Jones et al v. United States America
Filing
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ORDER GRANTING 56 Defendant United States of America's Motion to Dismiss signed by Chief Judge Anthony W. Ishii on 5/27/2011. (Jessen, A)
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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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RICHARD JONES, JILL JONES,
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Plaintiffs,
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v.
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UNITED STATES OF AMERICA,
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Defendant.
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____________________________________)
1:08-CV-01137 AWI DLB
ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS
[Doc. #56]
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BACKGROUND
On March 30, 2011, Plaintiffs Richard and Jill Jones filed a Second Amended Complaint
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(“SAC”) against Defendant United States of America. The SAC alleges causes of action for
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“Dangerous Condition of Public Property/Direct Negligence” and “Loss of Consortium.”
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Defendant moves to dismiss the SAC pursuant to Rule 12(b)(6) of the Federal Rules of Civil
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Procedure. For the reasons that follow, the motion will be granted.
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ALLEGED FACTS
The Wawona Hotel is owned by the United States and is managed by Delaware North
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Companies, Inc. (“DNC”) pursuant to a concession contract. SAC at ¶¶ 4-5. On August 1, 2005,
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Richard Jones (“Richard”), an employee of DNC, stepped down into the entrance of the Wawona
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Hotel’s boiler room and fell forward, striking his forehead and left arm on the boiler. Id. at ¶¶ 5,
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10. The step down into the boiler room is more than twelve inches. Id. at ¶ 10. At the time of
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the accident, no warnings were posted and lighting inside the boiler room was poor. Id. As a
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result of the fall, Richard lost consciousness for a brief period of time and suffered a displaced
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fracture at the radial neck of his left elbow. Id. at ¶ 11.
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Under the concession contract, DNC is not free to construct or modify any portion of the
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Wawona Hotel without first obtaining Defendant’s permission and prior written approval of “the
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location, plans and specifications thereof.” Id. at ¶ 15. For any structural or functional changes
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on the property, a final approval letter by Defendant is necessary under the superintendent’s
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signature. Id. Defendant retains ultimate decisional authority with respect to construction and
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modifications on the property. Id. at ¶ 16. If Defendant does not approve of a construction
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project for any reason, then DNC cannot proceed with that project. Id. Further, if Defendant
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does not pre-approve in writing of the actual construction or modification, Defendant retains the
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authority to allow the construction to exist or request that DNC remove or re-do/alter the
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construction. Id.
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William Rust (“Rust”), an employee of Defendant, was the project coordinator for Project
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3090. Id. at ¶ 18. The purpose of Project 3090 was to stabilize the six main historic structures
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that comprise the Wawona Hotel complex. Id. at ¶ 17. In 2004, Rust approved a contract
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modification of the project to pour and install concrete flooring underneath the Wawona Hotel,
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including the area leading to the boiler room. Id. at ¶ 18. Rust was never provided any plans or
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specifications for the contract modification prior to his approval and written approval from the
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Defendant was not provided before the construction began or was completed. Id. Subsequently,
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a concrete pour created the step into the boiler room. Id. at ¶ 19. Rust inspected and reviewed
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the construction and condition after the concrete pour and thus had actual notice of the dangerous
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condition. Id. Although Rust had the control, ability and authority under the concession contract
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to request that the dangerous condition be changed, rectified, or in some fashion protected
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against, he failed to do so. Id.
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Plaintiffs allege that Defendant negligently owned, controlled, maintained, retained
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control and designed the boiler room, which caused Richard’s injuries and damages. Id. at ¶ 14.
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Plaintiffs allege that as a result of Richard’s injuries caused by the dangerous condition, Jill Jones
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is deprived of the care, companionship and affection of her husband. Id. at ¶ 26.
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LEGAL STANDARD
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Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the
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plaintiff’s “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A
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dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the
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absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside
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Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th
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Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are
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taken as true and construed in the light most favorable to the non-moving party. Marceau v.
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Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075,
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1077 (9th Cir. 1999). The Court is not required “to accept as true allegations that are merely
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conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec.
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Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979,
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988 (9th Cir. 2001). As the Supreme Court has explained:
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While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).
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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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To avoid a Rule 12(b)(6) dismissal, “a complaint must contain sufficient factual matter,
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accepted as true, to state a claim to relief that is plausible on its face[.]” Telesaurus VPC, LLC v.
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Power, 623 F.3d 998, 1003 (9th Cir. 2010) (citations omitted). “In sum, for a complaint to
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survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from
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that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v.
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United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
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If a Rule 12(b)(6) motion to dismiss is granted, “[the] district court should grant leave to
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amend even if no request to amend the pleading was made, unless it determines that the pleading
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could not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494,
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497 (9th Cir. 1995). In other words, leave to amend need not be granted when amendment would
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be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).
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DISCUSSION
Under the Federal Tort Claims Act (“FTCA”), the government is liable for claims to the
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extent a private party would be liable under similar circumstances. 28 U.S.C. § 1346(b). The
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law of the state where the act or omission occurred determine whether an actionable duty exists
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under the FTCA. Henderson v. United States, 846 F.2d 1233, 1234 (9th Cir. 1988).
