December 4, 2020
Congratulations to the Burnham Brown team of Paul Caleo and Greg McCormick who were successful in obtaining judgment against the Plaintiffs on behalf of their client South Bay Constructions Company in the matter of Jose Antonio Arcega Lopez et al v SBCC et al, Santa Clara County Case No.: 17-CV-314841. On October 15, 2020, Judge Thang Barrett granted the Motion for Summary Judgment based on the Privette doctrine filed by the Burnham Brown team on behalf of its client.
South Bay Construction Company was hired by the owners of a commercial property located at 1170 Olinder Court in San Jose as the general contractor for a project that involved renovation and improvement work on the administrative offices of the building, as well as to the refrigeration and food processing portion of the building. South Bay Construction performed the improvements and renovation work on the administrative portions of the building and hired Cold Storage to perform the work on the refrigeration system and refrigeration portion of the building. Plaintiff, Jose Arcega Lopez was employed by Cold Storage as a laborer. On September, 8, 2015, plaintiff was working for Cold Storage and was standing in the attic of the refrigeration portion of the building when the ceiling panel he was standing on gave-way and he fell 19 feet onto the concrete floor below. Plaintiff suffered multiple serious and permanent injuries including severe emotional distress that resulted in panic attacks. Plaintiff claimed that he would never be able to return to work as a laborer or construction worker. Plaintiff’s wife made a loss of consortium claim. Plaintiffs claimed total recoverable damages of up to $4.8 million.
The winning motion argued that the circumstances of the plaintiff’s accident fell squarely within the Privette doctrine. The motion argued that in accord with the Privette doctrine, South Bay Construction, as the hirer of Cold Storage, did not control the means and methods of how the subcontractor performed its work, and that South Bay Construction’s contract with Cold Storage duly delegated the responsibility for inspections and the provision of safe working conditions. Judge Barrett’s decision concluded the evidence and arguments presented on behalf of South Bay Construction clearly established the essential elements of the Privette doctrine. “Absent an obligation, there can be no liability in tort.”
Notwithstanding the extensive discovery conducted by counsel for the plaintiff seeking to defeat the motion, Judge Barrett agreed with Burnham Brown’s argument and ruled that South Bay Construction had meet its burden of proof and provided the factual foundation for the Privette presumption to apply. Judge Barrett further ruled that the plaintiffs had not met their burden of establishing that any of the exceptions to the Privette doctrine applied and consequently granted the motion for summary judgment on behalf of South Bay Construction.
The winning motion was filed by the Burnham Brown team in November 2019 but was not heard until September 2020 due to pandemic related delays as well as plaintiffs’ counsel conducting detailed discovery regarding the factual issues underlying the motion in an effort to establish an exception to the Privette rule and defeat the motion. Plaintiffs were represented in this lawsuit by the Veen Firm in San Francisco. Shortly after plaintiffs filed their second opposition to the Motion for Summary Judgment in advance of the continued hearing date of September 22, 2020, South Bay Construction associated in as its co-counsel with the Burnham Brown team, attorney Lorin Herzfeldt of Bremer Whyte Brown & O’Meara. Ms. Herzfeldt assisted in drafting the second Reply brief in support of the Motion and at oral argument before Judge Barrett.
Judgment is being entered against the plaintiffs on behalf of South Bay Construction Company and a cost bill is being filed.
Mr. Caleo and Mr. McCormick want to acknowledge and thank their former colleague Marianne Taleghani for her efforts in initially defended South Bay Construction in this lawsuit and then assisting Mr. Caleo in drafting the successful Motion for Summary Judgment.
Don’t hesitate to call or email Paul Caleo or Greg McCormick at email@example.com and firstname.lastname@example.org to learn more about the facts of this case and find out how they can assist you in any construction site accident litigation in California.