Tverberg v. Fillner Construction, Inc. (Torts)

First District, Division Four

Cite as 2008 SOS 6557

Filed December 5, 2008

General Contractor’s Duty of Care in Independent Contractor’s Injury Claims Denied

Fillner was the general contractor on a gas station project in Dixon. In 2006, it contracted with Lane Supply, which in turn hired Perry Construction, Inc. (Perry), to install a canopy at the project site.

Perry hired appellant Jeffrey Tverberg to erect the canopy. Holes had been dug near the canopy that was to be installed and were left uncovered.

On May 2, 2006, Jeffrey Tverberg fell into a hole at the project site, resulting in both physical and emotional injuries. His injuries also affected his relationship with his wife, appellant Catherine Tverberg.

In July 2006, the Tverbergs filed a personal injury action against Fillner and Perry, alleging negligence and premises liability; while the spouse, Catherine Tverberg, filed a cause of action for loss of consortium.

In response, however, Fillner answered the complaint with a general denial.

In July 2007, Fillner moved for summary judgment, alleging that it owed no duty of care to the Tverbergs. The Tverbergs opposed the motion. In their respective statements of undisputed facts submitted to assist the trial court in resolving the motion for summary judgment, both sides agreed that Jeffrey Tverberg had been hired as an independent contractor.

After a hearing on the motion, the trial court granted the motion for summary judgment, finding that Fillner owed the Tverbergs no duty of care because it did not contribute to Jeffrey Tverberg's injuries. The trial court cited Michael, supra, 137 Cal.App.4th 1082 in support of its ruling. Finding that Fillner had established a complete defense to the Tverbergs' action, the trial court entered judgment for Fillner in November 2007.

During appeal, the First District court of appeals ruled that by law, a general contractor owed duty of care to independent contractor hired by subcontractor. However, the hirer of an independent contractor owes no duty of care to an employee of an independent contractor, especially when the injured person is the independent contractor rather than an employee since the independent contractor has no workers’ compensation remedy.

The First District court of appeal therefore ruled that the general contractor has no liability or duty of care in the injuries sustained by the independent contractor.