Lewis v. Pepper Construction Co. Pacific

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Filed 2/25/10 Lewis v. Pepper Construction CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
LANIER LEWIS et al.,
Plaintiffs and Appellants,
v.
PEPPER CONSTRUCTION COMPANY PACIFIC,
Defendant and Respondent.
C060212
(Super. Ct. No.
05AS04118)
When the employee of a subcontractor is injured, the
general contractor may owe a duty of care to the employee of the
subcontractor if the general contractor retained control over
the details of the work and affirmatively contributed to the
employee‟s injury. (Hooker v. Department of Transportation
(2002) 27 Cal.4th 198, 210 (Hooker), discussing Privette v.
Superior Court (1993) 5 Cal.4th 689 (Privette) and its progeny.)
In this case, plaintiff Lanier Lewis, an employee of a
subcontractor, was injured when he fell more than 15 feet off an
elevated beam while working at the IKEA construction site in
West Sacramento. He and his wife seek to recover in tort from

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Pepper Construction Company Pacific (Pepper), the general
contractor, alleging that Pepper owed Lewis a duty of care. The
trial court entered summary judgment in favor of Pepper, finding
that Pepper did not owe Lewis a duty of care.
On appeal, Lewis contends that (1) Pepper owed him a duty
of care pursuant to statute and Pepper‟s status as a
“controlling employer” under the Labor Code, regardless of
whether Pepper retained control over the details of the work and
affirmatively contributed to Lewis‟s injuries, because Labor
Code section 6304.5 allows reliance on the Labor Code and
related regulations to establish a duty of care and (2) the
facts establish that Pepper committed an “affirmative act” that
contributed to Lewis‟s injuries.
In part I of the discussion, we conclude, following a
recent case of another district (Millard v. Biosources, Inc.
(2007) 156 Cal.App.4th 1338, 1349-1352 (Millard)), that Labor
Code section 6304.5 was not intended to expand the duty of care
owed by a general contractor to a subcontractor‟s employees
beyond the limitations of Privette and its progeny.
We conclude in part II of the discussion that the facts do
not establish that Pepper affirmatively contributed to Lewis‟s
injuries and, therefore, Pepper did not owe Lewis a duty of care
under the common law.
Lewis additionally asserts that the trial court‟s reasoning
in granting summary judgment was erroneous. In part III of the
discussion, we conclude that the trial court‟s judgment was
correct regardless of the reasoning.

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In part IV of the discussion, we conclude that we need not
consider separately the claim of Lewis‟s wife for loss of
consortium.
We therefore affirm.1
STANDARD OF REVIEW
Summary judgment is required when a defendant shows the
“action has no merit.” (Code Civ. Proc., § 437c, subd. (a).)
To make this showing, the defendant must set forth admissible
evidence establishing “that there is no triable issue as to any
material fact and that the [defendant] is entitled to a judgment
as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
Because summary judgment involves purely matters of law, we
review a summary judgment ruling de novo. (Edward Fineman Co.
v. Superior Court (1998) 66 Cal.App.4th 1110, 1116.) Any doubts
as to the propriety of granting the motion are resolved in favor
of the party opposing the motion. (Molko v. Holy Spirit Assn.
(1988) 46 Cal.3d 1092, 1107.)
FACTS
Pepper entered into a contract with IKEA to act as the
construction manager for the construction of IKEA‟s West
Sacramento facility. Under its authority as the general
contractor, Pepper subcontracted with JD2, Inc. (JD2) for the
1 In a request for judicial notice filed June 30, 2009,
Pepper requested that we take judicial notice of two decisions
of the state Occupational and Health Appeals Board and a
mandamus proceeding regarding one of those decisions. The
request is granted. (Evid. Code, §§ 452, 453, 459.)

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structural steel work at the IKEA site. JD2 subcontracted with
Innovative Steel Erectors (ISE) for the steel erection work.
Lewis was working as an employee of ISE when he was injured.
The Contracts
Pepper‟s contract with IKEA (the general contract) stated
that Pepper would be solely responsible for and have control
over the construction methods and safety “unless the Contract
Documents give other specific instruction concerning these
matters.” The general contract assigned to Gary Opp, a Pepper
employee, the duty to supervise on-site activities, including
responsibility to “ensure all safety regulations are followed.”
Concerning those safety regulations, the general contract
stated: “The safety regulations shall be developed by [Pepper].
[Pepper] shall require all Subcontractors to provide [Pepper]
with a safety plan prior to the commencement of work.”
The subcontract between Pepper and JD2 required JD2 to
conform to all of Pepper‟s safety policies as well as any
government regulations. It provided that JD2 would review its
safety plan with Pepper personnel. And it required JD2
employees and its subcontractors‟ employees to abide by the
regulations of the Occupational Safety and Health Acts (OSHA).
With respect to fall protection, the subcontract included
Pepper‟s fall protection guidelines and required JD2 to abide by
the guidelines, including fall protection for workers at 15 feet
and higher.
The subcontract between JD2 and ISE similarly required full
compliance with OSHA regulations.

