Plaintiff George C. Griesel appeals from a judgment entered on a verdict for defendants Dart Industries, Inc. and Lakeworld, a division of Dart Industries, Inc. (hereinafter referred to as Dart) in an action for damages for personal injuries.
Plaintiff contends that the court erred in substituting an alternate juror after seven days of deliberation and in improperly instructing thereon. He also contends that certain instructions were erroneous and that the trial court erred in invoking Labor Code section 6304.5 to exclude evidence of safety order violations and to refuse to instruct on the effect of safety order violations.
Dart was the owner, developer and general contractor of a large residential development in Kern County. Dart contracted with F.T. Ziebarth Company, plaintiff's employer, to construct a waste water treatment plant which included an underground pump station and a pipeline between the pump station and a holding pond. The work required the excavation of a trench for the pipeline and a square cubicle for the underground pump station. The pipeline trench was to be 20 to 24 feet long of increasing depth to slightly over 9 feet and was to connect with the pump station excavation which was to be about 9 feet deep and 10 or 12 feet square. Dart exercised no control over how the work was to be done but employed a project superintendent, Burley Sizemore, to inspect the work for conformance to the plans and specifications.
Burley Sizemore went by the site about 6 p.m. on April 25 after work had stopped for the day and everyone else had gone. Sizemore noticed that the trench had been excavated and was about eight or nine feet at its deepest point. He also noticed that the trench was neither sloped nor shored. He did not recall noticing whether the bottom of the trench had been smoothed over with hand tools. At the time Sizemore saw the trench he considered it unsafe for anyone to be working in it. Sizemore and others testified that customary safety practices called for the shoring or sloping of trenches five feet or more deep in order to avoid the danger of the sides caving in.
On the morning of April 26 plaintiff went into the trench to check the grade of its floor. Bennett had told him to check the grade but had not shown him how to do so without going into the trench. Plaintiff did not know at the time that it was possible to check the grade from the top of the trench and had not been instructed about the danger of the unshored trench or told to stay out of it. Neither Bennett nor the backhoe operator saw plaintiff enter the trench. While he was in the unshored trench, it caved in upon him, inflicting serious injuries.
Although there was some conflict as to how nearly completed the excavation was at the time of the accident, in the normal course of work of this type no one would have entered the trench at the time plaintiff did so. Ordinarily, workmen would not enter the trench until the backhoe excavation was completed and it was time to pour concrete and lay pipe in the trench, at which time it would have been shored against cave-ins.
Plaintiff relied on two theories to establish Dart's liability. The first theory was Dart's duty as an owner or possessor of land to warn others of dangers of unreasonable risk of harm present on the land. The second theory was Dart's duty as an employer of an independent contractor to
The jury deliberated for seven days. On the seventh day, one of the jurors advised the court that she had become too emotionally disturbed as a result of the deliberations to continue. The court informed counsel, interviewed the juror privately in chambers and then ordered her discharged. Plaintiff moved for a mistrial on the ground that the jury had deliberated too long for an alternate juror to become a meaningful and deliberative member of the jury. The court denied the motion and replaced the juror with an alternate.
We agree with plaintiff that the principles set forth in Collins apply to civil as well as criminal cases. The right to a jury trial in civil cases is also guaranteed by article I, section 16 of the California Constitution,
It therefore follows that the trial court erred in instructing the jury to continue with their efforts at the time the alternate was seated. It also appears that this error requires reversal. Our review of the evidence and the length of the jury's deliberations indicate that the case was a close one. Moreover, the alternate juror was one of the nine necessary to return the verdict. Given the closeness of the case, the composition of the nine jurors returning the verdict and the comparison of time spent deliberating before and after the substitution of the alternate juror, we conclude that this error was prejudicial. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]; People v. Collins, supra, 17 Cal.3d at p. 697; art. VI, § 13, Cal. Const.)
For guidance in the event of a retrial we will address certain of plaintiff's other contentions.
