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Purcell v. Guiness UDV North America11/26/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Appellants, the survivors of plaintiff John Purcell, appeal from a summary judgment entered in favor of Guinness UDV North American, Inc. (Guinness), the owner of the Hamm's brewery in San Francisco. Purcell sued Guinness and numerous other defendants for personal injuries resulting from asbestos exposure. Guinness successfully sought summary judgment on the grounds that (1) its liability as a premises owner did not extend to the employees of its subcontractors; and (2) Purcell could not show affirmative, causative negligence by Guinness's own employees. We affirm.
BACKGROUND
Between 1951 and 1965, Purcell was employed by Western Asbestos (Western) and worked at numerous locations throughout the Bay Area. At some point during that period Western was involved in a project at the Hamm's brewery. Purcell spent 40 to 80 hours on the premises over the course of approximately one year. He testified he could not remember which year this occurred, but thought it was probably during the second half of his tenure with Western.
Purcell could recall neither having had contact with any Hamm's employees other than a guard at the entrance nor seeing any Hamm's employees working at the brewery. Western supplied all the tools and materials its employees used on the job site. The general contractor hired the various other trades people who worked at the site such as plumbers, electricians, carpenters, and laborers. To Purcell's knowledge, those trades people also supplied their own tools and materials.
William Verzuh, a Hamm's employee for 18 years during the 1950's and 1960's, testified that Hamm's employees, not contractors, regularly removed and installed asbestos insulation from pipes and swept up the debris with brooms.
In 2001 Purcell and his wife sued numerous defendants for personal injury caused by asbestos exposure. The complaint alleged a cause of action for "Premises Owner/Contractor Liability" against Heublien, Guinness's predecessor in interest. Purcell subsequently named Guinness as a Doe defendant.
Guinness moved for summary judgment on the ground that its liability as a premises owner did not extend to contractors' employees such as Purcell. In opposition, Purcell maintained that Guinness was directly liable, not just as the owner of the premises. The trial court granted summary judgment "based upon plaintiff John Purcell's deposition testimony and the legal principles enunciated in the case of Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235." The order specifically referenced undisputed evidence that Purcell had only spent between 40 and 80 hours on the brewery premises over the course of about a year; that his employer was a subcontractor; that the other tradespersons working on the brewery renovation project with Western were hired and supervised by the general contractor; that Purcell could not recall seeing or having contact with any Hamm's employees at the jobsite; and that all materials and tools used, other than some scaffolding, were supplied by Western.
Purcell timely appealed the ensuing judgment.
DISCUSSION
Purcell contends summary judgment was erroneously granted because the Verzuh testimony is sufficient to support a claim that his asbestos exposure was caused in part by the direct negligence of Hamm's employees. He further as
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