawson contends that a proper foundation for the evidence was not laid. It argues that the employee on the subsequent occasion had specifically ascertained that the shackle was properly attached by placing his hand underneath the piling and feeling for the shackle pin on the other side. Whereas, in this case, the plaintiffs admittedly did not perform such a comprehensive check, but claimed rather to have only wiggled the shackle to ascertain proper attachment--a claim refuted by a fellow employee who watched them attach the shackle to the piling.

The "substantially similar" requirement for admission of similar accidents is defined by the defect at issue. See, e.g., Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070, 1083 (5th Cir. 1986); see also Ponder, 834 F.2d at 1560 ("Differences in the nature of the defect alleged may affect a determination whether the accidents are substantially similar").

It is clear that the defective condition allegedly shown in the subsequent accident was substantially identical to the defective condition sought to be proved at trial. See Gumbs v. International Harvester, Inc., 718 F.2d 88, 98 (3d Cir. 1983) (plaintiff must "establish [ ] sufficient similarity between the [other] accidents ... and his own theory of how his accident occurred") (emphasis added). The proffered evidence would have shown that a similar Dawson ground release shackle was being used at the same jobsite for the same purpose at approximately the same time when the shackle unexpectedly released allegedly due to a snagged release line. The differences in the manner of attachment and precautions employed would seemingly go only to the weight rather than the admissibility of the evidence. See Ponder, 834 F.2d at 1560 (" [A]ny differences in the circumstances surrounding those occurrences go merely to the weight to be given the evidence") (citing Jackson, 788 F.2d at 1083) (emphasis added).

Nevertheless, the trial judge has broad discretion to exclude the evidence under Fed.R.Evid. 403. We review the exclusion of evidence under Rule 403 for a "clear abuse of discretion." Coursen v. A.H. Robins Co., Inc., 764 F.2d 1329, 1333 (9th Cir.), corrected, 773 F.2d 1049 (1985). Here, the trial judge's discretion was not clearly abused.

Under the circumstances of this case, the marginal relevance of the proffered evidence may well have been outweighed by its potentially prejudicial effect. All the direct evidence adduced at trial was unsupportive of plaintiffs' theory of causation: that the accident was caused by a defective condition in the shackle--a ground release line susceptible to snagging. The crane operator, John McGray, repeatedly insisted that, at the time the piling fell, he had a clear view of the release line; that he was watching it all during the lift; and that it was not snagged on anything. (R.T. Vol. IV, p. 502-03, 507, 521). The jobsite foreman, Ken Hutchinson, viewed the shackle immediately after the piling fell and testified that the release line was hanging absolutely free, and was not snagged on anything. (R.T. Vol. III, p. 319). Finally, plaintiff Hurston himself, who was charged with handling the release line during the lifting operation, testified that he was positive that the line was on top of the sheet piling during the lift. (R.T. Vol. III, p. 347). Positioning the release line on top of the piling during the lift would have prevented any snagging. (R.T. Vol. V, p. 137).

On the other hand, the only evidence suggesting that the allegedly defective condition caused the accident was the opinion expressed by plaintiffs' expert witness, Professor Siegel--an opinion predicated solely on plaintiffs' insistence at trial that they had properly attached the shackle prior to the accident.⁴ 

Notwithstanding "substantial similarity" of the alleged defects for foundational purposes, the circumstances surrounding the two accidents involved significantly different facts. As was stated in an analogous situation by the Seventh Circuit:

As the circumstances and conditions of the other accidents become less similar to the accident under consideration, the probative force of such evidence decreases. At the same time, the danger that the evidence will be unfairly prejudicial remains. ' [T]he jury might infer from evidence of the [other] accident alone that ultra-hazardous conditions existed ... and were the cause of the ... accident without those issues ever having been proved.'

Nachtsheim, 847 F.2d at 1269 (quoting Gardner v. Southern Ry. Sys., 675 F.2d 949, 952 (7th Cir. 1982) (per curiam)).

Furthermore, had the district court admitted this evidence, the defendant would have had to defend, as a practical matter, not only against the present suit, but also against the subsequent accident. See Nachtsheim, 847 F.2d at 1269; Kelsay v. Consolidated Rail Corp., 749 F.2d 437, 443 (7th Cir. 1984) (" [W]e cannot ignore ... that when a claim is made for the showing of [similar] accidents, an element of a trial on collateral issues, sometimes termed a trial within a trial, is introduced with the real possibility of undue delay").

In conclusion, even were we to strike the 403 balance differently, the district court cannot be said to have clearly abused its discretion in excluding evidence of the subsequent accident. See Coursen, 764 F.2d at 1334.

Plaintiffs argue that the trial court erred in refusing to give the following instruction to the jury:

When a person's lawful employment requires that he work in a dangerous location or a place that involves unusual possibilities of injury, or which requires that in the line of his duty he take risks which ordinarily a reasonably prudent person would avoid, the necessities of such a situation, insofar as they limit the caution that he can take for his own safety, lessen the amount of caution required of him by law in the exercise of ordinary care.⁵ 

They contend that because they worked in a dangerous location and that because their contributory negligence was at issue, the court's failure to give the instruction constituted prejudicial error. We disagree.

A failure to submit a proper jury instruction is a question of law reviewable de novo, Benigni v. City of Hemet, 853 F.2d 1519, 1524 (9th Cir.), amended, --- F.2d ---- (9th Cir. 1988) (citing 999 v. C.I.T. Corp., 776 F.2d 866, 871 (9th Cir. 1985)), but an error in instructing the jury in a civil case does not require reversal if it is more probably than not harmless. Benigni, id. (citing Coursen, 764 F.2d at 1337).

Whether the trial court erred in failing to submit plaintiffs' proposed instruction, such perceived error was harmless in any event. While the jury did find plaintiffs comparatively negligent, this finding was for all practical purposes irrelevant. In answer to special interrogatory No. 13, the jury specifically found, " [w]ithout taking into consideration ... the comparative fault of the plaintiff [s]," that plaintiffs suffered no damages "as a proximate result of the defective product or negligence of the defendant." Plaintiffs simply failed to prove their case and submission of the proposed instruction would have made no difference.

V

CONCLUSION

The district court judgment rendered on the jury verdict is AFFIRMED.