The opinion
Filed 9/2/22 Certified for Publication 9/28/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
RICKY LEE MILLER, JR., C090751
Plaintiff and Appellant, (Super. Ct. No. 34-2017-
00207092-CU-PO-GDS)
v.
ROSEVILLE LODGE NO. 1293 et al.,
Defendants and Respondents.
This case involves application of the so-called Privette doctrine, which deals with
whether an entity that hires an independent contractor can be liable for on-the-job injuries
sustained by the independent contractor’s workers. Under the Privette doctrine, the
answer is no, unless an exception applies.
Defendant and respondent Roseville Lodge No. 1293, Loyal Order of Moose, Inc.
(the Lodge) hired Charlie Gelatini to move an automated teller machine (ATM) on its
premises. Plaintiff and appellant Ricky Lee Miller, Jr., worked for Gelatini and was the
person who performed the work. Miller was injured on the job when he fell from a
1
scaffold, and he seeks to hold the Lodge and its bartender John Dickinson liable for his
injuries. Citing the Privette doctrine, the Lodge and Dickinson argued they are not liable,
and they moved for summary judgment. Miller argued triable issues of fact exist over
whether an exception applies. The trial court granted the motion, and Miller appealed.
We now affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
Gelatini owns Tri-Valley Amusement, Inc. (collectively Gelatini). Miller worked
part time for Gelatini installing, upgrading, repairing, maintaining, and cleaning ATM’s.
Gelatini was the point of contact with the customer, and about 40 percent of the time he
would be at the job site with Miller. Gelatini would tell Miller what needed to be done,
and Miller would complete the work. Miller was working for Gelatini at the time of the
incident and considered himself to be Gelatini’s employee.1
Gelatini was hired by the Lodge to relocate an ATM. On the day of the incident,
Gelatini and Miller arrived at the Lodge without a ladder. They walked inside the Lodge
and saw a scaffold up against one of the walls near the bar area. Dickinson was the only
1 There is a hint in Miller’s brief that there may be a dispute over whether he was
Gelatini’s employee or was an independent contractor. However, neither party directly
addresses this issue in their briefs, and assuming there is such a dispute, we find it to be
immaterial because the Privette doctrine applies whether the injured worker is an
employee or is himself an independent contractor, and Miller does not suggest otherwise.
(See, e.g., Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 270 & fn. 2
[doctrine applies when “ ‘contract worker’ ” is injured on the job, and “ ‘contract
worker’ ” includes “the independent contractor personally, the independent contractor’s
employees, the independent contractor’s subcontractors personally, the subcontractors’
employees, and so on”]; Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518,
528 [“It would be anomalous to allow an independent contractor . . . to recover against
the hirer . . . while denying such recovery to an independent contractor’s employee”].)
2
other person present at the Lodge when the incident occurred. He was working as a
bartender and was in charge of the area where the scaffold was located.
Miller, Gelatini, and Dickinson offered slightly different accounts of what
happened next. Miller states he asked Dickinson for a ladder so he could check where in
the ceiling he was going to have to run cables for the ATM. Dickinson replied that he did
not have a ladder, but that Miller could use the scaffold. Miller states he asked Dickinson
if the scaffold was safe, and Dickinson responded that it was and that he used it to change
lightbulbs.
According to Gelatini, the scaffold was already in the room where the work would
be done. Miller put his hands on the scaffold and yelled to Dickinson, “Hey, is this thing
safe?” Dickinson responded, “I don’t know.” Miller then proceeded to climb the
scaffold.
According to Dickinson, Gelatini asked him if Miller could use the scaffold.
Dickinson replied, “Does he know how to use it?” and Gelatini responded, “Of course he
does because he does this for a living.”
The scaffold had four wheels that had to be locked to prevent it from moving
while in use. Miller had never used a scaffold before, and did not know that it had
wheels or that the wheels had to be locked in order to prevent it from moving. Dickinson
did not say anything about the scaffold having wheels or the wheels needing to be locked,
and he did not know whether the wheels were locked.
