43 Cal.App.5th 705
Cal. Ct. App.2019Background
- Professional roofer Beau (Calvin Leslie) Gordon inspected ARC Manufacturing's warehouse roof for prospective buyer West Pack (no fee), entered via an unlocked hatch, and did not use fall protection.
- Gordon and a coworker observed a painted-warning area at the southeast corner and avoided it; much of the roof appeared normal and "camouflaged" the hazardous hole where Gordon later fell through and sustained head injuries from a 35-foot fall.
- ARC employees gave conflicting testimony about whether they warned Gordon the roof was unsafe; defendants did not hire or directly engage Gordon for the inspection.
- A jury found ARC and Meyers negligent and awarded Gordon $874,934.45; defendants (and their insurer Golden Eagle) appealed, arguing among other things that the court should have instructed on primary assumption of risk and that other trial errors occurred.
- The Court of Appeal affirmed, holding primary assumption of risk did not apply and rejecting defendants' challenges to comparative‑fault findings and counsel's closing remarks.
Issues
| Issue | Plaintiff's Argument (Gordon) | Defendant's Argument (ARC/Meyers) | Held |
|---|---|---|---|
| Whether trial court should have instructed on primary assumption of risk | Primary assumption of risk does not apply because defendants did not hire or engage Gordon and the hazardous condition was concealed | Primary assumption of risk applies to a roofer injured while inspecting a roof and therefore CACI No. 473 should have been given | Court: Refusal was correct; primary assumption of risk inapplicable where defendant did not hire/engage plaintiff; Neighbarger controls; Kinsman supports liability for concealed hazards |
| Whether Privette or hirer‑immunity principles bar Gordon's claim | Privette is distinct from primary assumption of risk and does not shield defendants who did not hire Gordon or act as West Pack's agent | Privette (and Ruiz as agent extension) should bar recovery; Kinsman language about roofers supports immunity | Court: Privette is a different doctrine; no evidence defendants were West Pack's agents; Kinsman permits recovery for latent/ concealed hazards the landowner knew about |
| Sufficiency of evidence on Gordon's comparative negligence | Gordon was not negligent: he avoided the known damaged area, the collapsed section was a concealed ("camouflaged") hazard, and even defense expert conceded his conduct was reasonable | Gordon knew roof was in bad shape and walked on it, so jury should have allocated some fault to him | Court: Substantial evidence supports jury's zero‑fault finding; defendants forfeited sufficiency challenge by not presenting all material evidence and expert testimony favored Gordon |
| Alleged misconduct in closing (golden‑rule / personal attacks) | Closing remarks did not ask jurors to put themselves in plaintiff's shoes and credibility attacks were supported by the record | Counsel made a forbidden golden‑rule argument and improperly demonized/attacked witnesses and owner | Court: Not a golden‑rule argument (counsel framed damages as what plaintiff would accept), credibility remarks were permissible; defendants forfeited objection for failing to timely object; no reversal warranted |
Key Cases Cited
- Neighbarger v. Irwin Industries, Inc., 8 Cal.4th 532 (primary assumption of risk does not apply where defendant did not hire or engage injured worker)
- Knight v. Jewett, 3 Cal.4th 296 (distinguishes primary and secondary assumption of risk)
- Kinsman v. Unocal Corp., 37 Cal.4th 659 (landowner may be liable to contractor's employee for latent or concealed hazards known to landowner)
- Privette v. Superior Court, 5 Cal.4th 689 (general rule that hirer of independent contractor is not liable for contractor employees' on‑the‑job injuries)
- Priebe v. Nelson, 39 Cal.4th 1112 (application of primary assumption of risk in occupational contexts and related policy rationales)
- Hodges v. Yarian, 53 Cal.App.4th 973 (applies firefighter's‑rule reasoning where public compensation makes application appropriate)
- Harry v. Ring the Alarm, LLC, 34 Cal.App.5th 749 (primary assumption of risk inapplicable where no relationship/compensation by defendant)