No Control, No Evidence

NO EVIDENCE OF EXPOSURE WHERE DEFENDANT NOT IN CONTROL

This motion is made on the grounds that, as a general contractor, Parsons owed no legal duty of care to plaintiff at work sites at which Parsons had no control over the premises to protect workers.

I. ARGUMENT

Plaintiff may seek to impose liability on Parsons for asbestos exposure to plaintiff during work performed at sites not under Parsons's possession or control. For example, plaintiff may claim that after Parsons constructed a unit at a certain refinery and left the site, plaintiff performed repair or maintenance work on the unit and was exposed to asbestos. In so doing, plaintiff would probably contend that Parsons owed some duty to warn future workers at that site about the hazards of asbestos after Parsons left the premises. But, the law does not impose any such duty.

Plaintiff's claims against Parsons are based on negligence. To recover against Parsons on a negligence theory, plaintiff must show that Parsons owed him a duty of care, that the duty was breached, and that the breach of that duty proximately caused the claimed injury. Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 513. The existence of any such duty is a question of law. Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 8. The foreseeability of harm to plaintiff, when analyzed to determine the existence or scope of any such duty of care is also a question of law. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678.

Imposing on a contractor a continuing duty of care toward workers coming onto a jobsite after the contractor has completed its work is equivalent to imposing a duty under the theory of premises liability on the contractor. Yet, in determining who is liable in a premises liability action, the crucial elements are ownership, possession, and control of the premises. Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 720. Without one of these elements, there can be no premises liability. Preston v. Goldman (1986) 42 Cal.3d 108, 119.

A contractor's lack of control over the premises on which it previously performed work underlay the reasoning in De Lima v. Magnesite Waterproofing (1987) 191 Cal.App.3d 776, in which the court soundly rejected the theory that a general contractor owes a duty to persons coming onto the premises after the contractor has completed its work and left the site.

In De Lima, a contractor (MWR) replaced two outdoor staircases at an apartment building by installing magnesite on the stairs and then sealing them. One year later, the owner hired another contractor, Rodriguez, to reseal the stair, as part of ordinary maintenance. Rodriguez failed to add sand to the sealer. As a result, the stairs were improperly sealed and became slippery when wet. A tenant, who slipped and fell on the wet stairs, sued MRW, Rodriguez, and the owner.

The tenant argued that MRW had a duty to warn the owner that the stairs could become slippery if not resealed with a sand mixture. The evidence showed that MRW knew the stairs would be slippery if not sealed with sand, and that MRW even told the owner that the stairs would need to be resealed every year, but failed to tell the owner about the need for sand in the sealer.

The trial court granted nonsuit to MRW, and the Court of Appeal affirmed, holding that MRW owed no duty to plaintiff. Id., at 782-83. The court found that a contractor's duty to persons not in privity is a matter of policy involving a balancing of such factors as the foreseeability of harm to plaintiff, the extent to which the transaction was intended to affect plaintiff, the closeness of the connection between defendant's conduct and the injury suffered, and the policy of preventing future harm. Id., at 782.

Analyzing these factors, the court held that, in the absence of evidence that the stairs had been negligently constructed or that they were in a dangerous condition when MWR completed its work, the fact that it was foreseeable to MRW that the stairs would be slippery if resealed without sand did not mean that it was foreseeable that persons using the stairs would slip because of a future contractor's failure to add sand to the sealer. Ibid. The court also found that Rodriguez, not MRW, created the hazardous situation, and therefore there was no connection between MRW's conduct and the tenant's injury. Ibid.

Finally, the court found that the policy of preventing future harm was not furthered by imposing a duty on contractors such as MRW to warn customers that sand must be used when resealing the stairs. The court stated that:

Such a warning is "second hand" in that it is given not to the person who does the resealing, but to the person who hires him to do the work.... The warning which plaintiff urges should be given would be meaningful only if directed to the person who does the resealing -a person selected by the owner of the premises, not by MRW. An intolerable burden would be placed on the initial contractor by requiring him to ascertain the identity of all subsequent contractors.... Further, the imposition of such a duty would be meaningless inasmuch as the initial contractor had no authority or control over the performance of the work of the subsequent contractor. Id., at 783.

Parsons anticipates that plaintiff will argue that De Lima is factually distinguishable. The prerequisite for the De Lima holding was that there was no evidence that the stairs had been negligently constructed or that they were in a dangerous condition when the defendant contractor completed its work. Parsons anticipates that plaintiff will contend that such is not the case here, that the mere installation of asbestos-containing insulation materials on any work of improvement constructed by Parsons constitutes defective construction.

Any such argument is without merit, for several reasons.

First, in the absence of contamination, the installation of asbestos-containing materials in a work of improvement does not constitute defective construction giving rise to a cause of action in tort. San Francisco Unified School Dist. v. W.R. Grace & Company - Connecticut (1995) 37 Cal.App.4th 1318 ("W.R. Grace").

In W.R. Grace, plaintiff school district sued a number of manufacturers of asbestos-containing building materials allegedly incorporated into six of the districts schools. The district sought damages for the costs it had incurred and would incur for inspecting the buildings, removing deteriorating asbestos products, and maintaining a special operations and maintenance program. Defendant W.R. Grace moved for summary judgment on statute of limitations grounds, and the trial court granted the motion.