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Both subcontracts required the subcontractors (JD2 and ISE)
to obtain worker‟s compensation and general liability insurance
with Pepper and IKEA named as insureds.
Events Leading Up to the Fall
Lewis, a union ironworker, was hired by ISE to work on the
IKEA project. He received direction for his work and safety
from the ISE foremen only and did not meet with or receive
instruction from any Pepper employee.
Before starting its work on the site, ISE submitted a
safety plan to Pepper. Although the contracts required
compliance with Pepper‟s safety guidelines and OSHA regulations,
which include 15-foot fall protection, Lewis asserts that the
plan submitted by ISE did not explicitly include 15-foot fall
protection for all workers, under all circumstances.
The day before the accident, Patrick Rioux, a Pepper
employee, made a notation in a daily report that he had told
“J.R.” that “his men needed to be tied off while they were
shaking out the decking.” In his opening brief, Lewis claims
that “J.R.” was “the JD2 Inc./ISE foreman,” but he does not
provide a citation to the record for this claim. Lewis then
asserts: “Pepper thus knew the work being performed by ISE was
being done without 100% fall protection but failed to correct
the violation of Cal-OSHA, the contracts and the fall protection
program.” Again, Lewis does not provide a citation to the
record supporting his assertion that Pepper knew that ISE was
not providing fall protection. (See Cal. Rules of Court, rule
8.204(a)(1)(C) [requiring citations to record].) “The claimed

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existence of facts that are not supported by citations to pages
in the appellate record, or not appropriately supported by
citations, cannot be considered by this court.” (Mueller v.
County of Los Angeles (2009) 176 Cal.App.4th 809, 816, fn. 5.)
Casanova Claybrook, a fellow ISE employee who was working
with Lewis when Lewis was injured, expressed his opinion that,
if a general contractor required that subcontractors‟ employees
be able to anchor (“tie-off”) as protection from falling, then
it was the general contractor‟s responsibility to make sure it
was possible to tie off. Claybrook testified, in deposition,
that he was working at the same level as Lewis and was tied off
by wrapping a lanyard that he was wearing around some of the
steel work. It was Claybrook‟s understanding that Lewis should
also have been tied off, but he was not. According to Lewis,
there was no place for him to tie off. There was also no
perimeter safety cable at that location.
There is a dispute between the parties concerning how to
classify the task in which Lewis was engaged when he was
injured, whether it was “connecting,” which may not require fall
protection because the ironworker must be more mobile, or some
other ironwork that requires fall protection. For the purpose
of summary judgment review, we need not resolve this dispute but
instead accept Lewis‟s characterization of the work as not being
“connecting” work. Lewis asserts the work required “affirmative
anchorage points for fall protection” under federal and state

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regulations and Pepper‟s safety plan. (See Cal. Code Regs.,
tit. 8, § 1710(m).)2
Lewis’s Fall
On the day of the accident, Lewis was working on a welding
project when an ISE foreman asked him to help move decking from
the ground level to the second floor. Claybrook and Lewis were
up on the second floor of the structure. Lewis was sitting
sidesaddle on a beam. The ISE foreman hoisted a bundle of
decking up to the second floor level using a forklift. As Lewis
and Claybrook were working with the foreman to position the
bundle of decking, Lewis fell more than 15 feet from his
position on the beam to the ground below.
2 California Code of Regulations, title 8, section 1710(m)
states:
“(A) When connecting beams or other structural members at
the periphery or interior of a building or structure where the
fall distance is greater than two stories or 30 feet, whichever
is less, ironworkers shall be provided with and use a personal
fall protection system as described in Article 24 tied-off to
either columns, pendant lines secured at the tops of columns,
catenary lines, or other secure anchorage points.
“(B) At heights over 15 and up to 30 feet above a lower
level, connectors shall be provided with a personal fall arrest
system, positioning device system or fall restraint system and
wear the equipment necessary to be able to be tied off; or be
provided with other means of protection from fall hazards in
accordance with subsection (m).”