Miller proceeded to climb onto the scaffold. He testified he was not actually
moving the ATM while he was on the scaffold, and that he was “just looking at where we
can run the line.” While getting down off the scaffold he put his hand on the wall, the
scaffold shifted away from the wall, and he fell and hit his head. Immediately after the
incident, Dickinson took a picture of the scaffold that showed one of the wheels was
unlocked.
3
Miller sued the Lodge and Dickinson for negligence and respondeat superior.2 In
support of his negligence claim, Miller alleged the Lodge owned, controlled, and
maintained the scaffolding. He also alleged: (1) the defendants negligently permitted,
encouraged, or instructed him to use the scaffold; (2) they knew or should have known
the scaffold was dangerous, or unsecured, or unsafe; and (3) he was not aware the
scaffold was dangerous, or unsecured, or unsafe. Finally, he alleged that, as a result of
the defendants’ negligence, the scaffold moved while he was on it, which caused him to
fall to the ground and suffer personal injuries. In support of his respondeat superior
claim, Miller alleged Dickinson was an employee of the Lodge, and was acting within the
scope of his employment at the time of the incident.
The Lodge and Dickinson moved for summary judgment on the ground that the
Privette doctrine provides a complete defense to Miller’s claim for negligence and his
derivative claim for respondeat superior.3 The trial court agreed and granted the motion.
Judgment was entered in favor of the Lodge and Dickinson.
Miller timely appealed.
II
DISCUSSION
1. Standard of Review
On appeal from the grant of a motion for summary judgment, “ ‘ “ ‘[w]e review
the trial court’s decision de novo, considering all the evidence set forth in the moving and
opposing papers except that to which objections were made and sustained.’ ” [Citation.]
2 He also sued Gelatini and Tri-Valley Amusement, Inc. Although they are also
defendants in the underlying action, they are not parties to the underlying summary
judgment motion or to this appeal.
3 The Lodge also argued the respondeat superior claim failed for an additional reason
because Dickinson was not acting as its agent or employee when he interacted with
Miller. The trial court did not address this argument, and neither do we.
4
We liberally construe the evidence in support of the party opposing summary judgment
and resolve doubts concerning the evidence in favor of that party.’ ” (Wilson v. 21st
Century Ins. Co. (2007) 42 Cal.4th 713, 717.) “We accept as true both the facts shown
by the losing party’s evidence and reasonable inferences from that evidence.” (Castro-
Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1036.) “ ‘A
trial court properly grants a motion for summary judgment only if no issues of triable fact
appear and the moving party is entitled to judgment as a matter of law. [Citations.] The
moving party bears the burden of showing the court that the plaintiff “has not established,
and cannot reasonably expect to establish,” ’ the elements of his or her cause of action.”
(Wilson, at p. 720.)
Because the trial court’s judgment is presumed to be correct, Miller (as the
appellant) has the burden of affirmatively establishing reversible error. (Jameson v.
Desta (2018) 5 Cal.5th 594, 608-609; Swigart v. Bruno (2017) 13 Cal.App.5th 529, 535.)
Because “we review ‘the ruling, not the rationale,’ ” on this appeal from summary
judgment, we may affirm on any basis supported by the record and the law. (Skillin v.
Rady Children’s Hospital & Health Center (2017) 18 Cal.App.5th 35, 43.)
2. The Privette Doctrine and its Exceptions
The Privette doctrine takes its name from Privette v. Superior Court (1993)
5 Cal.4th 689 (Privette), which held that a person or entity that hires an independent
contractor to do work generally is not liable for on-the-job injuries to the independent
contractor’s workers. The doctrine has produced a large body of case law, including 10
cases from our Supreme Court alone: Privette, supra, 5 Cal.4th 689; Toland v. Sunland
Housing Group, Inc. (1998) 18 Cal.4th 253 (Toland); Camargo v. Tjaarda Dairy (2001)
25 Cal.4th 1235 (Camargo); Hooker v. Department of Transportation (2002) 27 Cal.4th
198 (Hooker); McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219 (McKown);
Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman); Tverberg v. Fillner
Construction, Inc., supra, 49 Cal.4th 518 (Tverberg); SeaBright Ins. Co. v. US Airways,
5
Inc. (2011) 52 Cal.4th 590 (Seabright); Gonzalez v. Mathis (2021) 12 Cal.5th 29
(Gonzalez); and Sandoval v. Qualcomm Incorporated, supra, 12 Cal.5th 256 (Sandoval).
