The opinion
Filed 11/10/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
FRANCISCO RAMIREZ et al.,
Plaintiffs and Appellants,
A162593
v.
PK I PLAZA 580 SC LP et al., (Alameda County
Super. Ct. No. RG19002904)
Defendants and Respondents.
Francisco Ramirez, a self-employed contractor, was hired by a shopping
center’s tenant to remove an exterior sign after the tenant vacated its space.
While searching for the sign’s electrical box, he entered a cupola on the
shopping center’s roof and fell through an opening built into the cupola’s
floor, sustaining serious injuries.
Ramirez and his wife (collectively, plaintiffs) filed a tort action against
defendants Kimco Realty Corporation and its subsidiary, PK 1 Plaza 580 SC,
LP (collectively, Kimco), who own and operate the shopping center. The trial
court granted summary judgment in Kimco’s favor based on the Privette
doctrine, which creates “a strong presumption under California law that a
hirer of an independent contractor delegates to the contractor all
responsibility for workplace safety[,] . . . mean[ing] that a hirer is typically
not liable for injuries sustained by an independent contractor or its workers
while on the job.” (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 37–38
(Gonzalez), citing Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette).)
1
On appeal, plaintiffs contend that summary judgment was improperly
granted because the Privette doctrine does not apply. We agree. Kimco did
not hire its tenant or Ramirez to perform the work. Thus, Kimco did not
delegate its own responsibility for the roof’s condition to Ramirez through an
employment relationship, as contemplated by Privette. Nor did Kimco
delegate such responsibility by virtue of its landlord-tenant relationship.
Since Kimco neither sought summary judgment nor argues for affirmance on
any basis other than the Privette doctrine, we must reverse and remand for
further proceedings. In doing so, however, we recognize the strong possibility
that Kimco will prevail under general principles of premises liability.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Kimco owns a Livermore shopping center. Freeway Insurance Services,
Inc. (Freeway) leased an office suite in the center from Kimco. In
October 2017, Freeway vacated the suite. Under the lease, Freeway thus
became responsible for removing an exterior sign from the suite. Kimco
offered to handle the removal and bill the cost to Freeway, but Freeway
elected to hire Ramirez, a self-employed contractor, to perform the work.
On the afternoon of November 6, 2017, Ramirez arrived at Freeway’s
suite to remove the sign. Although Kimco had arranged for someone to be
present to let Ramirez inside, no one was there when he arrived. While
waiting to access the suite, he confirmed that the sign was powered by a low
voltage electrical source that needed to be disconnected before he could
complete the job.
In his deposition, Ramirez testified that after he waited outside for
20 minutes, a woman from Kimco’s office arrived and gave him the keys to
2
Freeway’s suite.1 He asked her if a security guard or maintenance worker
was onsite, since they usually had “all the keys including for the attic access.”
The woman responded that she did not know anything about it, asked him to
call her half an hour before he finished the job, and left. Ramirez denied
telling the woman he might need to go onto the roof, and it is undisputed that
Kimco did not provide any directions to him about how to perform his job.
Once inside the suite, Ramirez searched for the electrical box, which
would usually be in the suspended ceiling behind the sign. Not finding the
box there, he decided to look for it on the roof.2 He went to the rear of the
building and used his own ladder to climb onto the roof.
On the roof, Ramirez saw a cupola that had an unlocked and open
access door. Believing the electrical box might be in the cupola, he fully
opened the access door and used a flashlight to look inside. He saw a “big
opening” in the drywall where he thought the electrical box might be.
Ramirez climbed into the cupola through the access door. Nine feet
from the access door, the cupola’s floor “transitions to an opening with [two
foot by six foot] joists,” which are two feet apart from each other.3 After
travelling 12 feet into the cupola, Ramirez fell through the opening and the
1Kimco disputed that any of its representatives gave Ramirez the keys
in person, pointing to email evidence that the code to a key lockbox was
provided to him. The parties agreed this discrepancy was not material to the
motion for summary judgment.
2As it turned out, the sign’s electrical source was in a room on the
building’s ground floor.
