FACTUAL BACKGROUND
A. Summary of Mathis's Property
Defendant John Mathis owned a residence that contained an indoor pool. The pool was located in the northwest corner of the home, and covered by a large, rounded skylight that protruded through the flat roof. The section of roof located to the west of the skylight was divided by a three-foot-high parapet wall that ran parallel to the skylight. The area of roof between the skylight and the east side of the parapet wall was partially obstructed by a series of ventilation pipes and mechanical equipment. The area of roof on the west side of the parapet wall consisted of an exposed ledge, approximately two feet in width. Mathis had constructed the parapet wall to screen from view the piping and mechanical equipment positioned next to the skylight.
A ladder affixed to the west side of the house provided access to the roof. The top of the ladder was located near the beginning of the parapet wall.
B. Gonzalez's Accident
Plaintiff Luis Gonzalez owned and operated Hollywood Hills Window Cleaning Company, which advertised itself as a specialist in "hard to reach windows and skylights." Beginning in 2007, Mathis's housekeeper, Marcia Carrasco, regularly hired Gonzalez's company to wash the skylight and perform other services on the property.
On August 1, 2012, two of Gonzalez's employees were on the roof cleaning the skylight when Carrasco informed him water was leaking into the house. Carrasco instructed Gonzalez to go on the roof, and tell his employees they should use less water. Gonzalez climbed onto the roof using the affixed ladder. He then walked along the ledge on the west side of the parapet wall, and spoke with his employees. While walking back toward the ladder along the ledge, Gonzalez lost his footing, and fell off the roof.
1. Summary of complaint and Gonzalez's deposition
In April of 2014, Gonzalez filed a negligence action against Mathis asserting that "loose rocks, pebbles and sand on the roof of the property" constituted a "dangerous condition" that had caused Gonzalez to fall. In a subsequent interrogatory response, Gonzalez clarified he was seeking damages for three dangerous conditions on the roof. First, he alleged that the construction of the parapet wall forced persons who needed to access the skylight and other parts of the roof to walk along the exposed two-foot ledge, which had no safety railing. Second, he contended the roofing shingles were dilapidated, resulting in slippery and loose conditions. Third, he asserted the roof lacked "tie-off" points that would enable maintenance workers to secure themselves with ropes or harnesses.
At his deposition, Gonzalez testified that he had been on Mathis's roof many times, and had always used the ledge along the west side of the parapet wall to access the skylight. Gonzalez further testified that he knew the roof shingles were dilapidated and slippery, and had told Carrasco the shingles should be replaced. Gonzalez also admitted he knew the ledge lacked any protective features, and that the roof had no tie-off points.
When asked why he had chosen to walk along the ledge outside the parapet wall,
2. Mathis's motion for summary judgment
Mathis filed a motion for summary judgment arguing that Gonzalez's claims were precluded under the rule set forth in Privette v. Superior Court (1993)
Mathis argued there were only two exceptions to the Privette rule: when the hirer exercised control over the contractor's work in a manner that had contributed to the injury (see Hooker v. Department of Transportation (2002)
In his opposition, Gonzalez acknowledged he was an independent contractor, but argued there were triable issues of fact pertaining to both Privette exceptions. First, Gonzalez asserted there were "disputed issues of material fact as to whether [Mathis] retained control over the worksite." Gonzalez cited evidence showing Carrasco had directed him to perform various cleaning tasks in a specified order, and had also ordered him to get on the roof to tell his employees to use less water. Gonzalez also argued Mathis had retained control because he was the only party who had authority to fix the dangerous conditions on the roof.
Alternatively, Gonzalez argued there were triable issues of fact whether Mathis was liable under the hazardous condition exception set forth in Kinsman , supra,
In his reply brief, Mathis argued that Carrasco's statements to Gonzalez were insufficient to show Mathis had retained control over the manner in which Gonzalez cleaned the skylight. Mathis also argued that merely retaining the authority to remedy the conditions on the roof, without actually
Mathis disputed the assertion that Kinsman permits hirer liability for open hazards. He also argued that even if Kinsman did extend to open hazards the contractor could not have remedied through reasonable safety precautions, the evidence showed Gonzalez could have avoided the dangerous conditions on the roof by walking inside the parapet wall. In support, Mathis submitted photographs and a video that had been taken during an inspection of Mathis's roof. The visual evidence showed multiple people climb the ladder attached to the west side of the house, and then traverse the section of roof inside the parapet wall by stepping over and around the ventilation pipes and other mechanical equipment. According to Mathis, "[t]he video and photographic evidence conclusively establish[ed]" that Gonzalez's statements that he was required to walk along the ledge were false, and should be disregarded.
At the hearing, the court informed the parties that its tentative ruling was to grant the motion for summary judgment pursuant to Privette, supra,
Gonzalez's counsel argued that the court's proposed ruling failed to address that Mathis was the only party who had the authority to remedy the injury-causing conditions on the roof. According to counsel, Gonzalez had been unable to mitigate those hazards because "[h]e [was] simply there to clean," and because Mathis never "delegated that key safety measure of redoing the roof to [him]."
