Date: 02-20-2018

Case Style: Luis Gonzales v. John R. Mathis

Case Number: B272344

Judge: Zelon

Court: California Court of Appeals Second Appellate District Division Seven on appeal from the Superior Court, Los Angeles County

Plaintiff's Attorney: Evan D. Marshall

Defendant's Attorney: Marvin S. Putnam, Jessica Stebbins and Robert J. Ellison

Description: Luis Gonzalez, a professional window washer, filed a
premises liability action against John Mathis. Mathis moved for
summary judgment, arguing that Gonzalez’s status as an
independent contractor precluded his claims. The trial court
granted the motion. We reverse, concluding there are triable
issues of fact whether Mathis can be held liable for Gonzalez’s
injuries.
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
3
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.
C. Trial Court Proceedings
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
4
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, rather than in the area inside the wall,
Gonzalez explained that the ledge was “the only way to get
through because you have the AC equipment [on the other side].”
Gonzalez later clarified that he was unable to walk in the area of
roof inside the parapet wall because “there was a lot of
equipment,” and he “couldn’t fit in there.” Gonzalez also testified
that he and his employees had always walked along the ledge,
rather than inside the parapet wall, and that he had never seen
anyone walk inside the 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) 5 Cal.4th 689 (Privette) and its
progeny, which generally prohibits an independent contractor or
his employees from suing the hirer of the contractor for
workplace injuries. (See SeaBright Ins. Co. v. US Airways, Inc.
(2011) 52 Cal.4th 590, 594 [“Generally, when employees of
independent contractors are injured in the workplace, they
cannot sue the party that hired the contractor to do the work”];
Tverberg v. Fillner Const., Inc. (2010) 49 Cal.4th 518, 521
(Tverberg) [the hiring party is generally not liable for workplace
injuries suffered by an independent contractor or the contractor’s
employees].)
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
5
(see Hooker v. Department of Transportation (2002) 27 Cal.4th
198 (Hooker),) and when the hirer failed to warn the contractor of
a concealed hazard on the premises. (See Kinsman v. Unocol
Corp. (2005) 37 Cal.4th 659 (Kinsman).) Mathis contended
neither exception applied because Gonzalez had specifically
admitted that he was not told how to clean the skylight, and that
he was aware of the dangerous conditions on the roof.
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, 37 Cal.4th 659. Gonzalez
contended that, contrary to Mathis’s assertion, Kinsman
permitted hirer liability for concealed hazards, as well as open or
known hazards the contractor could not have remedied through
the adoption of reasonable safety precautions. Gonzalez further
asserted that although he was aware of the dangerous conditions
on the roof (namely, the exposed ledge and dilapidated shingles),
there were disputed issues of fact whether he could have
reasonably avoided those hazards. In support, he cited to his
deposition testimony that he had walked along the ledge outside
6
the parapet wall because the piping and mechanical equipment
positioned next to the skylight prevented him from walking
inside the wall. According to Gonzalez, these statements raised
triable issues of fact whether he was required to “access the
skylights [by] . . . walk[ing] across the slippery, unprotected and
narrow catwalk,” or whether it was “feasible to go [along the
other side of] the wall.”
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 exercising
that authority in some manner that contributed to Gonzalez’s
injury, was insufficient to impose liability pursuant to the
retained control theory.
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.
7
At the hearing, the court informed the parties that its
tentative ruling was to grant the motion for summary judgment
pursuant to Privette, supra, 5 Cal.4th 689, and Kinsman, supra,
37 Cal.4th 659. The court explained that the evidence showed
Mathis’s agent had “told” Gonzalez “to clean the skylight and to
access the roof by way of the ladder. The agent also told [him]
there had been leaks on the roof. These instructions or
statements by the agent do not establish that [Mathis] had
