In California, companies that hire contractors and subcontractors are generally not liable when the negligent actions of the contractors or subcontractors cause injury accidents. However, as Sandoval v. Qualcomm Inc., Cal. Ct. App., Case No. D070431 shows, there is an exception to the general rule. When the hiring companies have negligently retained control of the safety conditions at the facilities, the hiring companies may be liable to pay damages if their negligence was a contributing factor to the resulting accidents and injuries. If you have suffered an injury while working for a contractor at a job site, you might want to talk to an experienced lawyer to find out if you might have the basis to file a legal claim against the hiring company.

Factual background of the case

Jose M. Sandoval was employed by ROS Electrical Supply. He was contacted by Mr. Sharghi, a contractor with TransPower. TransPower had been hired by Qualcomm to upgrade Qualcomm’s power generation system in 2013. Qualcomm needed to upgrade the amperage of components called bus bars from 1,200 amps to 2,000 amps. On June 15, 2015, Sharghi inspected the breaker system to see if the bus bars were rated to handle 2,000 amps or if they were 1,200 amps and needed upgrading. During the inspection, Sharghi was unable to see the bus bars inside of a panel. He contacted Sandoval to work as a subcontractor with him and to return to the facility for a new inspection on Aug. 3.

Sharghi reportedly did not tell Sandoval to bring his personal protective equipment, and Sandoval did not bring it. Sandoval had previously been hired to perform work for Sharghi many times, and the two had known each other professionally for more than 20 years. Sharghi testified that he had told Sandoval that they could conduct a safe inspection of the panel because it would be de-energized by Qualcomm. Sharghi, his son Omid, and Sandoval arrived at the Qualcomm facility at 7 am. They signed in and went with three Qualcomm employees to the breaker to conduct the inspection. The Qualcomm employees told Sharghi that one half of the breaker was de-energized while the other part was not. The employees then left the room where the inspection was being conducted.

Sharghi reportedly directed Guadana, a worker who was wearing PPE, to remove a panel on the utility side of the breaker. The utility side was still energized, but Sandoval was not told that it was. Sharghi then got down below the breaker in an attempt to photograph the bus bars from behind the removed panel. While he was doing so, he heard a booming sound and a scream. When he came out, he saw Sandoval covered in blue flames from an arc flash that had occurred from the backside of the breaker where the panel had been removed. Sandoval filed a lawsuit against Qualcomm, ROS Electrical Supply, and TransPower. He listed his employer in the lawsuit because his employer failed to carry workers’ compensation insurance. He sued Qualcomm and TransPower on several negligence grounds.

Issue: Whether Qualcomm retained control over the safety conditions at the facility where the accident occurred?

Sandoval’s case went to a jury trial. At trial, Qualcomm argued that it was not liable for the actions of TransPower or Sandoval as a contractor and a subcontractor. The company argued that it did not retain control over the safety conditions at the facility because its workers told Sharghi which side was energized, and the workers were not in the room when the accident happened. Qualcomm also argued that it had not authorized the removal of the panel, and Sharghi had not gotten permission to remove it before he did so.

The jury found that Qualcomm had negligently retained control over the safety conditions of the facility. It awarded a gross verdict of $1,094,003.42 in economic damages and $6 million in noneconomic damages. The jury found that Qualcomm was 46 percent at fault, TransPower was 45 percent at fault, and Sandoval was 9 percent at fault. Qualcomm filed a motion for a directed verdict in its favor from the court notwithstanding the jury’s verdict. It also filed a motion for a new trial on the apportioning of liability. The court denied the JNOV motion and granted the motion for a new trial on the limited question of the percentage of liability allocated to each party. Qualcomm filed an appeal with the California Court of Appeals.

Rule: Hiring companies are not liable for the actions of their contractors and subcontractors unless an exception applies.

In California, companies that hire contractors are generally not considered to be liable for the negligent actions of the contractors or subcontractors. However, an exception to the general rule occurs when the hiring company retains control over the facility in a negligent manner. Qualcomm argued that it did not retain control because its employees did not take any affirmative action that was negligent and that contributed to the accident and injury. At the trial court level, Qualcomm had requested that the court give a jury instruction with italicized language about affirmative contribution. However, the court declined to give the instruction and instead gave the model jury instruction for retention of control.

