Delgadillo v. Television Ctr., Inc.

229 Cal. Rptr. 3d 594, 20 Cal. App. 5th 1078
CourtCalifornia Court of Appeal, 5th District
DecidedFebruary 2, 2018
DocketB270985
StatusPublished
Cited by30 cases

This text of 229 Cal. Rptr. 3d 594 (Delgadillo v. Television Ctr., Inc.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delgadillo v. Television Ctr., Inc., 229 Cal. Rptr. 3d 594, 20 Cal. App. 5th 1078 (Cal. Ct. App. 2018).

Opinion

EDMON, P.J.

*1080Plaintiffs Luz Elena Delgadillo, Christian Franco, and Valeria Franco (plaintiffs) are the surviving wife and children, respectively, of Salvador Franco (decedent). Decedent fell to his death while washing windows on a building owned by defendant Television Center, Inc. (TCI).

Plaintiffs sued TCI for negligence and negligence per se, alleging that decedent was fatally injured because TCI failed to install structural roof anchors, as required by statute, to which decedent could attach a descent apparatus. TCI moved for summary judgment, contending that plaintiffs' suit was barred by Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 ( Privette ) and subsequent cases. The trial court agreed and granted summary judgment for TCI.

We affirm. Privette and its progeny hold that when a property owner hires an independent contractor, the property owner is not liable for injuries sustained by the contractor's employees unless the defendant's affirmative conduct contributed to the injuries. In the present case, the undisputed evidence was that TCI did not direct how the window washing should be done nor otherwise interfere with the means or methods of accomplishing the work. Accordingly, summary judgment was properly granted.

*1081FACTUAL AND PROCEDURAL BACKGROUND

I.

Underlying Facts

TCI owns a three-story commercial building located at 6311 Romaine Street, Hollywood, California (the building). In 2011, TCI contracted with Chamberlin Building Services (CBS), a licensed contractor, to wash the building's windows. Decedent worked as a supervisor/window cleaner for CBS.

On June 20, 2011, while decedent was washing the building's windows, his descent apparatus detached and he fell to his death. He was survived by his wife and children.

Decedent's wife and children filed the present action against TCI on June 20, 2013. The operative complaint alleges that TCI failed to equip the building with structural *596roof anchors to which a descent apparatus could be attached, in violation of sections 7325 through 7332 of the Labor Code, and section 3286, subdivision (a)(4), of title 8 of the California Code of Regulations, giving rise to causes of action for negligence and negligence per se.

II.

TCI's Motion for Summary Judgment

TCI filed a motion for summary judgment on August 27, 2015. It asserted that plaintiffs were barred from recovering by Privette and its progeny because TCI had contracted with CBS to wash the building's windows and had not retained control over the manner in which the work would be done. In support of its motion for summary judgment, TCI introduced evidence of the following:

TCI purchased the building in approximately 1986. In April 2010, TCI contracted with CM Cleaning Solutions, Inc. (CM Cleaning) to provide the building with cleaning/janitorial services.

In 2010, CM Cleaning, on behalf of TCI, solicited a proposal from CBS to wash the building's windows. In 2011, CBS's proposal was accepted. TCI did not provide CM Cleaning or CBS with a written assurance that it had anchor points that could safely support 5000 kilograms of weight.

*1082When CBS initially submitted its proposal to TCI, it planned to use either a "Tucker Pole System" (a water-fed pole with an attached brush) or ladders to reach the building's upper-story windows. However, when Edward Chamberlin of CBS, and two of his employees, George Gonzalez and decedent, walked around the building on June 20, 2011, they observed wires, lines, and telephone poles on the building's south side. Because of the proximity of the wires to the building, Chamberlin was concerned about a danger of electrocution, and therefore decided not to use water-fed poles to reach the upper-story windows.

Chamberlin, Gonzalez, and decedent requested access to the building's roof. There, they determined that one side of the building had adequate anchor points to which they could attach a controlled descent apparatus; the other side did not.1 They therefore decided that Gonzalez and decedent would rappel off the building from the roof using roof anchor points on the first day, and would construct a steel cable tie-back anchor system to which they could connect on the second day.

It was CBS's policy that two connectors were required when rappelling off a building: one primary line and one safety line. However, late in the morning of the first day, decedent attached his line to only a single connector-an angle iron bracket supporting the air conditioning unit on the roof, attached to a small piece of wood-which was not an acceptable anchor point. The bracket to which decedent attached his line failed, and decedent fell to his death.

Before CBS began cleaning the building's windows on June 20, 2011, building security had allowed Chamberlin, Gonzalez, and decedent access to the building's roof, but no one from TCI or CM Cleaning accompanied the three men when they inspected the roof. CBS and its employees made all decisions about how the window-washing would be accomplished.

The window-washing equipment used on the job was owned, inspected, and maintained by CBS.2 Decedent's family received *597workers' compensation benefits following his death.

III.

Plaintiffs' Opposition to Motion for Summary Judgment

Plaintiffs opposed the motion for summary judgment. Citing *1083McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 115 Cal.Rptr.2d 868, 38 P.3d 1094 ( McKown ), plaintiffs asserted that if the hirer of an independent contractor provides defective tools or equipment to the contractor's employees, the hirer may be held liable for any resulting injuries. Plaintiffs urged there thus were triable issues of fact in the present case as to (1) whether the defective anchor points on the building's roof were "tools or equipment" within the meaning of McKown , and (2) whether TCI retained control of the workplace in a way that affirmatively contributed to decedent's death.

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Cite This Page — Counsel Stack

Bluebook (online)
229 Cal. Rptr. 3d 594, 20 Cal. App. 5th 1078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delgadillo-v-television-ctr-inc-calctapp5d-2018.