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DISCUSSION
I
Controlling Employer
Lewis contends that Pepper owed him a duty of care, without
regard to the common law requirement that the general contractor
retain control over the details of the work and affirmatively
contribute to the injuries, because the duty of care is
established by statute and regulations. Specifically, Lewis
contends that Pepper was the “controlling employer” at the
worksite pursuant to Labor Code section 6400 and OSHA
regulations, which make Pepper responsible for ensuring that
hazardous conditions are corrected.3 Based on this duty of a
“controlling employer,” Lewis contends that Pepper owed Lewis a
duty of care because Labor Code section 6304.5 allows reliance
on Labor Code provisions and related regulations to establish a
duty of care.
Before discussing Lewis‟s contentions, we review (A) the
state of the law concerning suits against general contractors by
injured employees of subcontractors in the common law context of
Privette, supra, 5 Cal.4th 689 and its progeny. We also review
3 Labor Code section 6400, subdivision (b)(3) states that, if
an employee is exposed to a hazard, a citation may be issued to
“[t]he employer who was responsible, by contract or through
actual practice, for safety and health conditions on the
worksite, which is the employer who had the authority for
ensuring that the hazardous condition is corrected (the
controlling employer).”

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(B) the changes in the Labor Code that prompt Lewis‟s argument
that Pepper owed Lewis a duty of care. And finally, we conclude
that (C) Lewis‟s argument that Pepper owed Lewis a duty of care
because Pepper was the “controlling employer” at the worksite is
without merit because Labor Code section 6304.5 did not supplant
the Privette doctrine.
A. The Privette Doctrine
A recent opinion of the First Appellate District provides a
useful overview of the Privette doctrine:
“Privette and its progeny . . . have defined and limited
the circumstances in which an independent contractor‟s employee
may recover in tort from the party hiring the contractor. In
Privette, the Supreme Court examined whether a hired
contractor‟s employees may seek recovery based on the theory of
„peculiar risk‟ from a nonnegligent hiring party for injuries
caused by the negligent contractor. (Privette, supra, 5 Cal.4th
at p. 696.) The peculiar risk doctrine had developed as an
exception to the general rule that a person who hired an
independent contractor was not liable to third parties for
injuries caused by the contractor‟s negligence in performing the
work. (Id. at p. 693.) It had been applied by the courts when
the contracted work was deemed to pose some inherent risk of
injury to others. (Id. at pp. 693–694.) The theory underlying
the exception was that a private landowner who engages in
inherently dangerous activity on his land should not be able to
insulate himself from liability for injuries to others simply by
hiring an independent contractor to do the work. (Ibid.) In

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the event of the contractor‟s insolvency, the peculiar risk
exception would allocate the loss to the person for whose
benefit the job was undertaken. (Id. at p. 694.) By spreading
the risk of loss to the person who primarily benefited from the
hired work, the courts also sought to promote greater workplace
safety. (Ibid.) The peculiar risk doctrine was gradually
expanded to allow the hired contractor‟s employees to seek
recovery from the nonnegligent property owner for injuries
caused by the negligent contractor. (Id. at p. 696.)
“The Privette court rejected the extension of the peculiar
risk doctrine to the contractor‟s employees. The court reasoned
that „when the person injured by negligently performed
contracted work is one of the contractor‟s own employees, the
injury is already compensable under the workers‟ compensation
scheme and therefore the doctrine of peculiar risk should
provide no tort remedy, for those same injuries, against the
person who hired the independent contractor.‟ (Privette, supra,
5 Cal.4th at p. 696.) Because the workers‟ compensation scheme
shields an independent contractor from tort liability to its
employees, „applying the peculiar risk doctrine to the
independent contractor‟s employees would illogically and
unfairly subject the hiring person, who did nothing to create
the risk that caused the injury, to greater liability than that
faced by the independent contractor whose negligence caused the
employee‟s injury.‟ (Toland [v. Sunland Housing Group, Inc.
(1998)] 18 Cal.4th [253,] 256 [(Toland)] [summarizing the
holding of Privette].) The scope of the Privette doctrine has

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been held to include claims that the hirer failed to take
special precautions (Toland, at p. 267) and that the hirer was
negligent in hiring the contractor whose negligence caused the
injury (Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1244–
1245 []).
“In Hooker[, supra,] 27 Cal.4th 198, 200–202 [], the court
considered whether the hirer of an independent contractor could
be held liable for injuries to the contractor‟s employee
resulting from the contractor‟s negligence under the theory that
the hirer retained control of the work but negligently exercised
that control. The high court held in Hooker that „a hirer of an
independent contractor was not liable to an employee of the
contractor merely because the hirer retained control over safety
conditions at a worksite, but was liable to such an employee
insofar as its exercise of retained control affirmatively
contributed to the employee's injuries.” (Millard[, supra,] 156
Cal.App.4th 1338, 1348 [] [summarizing Hooker].) In such cases,
the liability of the hirer is not „vicarious‟ or „derivative‟ in
the sense that it derives from the act or omission of the hired
contractor, but is direct. (Hooker, at p. 212; see also McKown
v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 222, 225 [hirer
is directly liable to an employee of an independent contractor
when hirer‟s provision of unsafe equipment affirmatively
contributes to the employee's injury].)
“In Hooker, the widow of a deceased crane operator who had
been employed by a general contractor hired by the California
Department of Transportation (Caltrans) to construct an