According to our Supreme Court, the rationale for the doctrine is delegation.4
“[A]t common law it was regarded as the norm that when a hirer delegated a task
to an independent contractor, it in effect delegated responsibility for performing that task
safely, and assignment of liability to the contractor followed that delegation.” (Kinsman,
supra, 37 Cal.4th at p. 671; see also Gonzalez, supra, 12 Cal.5th at p. 54 [noting “strong
presumption under Privette that a [hirer] delegates all responsibility for workplace safety
to the independent contractor”]; SeaBright, supra, 52 Cal.4th at p. 594 [“By hiring an
independent contractor, the hirer implicitly delegates to the contractor any tort law duty it
owes to the contractor’s employees to ensure the safety of the specific workplace that is
the subject of the contract”]; Tverberg, supra, 49 Cal.4th at p. 528 [“When an
independent contractor is hired to perform inherently dangerous construction work, that
contractor, unlike a mere employee, receives authority to determine how the work is to be
performed and assumes a corresponding responsibility to see that the work is performed
safely. The independent contractor receives this authority over the manner in which the
work is to be performed from the hirer by a process of delegation”].) In its most recent
4 In Privette itself, and in earlier cases discussing the doctrine, our Supreme Court
explained the rationale in terms of the injured employee’s entitlement to workers’
compensation benefits, and the fact that workers’ compensation is the exclusive remedy
against an employer for injuries arising in the course and scope of employment. (See
Privette, supra, 5 Cal.4th at pp. 696-702; Toland, supra, 18 Cal.4th at pp. 261, 266-67;
Camargo, supra, 25 Cal.4th at pp. 1238-1240, 1244-1245; Hooker, supra, 27 Cal.4th at
pp. 204-206.) Starting with Kinsman, supra, 37 Cal.4th 659, our Supreme Court began
explaining the doctrine “in terms of delegation rather than workers’ compensation.”
(Sandoval, supra, 12 Cal.5th at p. 270.) It has also made clear that the doctrine applies
“to a solo independent contractor who has no employees and who has declined to obtain
workers’ compensation insurance, such that the contractor will receive no coverage for
his or her injuries.” (Gonzalez, supra, 12 Cal.5th at p. 42.)
6
Privette case, our high court explained, “When a person or organization hires an
independent contractor, the hirer presumptively delegates to the contractor the
responsibility to do the work safely. [Citations.] This presumption is grounded in two
major principles: first, that independent contractors by definition ordinarily control the
manner of their own work; and second, that hirers typically hire independent contractors
precisely for their greater ability to perform the contracted work safely and successfully.”
(Sandoval, supra, 12 Cal.5th at p. 269.) “A presumptive delegation of tort duties occurs
when the hirer turns over control of the worksite to the contractor so that the contractor
can perform the contracted work. Our premise is ordinarily that when the hirer delegates
control, the hirer simultaneously delegates all tort duties the hirer might otherwise owe
the contract workers. [Citations.] Whatever reasonable care would otherwise have
demanded of the hirer, that demand lies now only with the contractor. If a contract
worker becomes injured after that delegation takes place, we presume that the contractor
alone—and not the hirer—was responsible for any failure to take reasonable
precautions.” (Id. at p. 271.) In other words, because the hirer delegates to the contractor
all tort duties it might otherwise owe to the contractor’s workers, the hirer cannot be held
liable if those workers are injured on the job.
