Jones et al v. United States America, No. 1:2008cv01137 - Document 54 (E.D. Cal. 2011)
Court Description: ORDER GRANTING 48 Defendant's Motion to Dismiss, With Prejudice and With Leave to Amend, signed by Chief Judge Anthony W. Ishii on 2/28/2011. Amended Complaint due within thirty (30) days. (Jessen, A)
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Jones et al v. United States America Doc. 54 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. #48] 16 17 18 BACKGROUND On January 10, 2011, Plaintiffs Richard and Jill Jones filed a First Amended Complaint 19 (“Complaint”) against Defendant United States of America. The Complaint alleges causes of 20 action for “Dangerous Condition of Public Property/Direct Negligence” and “Loss of 21 Consortium.” Defendant moves to dismiss the Complaint pursuant to Rule 12(b)(6) of the 22 Federal Rules of Civil 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. Complaint at ¶¶ 4-5. On August 1, 26 2005, Richard, an employee of DNC, stepped down into the entrance of the Wawona Hotel’s 27 boiler room and fell forward, striking his forehead and left arm on the boiler. Id. at ¶¶ 5, 10. The 28 step down into the boiler room is more than twelve inches. Id. at ¶ 10. At the time of the Dockets.Justia.com 1 accident, no warnings were posted and lighting inside the boiler room was poor. Id. As a result 2 of the fall, Richard lost consciousness for a brief period of time and suffered a displaced fracture 3 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 approval of “the location, 6 plans and specifications thereof.” Id. at ¶ 15. If Defendant does not approve of a construction 7 project for any reason, then DNC cannot proceed with that project. Id. Further, Defendant 8 retains the ability to make changes to structures on the Wawona Hotel under the concession 9 contract. Id. 10 A concrete pour created the step into the boiler room. Id. Defendant failed to pre- 11 approve in writing the actual construction or modification of the step into the boiler room as 12 required by the concession contract. Id. William Rust, an employee of Defendant, inspected and 13 reviewed the premises after the concrete pour and approved the creation of the step. Id. Rust had 14 the control, ability and authority under the concession contract to request that the dangerous and 15 hazardous condition be changed, but failed to remedy the hazardous condition or place warnings 16 in the area. Id. 17 Plaintiffs allege that Defendant negligently owned, controlled, maintained, retained 18 control and designed the boiler room, which caused Richard’s injuries and damages. Id. at ¶ 14. 19 Plaintiffs allege that as a result of Richard’s injuries caused by the dangerous condition, Jill is 20 deprived of the care, companionship and affection of her husband. Id. at ¶ 19. 21 LEGAL STANDARD 22 Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the 23 plaintiff’s “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A 24 dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the 25 absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside 26 Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th 27 28 2 1 Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are 2 taken as true and construed in the light most favorable to the non-moving party. Marceau v. 3 Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 4 1077 (9th Cir. 1999). The Court is not required “to accept as true allegations that are merely 5 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. 6 Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 7 988 (9th Cir. 2001). Although they may provide the framework of a complaint, legal conclusions 8 are not accepted as true and “[t]hreadbare recitals of elements of a cause of action, supported by 9 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); 10 see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). As the 11 Supreme Court has explained: 12 13 14 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). 15 Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). To avoid a Rule 12(b)(6) 16 dismissal, “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim 17 to relief that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949. “A claim has facial plausibility 18 when the plaintiff pleads factual content that allows the court to draw the reasonable inference 19 that the defendant is liable for the misconduct alleged.” Id. 20 21 22 23 24 25 26 The plausibility standard is not akin to a ‘probability requirement,’ but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ... Determining whether a complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not shown – that the pleader is entitled to relief. 27 28 3 1 Iqbal, 129 S.Ct. at 1949-50. “In sum, for a complaint to survive a motion to dismiss, the non- 2 conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly 3 suggestive of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 4 F.3d 962, 969 (9th Cir. 2009). 