Richard Thompson v. National Steel and Shipbuildin , 391 F. App'x 608 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 04 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RICHARD THOMPSON, et al., No. 09-55424
Plaintiffs - Appellants, D.C. No. 3:07-cv-00478-MMA-
POR
v.
NATIONAL STEEL AND MEMORANDUM*
SHIPBUILDING COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted April 9, 2010
Pasadena, California
Before: D.W. NELSON and REINHARDT, Circuit Judges, and WHALEY, Senior
District Judge.**
In this diversity action, Plaintiffs Richard and Cheryl Thompson brought suit
against NASSCO for damages to compensate them for injuries Richard Thompson
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
sustained while working for IMIA, a subcontractor of NASSCO. NASSCO
operates a San Diego shipyard. IMIA provides sandblasting and painting services
on military cargo ships located at the NASSCO site. Mr. Thompson was seriously
injured when the mid-rail of a scaffold he was on gave way and he fell 25 feet to
the ground. He broke his back and is a paraplegic.
The Thompsons appeal the district court’s decision granting summary
judgment in favor of NASSCO. The district court’s granting of summary
judgment is reviewed de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.
2004). This court must determine, viewing the evidence in the light most favorable
to the nonmoving party, whether there are any genuine issues of material fact and
whether the district court correctly applied the relevant substantive law. Olsen v.
Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). This is a diversity
action and California law applies. Andrews v. United Airlines, Inc., 24 F.3d 39, 40
(9th Cir. 1994). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
reverse and remand.
The theory under which the Thompsons asserted liability against NASSCO
is set forth in McKown v. Wal-Mart Stores, 27 Cal. 4th 219 (Cal. 2002). Under
California law, the general rule is that an employee of a sub-contractor may not sue
the hirer of the sub-contractor in tort, but is restricted instead to a claim against the
sub-contractor under the workers’ compensation insurance system. Id. at 224.
This rule is generally referred to as the Privette/Toland rule. Id. Exceptions to this
general rule have been created by the California courts, including the exception
found in McKown. In McKown, the California Supreme Court held that when 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. Id. at 225.
The district court erred in concluding that scaffolding was not equipment
and that McKown did not apply to the facts of this case. Rather, California courts
consistently have viewed scaffolding as equipment. See Elsner v. Uveges, 34 Cal.
4th 915, 924 (Cal. 2004) (applying McKown to a claim involving unsafe
scaffolding); Johnson v. Tosco Corp., 1 Cal. App. 4th 123, 134 (Cal. Ct. App. 1st
Dist. 1992) (describing scaffolding as equipment); Biondini v. Amship Corp., 81
Cal. App. 2d 751, 765 (Cal. Dist. Ct. App. 1st Dist. 1947) (referring to scaffolding
as “appliances”). Thus, McKown applies to this case and NASSCO owes a duty to
Thompson to provide safe scaffolding.
The district court also erred in concluding there were no triable issues of
material fact as to whether NASSCO negligently furnished unsafe equipment to the
contractor and whether the provision of the unsafe equipment affirmatively
contributed to the injury of an employee of the contractor. On the contrary, there
are a number of triable issues of material fact, including whether the use of
PacStrap was inappropriate and unsafe, whether the use of a 12-foot mid-rail on the
10-foot scaffold was unsafe, and whether the width of the scaffold affirmatively
contributed to Thompson’s injuries.1 Accordingly, we reverse the grant of
summary judgment in favor of the NASSCO.
In its order, the district court did not address whether negligence per se was
applicable to the case because it concluded that NASSCO did not owe a duty to
Thompson. This was in error for the reasons stated above.2 On remand, the
district court should consider whether negligence per se is applicable to the case.
REVERSED and REMANDED.
1
The panel does not have to reach the issue of whether the district court
abused its discretion in striking portions of the Declaration of Morris Farkas
because it finds triable issues of fact exist regardless of whether Mr. Farkas’
testimony is considered.
2
In a footnote, the district court noted that the Thompsons did not allege in
their complaint that the doctrine of negligence per se applied to the facts of this
case, but it did not rule on this issue in the alternative. Unlike California law,
under the law of this Circuit, “[t]he complaint ... does not control the issues
properly before th[e] court.” Apache Survival Coalition v. U.S., 21 F.3d 895, 910
(9th Cir. 1994). “[W]hen issues are raised in opposition to a motion for summary
judgment that are outside the scope of the complaint, the district court should have
construed the matter raised as a request pursuant to rule 15(b) of the Federal Rule
of Civil Procedure to amend the pleadings out of time.” Id. (internal quotations
and alterations omitted). A federal court sitting in diversity applies the federal rules
of pleading. 389 Orange Street Partners v. Arnold, 179 F.3d 656, 661 (9th Cir.
1999).