Thus, “The Privette doctrine holds that a hirer generally delegates to an
independent contractor all responsibility for workplace safety and is not liable for injuries
sustained by the contractor or its workers while on the job.” (Gonzalez, supra, 12 Cal.5th
at p. 40; see also SeaBright, supra, 52 Cal.4th at p. 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”].) In this case, the Lodge is the hirer, Gelatini is the
independent contractor, and Miller is the worker who was injured on the job. Under the
Privette doctrine, the Lodge is not liable for Miller’s on-the-job injuries because we
presume the Lodge delegated to Gelatini “all tort duties [it] might otherwise owe [to]
contract workers” like Miller, and that “[w]hatever reasonable care would otherwise have
7
demanded of the [Lodge], that demand lies now only with [Gelatini].” (Sandoval, supra,
12 Cal.5th at p. 271.)
There are, however, two exceptions to the Privette doctrine “that apply where [the
hirer’s] delegation is either ineffective or incomplete.” (Sandoval, supra, 12 Cal.5th at
p. 271.) The first exception was recognized in Hooker, supra, 27 Cal.4th 198 and is
usually referred to as the retained control exception. It applies if: (1) the hirer retains
control over the manner in which the contractor performs the work; (2) the hirer actually
exercises its retained control by involving itself in the work such that the contractor is not
entirely free to do the work in its own manner; and (3) the hirer’s exercise of retained
control affirmatively contributes to the worker’s injury. (Sandoval, at pp. 276-277.)
Under this exception, the hirer’s delegation of tort duties to the independent contractor
can be seen as “incomplete” or “only partial[]” because it retains control over some
aspect of the work and actually exercises that retained control. (Id. at p. 271.)
The second exception was recognized in Kinsman, supra, 37 Cal.4th 659 and is
usually referred to as the concealed hazard exception. It applies if the hirer is also an
owner or possessor of land, and if “the landowner knew, or should have known, of a
latent or concealed preexisting hazardous condition on its property, the contractor did not
know and could not have reasonably discovered this hazardous condition, and the
landowner failed to warn the contractor about this condition.” (Id. at p. 664, fn. omitted.)
Under this exception, the hirer’s delegation of tort duties can be seen as “ineffective”
because the independent contractor cannot protect its workers against a hazard it does not
know about and could not reasonably discover. (Sandoval, supra, 12 Cal.5th at p. 271.)
3. The Privette Presumption Applies.
The recent case of Alvarez v. Seaside Transportation Services LLC (2017)
13 Cal.App.5th 635 explained how the Privette doctrine affects the parties’ respective
burdens on a motion for summary judgment. Again, our Supreme Court has held that
“[w]hen a person or organization hires an independent contractor, the hirer presumptively
8
delegates to the contractor the responsibility to do the work safely.” (Sandoval, supra,
12 Cal.5th at p. 269, italics added.) The Alvarez court referred to this as the “Privette
presumption.” (Alvarez, supra, 13 Cal.App.5th at p. 642.) It held the Privette
presumption arises once the defendant establishes the requisite factual foundation—
namely, that it hired an independent contractor to perform certain work, and the
independent contractor’s worker was injured in the course of that work. (Id. at p. 644.)
Once the presumption arises, the burden shifts to the plaintiff to raise a triable issue of
fact as to whether one of the exceptions to the Privette doctrine applies, and if it cannot,
the defendant is entitled to summary judgment. (Ibid.)
Here, the trial court applied the Alvarez burden shifting analysis, and found (1) the
Lodge met its burden of establishing the Privette presumption, and (2) the burden thus
shifted to Miller to raise a triable issue of fact as to whether an exception applies. Miller
does not challenge this portion of the trial court’s decision. We will thus presume that
the Lodge delegated to Gelatini any tort duties it might otherwise have owed to Miller,
and that the sole issue on appeal is thus whether Miller has raised a triable issue of fact as
to whether an exception to the Privette doctrine applies.
4. There is No Triable Issue of Fact as to Whether an Exception Applies
A. The Retained Control Exception
Miller cites McKown, supra, 27 Cal.4th at page 222, for the proposition that “a
hirer is liable to an employee of an independent contractor insofar as the hirer’s provision
of unsafe equipment affirmatively contributes to the employee’s injury.” He contends
McKown “is on all fours with the present case” and “directly on point” because
Dickinson supplied him with a scaffold that was unsafe unless the wheels were locked,
but negligently failed to either check that the wheels were locked or tell Miller to do so.
McKown is a short decision, and the facts are quite simple. Wal-Mart Stores, Inc.