5 If a Rule 12(b)(6) motion to dismiss is granted, “[the] district court should grant leave to 6 amend even if no request to amend the pleading was made, unless it determines that the pleading 7 could not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 8 497 (9th Cir. 1995). In other words, leave to amend need not be granted when amendment would 9 be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002). 10 11 DISCUSSION Under the Federal Tort Claims Act (“FTCA”), the government is liable for claims to the 12 extent a private party would be liable under similar circumstances. 28 U.S.C. § 1346(b). The 13 law of the state where the act or omission occurred determine whether an actionable duty exists 14 under the FTCA. Henderson v. United States, 846 F.2d 1233, 1234 (9th Cir. 1988). 15 1. Negligent Exercise of Retained Control 16 Under California law, the “hirer of an independent contractor is not liable to an employee 17 of the contractor merely because the hirer retained control over safety conditions at a worksite[.]” 18 Hooker v. Dep’t of Transp., 27 Cal. 4th 198, 202 (2002). However, the hirer of an independent 19 contractor is liable to an employee of the contractor if the “hirer’s exercise of retained control 20 affirmatively contributed to the employee’s injuries.” Id. An “affirmative contribution” occurs 21 when the hirer is “actively involved in, or asserts control over, the manner of performance of the 22 contracted work.” Id. at 215. “Such an assertion of control occurs, for example, when the [hirer] 23 directs that the contracted work be done by use of a certain mode or otherwise interferes with the 24 means and methods by which the work is to be accomplished.” Id. An “affirmative contribution 25 need not always be in the form of actively directing a contractor or contractor’s employee.” Id. at 26 198 n.3. “There will be times when a hirer will be liable for its omissions” such as when “the 27 28 4 1 2 hirer promises to undertake a particular safety measure” and then fails to do so. Id. For example, in Hooker, the employee served as a crane operator for a general contractor. 3 Id. at 198. The general contractor was hired by the California Department of Transportation 4 (“Caltrans”) to construct an overpass. Id. “The overpass was 25 feet wide, and the crane with 5 the outriggers extended was 18 feet wide, so [the employee] would retract the outriggers to allow 6 other construction vehicles or Caltrans vehicles to pass.” Id. Prior to the fatal accident, the 7 employee retracted the outriggers and left the crane. Id. When the employee returned, he 8 attempted to swing the boom without first extending the outriggers. Id. The weight of the boom 9 caused the crane to tip over and the employee was thrown to the pavement and killed. Id. 10 The Plaintiff in Hooker, the employee’s widow, contended that Caltrans affirmatively 11 contributed to her husband’s death. Id. at 202. Plaintiff argued that Caltrans was aware that the 12 crane operators retracted their outriggers in order to let vehicles pass and knew “that a crane 13 would be unstable if its boom were extended over its side when its outriggers were retracted.” 14 Id. at 202-03. Further, Plaintiff argued that Caltrans was responsible for safety on the worksite 15 and had the power to correct any unsafe conditions, but failed to correct the hazardous condition 16 that killed her husband. Id. at 202. 17 The California Supreme Court held that Caltrans did not affirmatively contribute to the 18 employee’s death by permitting traffic to use the overpass while the crane was being operated. 19 Id. at 215. The court stated that there was at most evidence that Caltrans was “aware of an 20 unsafe practice and failed to exercise the authority they retained to correct it.” Id. The court 21 emphasized that Caltrans “did not direct the crane operator to retract his outriggers to permit 22 traffic to pass.” Id. 23 In this case, Plaintiffs allege that Defendant (1) was aware of the dangerous condition of 24 the step into the boiler room; (2) failed to exercise its authority under the concession contract to 25 correct it; and (3) approved the creation of the hazardous step after it was built. Complaint at ¶ 26 15. Similar to Hooker, Plaintiffs’ factual allegations are insufficient to state a claim for negligent 27 28 5 1 exercise of retained control based on a direct affirmative contribution by Defendant. Plaintiffs 2 have failed to allege any facts from which the Court can infer that Defendant was actively 3 involved in, or asserted control over, the manner of DNC’s performance with respect to the 4 concrete pour that created the step into the boiler room. Moreover, there is no allegation that 5 Defendant directed DNC to do anything at all. 6 In their opposition, Plaintiffs contend that they sufficiently allege that Defendants 7 affirmatively contributed to Richard’s injuries. Opposition at 7:4-13. Plaintiffs argue that their 8 case is similar to McCarty v. Department of Transportation, 164 Cal. App. 4th 955 (2008). Id. 9 In McCarty, the employee served as a heavy equipment operator for an independent contractor. 