Subcontractor's statutory duty of care

Suarez v. Pacific Northstar Mechanical, Inc. (Labor and Employment Law)
Filed December 18, 2009, First District, Div. Four
Cite as 2009 SOS 7208

Miguel Suarez (Suarez) and Luis Avila (Avila) worked for All Bay Contractor, Inc. (All Bay) which was the general contractor of a tenant improvement project to which they were assigned. To install the heating, ventilation, and air conditioning (HVAC) components of the project, All Bay hired Pacific Northstar Mechanical, Inc. (PNM) as a subcontractor.

Before Suarez and Avila began working on the project, an unguarded electrical circuit wired to an ungrounded light fixture (the ungrounded fixture) was installed on the work premises.

None from workers of All Bay and its subcontractors was hired to install or do any work with the ungrounded fixture.

While working on the project, Suarez and Avila were injured. The injuries were sustained when Suarez received an electric shock from an I-bolt fixed on the ungrounded fixture, fell on the ladder and landed on Avila.

Consequently, Suarez and Avila filed a complaint with the San Mateo County Superior Court against the property owner. Subsequently, they amended their complaint to include PNM as fictitious defendant.

On its part, PNM filed a motion for summary judgment or for summary adjudication of issues in the alternative. It alleged that it did not own, lease, occupy or control the property where the accident occurred nor hired to inspect or work on the ungrounded fixture.

Suarez and Avila opposed the motion claiming that PNM knew of the dangerous conditions but failed to warn everybody.

When the trial court granted PNM’s motion for summary judgment, Suarez and Avila appealed.

The California Appeal Court First Appellate District, in reversing the trial court’s grant of summary judgment, ruled as follows:

• PNM did not have a common law or contractual duty to take action to protect another employer’s employees from a preexisting, non-obvious hazard that it knew about but did not create.


• PNM had a statutory duty of care created by applicable workplace safety statutes and regulations requiring it to report hazards to which its employees were exposed, even if it did not create that hazard.


• Labor Code Sec. 6304.5 did not contain an implied exception limiting the liability of third-party employers at multiemployer worksites to the right of an injured worker to rely on a Cal-OSHA regulation as a source of a duty in a negligence action.