The Court of Appeal reversed and remanded, holding, in accord with the vast majority of jurisdictions, that

Physical injury resulting from asbestos contamination, not the mere presence of asbestos, must have occurred before a cause of action for strict liability or negligence can accrue in an asbestos-in-building case.... Id., at 1330.

Similarly, in Grahn v. Tosco Corporation (1997) 58 Cal.App.4th 1373, the Court of Appeal noted that asbestos-containing materials do not pose a health risk when they are intact and undisturbed. "Consequently, the mere presence of undisturbed asbestos ... is not a dangerous condition ... of property." Id., at 1397.

Thus, a premises owner is barred from pursuing a tort claim for the mere presence of asbestos-containing materials in its building. It would be absurd to permit a third-party, such as plaintiff, to base his tort claim against a contractor on his contention that the presence of such materials at the time the contractor completed its work constituted defective construction.

Even if one assumes that the mere presence of asbestos-containing materials constitutes a construction defect, long standing legal principles governing the liability of contractors after completing the construction of works of improvement militate strongly against imposing liability on Parsons in this case.

First, as a general rule, if a contractor constructs a work of improvement according to the owner's plans and specifications, and the improvement is constructed in a good and workmanlike manner, the contractor is not liable for any defects in the finished product. See, e.g., Sunbeam Constr. Co. v. Fisci (1965) 2 Cal.App.3d 181.

In Sunbeam, the contractor built a roof without any pitch, slope, or crown, exactly as provided in the plans and specifications. As a result, water collected on the roof and caused damage to the building's interior. The court held that the contractor's duty was to comply with the plans and specifications. Therefore, it was not liable for the resulting water damage. Id., at 185; accord, McConnell v. Corona Water Co. (1906) 149 Cal. 60, 63; Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints v. Cavanaugh (1963) 217 Cal.App.2d 492, 508.

Thus, in order to hold Parsons liable for installing asbestos-containing materials, plaintiff must, at the threshold, establish that Parsons did not construct the various works of improvement for which it was general contractor in accordance with the owners' plans and specifications and in a good and workmanlike manner. During the course of discovery, plaintiff failed to provide any evidence that might support any such finding. Moreover, any alleged breach of Parsons' standard of care as a contractor, i.e. that it did not perform its work in a good and workmanlike manner, must be established by expert testimony. Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 702-703.

Second, after a contractor has completed a work of improvement and the owner has accepted it, the contractor is not liable to third persons for injuries caused by the condition of the work performed unless (1) the work is "reasonably certain to place life and limb in peril," (2) the contractor knew or should have known of the dangerous condition created by it, and (3) the owner did not know of the condition and would not discover it by reasonable inspection. Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1468, quoting Hogan v. Miller (1957) 153 Cal.App.2d 107, 111. In Sanchez, the Court of Appeal carefully analyzed the California caselaw imposing liability on contractors for defective work after acceptance by the owners, and emphasized that in order to hold a contractor liable for a dangerous condition after the owner has accepted the work of improvement, the condition must be unknown to the owner at the time of injury. 47 Cal.App.4th at 1470-1471.

Thus, in order to hold Parsons liable under Sanchez, plaintiff would have to be demonstrate that: (1) installed asbestos-containing building materials are "reasonably certain to place life and limb in peril"; (2) Parsons knew or should have known of this danger at the time it completed its work at the relevant jobsite; and, (3) the premises owner did not know of the danger of the materials either when it accepted Parsons work or at any before plaintiffs alleged exposure to those materials.

Yet, in the course of discovery not only did plaintiff fail to produce any evidence tending to show that undisturbed asbestos-containing building materials are "reasonably certain to place life and limb in peril" (unless negligently disturbed by third-parties) and that Parsons knew or should have known of this alleged danger at the time it completed its work. Moreover, one of plaintiffs principal claims against the premises owner defendants in this action is that, at all relevant times, they knew about the presence of asbestos-containing materials on their premises and about the alleged danger of those materials.

Thus, as a matter of law, it is impossible for plaintiff impose liability on Parsons for the previous installation of asbestos-containing materials.

III. CONCLUSION

Plaintiffs theory of liability here is remarkably similar to that posed in De Lima. When Parsons finished its work at an industrial site and turned it over to the owner, no hazardous condition existed. The alleged hazardous condition only arose when future contractors, including plaintiffs employer, went to the site and disturbed asbestos materials in an unsafe manner. Thus, as in De Lima, there is no link between Parsons's work and plaintiffs claimed injuries. Parsons neither had control over the choice of contractors who were hired by the premises owner to do repair/maintenance work, nor did it have any control over any safety procedures. Therefore, even if it was foreseeable to Parsons that disturbing installed asbestos-containing materials could be hazardous, it was not foreseeable that future contractors would disturb the materials in an unsafe manner. As stated in De Lima, the law does not impose upon Parsons the intolerable burden of ascertaining the identities of all future contractors who could possibly work at the same premises and then warning them of the hazards of asbestos.

Under these circumstances, Parsons owed no duty to warn future workmen like plaintiff.

SACK ROSENDIN, LLP

Website: http://www.smrlaw.com/

Email: esq@smrlaw.com

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By:____________________________

Dana Sack