3Kimco presented evidence that the cupola houses the fire sprinkler
system and the opening is related to that system. Although implicitly
conceding that the opening is related to the sprinkler system, plaintiffs
disputed that the opening is necessary to the system’s functioning or that it
could not be made safer.
3
drywall of the ceiling below. He landed on the sidewalk, sustaining serious
injuries.
Ramirez and his wife sued Kimco in January 2019. In the operative
complaint, Ramirez brought causes of action for general negligence, premises
liability, negligence per se, and negligent infliction of emotional distress. His
wife also brought separate causes of action for negligent infliction of
emotional distress, based on the allegation that she witnessed Ramirez’s fall,
and loss of consortium.
Kimco moved for summary judgment, claiming it did not owe a duty of
care to plaintiffs. Kimco argued that the roof’s “opening was neither a
concealed condition nor . . . unascertainable to Ramirez,” and its duty to
“tak[e] proper precautions to protect against obvious hazards in the
workplace . . . was delegated to [him] under the Privette doctrine.” Plaintiffs
responded that the Privette doctrine did not apply because, among other
reasons, there was no employment relationship between Ramirez and Kimco.
The trial court granted Kimco’s motion for summary judgment. The
court concluded that Kimco “had no duty to ensure [Ramirez’s] safety,”
because the Privette doctrine applied even though Kimco did not directly hire
Ramirez. The court also found there was no triable issue of material fact as
to whether an exception to the doctrine applied. Accordingly, it entered
judgment in Kimco’s favor in April 2021.
II.
DISCUSSION
A. Standard of Review
Summary judgment is properly granted if “there is no triable issue as
to any material fact and . . . the moving party is entitled to a judgment as a
matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “A defendant seeking
summary judgment must show that the plaintiff cannot establish at least one
4
element of the cause of action.” (Regents of University of California v.
Superior Court (2018) 4 Cal.5th 607, 618; see Code Civ. Proc., § 437c,
subd. (p)(2).) If the defendant meets this burden, “the burden shifts to the
plaintiff . . . to show that a triable issue of one or more material facts exists
as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c,
subd. (p)(2).)
On appeal, we independently review an order granting summary
judgment, “ ‘ “ ‘considering all the evidence set forth in the moving and
opposing papers except that to which objections were made and sustained.’ ”
[Citation.] We liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.’ ” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc.
(2014) 59 Cal.4th 277, 286.) “We must affirm a summary judgment if it is
correct on any of the grounds asserted in the trial court, regardless of the
trial court’s stated reasons. [Citation.] Even if the grounds entitling the
moving party to a summary judgment were not asserted in the trial court, we
must affirm if the parties have had an adequate opportunity to address those
grounds on appeal.” (Garrett v. Howmedica Osteonics Corp. (2013)
214 Cal.App.4th 173, 181.)
B. General Legal Standards
The existence of Kimco’s legal duty to Ramirez is essential to all of
plaintiffs’ claims. “The elements of a negligence claim and a premises
liability claim are the same: a legal duty of care, breach of that duty, and
proximate cause resulting in injury.” (Kesner v. Superior Court (2016)
1 Cal.5th 1132, 1158.) Claims of negligent infliction of emotional distress are
generally premised not on a breach of a duty to avoid causing emotional
distress but on the breach of some other duty that proximately causes
5
emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th
965, 985.) Similarly, a spouse’s claim for loss of consortium is premised on
the success of the other spouse’s claims against the defendant. (Chavez v.
Glock, Inc. (2012) 207 Cal.App.4th 1283, 1315–1316.) “[T]he existence and
scope of a duty are questions of law.” (Staats v. Vintner’s Golf Club, LLC
(2018) 25 Cal.App.5th 826, 832.)
1. A landowner’s general duty of care
Civil Code section 1714 (section 1714) establishes this state’s “ ‘basic
policy . . . that [one] is responsible for an injury caused to another by [one’s]
want of ordinary care or skill in the management of [one’s] property . . . . The
proper test to be applied to the liability of the possessor of land in accordance
with [the statute] is whether in the management of [one’s] property [one] has
acted as a reasonable [person] in view of the probability of injury to others.’ ”
(Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 672 (Kinsman).) “As a
consequence of this general duty, those who own or occupy property have a
duty to maintain their premises in a reasonably safe condition. [Citations.]