A peculiar risk is a risk which is peculiar to the work to be done and arises out of its character or the place where it is to be done, and against which a reasonable person would recognize the necessity of taking special precautions. (Rest.2d Torts, §§ 413, com. b., 416 com. b.) It is something other than the ordinary and customary dangers which may arise in the course of the work or of normal human activity. "`Peculiar' does not mean that the risk must be one which is abnormal to the type of work done, or that it must be an abnormally great risk. It has reference only to a special, recognizable danger arising out of the work itself." (Rest.2d Torts, § 413, com. b.) "It is not essential that the peculiar risk be one which will necessarily and inevitably arise in the course of the work, no matter how it is done. It is sufficient that it is a risk which the employer should recognize as likely to arise in the course of the ordinary and usual method of doing the work, or the particular method which the employer knows that the contractor will adopt." (Rest.2d Torts, § 416, com. e.)
A number of risks have been found to be peculiar to the activity involved. They include the risk of being struck by an automobile while eradicating traffic lines on a busy street (Van Arsdale v. Hollinger, supra, 68 Cal.2d at p. 254), the risk of being run over by dump trucks backing up during road construction work (Anderson v. L.C. Smith Constr. Co. (1969) 276 Cal.App.2d 436, 445-446 [81 Cal.Rptr. 73]), the risk of explosion while painting the inside of a tank with a volatile paint (Woolen v. Aerojet General Corp., supra, 57 Cal.2d at p. 410; McDonald v. City of Oakland (1965) 233 Cal.App.2d 672, 677-678 [43 Cal.Rptr. 799]), the risk of falling while working on a 10-foot high wall (Morehouse v. Taubman (1970) 5 Cal.App.3d 548, 557-558 [85 Cal.Rptr. 308]), or on a 20-foot high bridge (Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 365-366 [104 Cal.Rptr. 566]), the risk of electrocution while operating a crane near high voltage wires during bridge construction work (Walker v. Capistrano Saddle Club (1970) 12 Cal.App.3d 894, 900 [90 Cal.Rptr. 912]), and the risk of a cave-in while working in a 14-foot deep trench (Widman v. Rossmoor Sanitation, Inc. (1971) 19 Cal.App.3d 734, 744-747 [97 Cal.Rptr. 52]).
The reference to trenching being an ordinary and customary danger of construction work was erroneous and contradictory to other instructions given on the definition of a peculiar risk such as the general statement of the doctrine in BAJI No. 13.21.
Plaintiff also contends that Labor Code section 6304.5 is unconstitutional and that the court therefore erred in relying on it to exclude evidence of safety order violations and to refuse to instruct that the violation of safety orders constitutes negligence per se.
Bird, C.J., Tobriner, J., Mosk, J., Clark, J., Richardson, J., and Newman, J., concurred.
"THE COURT: Now Court and counsel and most all of the rest of you are cognizant of the fact that this was a long case, a lot of problems, and it's been a long time at it. And we all have work to do, not only you people, but counsel and myself.
"Considering all the factors that there are, including the finances involved to you and the Court and to counsel, and all of the factors that could be considered — I can't name them all. You can think of a lot more than I have mentioned here — we don't let the expenses of the County be the important matter, or anything of that sort. We want you to continue with your efforts, but we would like to have a report at 4:00 o'clock this afternoon or just before 4:00 as to whether you think that there is a chance of getting together as a result of further consideration of the case if you have not arrived at a determination by that time.
"So will the foreman please, if you're still continuing with your efforts, say about a quarter of 4:00, or shortly before that, get the thinking of the respective jurors on that subject so that you may report for them at that time.
"Thank you. And you will now be returned to the jury box, jury room, and continue your consideration of the case. And the last man will, of course, be guided by the same rules he has in the past." (Italics added.)
We are not here concerned with the federal constitutional guarantee of trial by jury in civil cases since it has never been held applicable to state proceedings and in any event is satisfied by a jury of six. (See Colgrove v. Battin (1973) 413 U.S. 149 [37 L.Ed.2d 522, 93 S.Ct. 2448].)