CalTran not liable in contractor employee's 2012 death, state appeals court affirms

By Karen Kidd | Nov 22, 2018


SACRAMENTO — California's Department of Transportation is not liable in the 2012 death of an employee of a contractor who fell from a bridge during a road widening project in Chico because the department did retain control over the contractor's work, a state appeals court recently affirmed.

The California Third District Court of Appeal's three-judge panel agreed with a lower court that the state's transportation department, CalTran, could be liable in the man's death only if it had retained control of contractor Viking Construction Company's work on the project.

"We find no triable issue as to whether CalTrans retained and negligently exercised control over Capps' work at the time of his fall," the appeals court panel said in its 14-page opinion filed Nov. 21. "The manner in which CalTrans directed work to be done did not cause it to retain control over the manner in which Viking performed the work."

The opinion is unpublished, which means it is not to be cited or uses as precedent in future matters.

California Third District Court of Appeal Justice Elena J. Duarte  

Appeals court Justice Elena J. Duarte wrote the decision. Justice Louis Mauro and Andrea Lynn Hoch concurred.

Bradley Capps, then employed by Viking, died in May 2012 when he fell from a bridge 21 feet above the ground in the Bidwell Park area during the Chico 99 project on a state highway in Butte County. Capps' wife, Teresa Capp, and children subsequently filed a lawsuit against CalTran over Bradley Capps' death.

At trial, counsel for CalTrans moved for summary judgment, saying the state's transportation department was not liable under on the basis that it was not liable per the 1993 California Supreme Court case Privette v. Superior Court. The high court found in Privette that independent contractors and their employees cannot successfully sue the contractor's hirer for workplace injuries except for cases in which negligent exercise of retained control apply.

The trial court agreed with CalTrans counsel that negligent exercise of retained control did not apply in the case over Bradley Capp's death.

In their appeal, Capp's wife and children argued the trial court was wrong to grant summary judgment because triable issues of fact remained about whether CalTrans "affirmatively contributed" to his death when it allegedly interfered with Viking's work.

"Specifically, they contend CalTrans interfered with Viking's work by going outside the established chain of command to order unscheduled work," the appeals court's opinion said. "They further contend the trial court erred in requiring them to prove that CalTrans retained control while the law requires only that they raise a triable issue as to that fact. Finally, they contend all of their evidentiary objections are preserved for appeal because the trial court did not rule on them."

Plaintiffs argued that CalTrans did retain control over the work and pointed out that CalTrans ordered unplanned and unscheduled work. By issuing that order and selecting Capps and another employee, Viking foreman Robert Burns, to do the extra work, CalTrans controlled the means, manner and mode, plaintiffs' counsel argued.

Plaintiffs' counsel also cited the California Supreme Court 2002 decision in McKown v. Wal-Mart Stores in which the high court concluded that the hirer is liable when it "affirmatively contributes" to an a contractor employee's injuries by negligently furnishing unsafe equipment.

The appeals court ruled that it was too late in the litigation to cite McKown.

"Not only is this an untimely new argument, but plaintiffs fail to show how CalTrans was negligent in the selection of Burns and Capps," the opinion said. "As discussed ante, the evidence was that Burns was trained and skilled in the work and there was no evidence as to Capps' skill or experience. Further, although plaintiffs state multiple times in their briefing (without citation to the record) that CalTrans employees ordered Capps to work on the screens, the record is not clear at all as to how Capps was chosen to accompany his foreman to the bridge."

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