To comply with this duty, a person who controls property must ‘ “ ‘ “inspect
[the premises] or take other proper means to ascertain their condition” ’ ” ’
and, if a dangerous condition exists that would have been discovered by the
exercise of reasonable care, has a duty to give adequate warning of or remedy
it.” (Staats v. Vintner’s Golf Club, LLC, supra, 25 Cal.App.5th at p. 833,
fn. omitted.)
In contrast, “ ‘if a danger is so obvious that a person could reasonably
be expected to see it,’ ” then generally “ ‘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
6
necessity of encountering the danger, when weighed against the apparent
risk involved, is such that under the circumstances, a person might choose to
encounter the danger.” ’ ” (Kinsman, supra, 37 Cal.4th at p. 673.)
“ ‘[I]n the absence of a statutory provision establishing an exception to
the general rule of . . . section 1714, courts should create one only where
“clearly supported by public policy.” ’ ” (Kesner v. Superior Court, supra,
1 Cal.5th at p. 1143.) Under Rowland v. Christian (1968) 69 Cal.2d 108
(Rowland), the primary factors a court evaluates “[i]n determining whether
policy considerations weigh in favor of such an exception . . . are ‘the
foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff suffered injury, the closeness of the connection between the
defendant’s conduct and the injury suffered, the moral blame attached to the
defendant’s conduct, the policy of preventing future harm, the extent of the
burden to the defendant and consequences to the community of imposing a
duty to exercise care with resulting liability for breach, and the availability,
cost, and prevalence of insurance for the risk involved.’ ” (Kesner, at p. 1143,
quoting Rowland, at p. 113.)
2. The Privette doctrine
“At common law, a person who hired an independent contractor
generally was not liable to third parties for injuries caused by the contractor’s
negligence in performing the work.” (Privette, supra, 5 Cal.4th at p. 693;
Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 269 (Sandoval).)
This rule was based on the presumption that when one hires an independent
contractor, one “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
7
contractors precisely for their greater ability to perform the contracted work
safely and successfully.” (Sandoval, at p. 269.)
Over time, courts created several exceptions to the common law rule,
including the peculiar risk doctrine. (Privette, supra, 5 Cal.4th at p. 693.)
Under that doctrine, a landowner who hires an independent contractor “to do
inherently dangerous work on the land” is liable to “innocent third parties
injured by the negligence of [the] independent contractor” in performing that
work. (Id. at pp. 694–695.) Thus, “liability imposed under the peculiar risk
doctrine is vicarious, meaning that the liability of a person hiring a
contractor to perform inherently dangerous work derives not from any
negligence by the hirer but from the injury-causing negligence of the hired
contractor.” (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 525
(Tverberg).)
Privette declined to extend the peculiar risk doctrine to cover injured
employees of an independent contractor performing inherently dangerous
work. (Tverberg, supra, 49 Cal.4th at p. 525; Privette, supra, 5 Cal.4th at
p. 702.) Thus, when an independent contractor or its employee is hurt on the
job, the Privette doctrine limits the liability of the contractor’s hirers,
including landowner-hirers. (Kinsman, supra, 37 Cal.4th at p. 664.) The
Supreme Court’s initial rationale for limiting the liability of the hirer of an
independent contractor was based on the availability of workers’
compensation. The Supreme Court reasoned that “[b]ecause workers’
compensation is the exclusive remedy for an employee’s workplace injuries,
thus barring recovery from the employer, so too an independent contractor’s
employee should not be allowed to recover damages from the contractor’s
hirer, who ‘is indirectly paying for the cost of [workers’ compensation]
8
coverage, which the [hired] contractor presumably has calculated into the
contract price.’ ” (Tverberg, at p. 525, quoting Privette, at p. 699.)