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overpass, sued Caltrans for negligently exercising its retained
control over jobsite safety. (Hooker, supra, 27 Cal.4th at p.
202.) The Caltrans construction manual provided that Caltrans
was responsible for obtaining the contractor‟s compliance with
all safety laws and regulations, and Caltrans‟s onsite engineer
had the power to shut the project down because of safety
conditions and to remove employees of the contractor for failing
to comply with safety regulations. (Id. at pp. 202–203.) The
plaintiff‟s husband died after the crane tipped over when he
attempted to operate it without reextending the crane‟s
outriggers. (Id. at p. 202.) He had retracted the outriggers
in order to allow Caltrans and other vehicles to use the narrow
overpass. (Id. at p. 214.) The plaintiff alleged that Caltrans
was negligent in permitting traffic to use the overpass while
the crane was being operated. (Id. at pp. 202, 214–215.)
“Although the court found that the plaintiff in Hooker had
raised triable issues of material fact as to whether Caltrans
retained control over safety conditions at the worksite, she
failed to raise triable issues of material fact as to whether
Caltrans actually exercised the retained control so as to
affirmatively contribute to the death of her husband. (Hooker,
supra, 27 Cal.4th at p. 202.) The court stated: „“[A] general
contractor owes no duty of care to an employee of a
subcontractor to prevent or correct unsafe procedures or
practices to which the contractor did not contribute by
direction, induced reliance, or other affirmative conduct. The
mere failure to exercise a power to compel the subcontractor to

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adopt safer procedures does not, without more, violate any duty
owed to the plaintiff.”‟ (Id. at p. 209.) Under the standard
approved in Hooker, a general contractor contributes to an
unsafe procedure or practice by its affirmative conduct where
the general contractor „“is actively involved in, or asserts
control over, the manner of performance of the contracted work.
[Citation.] Such an assertion of control occurs, for example,
when the principal employer directs that the contracted work be
done by use of a certain mode or otherwise interferes with the
means and methods by which the work is to be accomplished.
[Citations.]” [Citation.]‟ (Id. at p. 215, italics omitted.)
“Hooker also states that an omission may constitute an
affirmative contribution in some circumstances: „[A]ffirmative
contribution need not always be in the form of actively
directing a contractor or contractor‟s employee. There will be
times when a hirer will be liable for its omissions. For
example, if the hirer promises to undertake a particular safety
measure, then the hirer‟s negligent failure to do so should
result in liability if such negligence leads to an employee
injury.‟ (Hooker, supra, 27 Cal.4th at p. 212, fn. 3.)
“Applying these standards to the facts before it, the
Hooker court held: „While the evidence suggests that the crane
tipped over because the crane operator swung the boom while the
outriggers were retracted, and that the crane operator had a
practice of retracting the outriggers to permit construction
traffic to pass the crane on the overpass, there was no evidence
Caltrans's exercise of retained control over safety conditions

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at the worksite affirmatively contributed to the adoption of
that practice by the crane operator. There was, at most,
evidence that Caltrans’s safety personnel were aware of an
unsafe practice and failed to exercise the authority they
retained to correct it.‟ (Hooker, supra, 27 Cal.4th at p. 215,
italics added.)” (Madden v. Summit View, Inc. (2008) 165
Cal.App.4th 1267, 1272-1275, fn. omitted, original emphasis.)
B. Labor Code section 6304.5
This case involves the intersection of the Privette
doctrine with Labor Code section 6304.5. This intersection was
discussed in Millard, supra, 156 Cal.App.4th 1338, a case which
Lewis asserts was wrongly decided. We first quote the holding
and reasoning of Millard, then address Lewis‟s assertions with
respect to that case.
The Millard court stated:
“[A]s amended in 1999, [Labor Code] section 6304.5 now
provides: „It is the intent of the Legislature that the
provisions of this division, and the occupational safety and
health standards and orders promulgated under this code, are
applicable to proceedings against employers for the exclusive
purpose of maintaining and enforcing employee safety. [¶]
Neither the issuance of, or failure to issue, a citation by the
division shall have any application to, nor be considered in,
nor be admissible into, evidence in any personal injury or
wrongful death action, except as between an employee and his or
her own employer. Sections 452 [permissive judicial notice] and
669 [negligence per se] of the Evidence Code shall apply to this