control over the worksite. Gonzalez had walked on the narrow
walkway many times before the fall. . . . [He] knew of the
[dangerous] conditions on the roof. . . . None of the conditions
were concealed to [him].”
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 conclusive. After
hearing argument, the court adopted its tentative order, granted
8
Mathis’s motion for summary judgment and entered a judgment
in his favor.
DISCUSSION
A. Standard of Review
“A motion for summary judgment is properly granted only
when ‘all the papers submitted show that there is no triable issue
as to any material fact and that the moving party is entitled to a
judgment as a matter of law.’ [Citation.] We review a grant of
summary judgment de novo and decide independently whether
the facts not subject to triable dispute warrant judgment for the
moving party as a matter of law. [Citation.]” (Chavez v. Glock,
Inc. (2012) 207 Cal.App.4th 1283, 1301 (Chavez) [footnote
omitted]; see also Code of Civ. Proc., § 437c, subd. (c); Intel Corp.
v. Hamidi (2003) 30 Cal.4th 1342, 1348].) In making this
assessment, “[w]e view the evidence in the light most favorable to
the opposing party, liberally construing the opposing party’s
evidence and strictly scrutinizing the moving party’s.”
[Citation.]” (Chavez, supra, 207 Cal.App.4th at p. 1302.)
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, 27 Cal.4th at p. 204.)
9
In Privette, supra, 5 Cal.4th 689, the California Supreme
Court limited the breadth of the peculiar risk doctrine,
concluding that it “does not extend to a hired contractor’s
employees.” (Hooker, supra, 27 Cal.4th at p. 204 [summarizing
holding in Privette].) The Court reasoned that “[b]ecause the
Workers’ Compensation Act [citation] shields an independent
contractor from tort liability to its employees, applying the
peculiar risk doctrine to the independent contractor’s employees
would illogically and unfairly subject the hiring person, who did
nothing to create the risk that caused the injury, to greater
liability than that faced by the independent contractor whose
negligence caused the employee’s injury. [Citation.] . . . . ‘[T]he
property owner should not have to pay for injuries caused by the
contractor’s negligent performance of the work when workers’
compensation statutes already cover those injuries.’ [Citation].”
(Hooker, supra, 27 Cal.4th at p. 204.)
In subsequent cases, the Court established two exceptions
to the “Privette doctrine.” (Kinsman, supra, 37 Cal.4th at p. 666.)
In Hooker, supra, 27 Cal.4th 198, the Court considered whether a
hirer may be held liable to a contractor’s employees under the
“‘retained control theory’ as described in the Restatement Second
of Torts, section 414, which states: ‘One who entrusts work to an
independent contractor, but who retains the control of any part of
the work, is subject to liability for physical harm to others for
whose safety the employer owes a duty to exercise reasonable
care, which is caused by his failure to exercise his control with
reasonable care.’” (Kinsman, supra, 37 Cal.4th at p. 670
[summarizing holding in Hooker].)
The defendant in Hooker argued the term “others” should
not be read to include “a contractor’s employees,” and that such
10
employees should be barred from recovery “even when the hirer
retains control over safety conditions.” (Kinsman, supra, 37
Cal.4th at p. 670.) The Court disagreed, explaining that Privette
was predicated in part on “‘the recognition that a person who
[has] hired an independent contractor ha[s] “‘no right of control
as to the mode of doing the work contracted for.’”’ On the other
hand, if a hirer does retain control over safety conditions at a
worksite and negligently exercises that control in a manner that
affirmatively contributes to an employee’s injuries, it is only fair
to impose liability on the hirer.” (Hooker, supra, 27 Cal.4th at
p. 213.)
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, 27
Cal.4th at p. 210.) Thus, under Hooker, “a hirer of an
independent contractor is not liable to an employee of the
contractor merely because the hirer retained control over safety
conditions at a worksite, but . . . is liable . . . insofar as a hirer’s
exercise of retained control affirmatively contributed to the
employee’s injuries.” (Id. at p. 202.)
In Kinsman, 37 Cal.4th 659, the Court considered whether