Later, the Supreme Court “recast [its] primary rationale for the Privette
doctrine in terms of delegation rather than workers’ compensation.”
(Sandoval, supra, 12 Cal.5th at p. 270.) Since “the hirer presumptively
delegates to the independent contractor the authority to determine the
manner in which the work is to be performed, the contractor also assumes the
responsibility to ensure that the worksite is safe, and the work is performed
safely.” (Gonzalez, supra, 12 Cal.5th at p. 41.) In addition, the doctrine
“promotes workplace safety through ‘clear rules about who’s responsible for
avoiding harms to workers when contractors are hired.’ (Sandoval[,] . . . [at
p.] 264.) Because of these types of considerations, [the Supreme Court] has
‘endorsed a “strong policy” of presuming that a hirer delegates all control over
the contracted work, and with it all concomitant tort duties, by entrusting
work to a contractor.’ ” (McCullar v. SMC Contracting, Inc. (2022)
83 Cal.App.5th 1005, 1013, quoting Sandoval, at p. 270.)
Accordingly, in Tverberg, the Supreme Court held that the peculiar risk
doctrine did not authorize an independent contractor hired by a
subcontractor, who in turn had been hired by a general contractor, to “seek[]
to hold the general contractor vicariously liable for [the independent
contractor’s] injuries arising from risks inherent in the nature or the location
of the hired work over which the independent contractor ha[d], through the
chain of delegation, been granted control.” (Tverberg, supra, 49 Cal.4th at
pp. 528–529.) Even though the “plaintiff independent contractor was not
subject to mandatory workers’ compensation coverage,” the Privette doctrine
barred him from suing the general contractor under a theory of vicarious
9
liability.4 (Tverberg, at p. 529; Sandoval, supra, 12 Cal.5th at pp. 270–271.)
Thus, the Privette doctrine applies if the injured party is the employee of an
independent contractor or the independent contractor itself, so long as the
duty to provide a safe workplace has been delegated to the contractor. (See
Sandoval, at p. 270, fn. 2; Gonzalez, supra, 12 Cal.5th at pp. 37–38.)
The Privette doctrine has two primary exceptions, under which a hirer
may nonetheless be liable to an independent contractor or the contractor’s
employee because the “hirer has failed to effectively delegate all
responsibility for workplace safety to the independent contractor.” (Gonzalez,
supra, 12 Cal.5th at pp. 38, 42.) First, under Hooker, “a hirer may be liable
when it retains control over any part of the independent contractor’s work
and negligently exercises that retained control in a manner that affirmatively
contributes to the worker’s [or contractor’s] injury.” (Gonzalez, at p. 38, citing
Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 202.)
Second, under Kinsman, “a landowner who hires an independent contractor
may be liable if the landowner knew, or should have known, of a concealed
hazard on the property that the contractor did not know of and could not
have reasonably discovered, and the landowner failed to warn the contractor
of the hazard.” (Gonzalez, at p. 38, citing Kinsman, supra, 37 Cal.4th at
p. 664.)
4 Although peculiar risk liability is essentially vicarious, not direct, “the
distinction between the two sorts of liability” in this context is not “neat.”
(Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 205.) Thus,
the Supreme Court has extended the Privette doctrine to bar causes of action
against hirers of independent contractors on liability theories that could be
characterized as direct, such as negligent hiring. (See Hooker, at pp. 201–
202.) At base, these theories are still derivative because the hired contractor,
not the hirer, is “ ‘ “the one primarily responsible for the worker’s on-the-job
injuries.” ’ ” (Id. at pp. 205–206.)
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C. The Privette Doctrine Does Not Shield Kimco from Liability.
Plaintiffs claim that “Privette is inapplicable” because it established
“the general rule . . . that a non-negligent hirer cannot be held liable for
injuries of an independent contractor,” and there was no employment
relationship between Ramirez and Kimco. (Emphasis changed.) We agree
that the Privette doctrine does not apply, and summary judgment was
therefore improperly granted.