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division and to occupational safety and health standards adopted
under this division in the same manner as any other statute,
ordinance, or regulation. The testimony of employees of the
division shall not be admissible as expert opinion or with
respect to the application of occupational safety and health
standards. It is the intent of the Legislature that the
amendments to this section enacted in the 1999–2000 Regular
Session shall not abrogate the holding in Brock v. State of
California (1978) 81 Cal.App.3d 752.‟ (Italics added.)
“Evidence Code section 452 permits judicial notice of state
statutes and regulations. (Evid. Code, § 452, subd. (a).)
Evidence Code section 669, subdivision (a) codifies the common
law doctrine of negligence per se, under which statutes and
regulations may be used to establish duties and standards of
care in negligence actions: „The failure of a person to
exercise due care is presumed if: [¶] (1) He violated a
statute, ordinance, or regulation of a public entity; [¶]
(2) The violation proximately caused death or injury to person
or property; [¶] (3) The death or injury resulted from an
occurrence of the nature which the statute, ordinance, or
regulation was designed to prevent; and [¶] (4) The person
suffering the death or the injury to his person or property was
one of the class of persons for whose protection the statute,
ordinance, or regulation was adopted.‟
“In Elsner [v. Uveges (2004)] 34 Cal.4th 915 [(Elsner)],
the California Supreme Court held that under amended [Labor
Code] section 6304.5, „Cal-OSHA provisions are to be treated

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like any other statute or regulation and may be admitted to
establish a standard or duty of care in all negligence and
wrongful death actions, including third party actions.‟
(Elsner, supra, 34 Cal.4th at p. 928, italics added.) Based
upon this language, Millard [as does Lewis here] asserts that,
despite Privette, [Labor Code] section 6304.5 allows admission
of statutes and regulations to create a duty of care, even where
the nonemployer contractor did not affirmatively contribute to
the injured subcontractor‟s injuries.
“However, an analysis of Elsner demonstrates that it was
not intended to limit or impliedly overrule Privette and its
progeny, and is inapplicable to the facts of this case. First,
in Elsner, the roofing subcontractor‟s employee was injured at a
construction project when scaffolding constructed by the
defendant general contractor collapsed. (Elsner, supra, 34
Cal.4th at p. 924.) As the court in Elsner noted: „At trial,
this case proceeded on a single theory: Uveges negligently
furnished unsafe scaffolding that contributed to Elsner’s
injury.‟ (Id. at p. 937, italics added.) Thus, in Elsner,
Privette was not at issue because the plaintiff was not
attempting to impose liability on the general contractor for the
negligence of others, but for the general contractor‟s
affirmative contribution to his injuries. The court was not
asked to and did not decide [Labor Code] section 6304.5‟s
impact, if any, on Privette.
“Furthermore, the Supreme Court‟s discussion of the
retroactivity of the amended version of [Labor Code] section

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6304.5 compels the conclusion that the 1999 amendments did not
abrogate or limit Privette or its progeny. In assessing whether
the amendments to [Labor Code] section 6304.5 were retroactive,
the high court in Elsner noted that the critical question is,
„Does the law “change[] the legal consequences of past conduct
by imposing new or different liabilities based upon such
conduct[?]” [Citation.] Does it “substantially affect[]
existing rights and obligations[?]” [Citation.] If so, then
application to a trial of preenactment conduct is forbidden,
absent an express legislative intent to permit such retroactive
application.‟ (Elsner, supra, 34 Cal.4th at p. 937.) The high
court noted that „[t]he admission of provisions imposing broader
duties on a defendant than existed under the common law expands
the defendant‟s liability.‟ (Ibid.)
“The high court in Elsner then noted that the plaintiff‟s
expert „testified to the content of various Cal-OSHA provisions
for purposes of establishing the relevant standard of care.
([Lab. Code, §§ 6400, 6401, 6403, 7151]; Cal. Code Regs., tit.
8, §§ 1513, 1637, 1640.) The jury was instructed on the
requirements of these Cal-OSHA provisions, instructed on the
duties imposed by [Labor Code] sections 6400, 6401 and 6403, and
instructed on negligence per se.‟ (Elsner, supra, 34 Cal.4th at
p. 936, italics added.) The court then concluded that amended
[Labor Code] section 6304.5 could be applied retroactively
because it did not expand the defendant general contractor‟s
duty of care: „[T]he admission of [Labor Code] sections 6400,
6401 and 6403 did not expand Uveges‟s common law duty of care.