Analysis

The court analyzed the trial based on its decision in Regalado v. Callaghan, 3 Cal.App.5th 582 (2016). In that case, an owner-builder hired a pool and spa contractor to build a pool in his backyard. He had installed a pre-engineered pit. A year later, the owner-builder hired a second pool contractor and asked him to install a heated propane tank in the pit to heat the pool. Neither the owner nor the contractor read the instruction manual, which said not to install a propane tank in a pit because of a risk of explosion. The plaintiff turned on the heater after the installation and was severely burned when the propane exploded. The defendant in the case argued that the jury should have been instructed that to be liable, he must have affirmatively contributed to the ultimate explosion.

The court found in Regalado that a hirer can affirmatively contribute to an accident through a negligent omission in safety. It also found that there was sufficient evidence that the homeowner had retained control of the safety conditions of the premises.

When applying the earlier decision to the instant case, the court found that Qualcomm had similarly retained control of the premises. It owned the facility, and its employees turned off part of the breaker system using lock-out/tag-out procedures. While the employees told Sharghi that one side was hot, they failed to tell the other workers, including Sandoval. They then left the room during the inspection when the accident happened.

Conclusion

The appellate court found that the trial court was correct in denying the JNOV motion. It also found that the court was correct in granting a new trial for the limited purpose of examining the apportionment of damages between the parties. The case was sent back to the trial court for a new trial on that limited basis.

Contact the Law Offices of Steven M. Sweat

There are times when hiring companies of contractors and subcontractors might be liable for the negligence of the contracting parties. If you have been injured at a worksite while you were working for a contractor, you may want to talk to an experienced personal injury attorney. Contact the Law Offices of Steven M. Sweat for a free and confidential case analysis. For more information on burn injury claims, click here. For more information on industrial work accident claims in California, click here.

Sources

https://law.justia.com/cases/california/court-of-appeal/2018/d070431.html?utm_source=summary-newsletters&utm_medium=email&utm_campaign=2018-10-26-personal-injury-435aa10eb3&utm_content=text-case-title-1 https://scholar.google.com/scholar_case?case=2104900423835533229&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Nursing home abuse in California is still a huge problem. By way of example: The case of an 88-year-old Sacramento, California woman found dead in 2013 after living in a residential nursing home was unbelievably tragic. According to press reports, the elderly woman had developed severe bedsores, triggering sepsis–a life-threatening bacterial infection–and ultimately her death.

Who was to blame for this terrible neglect of an elderly Californian?

To the Department of Justice, it was the owner of the elder-care facility in which she had lived for many years. The federal government lodged felony charges, including manslaughter, against the operator. Local media called it one of the first prosecutions of its kind.

The ultimate resolution of this nursing home neglect case wasn’t immediately available, but the attention paid to such a high-profile case serves to highlight that elder abuse and elder neglect are serious crimes and severely punishable by law. In California, the state’s Welfare and Institutions Code Section 15610.57 requires that anyone caring for an adult exercise a “degree of care” that a reasonable person “in a like position” would exercise.

The statute defines neglect by the following (but is not limited to):

• Lack of medical care for physical or medical needs.
• Failure to protect from “health and safety hazards” and to “prevent malnutrition or dehydration.”
• Not assisting in personal hygiene or the “provision of food, clothing or shelter” and more.

Advocates with the Elder Justice Now initiative say the elderly deserve to be free from “abuse, neglect and exploitation.”

According to the National Center on Elder Abuse, as many as 10 percent of respondents in one major study said they experienced elder abuse within the previous year. Another study highlighted by the organization says “only one in 14 cases of elder abuse ever comes to the attention of authorities.”

Who abuses elders?

While the vast majority of abusers are family members according to the NCEA, many U.S. elderly have their care coordinated by supposedly trusted and regulated caregivers.

The federal Centers for Disease Control estimates that in 2012 approximately 8 million U.S. residents were under the care of about 58,500 “paid, regulated long-term care services providers.”

So how can you tell if something is going wrong with the care you’ve coordinated? Advocates with Elder Justice Now say the signs and symptoms of abuse can come in many forms and are not limited to the following:

• Bruising or other obvious signs of physical abuse
• Signs of poor attention or hygiene, including bedsores and sudden weight loss
• Issues with caregivers, such as belittling behavior or anger
• Sudden changes in finances

For bedsores, it’s important to be armed with information about how they form and the different stages.