1. The scope of this opinion
Initially, we note that the only issue presented for our review is
whether Kimco was entitled to summary judgment under the Privette
doctrine. Kimco has never claimed, below or on appeal, that it had no duty to
Ramirez even if the doctrine is inapplicable. We therefore do not decide
whether summary judgment would have been proper under general
principles of premises liability, including the Rowland factors. (Cf. Garrett v.
Howmedica Osteonics Corp., supra, 214 Cal.App.4th at p. 181.)
Because we conclude that the Privette doctrine does not apply, we
refrain from deciding plaintiffs’ claim that the trial court erred by concluding
that the cupola’s opening was obvious. In ruling that the Kinsman exception
to the doctrine was inapplicable, the court stated that the opening was “not a
‘concealed’ hazard as defined in Kinsman” because it was “discoverable by a
reasonable contractor using a flashlight to inspect where [the contractor was]
going to walk in a dark enclosed cupola.” We do not view these statements as
a standalone ruling that the opening was obvious under general principles of
premises liability. The court made the statements only after erroneously
determining the Privette doctrine applied, and since the doctrine does not
apply it was unnecessary to decide whether the standard discussed in
11
Kinsman was met.5 Thus, the parties are not precluded from litigating on
remand whether the danger was obvious. Nonetheless, we recognize there is
strong evidence that it was, as the dissent’s discussion of the Kinsman
exception suggests, and the parties are also not precluded from litigating
whether Kimco has other valid defenses that shield it from liability.
2. The Privette doctrine does not apply.
We now turn to the determinative issue, whether the Privette doctrine
applies. As discussed above, Privette is grounded on the presumption that
“the hirer [of an independent contractor] generally delegates to the contractor
responsibility for supervising the job, including responsibility for looking
after employee safety.” (Kinsman, supra, 37 Cal.4th at pp. 670, 673.) In the
premises-liability context, “[w]hen the hirer is also a landowner, part of that
delegation includes taking proper precautions to protect against obvious
hazards in the workplace” or against concealed hazards of which the
independent contractor is or should be aware. (Id. at pp. 673–675, 677–678.)
But here, Kimco did not hire either Ramirez or Freeway. Thus, Kimco did
not delegate a responsibility for ensuring the worksite’s safety, either directly
or “through the chain of delegation.” (Tverberg, supra, 49 Cal.4th at pp. 528–
529.) Accordingly, the bedrock presumption of the Privette doctrine is absent
in this case. (See Sandoval, supra, 12 Cal.5th at p. 269.)
Kimco argues that it nonetheless delegated to Freeway a duty involving
the roof’s condition by virtue of (1) their landlord-tenant relationship
5 In any event, whether the hazard was not a concealed hazard because
it was “discoverable by a reasonable contractor using a flashlight” does not
necessarily determine whether the hazard was “so obvious that a person
could reasonably be expected to see it” under general principles of premises
liability. (Kinsman, supra, 37 Cal.4th at p. 673.)
12
generally and (2) the lease’s particular terms making Freeway responsible for
the sign’s removal. We disagree.
a. Kimco did not delegate to Freeway a duty involving
the roof’s condition merely by virtue of their landlord-
tenant relationship.
Citing Laico v. Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649 (Laico),
Kimco primarily claims, as it did below, that “a landowner/occupier implicitly
delegates to its tenant the responsibility and duty to ensure that the tenant’s
employees are given a safe place to work.” The trial court apparently
accepted this argument, but we do not. Laico did not involve a landlord-
tenant relationship, and the decision applied general principles of premises
liability, not the Privette doctrine, to conclude that a landowner owed no duty
to the plaintiffs.
One of the Laico plaintiffs worked for Chevron Research and
Technology Company (CRTC), which operated “engine laboratory facilities”
on property owned by defendant Chevron U.S.A., Inc. (Chevron). (Laico,
supra, 123 Cal.App.4th at p. 654.) He was exposed to benzene while working
around gasoline as a lab technician. (Id. at pp. 654–655.) After he developed
a blood disorder that can result from such exposure, he and his wife sued
Chevron for premises liability. (Id. at pp. 655–656.) A jury agreed that
Chevron negligently managed the property, and the trial court denied
Chevron’s motion for judgment notwithstanding the verdict. (Id. at p. 658.)