a hirer who did not retain control over worksite conditions could
nonetheless be held “liable to an employee of [a] contractor who is
injured as the result of hazardous conditions on the landowner’s
premises.” (Id. at p. 664.) The plaintiff in Kinsman was exposed
to airborne asbestos while working for a contractor who had been
11
hired to perform maintenance at a refinery. After developing
mesothelioma, the plaintiff filed a personal injury action against
the refinery alleging that: (1) the refinery was negligent in the
exercise of the control it had retained over plaintiff’s work; and
(2) the refinery was negligent in exposing plaintiff to a concealed
hazardous condition at the workplace (asbestos). The jury
rejected the first theory of liability, but awarded the plaintiff
damages for exposure to a hazardous condition. The Court of
Appeal reversed, concluding that under Privette and Hooker, the
refinery could not be held liable to “a contractor’s employee . . .
under [a premises liability] theory unless the landowner had
[retained] control over the dangerous condition and affirmatively
contributed to the employee’s injury.” (Id. at p. 666.) The
Supreme Court granted review to assess how the “doctrine of
landowner liability . . . relates to the Privette doctrine.” (Id. at
p. 672.)
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, 37 Cal.4th at p. 672.) With respect to open hazards, the
Court explained: “[I]f a danger is so obvious that a person could
reasonably be expected to see it, the condition itself serves as a
warning, and the landowner is under no further duty to remedy
or warn of the condition. [Citation.] However, this is not true in
all cases. ‘[I]t is foreseeable that even an obvious danger may
cause injury, if the practical necessity of encountering the
danger, when weighed against the apparent risk involved, is such
12
that under the circumstances, a person might choose to encounter
the danger.’” (Kinsman, supra, 37 Cal.4th at p. 673.)
The Court then addressed “how these general principles
apply when a landowner hires an independent contractor whose
employee is injured by a hazardous condition on the premises.”
(Kinsman, supra, 37 Cal.4th at p. 673.) The Court concluded that
under the reasoning of Privette and Hooker, “a hirer generally
delegates to the contractor responsibility for supervising the job,
including responsibility for looking after employee safety. When
the hirer is also a landowner, part of that delegation includes
taking proper precautions to protect against obvious hazards in
the workplace. There may be situations, as alluded to . . . above,
in which an obvious hazard, for which no warning is necessary,
nonetheless gives rise to a duty on a landowner’s part to remedy
the hazard because knowledge of the hazard is inadequate to
prevent injury. . . . Thus, 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, a
corollary of Privette and its progeny is that the hirer generally
delegates the responsibility to take such precautions to the
contractor, and is not liable to the contractor’s employee if the
contractor fails to do so.” (Id. at pp. 673-674.)
The Court noted that in the case before it, the plaintiff had
“acknowledge[d] that reasonable safety precautions against the
hazard of asbestos were readily available, such as wearing an
inexpensive respirator.” (Kinsman, supra, 37 Cal.4th at p. 673.)
The plaintiff’s theory, however, was that the refinery could be
held liable because the refinery knew (or should have known) of
the risks of asbestos, but failed to warn the contractor.
13
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, 37 Cal.4th at p. 674-675.)
Thus, “when, . . . the ‘dangerous or defective condition’ is one that
can be remedied by taking reasonable safety precautions, the
landowner who has delegated job safety to the independent
contractor only has a duty to the employee if the condition is
concealed.” (Id. at p. 682.)
Finally, in Tverberg, supra, 49 Cal.4th 518, the Court
addressed whether the Privette doctrine extends to claims an
independent contractor brings against a hirer on his or her own
behalf. The Court of Appeal concluded Privette did not apply to
such claims because, unlike his or her employees, an independent
contractor is not subject to mandatory coverage for workplace
injuries under California’s workers’ compensation system.
14
The Supreme Court reversed, holding that although “the
