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Dunwoodie v. Salvation Army10/11/2005
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
John Dunwoodie appeals from the judgment entered after an order granting summary judgment for the Salvation Army and Gil Roman (collectively the Salvation Army) in this personal injury action. The trial court found the Salvation Army bore no responsibility for Dunwoodie's injuries as a matter of law because he was not its employee and the premises on which he was injured were not defective. Because the trial court improperly relied on principles of workers' compensation law to preclude liability on the part of the Salvation Army and triable issues of fact exist as to whether the Salvation Army was negligent, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. Dunwoodie's Work at Roman's Home
Roman, who at all times relevant to the instant action was an officer and minister of the Salvation Army acting within the course and scope of his duties, lived in a residence in Whittier owned by the Salvation Army. Roman approached Henry Talsma, who had been performing community service work for the Salvation Army, about undertaking a construction project involving concrete work at Roman's residence. Although Talsma told Roman that he was not a licensed contractor, Roman invited Talsma to the residence to look at the area where he wanted concrete poured. After calling several concrete companies to determine the cost for materials, Talsma gave Roman a piece of paper with those figures and estimated the project would cost $1,400. Roman prepared a proposal for the project and submitted it to the Salvation Army for approval. For the proposal Roman created and used the name "Henry's Patio" to describe Talsma because he thought it "sounded more professional[,]" even though no such business entity existed. The Salvation Army approved the project.
Talsma enlisted the help of Daniel Costanzo, who had 15 years of experience in concrete work. Costanzo asked Dunwoodie to assist on the last two days of the project. Dunwoodie began work on June 26, 2002, primarily hauling concrete in a wheelbarrow from the truck to the backyard.
2. Dunwoodie's Accident and Lawsuit
On June 27, 2002, his second day of work, Dunwoodie was standing on a five-and-one-half-foot wall on the side of Roman's house, leveling the remaining concrete before it began to set, when he lost his balance and fell. As a result of the fall, Dunwoodie fractured the back of his skull and injured his neck and shoulder.
Dunwoodie filed a lawsuit against the Salvation Army, Roman and Talsma for premises liability and general negligence, alleging their failure to provide an appropriate and safe work environment proximately caused his injuries. According to the complaint, the Salvation Army hired Talsma knowing he was unlicensed, even though the construction project required a licensed contractor to perform the work.
3. The Salvation Army's Summary Judgment Motion and the Trial Court's Ruling
The Salvation Army moved for summary judgment on the grounds it did not owe a duty to Dunwoodie because it was not his employer and, even assuming a duty existed, it did not breach its duty because there was no defect at Roman's house that proximately caused Dunwoodie's injuries. In support of its motion, the Salvation Army presented deposition testimony from Talsma that he did not direct Dunwoodie to climb up the wall
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