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1.
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Under California law, the “hirer of an independent contractor is not liable to an employee
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of the contractor merely because the hirer retained control over safety conditions at a worksite[.]”
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Hooker v. Dep’t of Transp., 27 Cal. 4th 198, 202 (2002). However, the hirer of an independent
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contractor is liable to an employee of the contractor if the “hirer’s exercise of retained control
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affirmatively contributed to the employee’s injuries.” Id. An “affirmative contribution” occurs
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when the hirer is “actively involved in, or asserts control over, the manner of performance of the
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contracted work.” Id. at 215. “Such an assertion of control occurs, for example, when the [hirer]
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directs that the contracted work be done by use of a certain mode or otherwise interferes with the
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means and methods by which the work is to be accomplished.” Id. An “affirmative contribution
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need not always be in the form of actively directing a contractor or contractor’s employee.” Id. at
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198 n.3. “There will be times when a hirer will be liable for its omissions” such as when “the
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hirer promises to undertake a particular safety measure” and then fails to do so. Id.
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Negligent Exercise of Retained Control
For example, in Hooker, the employee served as a crane operator for a general contractor.
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Id. at 198. The general contractor was hired by the California Department of Transportation
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(“Caltrans”) to construct an overpass. Id. “The overpass was 25 feet wide, and the crane with
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the outriggers extended was 18 feet wide, so [the employee] would retract the outriggers to allow
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other construction vehicles or Caltrans vehicles to pass.” Id. Prior to the fatal accident, the
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employee retracted the outriggers and left the crane. Id. When the employee returned, he
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attempted to swing the boom without first extending the outriggers. Id. The weight of the boom
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caused the crane to tip over and the employee was thrown to the pavement and killed. Id.
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The plaintiff in Hooker, the employee’s widow, contended that Caltrans affirmatively
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contributed to her husband’s death. Id. at 202. Plaintiff argued that Caltrans was aware that the
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crane operators retracted their outriggers in order to let vehicles pass and knew “that a crane
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would be unstable if its boom were extended over its side when its outriggers were retracted.”
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Id. at 202-03. Further, plaintiff argued that Caltrans was responsible for safety on the worksite
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and had the power to correct any unsafe conditions, but failed to correct the hazardous condition
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that killed her husband. Id. at 202.
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The California Supreme Court held that Caltrans did not affirmatively contribute to the
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employee’s death by permitting traffic to use the overpass while the crane was being operated.
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Id. at 215. The court stated that there was at most evidence that Caltrans was “aware of an
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unsafe practice and failed to exercise the authority they retained to correct it.” Id. The court
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emphasized that Caltrans “did not direct the crane operator to retract his outriggers to permit
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traffic to pass.” Id.
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Another instructive case is Tverberg v. Fillner Construction, Inc., No. A120050, 2011
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WL 670247, at *1 (Cal. App. 1 Dist. Apr. 5, 2011). In Tverberg, defendant was the general
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contractor on a project to expand a commercial fuel facility. Id. The project required
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construction of a metal canopy over the fuel-pumping units. Id. Defendant hired a
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subcontractor, which delegated the work to a second subcontractor. Id. The second
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subcontractor then hired plaintiff to be foreperson of the crew to construct the canopy. Id.
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Defendant hired another subcontractor to erect eight bollards, which are “concrete posts
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intended to prevent vehicles from colliding with fuel dispensers.” Id. On plaintiff’s first day of
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work, eight holes for the bollard footings had already been dug. Id. The bollard holes, marked
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with stakes and safety ribbons, were next to the area where plaintiff was to erect the canopy. Id.
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Plaintiff asked defendant to cover the bollard holes with large metal plates that were on site, but
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defendant stated that he did not have the necessary equipment to do so that day. Id. The
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following day, with the bollard holes still uncovered, plaintiff began work on the canopy. Id.
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Plaintiff again asked defendant to cover the bollard holes, but defendant failed to do so. Id. A
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short while later, plaintiff fell into a bollard hole and was injured. Id.
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The California Court of Appeal held that plaintiff “offered sufficient evidence of a triable
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issue on affirmative contribution to overcome a motion for summary judgment on a retained
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control theory of direct liability.” Id. at *5. The court noted that defendant’s employee “in
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charge of the jobsite testified that he concluded that the stakes and safety ribbon that were
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provided constituted sufficient worker protection.” Id. at *4. The court stated that this “evidence
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allows an inference that [defendant] affirmatively assumed the responsibility for the safety of the
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workers near the bollard holes, and discharged that responsibility in a negligent manner, resulting
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in injury.” Id.
