Nichols

Introduction

Plaintiff appeals from summary judgments (Code Civ. Proc., § 437c) in a legal malpractice action arising from an industrial accident.

Facts

In December 1987, Zurn Industries employed the 46-year-old plaintiff at a cogeneration plant construction project in Crow’s Landing, Stanislaus County. Zurn was a subcontractor and Kiewit Industrial was the general contractor on the project. Plaintiff had been a union boilermaker for over 24 years. On December 7, plaintiff commenced work on the exterior of a large boiler. He was working on scaffolding approximately 50 feet above the ground. Plaintiff testified at deposition he was working on the uppermost level of scaffolding with no workers above him. However, a coworker declared there were individuals working on an unfinished catwalk above the plaintiff.

Sometime before noon, plaintiff completed a heliarc weld and removed his welding “hood,” which left only a cloth cap on his head. Plaintiff then reached for his hard hat when something hit him on the head. Plaintiff dropped to his knees on the scaffolding, although he apparently did not lose consciousness. He never saw the object that hit him on the head. However,…