The Sixth District Court of Appeal reversed, holding that Chevron
“owed no duty as a landowner to protect [the primary plaintiff] from injuries
arising from his employment at the facility that occupied the premises.”
(Laico, supra, 123 Cal.App.4th at p. 654.) After applying the Rowland factors
to “determin[e] whether public policy require[d] a departure from the general
rule of . . . section 1714,” the appellate court answered in the affirmative and
13
found no basis for imposing premises liability on Chevron. (Laico, at pp. 659–
660, 670.) While Chevron might have been aware that CRTC was conducting
gasoline testing, there was no evidence it “knew that CRTC employees were
handling gasoline without taking protective measures against benzene
exposure,” a hazard that was not “a dangerous condition of land owned by
[Chevron] or under its control.” (Id. at pp. 661, 670.) In addition, “there [was]
no evidence defining the relationship between [Chevron] and CRTC, whether
landlord-tenant or otherwise.” (Id. at p. 664, italics added.) Thus, the
plaintiffs “failed to establish [Chevron’s] knowledge of the danger, the right to
inspect, or the ability to discover and remedy hazards of the workplace.” (Id.
at p. 670.) As a result, to impose a duty on Chevron would “amount[] to an
assignment of vicarious or derivative liability for acts or omissions associated
with [the primary plaintiff’s] employment at CRTC, contrary to the policies
expressed in Privette and its progeny.” (Ibid.)
As a subsequent decision observed, Laico “was applying rules of law
governing premises liability and was not applying the Privette doctrine.”
(Zuniga v. Cherry Avenue Auction, Inc. (2021) 61 Cal.App.5th 980, 992.)
Although in Laico the Sixth District observed that the Privette line of cases
“provide[d] a useful analogy to the issues presented,” it applied section 1714
and the Rowland factors to reach its holding. (Laico, supra, 123 Cal.App.4th
at pp. 659–660, 665–666, 668.) Indeed, Laico “agree[d] with [the] plaintiffs
that CRTC was not functioning as an independent contractor, as it was not
hired by [Chevron],” and “[t]he relationship between the two entities thus
[did] not evoke the policy reasons underlying the peculiar risk doctrine—that
is, to spread the risk of loss to one who benefits from the work by including
the cost of workers’ compensation insurance in the contract price.” (Id. at
p. 668.) Accordingly, Laico falls far short of establishing that the Privette
14
doctrine immunizes a landowner from liability because the owner necessarily
delegates duties to the land’s occupier.6
Kimco also relies on Lopez v. University Partners (1997) 54 Cal.App.4th
1117, in which the Fourth District Court of Appeal affirmed summary
judgment in favor of a landowner and its tenant in a suit brought by the
employee of an independent contractor hired by the tenant. (Id. at pp. 1120–
1121.) The landowner and tenant successfully moved for summary judgment
“on the ground workers’ compensation provided the exclusive remedy for [the
plaintiff’s] injuries under Privette” (id. at p. 1121), and the Fourth District
rejected the plaintiff’s arguments that the landowner was nonetheless liable
because (1) it was acting as a general contractor when he was injured and
(2) it owed a nondelegable duty to provide him with a safe workplace. (Id. at
pp. 1123–1126.)
Although Lopez is factually similar to this case because the landowner
had no employment relationship with its tenant or the independent
contractor, the decision did not explain why the Privette doctrine protected
the landowner. Lopez was issued before the Supreme Court emphasized that
delegation, not the availability of workers’ compensation, is the primary
rationale for the doctrine, and the Fourth District did not address whether
the landowner delegated any duty to its tenant. Thus, Lopez does not
support Kimco’s position that it delegated any duty involving the roof to
6We need not address whether Laico supports the conclusion that
Kimco owed no duty to Ramirez even if Privette is inapplicable, because
Kimco does make this claim. In any case, Laico is factually distinguishable
in ways that affect the Rowland analysis. Chief among these is that the
dangerous condition in Laico was created by “the functioning of the business
that operated on the premises,” and was not, as here, “a danger existing on
the land independently of the occupant’s activity.” (Laico, supra,
123 Cal.App.4th at p. 660.)
15
Freeway, as “ ‘it is axiomatic that cases are not authority for propositions not
considered.’ ” (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109,
1160.)