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In the opposition, Plaintiffs contend that they state a claim for negligent exercise of
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retained control, relying on the Tverberg case. Opposition at 7:16-18. Like Tverberg, Plaintiffs
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argue that Rust approved of the dangerous step into the boiler room and therefore assumed
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responsibility for the safety of workers near that condition and discharged that responsibility in a
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negligent manner. Id. at 9:1-3. In Defendant’s reply to Plaintiffs’ opposition, Defendant states
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that the facts of Tverberg “are too dissimilar to support Plaintiffs’ argument that approval of the
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work completed by DNC is actionable” as an affirmative contribution. Reply at 8:24-25.
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Defendant argues that Tverberg is distinguishable because in this case there are no factual
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allegations “that a U.S. employee was making determinations as to what safety precautions
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should be taken at the worksite to protect DNC’s employees from the hazards of the worksite.”
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Id. at 9:1-3.
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The Court agrees with Defendant that Tverberg is factually distinguishable from the
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allegations in this case. In Tverberg, there was evidence that the defendant was actively involved
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in and asserted control over the safety conditions at the worksite. Defendant’s employee in
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Tverberg testified that the stakes and safety ribbon around the bollard holes constituted sufficient
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worker protection. However, in this case, there is no allegation that Defendant chose one form of
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worker safety protection over another. The SAC merely alleges that Rust approved of the step
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into the boiler room after an inspection. SAC at ¶ ¶ 19 and 23. Therefore, Plaintiffs’ reliance on
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Tverberg is unpersuasive.
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Similar to the First Amended Complaint, Plaintiffs’ SAC fails to allege how Defendant
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was actively involved in or asserted control over DNC’s work. Therefore, Plaintiffs have failed
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to state a claim for negligent exercise of retained control. Accordingly, Defendant’s motion to
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dismiss Plaintiffs’ claim for negligent exercise of retained control is GRANTED. Since
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Plaintiffs have again failed to allege any facts with respect to Defendant’s affirmative
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contribution, it is apparent that Plaintiffs cannot rectify this claim through additional allegations.
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Therefore, dismissal is with prejudice and without leave to amend.
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2.
Premises Liability
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In the opposition, Plaintiffs argue that they have stated a “dangerous condition claim”
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under California law. Opposition at 4:15-16. Plaintiffs rely on California Civil Jury Instruction
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No. 1100, which requires that (1) the defendant own the property; (2) the property was in a
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dangerous condition at the time of the incident; (3) the dangerous condition created a reasonably
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foreseeable risk of the kind of incident that occurred; (4) the defendant had notice of the
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condition for a long enough time to have protected against it; (5) plaintiff was harmed; and (6)
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the dangerous condition was a substantial factor in causing plaintiff’s harm. Id. at 4:27-28 and
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5:1-5. This law, however, is not applicable to this case.
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In Kinsman v. Unocal Corp., 37 Cal. 4th 659 (2005), the Supreme Court of California
addressed the issue of when a landowner that hires an independent contractor may be liable to the
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contractor’s employees. The court noted that the “hirer generally delegates to the contractor
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responsibility for supervising the job, including responsibility for looking after employee safety.”
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Id. at 673. “When the hirer is also a landowner, part of that delegation includes taking proper
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precautions to protect those obvious hazards in the workplace.” Id. “Thus, when there is a
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known safety hazard on a hirer’s premises that can be addressed through reasonable safety
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precautions on the part of the independent contractor . . . the hirer generally delegates the
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responsibility . . . to the contractor, and is not liable to the contractor’s employee if the contractor
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fails to do so.” Id. at 673-74. The court, however, concluded that the landowner is liable to the
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contractor’s employee if the employee’s injury is attributable to an undisclosed hazard. Id. at
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674. The court’s rationale was that a “landowner cannot effectively delegate to the contractor
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responsibility for the safety of its employees if it fails to disclose critical information needed to
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fulfill that responsibility[.]” Id. Therefore, the court held that a landowner that hires an
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independent contractor may be liable to the contractor’s employees if the following conditions
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are present: the landowner knew, or should have known, of a latent or concealed preexisting
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hazardous condition on its property, the contractor did not know and could not have reasonably
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discovered this hazardous condition, and the landowner failed to warn the contractor about this
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condition. Id. at 664.
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In this case, Plaintiffs have again failed to allege that the hazardous condition was
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unknown to DNC or that DNC could not have reasonably discovered the hazardous condition.
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Further, Plaintiffs have not alleged that Defendant failed to warn DNC about the hazardous
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condition. Accordingly, Defendant’s motion to dismiss Plaintiffs’ premises liability claim is
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GRANTED. In the Court’s previous order dismissing Plaintiffs’ First Amended Complaint, the
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Court explained to Plaintiffs that Kinsman was the applicable premises liability law to this case.
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Order at 7:10-16. Therefore, it is clear that Plaintiffs cannot rectify this claim through additional
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factual allegations. Dismissal is with prejudice and without leave to amend.
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CONCLUSION
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IT IS HEREBY ORDERED that Defendant’s motion to dismiss Plaintiffs’ Second
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Amended Complaint is GRANTED with prejudice and without leave to amend.
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IT IS SO ORDERED.
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Dated:
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May 27, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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