Issue By: J. Stephanie Krmpotic
Luis Gonzalez v. John R. Mathis, et al.
Court of Appeal, Second District (February 6, 2018)
The Privette doctrine, protects the hirers of independent contractors from liability for workplace injuries involving “peculiar risk.” In this case, the trial court granted a motion for summary judgment brought by the property owner who hired the injured contractor. Based on two exceptions to Privette, the Second Appellate District Court considered whether triable issues of fact were presented by the motion, specifically, (1) whether the hirer “retained control” over the contractor’s work in a manner that contributed to the injury; and (2) whether the hirer failed to warn the contractor of a “hazardous condition.”
The injured contractor, Luis Gonzalez (“Gonzalez”), owned and operated Hollywood Hills Window Cleaning Company, which advertised itself as a specialist in “hard to reach windows and skylights.” Defendant John R. Mathis (“Mathis”) owned the residence where plaintiff was injured. His housekeeper, Marcia Carrasco (“Carrasco”), regularly hired Gonzalez’ company to clean the skylights at the Mathis residence. Plaintiff had been on the roof many times and always walked along a ledge outside of a parapet wall to get access to a skylight because, “the ledge was the only way to get through because you have AC equipment [on the other side].” Plaintiff acknowledged that he had regularly walked outside the parapet wall. The day of the accident, Carrasco told plaintiff’s employees that they were to use less water because water was leaking in the house and also told Gonzalez to perform the various tasks in a specified order.
The trial court granted Mathis’ motion for summary judgment pursuant to Privette and Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, explaining the statements made by the housekeeper did not establish control over the worksite. The trial court also held that plaintiff had walked on the narrow walkway many times before and that none of the conditions were concealed from him.
The Appellate Court, in reviewing the trial court’s decision, provided a summary of Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198 (“Hooker”) which set the standard for the “retained control” exception to the Privette doctrine and addressed the level of control that needs to be established to show an affirmative contribution to the injury of the contractor’s employee. In citing to the policy behind the Hooker decision, the Court noted that the Workers’ Compensation Act shields an independent contractor from tort liability to its employees and that imposing liability would illogically and unfairly subject the hirer, who did nothing to create the risk causing harm, to greater liability than faced by the independent contractor whose negligence caused the employee’s injury. The Court noted the subsequent decision in Tverberg v. Fillner Const., Inc. (2010) 49 Cal.4th 518 (“Tverberg”) in extending the doctrine to an independent contractor who brings suit on his or own behalf.
What constitutes an “affirmative contribution” to the injuries of an independent contractor has been a challenging issue to overcome by summary judgment because the courts have viewed “affirmative contribution” as a fact-based issue. Here, plaintiff argued that the housekeeper’s comments constituted an affirmative contribution because she gave specific direction to plaintiff and his crew. The Court distinguished her comments from the level of direction necessary to show control, and found that there was no evidence that Gonzalez was ever directed to walk on the ledge. Quoting the holding in Tverberg, the Court noted that, “[P]assively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution.” The Court found that no evidence had been presented to show that Mathis ever agreed to remedy the condition of the roof, and merely allowing the conditions to persist were not sufficient to demonstrate retained control within the meaning of Hooker.
However, the Court found a triable issue of fact under the “hazardous condition” exception set forth in Kinsman. In Kinsman, the Supreme Court defined 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. Here, it was acknowledged that the ledge lacked safety features and that this was known to Gonzalez. When a safety hazard may be addressed through reasonable safety precautions, responsibility is delegated to the contractor. In this case, Mathis presented evidence to show that Gonzalez had an option other than walking outside the parapet wall, but the Court felt that the reasonableness of Gonzalez’ actions and whether he had the option of avoiding the risk was a question of fact for the jury to decide.
This Appellate Court decision is helpful in discussing what constitutes an “affirmative contribution” under the “retained control” exception and under what circumstances an unconcealed “hazardous condition” may create a basis for liability. Nonetheless, this decision is fact-specific. This case leaves room for triable issues of fact both with respect to what constitutes supervisory control over an independent contractor and what may constitute a condition which may not be remedied by the contractor through reasonable precautions.
For a copy of the complete decision, see: Gonzalez v. Mathis