Miguel Suarez v. Pacific Northstar Mechanical, Inc.

This case is important because the court establishes a duty for a subcontractor to notify other contractors on a multi-contractor construction site of known hazardous conditions.

Subcontractor owes duty to general contractor to warn of known job hazards, even though job hazards were not created by the subcontractor's work.

In this case, a subcontractor's employee working at a multi-employer construction site was injured by a pre-existing, non-obvious hazard that had not been created in the course of the subcontractor's work. The employee told his foreman about the accident, but the foreman did not report it to the general contractor. Shortly thereafter, two employees of the general contractor were severely injured by the same hazard.

The issue before the court is whether the injured employees of the general contractor can sue the subcontractor for negligence, based on the subcontractor's failure to warn the general contractor about the hazard. The trial court granted the subcontractor's motion for summary judgment, holding that neither the common law nor the applicable construction contract created a duty on the part of the subcontractor to take affirmative steps to protect those working for other employers from hazards not created by the subcontractor.

The trial court's decision was reversed holding that the subcontractor had a statutory duty of care created by application workplace safety statutes (Cal-OSHA) and regulations requiring the subcontractor to report hazards to which its employees were exposed.

Relates to a project that was being handled by general contractor All Bay Construction, Inc. (All Bay) which had hired a subcontractor, Pacific Northstar Mechanical, Inc. (PNM), to install only the heating, ventilation, and air-conditioning (HVAC) components of the project. When PNW was on the site, its employees became aware of an ungrounded electrical circuit to a light fixture and one of the PNM employees was shocked. The employee informed his foreman but the foreman did not inform the general contractor. Later, Suarez and Avila, two workers for general contractor All Bay, were on a ladder near this ungrounded electrical circuit. Suarez, who was standing on the top of the ladder, was shocked and fell on the worker below, Avila, who was holding the ladder. Both Suarez and Avila were severly injured from the incident.

Suarez and Avila sued the owner of the building for hazardous condition, then later substituted in PNM as a defendant for failing to disclose the ungrounded electrical circuit that the PNM employees had located. PNM filed a motion for summary judgment at the trial court level claiming that it did not own, lease, occupy or control the property where the accident occured; that PNM's work on the HVAC installation did not create any dangerous conditions at the project; That PNM was not hired to inspect work on the ungrounded fixture; and that PNM did not work on or use the ungrounded fixture. The trial court granted PNM's motion for summary judgment stating that PNM had no duty to inform the general contractor of the condition.

The claimants Suarez and Avila appealed claiming that even though there might not be a contractual duty that the PNM employees are required to report hazardous conditions to other contractos, other duties were created under workplace safety statutes and the common law. Specifically, Suarez and Avila's cited standard common law tort principals that, "[a] person who created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act." Based on the common law principal cited, appellants argued that PNM had a duty of care to them under Labor Code §6400 (also part of Cal-OSHA regulations). §6400 provides, "(a) Every employer shall furnish employment and a place of employment that is safe and helpful for the employees therein...(b) On multi-employer worksites, both construction and non-construction, citations may be issued only to the following categories of employers when the division had evidence that an employee was exposed to a hazard in violation of requirement enforceable by the division: (1) The employer whose employees were exposed to the hazard (the exposing employer)."

Under §6400, appellants argue that on multi-employer worksites, such as the one at issue, PNM has a duty to notify of hazardous conditions. In response, PNM argued that the language of §6400 only applies to employers or employees and not to persons employed by others who are exposed after the employee has been exposed. However, the court rejected PNM's argument and determined that under the common law and §6400, PNM did have a duty to notify the general contractor, All Bay, of the hazard which would have prevented the incident from occuring. Therefore, the judgment of the lower court was reversed and the case was remanded to the trial court for further proceedings consistent with the opinion.