(Wal-Mart) hired an independent contractor to install a sound system in one of its stores,
and the plaintiff was an employee of the independent contractor. Installing the sound
9
system involved running wires and installing speakers in the store’s ceiling. Wal-Mart
requested—but did not direct—that the contractor use Wal-Mart’s forklift when
performing the work, and the contractor complied with the request. The forklift was
missing a chain that secured a work platform to the forklift, and the plaintiff was injured
when the platform disengaged and fell to the floor. A jury found Wal-Mart was negligent
in providing unsafe equipment and allocated it 23 percent of the responsibility for the
plaintiff’s injuries. (McKown, supra, 27 Cal.4th at p. 223.) Wal-Mart appealed, arguing
it was immune from liability under the Privette doctrine, and our Supreme Court
affirmed.
The McKown court began by summarizing its decision in Hooker, which
recognized the retained control exception to the Privette doctrine and which held a hirer
could be liable for injuries to an independent contractor’s employee if the “hirer’s
exercise of retained control affirmatively contributed to the employee’s injuries.”
(McKown, supra, 27 Cal.4th at p. 225, italics added.) The McKown court then noted,
“Imposing tort liability on a hirer of an independent contractor when the hirer’s conduct
has affirmatively contributed to the injuries of the contractor’s employee is consistent
with the rationale of our decisions in Privette, Toland and Camargo, because the liability
of the hirer in such a case is not in essence vicarious or derivative in the sense that it
derives from the act or omission of the hired contractor. ‘To the contrary, the liability of
the hirer in such a case is direct in a much stronger sense of that term.’ (Hooker, supra,
27 Cal.4th at p. 212.)” (McKown, supra, 27 Cal.4th at p. 225.) Finally, it held, “For the
same reason, when a hirer of an independent contractor, by negligently furnishing unsafe
equipment to the contractor, affirmatively contributes to the injury of an employee of the
contractor, the hirer should be liable to the employee for the consequences of the hirer’s
own negligence.” (Ibid., italics added.) The McKown court thus appears to have viewed
the negligent furnishing of unsafe equipment as one way a hirer can exercise retained
control over a contractor’s work, and later cases have made that clear.
10
In Gonzalez, supra, 12 Cal.5th 29, for example, our Supreme Court recently
explained its holding in McKown as follows: “[W]e did find that the hirer in Hooker’s
companion case, McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, . . . exercised
its retained control in a manner that affirmatively contributed to the injury where it
required the independent contractor to use the hirer’s own defective equipment in
performing the work.” (Id. at p. 42, italics added.) It also explained: “In the nearly two
decades following our opinion in Hooker, courts have consistently reaffirmed that ‘[a]
hirer’s failure to correct an unsafe condition’ is insufficient, by itself, to establish liability
under Hooker’s exception to the Privette doctrine. [Citations.] To be liable, a hirer must
instead exercise its retained control over any part of the contracted-for work—such as by
directing the manner or methods in which the contractor performs the work; interfering
with the contractor’s decisions regarding the appropriate safety measures to adopt;
requesting the contractor to use the hirer’s own defective equipment in performing the
work; contractually prohibiting the contractor from implementing a necessary safety
precaution; or reneging on a promise to remedy a known hazard—in a manner that
affirmatively contributes to the injury. (See Hooker, at pp. 212, fn. 3, 215; McKown,
supra, 27 Cal.4th at p. 225; [citations].)” (Gonzalez, supra, 12 Cal.5th at p. 47, italics
added.) Even more recently, in Sandoval, supra, 12 Cal.5th 256 the Supreme Court cited
McKown as an example of a retained control case where “affirmative contribution” was
found because the “hirer ‘requested’ that contractor use faulty equipment, thus at least in
part inducing the contractor’s decision to use it.” (Id. at p. 277.) Thus, furnishing unsafe
equipment is simply one example of exercising retained control, rather than its own
separate exception to the Privette doctrine.5
5 In a footnote, Miller suggests that the negligent exercise of retained control is one
exception to the Privette doctrine, and the negligent provision of unsafe equipment is an
entirely separate exception. For the reasons just stated, we disagree, and find the
11
Miller argues McKown is directly on point. Miller contends that there are triable
issues of fact as to whether Dickinson, the Lodge’s agent, negligently provided him with
unsafe equipment. The unsafe equipment in this case is the scaffold, and Miller concedes
that what made the scaffold unsafe was the fact that the wheels were not locked.6 (He
acknowledges in his briefs, for example: “While Miller was on the scaffold, it moved
because at least one of the wheels was not locked, causing him to fall and sustain a
significant head injury”; “The scaffold here was dangerous to use unless the wheels were
locked”; “Dickinson knew the scaffold was not safe to use unless the wheels were locked,
yet he said nothing about the wheels and failed to check them”; “The scaffold is clearly
unsafe to use if the wheels are unlocked”; and “The failure to ensure that the wheels were
locked, or to even tell Miller to check the wheels, . . . created an unreasonable risk of
danger and was precisely why Miller was injured.”) We find Miller fails to raise a triable
issue of fact as to whether the retained control exception applies.
