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California Supreme Court:
C.A.’s Attempt to Expand ‘Privette Doctrine’ Is Rejected
Unanimous High Court Says Landowner Is Not Liable to Injured Contractor Where Hirer Did Not Exercise Control Over Worksite, Dangers Were Known to Contractor; Declines to Create Liability Based on Known but Unremedied Hazard
By a MetNews Staff Writer
Los Angeles Superior Court Judge Gerald Rosenberg got it right in holding that a homeowner who hired a contractor to clean his skylight and did not exercise control over the worksite was not liable to him for injuries he suffered when he fell off the roof due to dangerous conditions that were known to him—and Div. Seven of this district’s Court of Appeal got it wrong in scuttling a summary judgment in favor of the hirer—the California Supreme Court declared yesterday.
Justice Joshua P. Groban wrote for a unanimous court in reversing Div. Seven’s Feb. 6, 2018 decision reinstating a personal injury action by Luis Gonzalez, a professional window cleaner, against John Mathis, who engaged his services. Then-Court of Appeal Justice Laurie Zelon, now retired, authored the opinion.
In finding the absence of premises liability, Rosenberg applied the “Privette doctrine.” Then-California Supreme Court Justice Joyce Kennard, in her 1993 opinion in Privette v. Superior Court, articulated the rule in these words:
“When, as here, the injuries resulting from an independent contractor’s performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers’ compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries.”
Rosenberg found inapplicable two exceptions to the doctrine created in subsequent state high opinions: where the hirer controlled the work or failed to warn of hazards unknown to the contractor.
However, Zelon sought to create a further exception, saying that “the hirer can be held liable when he or she exposes a contractor (or its employees) to a known hazard that cannot be remedied through reasonable safety precautions.” The Supreme Court yesterday declared its rejection of that view. Groban wrote:
“We conclude that permitting liability under such circumstances, thereby creating a broad third exception to the Privette doctrine, would be fundamentally inconsistent with the doctrine. When a landowner hires an independent contractor to perform a task on the landowner’s property, the landowner presumptively delegates to the contractor a duty to ensure the safety of its workers. This encompasses a duty to determine whether the work can be performed safely despite a known hazard on the worksite. As between a landowner and an independent contractor, the law assumes that the independent contractor is typically better positioned to determine whether and how open and obvious safety hazards on the worksite might be addressed in performing the work.”
He continued:
“Our case law makes clear that, where the hirer has effectively delegated its duties, there is no affirmative obligation on the hirer’s part to independently assess workplace safety. Thus, unless a landowner retains control over any part of the contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the injury…, it will not be liable to an independent contractor or its workers for an injury resulting from a known hazard on the premises. Because the Court of Appeal held otherwise, we reverse the judgment.”
Groban went on to spell out:
“A landowner does not fail to delegate responsibility to the contractor for workplace safety simply because there exists a known hazard on the premises that cannot be readily addressed by the contractor. Were we to hold otherwise, we would vastly expand hirer liability and create considerable tension with decades of case law establishing that a hirer is not liable where it is merely aware of a hazardous condition or practice on the worksite.”
A contrary holding, he said, “would turn Privette’s presumption of delegation on its head by requiring the landowner to affirmatively assess workplace safety.”
Embracing the Court of Appeal’s view, Groban reasoned, would senselessly impose liability on landowners with which other hirers would not be saddled. “Furthermore, it would be difficult, if not impossible, for a landowner to ever obtain summary judgment were we to adopt a rule that subjects landowners to potential liability where there are no reasonable safety precautions available to protect against a known danger,” the jurist added, explaining:
“The question of whether the independent contractor, in hindsight, could have adopted reasonable safety precautions to protect against a known hazard will almost always encompass disputed issues of material fact.”
The case is Gonzales v. Mathis, 2021 S.O.S. 4659.
Representing Gonzales on appeal were West Los Angeles attorney Evan D. Marshall, Woodland Hills practitioner Wayne McClean, and Brian J. Panish and Spencer R. Lucas of the West Los Angeles firm of Panish Shea & Boyle. Acting for Mathis were Marvin S. Putnam, Jessica Stebbins, Robert J. Ellison and Michael E. Bern of Latham & Watkins.
Copyright 2021, Metropolitan News Company