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These provisions imposed on Uveges the duty to furnish a safe
place of employment, to use safe practices and procedures, and
to provide and use appropriate safety devices and safeguards.
(§§ 6400, 6401, 6403.) But Uveges already owed Elsner a common
law duty to provide safe equipment: “[W]hen a hirer of an
independent contractor, by negligently furnishing unsafe
equipment to the contractor, affirmatively contributes to the
injury of an employee of the contractor, the hirer should be
liable to the employee for the consequences of the hirer’s own
negligence.” [Citation.] At trial, this case proceeded on a
single theory: Uveges negligently furnished unsafe scaffolding
that contributed to Elsner’s injury. That Frey, Uveges‟s agent,
constructed the scaffolding from which Elsner fell was
undisputed. Also undisputed was that when Uveges furnished
scaffolding for the construction project, he had a common law
duty to furnish safe scaffolding. The principal issues were
breach, causation, and comparative negligence: whether the
scaffolding met the standard of care, whether any defects
contributed to Elsner‟s injuries, and whether Elsner‟s own
conduct contributed to his injuries. Thus, Uveges cannot
complain that the jury verdict in this case arose from a
retroactive expansion of his duty of care.‟ (Elsner, supra, 34
Cal.4th at p. 937, italics added.)
“Thus, as the court in Elsner emphasized, amended [Labor
Code] section 6304.5 was not intended to expand a general
contractor‟s duty of care to an injured employee of a
subcontractor. This includes the limitations on such a duty

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imposed by Privette and its progeny. Under amended [Labor Code]
section 6304.5, safety regulations may be admissible in actions
by employees of subcontractors brought against general
contractors that retain control of safety conditions, but only
where the general contractor affirmatively contributed to the
employee‟s injuries. As we have explained, ante, in this case
there is no triable issue of fact that Biosources affirmatively
contributed to Millard's injuries.
“This result is further confirmed when it is recognized
that the pertinent amendment to [Labor Code] section 6304.5 only
concerned causes of action for negligence per se.” (Millard,
supra, 156 Cal.App.4th at pp. 1349-1352, original emphasis.)
C. Lewis’s Objections to the Holding in Millard
Lewis contends that Pepper was the controlling employer at
the IKEA worksite for the purpose of applying Labor Code section
6400, which provides that a controlling employer may be cited
for failing to ensure that a hazardous condition has been
corrected. For the purpose of discussion, we will assume that
is true.
Lewis also contends that the conditions at the IKEA
worksite were in violation of various OSHA regulations
concerning fall protection. We will also assume that is true,
for the purpose of discussion.
Lewis does not attempt to distinguish Millard on its facts.
Therefore, we will consider only whether Lewis is correct in
contending that Millard and another case that followed Millard
(Madden, supra, 165 Cal.App.4th 1267) were wrongly decided.

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Lewis finds three purported problems with Millard and
Madden: (1) they failed to consider the legislative history of
Labor Code section 6304.5; (2) they are inconsistent with the
Supreme Court‟s decision in Elsner; and (3) their holdings with
respect to Labor Code section 6304.5 are dicta. None of these
contentions has merit.
1. Legislative History
Lewis‟s opening brief contains a lengthy discussion of the
legislative history of Labor Code section 6304.5. In his
argument concerning Millard, however, Lewis states only that
Millard’s analysis of Labor Code section 6304.5 “was apparently
made without any provision of the legislative history as
provided [in the opening brief].” Beyond this conclusion, Lewis
gives no reason for us to reject Millard based on a deficiency
in the analysis of the legislative history. Therefore, Lewis
fails to establish that Millard’s failure to more fully analyze
the legislative history of Labor Code section 6304.5 renders the
holding incorrect.
2. Consistency with Elsner
Lewis‟s main criticism of Millard is that it is
inconsistent with the Supreme Court‟s decision in Elsner, supra,
34 Cal.4th 915, upon which the Millard court relied. We
disagree.
According to the Millard court, Elsner held that “amended
[Labor Code] section 6304.5 was not intended to expand a general
contractor‟s duty of care to an injured employee of a
subcontractor.” (Millard, supra, 156 Cal.App.4th at p. 1352;

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see also Madden, supra, 165 Cal.App.4th at p. 1279.) Lewis
claims that this statement is incorrect because it assumes that
the statutory duty of care owed by the general contractor is no
greater than the common law duty of care.
To the contrary, that is precisely what Elsner held. The
Elsner court stated: “[T]he admission of [Labor Code] sections
6400, 6401 and 6403 did not expand [the defendant‟s] common law
duty of care. These provisions imposed on [the defendant] the
duty to furnish a safe place of employment, to use safe
practices and procedures, and to provide and use appropriate
safety devices and safeguards. ([Lab. Code,] §§ 6400, 6401,
6403.) But [the defendant] already owed Elsner a common law
duty to provide safe equipment: „[W]hen a hirer of an
independent contractor, by negligently furnishing unsafe
equipment to the contractor, affirmatively contributes to the
injury of an employee of the contractor, the hirer should be
liable to the employee for the consequences of the hirer‟s own
negligence.‟ [Citation.]” (Elsner, supra, 34 Cal.4th at p.
937.)
Therefore, as explained in Millard, the Privette doctrine
still applies: the general contractor owes a duty of care to
the injured employee of a subcontractor only if the general
contractor retained control over the details of the work and
affirmatively contributed to the employee‟s injury.
Lewis cites two other cases of the Court of Appeal (Evard
v. Southern California Edison (2007) 153 Cal.App.4th 137 (Evard)
and Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129

