Weekly Law Resume - March 1, 2012: The Trilogy of Tverberg: Non-Delegable Regulatory Duties and Negligent Exercise of Retained Control

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Jeffery Tverberg et al. v. Fillner Construction, Inc.
Court of Appeal, First District (January 26, 2012)

This case involved injuries suffered by an independent contractor hired to construct a metal canopy over fuel-pumping units. The Court addressed whether the plaintiff can survive summary judgment on theories of breach of a non-delegable regulatory duty and negligent exercise of retained control.

In 2006, Fillner Construction, acting as general contractor, hired subcontractors to expand a commercial fueling station in Dixon, California. One of these subcontractors hired the plaintiff, Jeffrey Tverberg (“Tverberg”), as an independent contractor to act as the foreperson in constructing a metal canopy over some fuel-pumping units. Prior to Tverberg’s arrival on the jobsite, another subcontractor dug eight holes measuring four feet wide by four feet deep for “bollards,” which are concrete posts intended to keep vehicles from colliding with the pumps. When Tverberg started work in May, 2006, he initially asked a Fillner representative to cover the holes with metal plates; however, Tverberg was told that the necessary equipment was unavailable. Fillner did post warning stakes and safety ribbon around the holes. Just prior to starting work, Tverberg again asked to cover the holes, but Fillner did nothing. Soon thereafter, Tverberg fell into one of the holes, sustaining injuries.

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