The trial court found McKown was distinguishable because the hirer in that case
“specifically requested the contractor to use [the] hirer’s own forklift.” We agree. Here,
and in contrast to McKown, Dickinson did not ask Miller or Gelatini to use the scaffold.
At best, he offered the scaffold for use, thereby permitting its use because Miller and
provision of unsafe equipment is simply one way a hirer can exercise retained control
over the worksite.
6 Miller also argues the trial court erred in overruling his objection to a defense expert’s
declaration that the expert inspected the scaffold about seven months after the accident,
and “[a]ll component parts were in serviceable condition. To my knowledge, no portion
of the scaffold had been repaired or replaced.” Miller objected on the grounds that the
statement lacked foundation and personal knowledge. Assuming for the sake of
argument that the objection should have been sustained, we find the error to be harmless.
The Lodge proffered the expert’s declaration to refute any argument that the scaffold was
defective, but Miller did not make such an argument in opposition to the motion. Instead,
he contended that the scaffold was unsafe to use unless the wheels were locked, not that it
was unsafe because it was not in serviceable condition or was otherwise defective in
some way.
12
Gelatini apparently had no equipment that would allow the necessary access, and
“passively permitting an unsafe condition to occur . . . does not constitute affirmative
contribution” within the meaning of the retained control exception. (Tverberg v. Fillner
Construction, Inc. (2012) 202 Cal.App.4th 1439, 1446.)
Miller argues this attempt to distinguish McKown is unpersuasive. He contends
the evidence shows Dickinson offered him the scaffold in lieu of a ladder, and he
analogizes this to Wal-Mart’s request in McKown that the contractor use its forklift. We
find the analogy to be inapt. There is a difference between asking a contractor to use
your equipment and allowing a contractor to use your equipment. Again, “a hirer is not
liable under Privette where it merely permits a dangerous work condition or practice to
exist. [Citation.] This is true even where the hirer knows of the danger and has the
authority and ability to remedy it.” (Gonzalez, supra, 12 Cal.5th at p. 46.) At best, the
evidence in this case would support a finding that Dickinson knew the scaffold was
unsafe unless the wheels were locked and had the ability to either advise Miller of that
fact or make sure the wheels were locked, but that he failed to do so. This is insufficient
to hold the Lodge liable for Miller’s injuries. Instead, “Something more is required, such
as ‘ “inducing injurious action or inaction through actual direction” ’ [citation]; directing
‘ “the contracted work be done by use of a certain mode” ’ [citation]; or interfering with
‘ “the means and methods by which the work is to be accomplished” ’ [citation].” (Id. at
p. 42.) Here, that “[s]omething more” is lacking because Dickinson did not direct Miller
to use the scaffold, he did not direct that the work be done by use of a certain mode, and
he did not interfere with the means and methods by which the work was done.
“A hirer ‘retains control’ where it retains a sufficient degree of authority over the
manner of performance of the work entrusted to the contractor,” and it “ ‘actually
exercise[s]’ ” its retained control “when it involves itself in the contracted work ‘such
that the contractor is not entirely free to do the work in the contractor’s own manner.’