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Cal.App.4th 281 (Barclay)) in his attempt to discredit Millard.
Neither case, however, is inconsistent with Millard because they
both involve a duty owed directly from the general contractor or
owner to the employee of the subcontractor. Here, instead,
Pepper‟s duty was delegated to the subcontractors -- the usual
Privette doctrine scenario.
In Evard, a summary judgment case, the owner of a billboard
had a nondelegable duty to maintain the billboard in a safe
condition. (153 Cal.App.4th at p. 147.) The employee of a
contractor hired to work on the billboard was injured when the
aluminum pole he was using came into contact with a power line.
The employee received a shock and fell from the billboard. (Id.
at pp. 142-143.) The court held that the owner owed a
nondelegable duty to provide guardrails to prevent falls.
Therefore, the owner owed a duty of care to the employee. (Id.
at pp. 146-147.)
In Barclay, another summary judgment case, this court
similarly found that a property owner may have owed a duty of
care to an employee of a contractor hired to work near fuel
tanks because regulations required the owner to provide fire
extinguishers. (129 Cal.App.4th at p. 301.) The employee was
injured when one of the tanks exploded, and there was no fire
extinguisher available. (Id. at p. 286.) Although we based our
decision on the owner‟s duty to provide fire extinguishers, we
also noted that the employee must establish that the owner‟s
conduct affirmatively contributed to the employee‟s injuries:
“[The owner] may be liable if its breach of regulatory duties,

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owed to plaintiff, affirmatively contributed to plaintiff‟s
injuries.” (Id. at p. 298.)
Therefore, Lewis fails in his attempt to establish that
Millard, as well as the trial court‟s judgment in this case, is
inconsistent with Elsner and Court of Appeal precedents.
3. Dicta
Lewis‟s complaint that the relevant holdings in Millard and
Madden should be disregarded as dicta fares no better.
Lewis states that “the Millard discussion of duty is dicta,
as the court found that the statutory duty was not pled in the
complaint, and therefore, not properly before the court.”
(Original emphasis.) It is true that the Millard court, in the
last paragraph, finds, as an alternative to its holding
concerning the duty of care, that the doctrine of negligence per
se (based on the regulatory duty) was not properly pled.
(Millard, supra, 156 Cal.App.4th at p. 1353.) This one-
paragraph, alternative basis for affirming, however, does not
render invalid or unpersuasive the remainder of the opinion.
Similarly, the Madden opinion, which we need not discuss in
detail because it essentially relied on Millard, stated
alternative grounds for affirming the judgment entered in favor
of the general contractor. (Madden, supra, 165 Cal.App.4th at
pp. 1276-1281 [no retained control, no affirmative contribution
to injuries, and no duty resulting from regulatory violation].)
“When an appellate court bases its decision on alternative
grounds, none is dictum. [Citation.]” (Greyhound Lines, Inc.
v. County of Santa Clara (1986) 187 Cal.App.3d 480, 485.)

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II
Affirmative Act
Lewis contends that Pepper owed him a duty of care under
the common law because Pepper committed affirmative acts that
contributed to Lewis‟s injuries. He bases this assertion,
primarily, on footnote three in Hooker, supra, which states that
affirmative contribution may be in the form of a failure to act.
We conclude that, although the facts relied on by Lewis arguably
show that Pepper retained some control over the safety
precautions at the worksite, Pepper‟s conduct or failure to act
did not constitute affirmative contribution to Lewis‟s injuries.
In Hooker, the Supreme Court included a footnote concerning
the common law principle that a general contractor does not owe
a duty of care to a subcontractor‟s employee unless the general
contractor retained control over the details of the work and
affirmatively contributed to the employee‟s injury. As noted
above, that footnote states: “Such affirmative contribution
need not always be in the form of actively directing a
contractor or contractor‟s employee. There will be times when a
hirer will be liable for its omissions. For example, if the
hirer promises to undertake a particular safety measure, then
the hirer‟s negligent failure to do so should result in
liability if such negligence leads to an employee injury.”
(Hooker, supra, 27 Cal.4th at p. 212, fn. 3.)
Lewis cites several facts which he claims support his
assertion that we should find that Pepper owed him a duty of
care. These include: Pepper created a 15-foot tie-off policy