Gonzalez's counsel also argued that although plaintiff was aware of the dangerous conditions on the roof, there was nonetheless a question of fact whether he could have reasonably avoided those conditions: "In order to do the job, [Gonzalez] had to go [out onto the ledge]. And that's something for the jury to deal with.... Because [Mathis is] saying [Gonzalez] knew about it, he encountered the danger. But [Gonzalez] couldn't do it any other way." Counsel further asserted that while Mathis "[wanted] the court to rule on this fact ... [based on the video] submitted in reply," the evidence was not
DISCUSSION
A. Standard of Review
"A motion for summary judgment is properly granted only when 'all
B. Summary of the Privette Doctrine
Under the common law " 'doctrine of peculiar risk, a person who hires an independent contractor to do inherently dangerous work can be held liable for tort damages when the contractor causes injury to others by negligently performing the work. The doctrine serves to ensure that innocent bystanders or neighboring landowners injured by the hired contractor's negligence will have a source of compensation even if the contractor turns out to be insolvent.' " ( Hooker, supra,
In Privette , supra ,
In subsequent cases, the Court established two exceptions to the " Privette doctrine." ( Kinsman , supra ,
The defendant in Hooker argued the term "others" should not be read to include "a contractor's employees," and that such employees should be barred from recovery "even when the hirer retains control over safety conditions." ( Kinsman , supra,
The Court clarified, however, that "it would be unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over safety at the worksite. In fairness, ... the imposition of tort liability on a hirer should depend on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor's employee." ( Hooker , supra ,
In Kinsman ,
The Court began its analysis by reviewing the general principles that govern a landowner's liability for hazards on the premises. The Court explained that a landowner normally has a duty to warn of concealed hazards that present "an unreasonable risk of harm to those coming in contact with it." ( Kinsman , supra ,
The Court agreed, explaining: "A landowner cannot effectively delegate to the contractor responsibility for the safety of its employees if it fails to disclose critical information needed to fulfill that responsibility, and therefore the landowner would be liable to the contractor's employee if the employee's injury is attributable to an undisclosed hazard. ... [¶] ... [¶] We therefore disagree with the Court of Appeal in the present case inasmuch as it held that a landowner/hirer can be liable to a contractor's employee only when it has retained supervisory control and affirmatively contributes to the employee's injury in the exercise of that control. Rather, ... the hirer as landowner may be independently liable to the contractor's employee, even if it does not retain control over the work, if (1) it knows or reasonably should know of a concealed, pre-existing hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor." ( Kinsman , supra ,
Finally, in Tverberg, supra,
The Supreme Court reversed, holding that although "the availability of workers'
C. Mathis Failed to Establish Gonzalez's Claims Are Precluded Under the Privette Doctrine
Gonzalez argues the trial court erred in concluding his claims are precluded under the Privette doctrine. Gonzalez does not dispute Mathis hired him as an independent contractor, and that his claims are therefore subject to Privette and its progeny. He contends, however, that there are triable issues of fact whether Mathis can be held liable under the "retained control" exception set forth in Hooker , and the "hazardous condition" exception set forth in Kinsman .
1. Gonzalez failed to present evidence showing there is a triable issue of fact regarding the retained control exception
At his deposition, Gonzalez admitted that Mathis and Carrasco had never told him how he should clean the skylight. Despite this admission, Gonzalez asserts that two categories of evidence nonetheless show there is a triable issue of fact whether Mathis retained control over the manner and means of Gonzalez's work.
First, Gonzalez argues that statements Carrasco made to him on the day of the incident demonstrate retained control. Specifically, he cites evidence showing that Carrasco told him what order he should perform "the various projects [he] had been hired for," and also instructed him to tell his employees they should use less water to clean the skylight. Neither statement is sufficient to establish that Mathis "retained control" within the meaning of Hooker .
The first statement merely shows Carrasco specified when Gonzalez should clean the skylight in relation to the other tasks he had been hired to perform; it does not demonstrate Mathis retained control of how Gonzalez cleaned the skylight. Carrasco's second statement suggests Mathis did retain some level of control over the amount of water that should be used to clean the skylight. Gonzalez, however, has presented no argument explaining how Carrasco's instruction to use less water "affirmatively contributed" to the injuries he suffered. (See Kinsman , supra ,
Gonzalez next argues that there are triable issues regarding the retained control exception because the evidence shows Mathis was the only party who had authority to fix the dangerous conditions on the roof. Gonzalez appears to contend that because Mathis was the only person who could have remedied the conditions, he necessarily maintained control over safety at the worksite. As explained above, however, "retain[ing] the ability to exercise control over safety at the worksite" is not sufficient to establish liability under Hooker . ( Hooker , supra ,
1. Mathis failed to establish there is no triable issue of fact whether he can be held liable under Kinsman
Gonzalez also contends there are triable issues of fact whether Mathis can be held liable under the hazardous condition exception set forth in Kinsman . According to Gonzalez, Kinsman allows hirer liability for injuries resulting from two distinct types of hazards: (1) a hazard that is known to the hirer, but concealed from the contractor; and (2) a known or open hazard that "cannot be practically avoided" by the contractor. Gonzalez further asserts that in this case, there is conflicting evidence whether he could have avoided the condition that caused his injury, namely the narrow ledge along the west side of the parapet wall.