• Bedsores form from prolonged pressure on the skin, according to the Mayo Clinic.
• They can be “very difficult” to treat.
• The four stages outlined by Mayo Clinic experts can run from simply: “tender” skin to “exposed muscle, bone or tendons” and even dead tissue.
• The sores can form in different areas depending on mobility. For people in wheelchairs, bedsores may appear on the tailbone or backs of arms. Individuals who are confined to their beds may develop sores on their hips, backs of shoulders, the tailbone and other areas.

How can I learn more?

Government experts with the Administration on Aging have described bedsores as “indicators of possible neglect” and urge those who suspect abuse to seek out resources, which they list by state. If someone’s life is in danger, call 9-1-1.

For a free consultation with California nursing home abuse and neglect attorney or on any accident or injury claim call Steven M. Sweat, Personal Injury Lawyers, APC, APC toll free at 866-966-5240.

Additional Resources

Nursing Home Abuse and Neglect – Laws of California

From The Date of The Accident to Filing a Lawsuit

Obviously, it is not a pleasant thing to be involved in a car, motorcycle or other type of accident but, if one happens, it usually follows this course:

• Accident Occurs: If there is more than $750 in property damages or anyone involved in the accident has sustained personal injuries, all parties involved are required to exchange insurance information and to file a report of accident (so called SR-1) with the California Department of Motor Vehicles.
• All accidents should be reported to your auto insurance carrier immediately to avoid any potential for denial of coverage due to a failure to promptly report the claim (a requirement in every insurance policy).
• PROMPT medical attention should be sought after the accident. Do not be afraid to go by ambulance to the Emergency Room, visit and urgent care facility, or go to your family doctor to be examined following any motor vehicle or other type of accident. Diagnostic studies such as X-rays, CT Scans and MRI s should be ordered and conducted if there is any indication potential fractures, torn cartilage or ligaments or head trauma such as a concussion. If any broken bones, tears or closed head injuries are diagnosed, it is important to follow up with a specialist such as an orthopedist or neurologist. The specialist can diagnose the extent of any major bone, ligament, cartilage, spinal cord injury or traumatic brain injury that may require any number of further treatments sometimes including surgery.
• The normal course of treatment for most auto injury cases is at least a few weeks up to several months of physical therapy for injuries that don’t involve major bone fissures, displacement, disk herniation or more serious conditions.
• Once the incident has been reported to DMV and your insurance carrier and you have sought prompt medical treatment for your injuries, it is important to seek the advice of a competent personal injury attorney AS SOON AS POSSIBLE. Do not make recorded statements to the other party’s insurance carrier, sign any authorizations for release of confidential medical information and records, sign any “releases” or settlement agreements until you do so. Insurance companies are in business to try to minimize what they pay out on claims. They have experienced claims adjusters who are trained to get you to do and say things that will reduce the value of the claim and, quite possibly, even eliminate any right to recovery.
• Once you have retained a lawyer, they lawyer will usually wait until your course of medical treatment has been completed to determine exactly what the total treatment costs are and will be in the future. He or she should also determine what the total policy limits of coverage may be, investigate the facts regarding liability (which can include having an investigator speak with witnesses or other means) and obtain a full set of medical records and bills. At that time (usually between 2-6 months from the date of the accident), the lawyer will make a formal settlement demand and attempt to negotiate a settlement with the at fault party’s insurance company.

What If A Settlement Cannot Be Reached Without Filing a Lawsuit?

If the insurance carrier fails to respond or offers an amount of money that the client thinks is not reasonable based upon the advice and opinion of their attorney, a lawsuit is filed against the at fault party. Their insurance company assigns them legal counsel to defend the lawsuit. The process from there is as follows:

• Lawsuit is filed with the court. The party filing suit is called the “plaintiff” and the party(ies) being sued are “defendant(s)”.
• The defendant has 30 days from the date the lawsuit is served to file a response in writing (usually called and “Answer”).
• From there, the parties engage in “discovery” which can include written questions, oral question under oath in a deposition, and requests for documents. This can also include the defense requesting a medical examination by one or more of their doctors to determine what they believe to be the injuries.
• The parties usually participate in settlement discussion (between attorneys) after this discovery phase has been completed for the most part. This may be informal or it may be in a more “formal” proceeding such as a mediation ( a meeting between the parties with a third party neutral person — usually a retired judge or attorney not involved with the parties — where they try to formally present their positions and negotiate a settlement amount).
• If the parties are not able to agree on settlement, the case is set for a civil jury trial where 12 jurors are selected, evidence is presented and the jury makes a determination as to whether the plaintiff is entitled to recover and how much.