Widow of Crushed Del Monte Worker Can Proceed With Wrongful Death Suit
After a subcontractor repairperson was crushed to death on the loading dock of a Del Monte foods plant in Fresno, his widow and daughter sued the company. The trial court dismissed their case because precedent ruled that hirers of independent contractors are not liable for injuries to contractors’ employees. The appellate court reversed, saying there are triable issues of fact regarding an exception for “nondelegable duties.”
In a unanimous 3-0 ruling authored by Justice Thomas DeSantos of California’s Fifth District Court of Appeals, the court overruled the summary judgment decision of Judge John D. Freeland of the Superior Court of Stanislaus County. Plaintiff Amanda Rafferty and her minor daughter will get a new trial to determine whether Del Monte was responsible for the safety of the dock lever platform that fell on David Rafferty while he was repairing the equipment that crushed him to death.
Del Monte Foods, headquartered in Walnut Creek, California, is one of the nation’s largest producers and distributors of processed fruits and vegetables. In April 2014, the landlord at its Modesto plant agreed to replace six levers on one of its loading docks. Del Monte’s forklift supervisor, Randy Reeder, hired the general contractor J.M. Equipment (J.M.), which employed Rafferty, to perform cleaning and maintenance work. Reeder testified that Del Monte did not perform this work.
Reeder said he told J.M. to use two employees for dock lever maintenance, to have its employees sign in at the front gate, and to always check in with him when they entered the property. But Reeder did not provide the equipment maintenance company with any manuals or service bulletins from the company that manufactured the dock levers. During the trial, there were contradictory testimonies about conversations between J.M. and Reeder about the extra support and spring adjustments that the manufacturer recommended in 2015.
Faulty dock levers fail to properly raise and lower the platforms that are used for loading. When platforms need to be adjusted, the operator pushes a button that inflates or deflates airbags. The levers have “a maintenance prop arm with a load pin” that supports the platform. Repairs are done when workers raise platforms by pushing a button. Raising, lowering, and maintaining platform height is a two-person job, and several safety procedures are mandated by equipment manufacturers and the Occupational Safety and Health Administration (OSHA).
J.M. workers began dock lever maintenance for Del Monte beginning in May 2016. The company had never before worked on the brand of dock levers that Del Monte had installed, and the food company did not provide the workers with any instructions when they started their work. This training was not performed despite OSHA regulations that mandated that Del Monte develop Hazardous Energy Control (HEC) procedures. Once on the job, J.M. workers noticed some “cracked welds” on the dock levelers. Reeder asked his supervisor to authorize their repairs, but this was not done until June 23. A J.M. worker named Rafferty went to do the repairs on June 15, but he did not sign in with Reeder. Rafferty was alone and used a metal nut and duct tape to control the button that raised and lowered the platform. At 6 p.m., two Del Monte employees discovered Rafferty pinned under a dock platform. He was dead on arrival at the hospital. Amanda Rafferty received $650,000 in workers' compensation from J.M’s insurance carrier.
In April 2018, Amanda Rafferty sued Del Monte for negligence and premises liability. Del Monte answered with a general denial and offered several defenses. The food company filed for summary judgment in August 2020. Its major argument was based on the Privette Doctrine from a 1993 California case that held that the “hirer of an independent contractor is not liable for on-the-job injuries to the contractor’s employees unless some exception applies.” It also says that “The “workers’ compensation scheme ‘is the exclusive remedy against an employer for injury or death of an employee.” Del Monte cited additional precedent which, it argued, relieved them of any duty based on Cal-OSHA regulations and safety procedures that were “delegable and implicitly delegated” to J.M. In essence, Del Monte said it did not exercise any control over Rafferty’s work and did not retain control over anything that contributed to Rafferty’s death.
Plaintiffs opposed Del Monte’s motion by arguing Privette may be overcome by relevant OSHA rules and precedents that “preclude delegation of a tort law duty that the hirer owes” to employees of independent contractors. They argued Del Monte had a duty to develop safety and maintenance procedures and to instruct outside contractors about them. They said there were triable issues of fact about whether Del Monte “negligently exercised retained control” over Rafferty’s work in a manner that affirmatively contributed to his death.” Del Monte countered with arguments that said all required safety procedures could be delegated to J.M. The trial court agreed with Del Monte and granted summary judgment because it “found there was no evidence Del Monte exercised control over the work in a way that affirmatively contributed to Rafferty’s death.”
DeSantos’s opinion said that over time Privette “has been recast” to “apply where delegation is
either ineffective or incomplete.” He agreed with plaintiffs’ contention that they did raise a “triable issue of fact as to whether no delegable duty exception to Privette doctrine applies.” He then cited the law that is used to determine whether a duty is nondelegable. Under precedent, “the test is whether relevant statutes or regulations indicate an intent to limit the application of Privette…or preceded delegation of the tort law duty, if any, that the hirer owed to the contractor’s employees.”
He then applied the test and found that Del Monte was required to develop its own HEC procedures for the dock levelers and to train its employees on that procedure. The opinion also explained the importance of the “affirmative contribution” test, by which plaintiff may prove that “the hirer actually exercised retained control in a way that affirmatively contributed” to injury or death. Plaintiffs argued the lack of HEC procedures and proper training in their use met the test.
DeSantos concluded that there are issues of material fact about whether Del Monte’s omission “more likely than not” would have allowed Rafferty to work safely under the dock leveler’s platform without being crushed.” But, Del Monte contends that none of that matters because Rafferty failed to sign in when he came to do the repairs. How were they supposed to know he was there and whether he was performing his work safely?
The appellate court concluded that a trial would be necessary to resolve all the disputes and plaintiffs were therefore “entitled to their day in court.”