Mathis, however, argues that Kinsman "apples only when 'a hazard is concealed from the contractor, but known to the landowner.' " Alternatively,
We first address Mathis's assertion that Kinsman only permits hirer liability for hazardous conditions that are concealed to the contractor, and therefore precludes liability for any condition that is " 'open and obvious,' or otherwise known to the contractor." Kinsman separately analyzes what duty a hirer owes to a contractor for concealed hazards as opposed to open or known hazards. With respect to the latter, Kinsman explained that "when there is a known safety hazard on a hirer's premises that can be addressed through reasonable safety precautions on the part of the independent contractor, ... the hirer generally
Kinsman therefore indicates that under the "principles of delegation" set forth in Privette and its progeny ( Tverberg , supra ,
We next address whether Mathis has established as a matter of law that Gonzalez could have remedied the dangerous conditions on the roof through the adoption of reasonable safety precautions. In his deposition, Gonzalez stated that he was required to walk outside the parapet wall, along the exposed ledge, because piping
In premises liability actions, the reasonableness of a party's actions is generally a question of fact for the jury to decide. (See Neel v. Mannings, Inc . (1942)
The video and the photographs certainly cast doubt on Gonzalez's assertion that the piping and other equipment along the skylight prevented him from walking on the inside of the parapet wall. We disagree, however, that such evidence conclusively establishes Gonzalez could have reasonably utilized that area on the date of the incident.
The judgment in favor of Mathis is reversed. Appellant shall recover his costs on appeal.
We concur:
SEGAL, J.
BENSINGER, J.
Notes
We acknowledge that Kinsman 's statements regarding when a hirer can be held liable for contractor injuries resulting from open hazards on the property is technically dicta because the question decided in the case involved the circumstances under which a hirer can be held liable for injuries resulting from latent hazards. (See Stockton Theatre s, Inc. v. Palermo (1956)
In portions of his brief, Gonzalez appears to argue we should interpret Kinsman more broadly to permit hirer liability whenever it is "foreseeable that the [open or known] danger will be encountered by the workmen." Kinsman did acknowledge that a landowner can generally be held liable for an open hazard when it is " 'foreseeable' " that a person may " 'choose to encounter the danger.' " (Kinsman , supra ,
At oral argument, Mathis's counsel argued that the record also contained evidence establishing Gonzalez could have taken any number of alternative precautions to avoid the ledge. The only other specific precaution that counsel identified, however, consisted of placing a ladder on the east side of the house (the side opposite of where the ledge was located), and then walking across the roof to access the skylight. Mathis did not raise this argument in his appellate briefing, and raised the argument only in the reply brief he filed in the trial court proceedings. The only evidence he cited in support of the argument was Gonzalez's statement at deposition that he did not use a ladder to climb up the east side of the house because "[i]t would have been farther away to walk on the roof and to get to the same edge anyway." This single statement is insufficient to prove as a matter of law that Gonzalez could have reasonably avoided the ledge by placing a ladder on the east side of the house, and then walking across the roof. To the contrary, Gonzalez's statement that he would "get to the same edge anyway" suggests he would have been forced to encounter the ledge even if he had placed a ladder on the east side of the house.
Mathis also argues Gonzalez could have reasonably avoided the ledge by declining to accept the job altogether. Mathis presents no legal authority in support of his assertion that declining to perform a job qualifies as a reasonable safety precaution. If accepted, this argument would effectively preclude hirer liability for any injury resulting from an open or known hazard because a contractor always has the option of declining to accept a job. The language of Kinsman indicates, however, that a hirer is immune from liability for open hazards only "when ... the 'dangerous or defective condition' is one that can be remedied by taking reasonable safety precautions." (Kinsman , supra ,
In a footnote to the introductory section of his respondent's brief, Mathis argues we may affirm the trial court's judgment on an alternative ground, asserting that "Gonzalez is estopped from recovery because he mispresented [sic] himself as having worker's compensation insurance, as required by California state law, and which would have compensated him for his injuries, and improperly seeks to require Mathis to compensate him for an injury that should have been covered by his own claimed insurance." Mathis's brief presents no further argument on this issue. "We ... need not address ... contention[s] made only in a footnote." (Building Maintenance Service Co. v. AIL Systems, Inc. (1997)
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.