[Citations.]” (Sandoval, supra, 12 Cal.5th at pp. 274, 276.) In McKown, Wal-Mart
13
involved itself in the work when it asked the contractor to use its forklift such that the
contractor was not entirely free to do the work in its own manner. Here, in contrast,
Dickinson did not ask Gelatini and Miller to use the scaffold or otherwise involve himself
(or the Lodge) in the work of moving the ATM, and Gelatini and Miller were free to do
the work as they saw fit.
SeaBright, supra, 52 Cal.4th 590, is instructive. There, the defendant was an
airline that hired an independent contractor to maintain and repair a conveyor that it used
to move luggage at an airport. An employee of the independent contractor was
inspecting the conveyor and was injured when his arm got caught in its moving parts.
The employee sued the airline, alleging causes of action for negligence and premises
liability.7 The airline moved for summary judgment based on Privette and Hooker,
arguing it was not liable for the employee’s injuries because it did not retain control over
the independent contractor’s work or exercise the control it retained in a way that
affirmatively contributed to the employee’s injury. The employee opposed the motion
with a declaration from an expert who stated the conveyor’s lack of safety guards
violated Cal-OSHA regulations and the safety guards would have prevented the
employee’s injury. The trial court granted the motion, and the appellate court reversed,
holding that, under the Cal-OSHA regulations, the airline had a nondelegable duty to
ensure that the conveyor had safety guards and that there was a triable issue of fact as to
whether the airline’s failure to perform this duty affirmatively contributed to the
employee’s injury. (SeaBright, supra, 52 Cal.4th at pp. 594-595.)
7 The lawsuit was initially filed by the independent contractor’s workers’ compensation
insurer, which claimed the airline had caused the employee’s injury and which sought to
recover the workers’ compensation benefits it had paid; the employee intervened in that
lawsuit. (SeaBright, supra, 52 Cal.4th at pp. 594-595.)
14
Our Supreme Court reversed, holding the airline “presumptively delegated to [the
independent contractor] any tort law duty of care the airline had under Cal-OSHA and its
regulations to ensure workplace safety for the benefit of [the independent contractor’s]
employees. The delegation . . . included a duty to identify the absence of the safety
guards required by Cal-OSHA regulations and to take reasonable steps to address that
hazard.” (SeaBright, supra, 52 Cal.4th at p. 601, italics added.) Thus, even though the
employee was injured because the conveyor lacked guard rails that were required by Cal-
OSHA regulations, the airline was not liable.
This case is similar. In SeaBright, the employee was injured because the
equipment he was working on lacked safety guards required by Cal-OSHA regulations.
Here, Miller was injured because the equipment he was using to perform the work (i.e.,
the scaffold) was unsafe unless its wheels were locked. Just as in SeaBright the airline
delegated to the independent contractor the duty to identify the absence of the safety
guards and to take reasonable steps to address the hazard, here, the Lodge delegated to
Gelatini the duty to identify the fact that the scaffold had wheels and was unsafe to use
unless the wheels were locked or the scaffold was steadied in some manner, and to take
reasonable steps to address that hazard.
We thus agree with the trial court that the retained control exception does not
apply.
B. The Concealed Hazardous Condition Exception
Miller also argues the Lodge is liable for his injuries because it failed to warn him
of a concealed hazardous condition on its property (i.e., the unsafe scaffold). We
disagree.
The concealed hazardous condition exception applies when the hirer is also an
owner or occupier of land. In that case, “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, preexisting hazardous condition
15
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. 675.) Here, the undisputed facts demonstrate the hazardous condition
was not concealed, and the exception thus does not apply even if we assume Dickinson
knew of the hazardous condition, and Dickinson failed to warn Gelatini and Miller.
“[A] ‘concealed’ hazard means something specific: a hazard that the hirer either
knows or reasonably should know exists, and that the contractor does not know exists
and could not reasonably discover without the hirer’s disclosure.” (Sandoval, supra,
12 Cal.5th at p. 272, italics added; see also Kinsman, supra, 37 Cal.4th at p. 664
[describing concealed hazard as one that is hidden].) If the hazard is “reasonably
ascertainable” to the independent contractor, the hazard is not concealed and the hirer is
not liable. (Kinsman, at p. 682.)
