"Had Reason to Know" Standard of Care

These claims are predicated on Parsons' alleged role as a general contractor on industrial construction sites at which plaintiff alleges

he worked. California courts have consistently held that:

1. The standard of care applicable to negligence claims against a contractor is that standard of a licensed contractor under the circumstances; and,

2. Therefore, expert testimony is required as to the standard of care itself, as well as to a defendant's compliance with it.

Therefore, any reference to what a contractor defendant "should" have done under a reasonable person standard would not only be irrelevant, but it would also be improper and prejudicial.

I. ARGUMENT

A. Parsons is Subject to a Contractor's Standard of Care.

One who renders services in a profession or trade must exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities. Rest. 2d of Torts, 299A; Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 188 n. 21. Professionals and trades are typically held to such a standard of care, rather than the "reasonable person" standard, because "their informed approach to matters outside common knowledge should not be 'evaluated by the ad hoc judgment of a lay judge or lay jurors aided by hindsight.'...." Osborn v. Irwin Mem. Blood Bank (1992) 5 Cal.App.4th 234, 278-279; citation omitted.

This professional standard of care applies to any person rendering services in a skilled trade, such as a general contracting. Rest. 2d of Torts, 299A, comment b; see, also, Gagne v. Bertran (1954) 43 Cal.2d 481, 489. As a licensed general contractor company primarily engaged in the construction of industrial facilities, Parsons was engaged in a skilled trade and therefore is subject to a professional standard of care.

The California Supreme Court addressed the issue of the standard of care applicable to builders in Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689. There, the Court upheld the trial court's judgment of nonsuit, stating that the issue of the contractors alleged negligence required expert testimony and that plaintiffs had failed to establish by such testimony the standard of care applicable to the builder. The Court held:

[It was not for nonexpert minds to determine whether [defendant] failed to exercise due care in the construction of the home.... The average layman has neither training nor experience in the construction industry and ordinarily cannot determine whether a particular building had been built with the requisite skill and in accordance with the standards prescribed by law or prevailing in the industry.... These were not questions which the jury could have resolved from their common experience[,] and the trial judge properly concluded that the issue of the allegedly negligent construction of the...residence was one within the knowledge of experts only. Id., at 702-703.

The Miller court concluded that the standard of care applicable to the builder was that of "'reasonably prudent persons' in his [the contractor's] position.... " Id., at 702 n.16 (emphasis in original). As a builder of industrial facilities, this professional standard of care is clearly applicable to Parsons.

Thus, the central issue is whether Parsons exercised the care of a reasonable general contractor.

B. The Applicable Standard of Care is Only Within the Knowledge of Experts and is Defined by the Custom and Practice Ordinarily Exercised in a Profession.

Ordinarily Exercised in a Profession.

In cases of professional negligence, unless a layperson can infer negligence by a professional without any expert testimony, "experts are needed to show negligence, their testimony sets the standard of care and is said to be 'conclusive.'...." Osborn v. Irwin Mem. Blood Bank, supra, 5 Cal.App.4th at 277 (citations omitted).

Plaintiff may argue that expert testimony as to custom and practice is not controlling here because a layperson could infer negligence without any expert testimony. See, e.g., Leonard v. Watsonville Community Hosp. (1956) 47 Cal. 2d 509, 514, 519-520 (the lack of an "established practice" of counting surgical clamps after the completion of surgery did not preclude a jury finding of negligence where a clamp was left in plaintiffs body). Such is not the case here.

While it is a matter of common knowledge that no special skill is required in counting instruments after surgery or "those failures on the part of the builder which are so obvious, if not bizarre, that they present no problem in the determination of his negligence, as for example, the installation of a fireplace without a chimney or of a second floor without any means of access to it," Miller v. Los Angeles County Flood Control Dist., supra, 8 Cal.3d at 702, n.15, the same cannot be said about the kind of work in which Parsons specializes.

Parsons constructs complex industrial facilities, relying on specialist subcontractors to perform much of the actual work. The practices in the industry, the materials available, the methods used in complex construction facilities, and other aspects of contracting, as they were in the 1960s and 1970s, are subjects clearly beyond the purview of a layperson, whose evaluation would be an "ad hoc judgment ... aided by hindsight." Osborn v. Irvin Mem. Blood Bank, supra, 5 Cal.App.4th at 278-279. Consequently, the standard of care to which Parsons is to be held can be established only by expert testimony.

Occasional judicial departures from this standard in other jurisdictions have been rejected. The Osborn court found it difficult to square these contrary decisions with California Supreme Court cases indicating that the professional standard of care is a function of custom and practice. Id.,at 280.

Plaintiff may try to distinguish Osborn on the ground that California courts had already determined that the defendant there, Irwin Memorial Blood Bank, was a "health care provider" within the meaning of the Medical Injury Compensation Reform Act ("MICRA"), and there was no question that donor screening and blood testing were "professional services" for the purposes of MICRA. However, the Osborn court noted that "this same standard of care applies generally to '[t]hose undertaking to render expert services in the practice of a profession or trade."' Id.,at 272, quoting, Estate of Beach (1975) 15 Cal.3d 623, 635; see, also, 6 Witkin, Summary of California Law, Torts, 804 (9th ed. 1997) ("The standard of care of other professionals is stated in much the same terms as those used in relation to medical practitioners....").

The crucial issue in professional negligence cases is whether the defendant's practices were generally accepted within the profession. For example, in Landeros v. Flood (1976) 17 Cal.3d 399, the California Supreme Court considered whether a cause of action for medical malpractice could be stated for failure to diagnose battered child syndrome, which had been widely reported in the medical literature before plaintiffs treatment. The Court noted that proof of the standard of care would require expert testimony on whether the procedures recommended in the literature had actually become the norm within the profession:

Despite these published admonitions to the profession... neither this nor any other court possesses the specialized knowledge necessary to resolve the issue as a matter of law. We simply do not know whether the view espoused in the literature had been generally adopted in the medical profession... and whether the ordinarily prudent physician was conducting his practice in accordance therewith. The question remains one of fact, to be decided on the basis of expert testimony.... Id.,at 409-410 (Emphasis added).

Here, plaintiff may emphasize that articles on the health effects of asbestos exposure appeared in medical periodicals at various dates before or contemporaneous with his alleged exposure. It is clear from Landeros, however, that such emphasis would be misguided. The Supreme Court had explicitly rejected reliance on "views espoused in the literature" because they may not actually reflect the norm within the relevant profession. Moreover, without a showing that it was the practice in the contracting industry to follow the medical literature, such publications are not germane to the issue of whether a contractor failed to meet the standard of care in his profession.

Landeros confirms that professional prudence is defined by actual or accepted practice within a profession, rather than theories about what "should" have been done. "This is implicit in the definition of the standard of care as skill and knowledge 'ordinarily possessed and exercised' in a profession. " Id., at 41O.

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