availability of workers’ compensation insurance . . . was central
to [Privette’s] holding that the hirer should not incur . . . liability
for on-the-job injury to an independent contractor’s employee,”
(Tverberg, supra, 49 Cal.4th 527), a different rationale warranted
extension of the rule to claims brought by a contractor: “Unlike a
mere employee, an independent contractor, by virtue of the
contract, has authority to determine the manner in which
inherently dangerous construction work is to be performed, and
thus assumes legal responsibility for carrying out the contracted
work, including the taking of workplace safety precautions.
Having assumed responsibility for workplace safety, an
independent contractor may not hold a hiring party vicariously
liable for injuries resulting from the contractor’s own failure to
effectively guard against risks inherent in the contracted work.”
(Id. at p. 521.)
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
15
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, 37 Cal.4th at p. 671 [under retained control
exception, “when the hirer . . . actively participates in how the job
is done, and that participation affirmatively contributes to the
employee’s injury, the hirer may be liable in tort to the
employee”]; Evard v. Southern California Edison (2007) 153
Cal.App.4th 137, 145 [“the hirer must do more than retain control
over worksite safety conditions. The hirer must exercise that
16
retained control ‘in a manner that affirmatively contributed to
the injury of the contractor’s employee’”].) Gonzalez has alleged
his injury occurred because the configuration of the roof forced
him to walk along the exposed ledge, not because of the amount
of water his employees used to wash the skylight. There is no
evidence Mathis or Carrasco ever directed him to walk on the
ledge.
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, 27
Cal.4th at p. 210.) Rather, the hirer must have exercised that
retained authority in a manner that affirmatively contributed to
the injury. “[P]assively permitting an unsafe condition to occur
rather than directing it to occur does not constitute affirmative
contribution. [Citations.] The failure to institute specific safety
measures is not actionable unless there is some evidence that the
hirer . . . had agreed to implement these measures.” (Tverberg v.
Fillner Construction Inc. (2012) 202 Cal.App.4th 1439, 1446; see
also Hooker, supra, 27 Cal.4th at p. 211 [hirer not liable under
retained control theory “for mere failure to exercise a general
supervisory power to prevent the creation or continuation of a
hazardous practice”].) In this case, Gonzalez has presented no
evidence showing that Mathis ever agreed to remedy the
conditions on the roof. Merely allowing those conditions to
17
persist is not sufficient to demonstrate retained control within
the meaning of Hooker.
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, Mathis asserts that even if Kinsman
does permit hirer liability for open or known conditions that a
contractor could not have reasonably avoided or remedied, the
photographic and video evidence he submitted to the trial court
establishes as a matter of law that Gonzalez could have traversed
the roof by walking along the interior of the parapet wall, rather
than along the exposed ledge.
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
18
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
delegates the responsibility to take such precautions to the
contractor, and is not liable to the contractor’s employee if the
contractor fails to do so.” (Kinsman, supra, 37 Cal.4th at pp. 673-
674.) With respect to concealed hazards, the Court explained
that liability attaches only if the condition was known to the
hirer, but unknown to the contractor. Thus, according to the
Court, “when . . . the ‘dangerous or defective condition’ is one that
can be remedied by taking reasonable safety precautions, the
landowner who has delegated job safety to the independent
contractor only has a duty to the employee if the condition is
concealed.” (Id. at p. 682.)
Kinsman therefore indicates that under the “principles of
delegation” set forth in Privette and its progeny (Tverberg, supra,
49 Cal.4th at p. 527), a hirer cannot be held liable for injuries
resulting from open or known hazards the contractor could have
remedied through the adoption of reasonable safety precautions.1