Here, the fact that the scaffold had wheels was not concealed. Gelatini and Miller
could have discovered their existence had they simply inspected the scaffold before
Miller climbed onto it. Miller argues that whether a condition is concealed is an issue of
fact that cannot be decided on summary judgment. Given the evidence in this case, we
disagree.
To create an issue of fact, Miller contends, “It was dark inside the room” where
the accident occurred. Presumably his point is that it was so dark the wheels on the
scaffold were not visible. Again, a concealed hazard is a hazard “that the contractor does
not know exists and could not reasonably discover without the hirer’s disclosure.”
(Sandoval, supra, 12 Cal.5th at p. 272, italics added.) That the room may have been dark
does not establish that Gelatini and Miller could not reasonably discover that the scaffold
had wheels unless Dickinson pointed that out—all they had to do to discover the wheels
was simply to look at the scaffold deploying adequate lighting.
Moreover, and more importantly, the evidence cited by Miller does not actually
support his contention that the room was so dark the wheels were not visible. He cites
16
deposition testimony from Gelatini and Dickinson. Gelatini was shown a photograph
(marked as exhibit No. 2) of a scaffold that was taken at an inspection that occurred
sometime after the accident, and he was asked, “Does that appear to be the scaffold that
was involved?” He responded, “I can’t tell because it’s light out -- dark in that room.” It
is unclear whether Gelatini was referring to the room depicted in the photograph or the
room where the accident occurred. Even if we assume he was referring to the room
where the accident occurred, however, at best his testimony might prove the room was
too dark to tell whether the scaffold depicted in a photograph was the same scaffold that
Miller used. Gelatini’s testimony does not create a triable issue as to whether the wheels
on the scaffold were visible when Miller used it.
Dickinson’s testimony is even less helpful to Miller. Dickinson was asked
whether it was “bright or dark” inside the Lodge on the day of the incident, and he
responded there “probably would have been lights on. But I don’t remember.”
Dickinson’s testimony that he doesn’t remember whether the lights were on is
insufficient to create a triable issue of fact as to whether Gelatini and Miller could not
reasonably discover the scaffold had wheels without Dickinson’s disclosure. (See, e.g.,
Johnson v. Tosco Corp. (1991) 1 Cal.App.4th 123, 140 [“It cannot seriously be argued
that a partially assembled and unstable scaffold placed over a hard and uneven surface
constitutes a concealed danger”].)
Miller also contends the fact that the wheels needed to be locked to safely use the
scaffold was not something he and Gelatini could discover without Dickinson’s
disclosure.8 Again, we disagree. Upon simple inspection, including checking whether
the scaffold would move before Miller climbed on it, Gelatini (and Miller) reasonably
should have known that the scaffold could move while Miller was on it if the wheels
8 In other words, even if the wheels themselves were visible, the concealed hazard was
the fact that the wheels needed to be locked.
17
were not locked or the scaffold was not otherwise steadied in some manner. Again, they
failed to inspect the scaffold.
Because the alleged hazard in this case was not concealed and was reasonably
ascertainable to Gelatini (and Miller), the concealed hazardous condition exception does
not apply. Instead, the Privette presumption remains unrebutted, and the Lodge
delegated to Gelatini any duty it had to protect Miller from hazards associated with using
a wheeled scaffold.
DISPOSITION
The judgment is affirmed and the Lodge shall recover its costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)
/s/
EARL, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
DUARTE, J.
18
Filed 9/28/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
RICKY LEE MILLER, JR., C090751
Plaintiff and Appellant, (Super. Ct. No. 34-2017-
00207092-CU-PO-GDS)
v.
ROSEVILLE LODGE NO. 1293 et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Sacramento County,
Christopher Krueger, Judge. Affirmed.
Demas Law Group, John N. Demas, Brad A. Schultz; and C. Athena Roussos for
Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Ernest Slome and Joann M. O.
Rangel for Defendants and Respondents.
1
THE COURT:
This opinion in the above-entitled matter filed September 2, 2022, was not
certified for publication in the Official Reports. For good cause it appears now that the
opinion should be published in the Official Reports and it is so ordered.
BY THE COURT:
/s/
MAURO, Acting P. J.
/s/
DUARTE, J.
/s/
EARL, J.
2