Wednesday, August 1, 2018
Court of Appeal:
Safety Consultant Owed Duty to Employees for Partial Undertaking
By a MetNews Staff Writer
A safety consulting firm owes a duty to its client’s employees under a negligent undertaking theory when it assumes even a portion of the client’s safety responsibilities, the Fifth District Court of Appeal has held.
Justice Donald R. Franson Jr. wrote the opinion, filed Monday and partially certified for publication.
Central to Franson’s analysis was Civil Code §2343, which limits an agent’s duty to third parties to three situations. Applicable to the case on appeal was the situation allowing for a duty when the agent’s acts are “wrongful in their nature.”
The defendant in the case, HR Mobile Services, Inc. (“HR Mobile”), entered a contract with a dairy farm, Double Diamond. One of HR Mobile’s services was to provide safety analysis and training for the farm.
After HR Mobile had started conducting safety sessions for the farm’s workers, one employee accidentally drove a tractor into another worker, resulting in the worker’s death. His family sued HR Mobile, claiming that the company had negligently failed to implement safety plans that would have prevented the death.
Fresno Superior Court Judge Mark W. Snauffer granted HR Mobile’s motion for summary judgment, agreeing with the safety consultant company that it had no duty to the employees. Snauffer found that acts wrongful in their nature under §2343 can only be “affirmative misfeasances,” not omissions such as the plaintiffs had alleged.
In explaining the reversal, Franson looked to two previous Court of Appeal cases, Kurtin v. Elieff (2013) and Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2003) to define “wrongful acts,” as used in §2343. He wrote:
“Under the views expressed in Kurtin and Shafer, acts are ‘wrongful in their nature’ if they constitute an independent tort, which is the equivalent of interpreting ‘wrongful’ as encompassing tortious acts.”
Franson went on to say:
“Based on Kurtin, Shafer, and the way ‘wrong’ and ‘wrongful’ are used in other contexts, we conclude ‘acts are wrongful in their nature’ for purposes of Civil Code section 2343 when they constitute an independent tort, such as the tort of negligent undertaking. Under this interpretation of Civil Code section 2343, agents are protected from vicarious liability for the torts of their principals, but are held responsible for their own actions that constitute a tort, such as the negligent undertaking tort recognized in California.”
Having rejected Snauffer’s definition of wrongful acts under §2343 as “affirmative misfeasances,” Franson turned to the elements of negligent undertaking, defined by the state Supreme Court in the 1998 case Artiglio v. Corning Inc., to determine whether HR Mobile owed a duty to the deceased worker.
He noted that duty existed only if “HR Mobile undertook to render services to Double Diamond;…the services rendered were of a kind HR Mobile should have recognized as necessary for the protection of the employees of Double Diamond;…and…either (a) HR Mobile’s carelessness increased the risk of such harm, or (b) the undertaking was to perform a duty owed by Double Diamond to the employees, or (c) the harm was suffered because of the reliance of Double Diamond or the employees upon the undertaking.”
It was undisputed that HR Mobile had undertaken, for consideration, to render safety consulting services to the farm.
“[I]f plaintiffs are able to prove all of the elements of their negligent undertaking cause of action, they will have established the consultant’s acts constituted a tort and, thus, were ‘wrongful in their nature,’” Franson declared. “In that situation, their claim will not be precluded by Civil Code section 2343.”
The case is Peredia v. HR Mobile Services, Inc., 2018 S.O.S. 3736.
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