1 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 Theaters Inc. v. Palermo (1956) 47
Cal.2d 469, 474 [“The discussion or determination of a point not
necessary to the disposition of a question that is decisive of the
appeal is generally regarded as obiter dictum . . . .”].) However,
we generally consider California Supreme Court dicta to be
“highly persuasive.” (People v. Wade (1996) 48 Cal.App.4th 460,
19
As a corollary, 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.
2

467 [“Dicta of our Supreme Court are highly persuasive”];
Gogri v. Jack In The Box Inc. (2008) 166 Cal.App.4th 255, 272].)
“‘When the Supreme Court has conducted a thorough analysis of
the issues or reflects compelling logic, its dictum should be
followed.’ [Citation.]” (Hubbard v. Superior Court (1997) 66
Cal.App.4th 1163, 1169 (Hubbard); see also Howard Jarvis
Taxpayers Assn. v. City of Fresno (2005) 127 Cal.App.4th 914, 925
[“Even if the court’s conclusions technically constitute dicta, we
will not reject dicta of the Supreme Court without a compelling
reason”].) Kinsman’s discussion and analysis of a hirer’s liability
for open hazards was thorough, and appears to have been
“carefully drafted. It was not ‘. . . inadvertent, ill-considered or a
matter lightly to be disregarded.’ [Citation].” (Hubbard, supra,
66 Cal.App.4th at p. 1169.)
2 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, 37 Cal.4th at p. 673.) As discussed
above, however, the Court further observed that when a
landowner hires an independent contractor, the hirer delegates
responsibility to the contractor to remedy any open hazard that
can be addressed through the adoption of reasonable safety
precautions. (Ibid.) Thus, under Kinsman, a hirer’s liability for
injuries resulting from an open hazard is not dependent on the
foreseeability that a contractor might encounter the hazard, but
rather on whether the hazard was one that the contractor could
have remedied through the adoption of reasonable safety
precautions.
20
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 and mechanical equipment prevented him
from walking inside the wall. Mathis, however, asserts the video
and photographic evidence “conclusively establish that Gonzalez’s
self-serving [statements] claiming he could not fit through the
interior portion of the roof . . . is false.” The photographs and
video were taken during an inspection of the roof that Gonzalez’s
experts and lawyers conducted in October of 2015, more than
three years after the incident. The images show several
individuals maneuvering around the piping and electrical
equipment positioned between the skylight and the parapet wall.
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) 19 Cal.2d 647, 656 [in premises
liability action, “[w]hether plaintiff’s action was reasonable and
prudent under the circumstances was for the jury to decide as an
issue of fact’]; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1207
[“Whether a dangerous condition has existed long enough for a
reasonably prudent person to have discovered it is a question of
fact for the jury”]; Carson v. Facilities Development Co. (1984) 36
Cal.3d 830, 843 [“The questions of whether a dangerous condition
could have been discovered by reasonable inspection and whether
there was adequate time for preventive measures are properly
left to the jury”].) Such questions “cannot be resolved by
summary judgment” (Onciano v. Golden Palace Restaurant, Inc.
(1990) 219 Cal.App.3d 385, 395) “unless reasonable minds can
21
come to but one conclusion.” (Peterson v. San Francisco
Community College Dist. (1984) 36 Cal.3d 799, 810.)
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.
3 Mathis has presented no

3 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
22
evidence that the video, taken in 2015, accurately depicts the
condition of the roof as it was at the time of the incident in 2012.
Nor has Mathis presented evidence negating other factors that
might have affected Gonzalez’s ability to traverse the area inside
the parapet wall, including, for example, his size in relation to
the persons depicted in the video, or whether he was required to
carry equipment that rendered the pathway impassable.
Standing alone, photographs and videos showing different people
maneuvering along the inside of the parapet wall three years
after the date of the incident is insufficient to prove as a matter
of law that Gonzalez could have reasonably done the same.4

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, 37
Cal.4th at p. 682.)
4 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) 55 Cal.App.4th 1014, 1028; Lueras v. BAC Home Loans
Servicing, LP (2013) 221 Cal.App.4th 49, 71 [“We may decline to
address arguments made perfunctorily and exclusively in a
footnote”]; see also People v. Lucatero (2008) 166 Cal.App.4th

Outcome: The judgment in favor of Mathis is reversed. Appellant shall recover his costs on appeal.

Plaintiff's Experts:

Defendant's Experts:

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