10 164 Cal. App. 4th at 961. The independent contractor was hired by Caltrans to build an 11 extension of a freeway. Id. The employee “was using an excavator to remove a utility pole from 12 the freeway right-of-way when the pole fell on the roof of his excavator, hitting him in the back 13 of the head and leaving him a near-quadriplegic.” Id. The employee sued Caltrans and the jury 14 found Caltrans liable for negligent exercise of retained control. Id. at 962. Subsequently, 15 Caltrans brought a motion for new trial. Id. The trial court judge “granted a partial new trial, 16 ruling that the jury had not been properly instructed on the retained control doctrine.” Id. 17 Plaintiffs contend that the “Court of Appeal in McCarty allowed the jury verdict in favor 18 of the injured employee to stand because there was evidence to support negligent exercise of 19 retained control[.]” Opposition at 6:13-15. However, this is a misstatement of the case. 20 The court did not affirm the jury verdict, but instead concluded that the trial court judge “did not 21 err by granting a partial new trial on the retained control doctrine.” McCarty, 164 Cal. App. 4th 22 at 986. The court agreed with the trial court judge that the jury was not properly instructed on the 23 retained control doctrine. Id. at 984-86. Furthermore, even assuming Plaintiffs’ contention was 24 true, McCarty is factually distinguishable from Plaintiffs’ case. Plaintiffs own opposition states 25 that in the McCarty case Caltrans “instruct[ed] the subcontractor to remove the pole with an 26 excavator[.]” Opposition at 6:18. Thus, unlike this case, in McCarty, there was a direct 27 28 6 1 2 affirmative contribution by the hirer of the independent contractor. Finally, with respect to negligent exercise of retained control based on an omission, 3 Plaintiffs argue that they state a claim because they allege that Defendant failed to review and 4 approve DNC’s plans for the construction modification project as required by the concession 5 contract. Opposition at 7:14-23; Complaint at ¶ 15. However, this allegation is insufficient to 6 state a claim. Plaintiffs have not alleged that Defendant promised to undertake a particular 7 safety measure and then failed to fulfill that promise. 8 9 Accordingly, Defendant’s Motion to Dismiss Plaintiffs’ claims for negligent exercise of retained control is GRANTED without prejudice and with leave to amend. 10 2. Premises Liability 11 In California, a landowner that hires an independent contractor may be liable to the 12 contractor’s employees if the following conditions are present: the landowner knew, or should 13 have known, of a latent or concealed preexisting hazardous condition on its property, the 14 contractor did not know and could not have reasonably discovered this hazardous condition, and 15 the landowner failed to warn the contractor about this condition. Kinsman v. Unocal Corp., 37 16 Cal. 4th 659, 664 (2005). 17 In their Complaint, Plaintiffs allege that Defendant owns the Wawona Hotel, had 18 knowledge of the hazardous condition, and failed to place proper warnings around the area. 19 Complaint at ¶ ¶ 4, 15. However, Plaintiffs have not alleged that the hazardous condition was 20 unknown to DNC or that DNC could not have reasonably discovered the hazardous condition. 21 Plaintiffs have also not alleged that Defendant failed to warn DNC about the hazardous 22 condition. 23 Therefore, Plaintiffs have not stated a premises liability claim based on a landowner’s 24 failure to warn. Accordingly, Defendant’s Motion to Dismiss Plaintiffs’ premises liability claim 25 is GRANTED without prejudice and with leave to amend. 26 27 28 7 1 3. General Supervisory Right to Control DNC’s work 2 In their Complaint, Plaintiffs allege that under the concession contract DNC is not free to 3 construct or modify any portion of the Wawona Hotel without first obtaining Defendant’s 4 permission and approval of “the location, plans and specifications thereof.” Complaint at ¶ 15. 5 Plaintiffs further allege that Defendant retains the ability to make changes to the Wawona Hotel 6 under the concession contract. Id. 7 Under California law, the “general supervisory right to control the work so as to insure its 8 satisfactory completion in accordance with the terms of the contract does not make the hirer of 9 the independent contractor liable for the latter’s negligent acts in performing the details of the 10 work.” Lopez v. C.G.M. Dev., Inc., 101 Cal. App. 4th 430, 442 (2002); McDonald v. Shell Oil 11 Co., 44 Cal. 2d 785, 788 (1955). Therefore, Plaintiffs have not stated any claim against 12 Defendant based on these allegations. 13 CONCLUSION 14 Accordingly, Defendant’s Motion to Dismiss Plaintiffs’ Complaint is GRANTED 15 without prejudice and with leave to amend. Plaintiffs have thirty (30) days to file a Second 16 Amended Complaint consistent with this order. 17 18 IT IS SO ORDERED. 19 20 Dated: 0m8i78 February 28, 2011 CHIEF UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 8
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