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and was responsible for enforcing safety provisions and
informing ISE of the safety provisions. Pepper approved a plan
by ISE that did not conform to Pepper‟s safety plan. Carl
Beltz, a JD2 employee, believed that Pepper was responsible for
enforcing contractual safety provisions and correcting any
problems with fall protection. And Casanova Claybrook, who was
Lewis‟s coworker at ISE, believed that, if Pepper required
ironworkers to tie-off at 15 feet and above, it was Pepper‟s
responsibility to ensure that it was possible to tie-off,
including engineering of the worksite to make it possible.
These facts do not support Lewis‟s contention that Pepper
affirmatively contributed to his injuries. Instead, they are
similar to the facts in Kinney v. CSB Construction, Inc. (2001)
87 Cal.App.4th 28 (Kinney), a case in which the court found that
the general contractor did not owe the subcontractor‟s employee
a duty of care. In Kinney, a subcontractor‟s employee fell from
a scaffold. The employee argued that the general contractor
retained the power to control safety procedures at the worksite
but failed to do so. The general contractor‟s site
superintendent stated the general contractor retained the right
to order any safety measures it felt appropriate at the site.
In addition, if the superintendent observed an unsafe condition,
he had the authority to do whatever he believed appropriate.
The general contractor had the final authority on safety
procedures. (Id. at p. 31.) The Kinney court affirmed summary
judgment in favor of the general contractor. The court
reasoned: “The mere failure to exercise a power to compel the

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subcontractor to adopt safer procedures does not, without more,
violate any duty owed to the plaintiff.” (Id. at p. 39.)
The Supreme Court, in Hooker, cited and quoted Kinney
approvingly: “[M]ere retention of the ability to control safety
conditions is not enough. „[A] general contractor owes no duty
of care to an employee of a subcontractor to prevent or correct
unsafe procedures or practices to which the contractor did not
contribute by direction, induced reliance, or other affirmative
conduct. The mere failure to exercise a power to compel the
subcontractor to adopt safer procedures does not, without more,
violate any duty owed to the plaintiff. Insofar as section 414
[of the Restatement Second of Torts] might permit the imposition
of liability on a general contractor for mere failure to
intervene in a subcontractor‟s working methods or procedures,
without evidence that the general contractor affirmatively
contributed to the employment of those methods or procedures,
that section is inapplicable to claims by subcontractors‟
employees against the general contractor.‟ (Kinney, at p. 39.)”
(Hooker, supra, 27 Cal.4th at p. 209.)
Here, as in Kinney, Pepper had the power to compel ISE,
Lewis‟s employer, to adopt safety precautions and retained the
authority to correct safety violations. These facts, however,
do not amount to affirmative contribution to Lewis‟s injuries.
Accordingly, the trial court was correct in granting summary
judgment with respect to the common law duty of care.
Notwithstanding this precedent, Lewis asserts that two
cases support his assertion of a common law duty of care.

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(Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman); Ray v.
Silverado Constructors (2002) 98 Cal.App.4th 1120 (Ray).)
Neither case is on point.
In Kinsman, an employee of a contractor hired by an oil
company was injured by asbestos used to insulate the pipes. The
employee claimed that the oil company negligently failed to warn
the contractor of the presence of asbestos or to provide safety
equipment. Finding a potential duty of care on the part of the
oil company because the contractor was not aware of the asbestos
danger, the Supreme Court commented that “when the hirer does
not fully delegate the task of providing a safe working
environment, but in some manner actively participates in how the
job is done, and that participation affirmatively contributes to
the employee‟s injury, the hirer may be liable in tort to the
employee.” (37 Cal.4th at p. 671.) Here, there was no hidden
danger concerning which ISE was unaware.
In Ray, an employee of a subcontractor was killed when
construction materials that had blown off a bridge struck the
employee in the head. The Court of Appeal found that the
general contractor owed a potential duty of care to the employee
of the subcontractor because there was a triable issue of fact
concerning whether the general contractor retained authority, to
the exclusion of the subcontractor, to close the road (the
construction site) if conditions became too windy and dangerous.
(98 Cal.App.4th at pp. 1134-1136.) Here, there was nothing in
Pepper‟s retained control of the worksite that prevented ISE
from fully implementing safety precautions.

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Lewis failed to establish a common law duty of care.
III
Asserted Errors in the Trial Court’s Reasoning
Lewis asserts that several aspects of the trial court‟s
reasoning in granting summary judgment were erroneous. For
example, he states that the tentative decision improperly
limited the reach of a controlling employer‟s duty. Having
concluded that summary judgment was proper, we need not review
asserted errors in the court‟s reasoning because we affirm a
summary judgment that was properly granted even if the trial
court‟s reasons for granting it were wrong. (Demps v. San
Francisco Housing Authority (2007) 149 Cal.App.4th 564, 575.)
IV
Loss of Consortium Claim
Lewis‟s wife also sued Pepper, basing her derivative claim
on loss of consortium. On appeal, she makes no separate
assertions of error. Therefore, we need not discuss her loss of
consortium claim separately.
DISPOSITION
The judgment is affirmed. Pepper is awarded its costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
NICHOLSON , J.
We concur:
SCOTLAND , P. J.
RAYE , J.

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