33 Cal. App. 5th 617
Cal. Ct. App. 5th2019Background
- Plaintiff Laurence Johnson, an employee of ABM (an independent contractor), fell from a partial extension ladder left at Raytheon’s cooling tower site and was seriously injured while investigating a low-water alarm.
- Raytheon had contracted Systems XT as prime contractor for the cooling tower renovation; Systems XT subcontracted Brownco (concrete) and Power Edge Solutions (electronic monitoring).
- The ladder Johnson used was the upper half of an extension ladder (labelled not for separate use) left by Brownco; Johnson did not inspect it or use his flashlight before climbing.
- Power Edge Solutions later repaired corroded sensor wiring and the false alarms ceased; Johnson had worker’s compensation from ABM.
- Johnson sued Raytheon and Systems XT (among others); Raytheon and Systems XT moved for summary judgment based on Privette immunity and lack of duty; the trial court granted both motions and Johnson appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Raytheon is liable despite Privette because it retained control over safety (Hooker retained-control exception) | Raytheon routinely left a platform ladder at the wall, creating an implied promise; its failure to have one that night affirmatively contributed to the injury | Privette bars liability; even if Raytheon had a practice, other safe ladders were available nearby so Raytheon’s omission did not affirmatively contribute | No triable issue of fact; Privette applies and Hooker exception not satisfied because safe alternatives were available |
| Whether Raytheon is liable under premises liability despite Privette (Kinsman latent-hazard exception) | The partial extension ladder was a hazardous condition of Raytheon’s property and Raytheon knew or should have known | Raytheon lacked knowledge of the ladder being left there at the time; hazard was discoverable and avoidable by Johnson | No triable issue of fact; Kinsman test not met because Raytheon lacked contemporaneous knowledge and hazard was discoverable/avoidable |
| Whether Systems XT owed Johnson a duty to prevent false alarms (monitoring) or ensure subcontractors stowed ladders (contract/foreseeability) | Systems XT’s contract obligations and foreseeability of harm created duties to workers on site, including Johnson | No special duty to employees of other contractors; contract provisions do not create third-party beneficiary or expand tort duty | No duty found as a matter of law; summary judgment affirmed against Systems XT |
| Whether Systems XT owed a duty to provide temporary lighting (new theory raised in opposition) | (Raised only in opposition) Systems XT installed/disconnected temporary lighting and thereby created/removed a safety measure | Theory not pleaded; too late to raise on summary judgment and no evidentiary support | New theory not pleaded and unsupported; cannot defeat summary judgment |
Key Cases Cited
- Privette v. Superior Court, 5 Cal.4th 689 (1993) (hirer of independent contractor generally immune from tort suit by contractor’s employee)
- Hooker v. Department of Transportation, 27 Cal.4th 198 (2002) (hirer liable if negligent exercise of retained control affirmatively contributes to injury)
- Kinsman v. Unocal Corp., 37 Cal.4th 659 (2005) (limited premises-liability exception where landowner knew of latent hazard unknown to contractor and failed to warn)
- Browne v. Turner Construction Co., 127 Cal.App.4th 1334 (2005) (distinguishing case where defendants removed only safe means of working, creating triable Hooker claim)
- Rowland v. Christian, 69 Cal.2d 108 (1968) (factors for determining existence of duty in negligence)