Kimco also cites Zamudio v. City & County of San Francisco (1999)
70 Cal.App.4th 445 for the proposition that “courts have expanded the
application of Privette to owners and occupiers of premises.” In Zamudio,
Division Five of this court held that a landowner that hired a construction
manager, which in turn hired a subcontractor, was not liable for injuries to
the subcontractor’s employees. (Id. at pp. 447–448.) But in that case, the
landowner delegated its duty to provide a safe workplace through its
employment contract with the construction manager, not through a landlord-
tenant relationship. (See id. at pp. 448, 450.) Although the Privette doctrine
undoubtedly can protect landowners from liability, Zamudio is merely an
example of how this occurs through a hiring-based chain of delegation.
Zamudio does not hold that Privette applies whenever an independent
contractor is hired to work on a landowner’s property, regardless of the
landowner’s status as a hirer.
b. The lease’s terms do not establish that Kimco delegated to
Freeway a duty involving the roof’s condition.
Having concluded that a landlord does not delegate to its tenant a duty
to provide a safe workplace for any independent contractor the tenant may
hire simply by virtue of the fact they are in a landlord-tenant relationship, we
turn to whether Kimco delegated such a duty to Freeway based on the lease’s
terms. We conclude it did not. Kimco did not effectively “hire” Freeway to
install and remove the sign, and the Privette doctrine is therefore
inapplicable.
To begin with, no aspect of the lease establishes that Kimco delegated a
duty involving the roof’s condition to Freeway. The lease provided that
16
Freeway would “have the non-exclusive right to use the Common Area,”
which was defined to include the shopping center’s “roofs.” Kimco “reserve[d]
to itself the exclusive right at any time to use the roof, foundation[,] or
exterior walls (other than [Freeway’s] storefront) for placing of signs or
equipment, including utility equipment, or for purpose of additional
construction.” In addition, Freeway was responsible for paying “as Common
Area Rent, one-twelfth (1/12th) of [its] annual share of Yearly Common Area
Costs,” which was defined as “all costs and expenses incurred by [Kimco]
during each twelve (12) month period selected by [Kimco] for repair,
replacement, maintenance, insurance, protection[,] and operation of the
Common Area, and for compensation to management and service personnel.”
Since under the lease Kimco retained possession and control of the roof,
including responsibility for maintenance, it did not delegate to Freeway a
general duty of reasonable care with regard to dangerous conditions on the
roof.7 (See Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1158; Johnston v. De La
Guerra Properties, Inc. (1946) 28 Cal.2d 394, 399; Stone v. Center Trust Retail
Properties, Inc. (2008) 163 Cal.App.4th 608, 612; Rest.3d Torts, Liability for
Physical and Emotional Harm (2012) § 53 & com. c; see also Srithong v. Total
Investment Co. (1994) 23 Cal.App.4th 721, 726 [landlord’s duty to “maintain
property in a safe condition” cannot be delegated to independent contractor].)
7 The dissent responds to this observation by stating that whether
Kimco “delegated any responsibility for the maintenance of the roof here is,
under Privette, irrelevant.” (Dis. opn. at p. 7.) But we make the observation
only to negate any argument that Privette should somehow apply on the
theory that the lease, although not employment-related, expressly delegated
responsibility for the roof’s condition to Freeway. Naturally, if Kimco had
actually hired Freeway to remove the sign, the Privette doctrine would still
shield Kimco from liability even though Kimco generally retained control and
possession of the roof.
17
Nor did Kimco delegate to Freeway a duty to ensure the safety of the
site where Ramirez performed his work. Privette delegation is project-
specific, meaning it involves a duty limited not only to the contracted-for
work but also to the place where that work occurs. At oral argument, Kimco
claimed that in requiring Freeway to remove the sign, the lease necessarily
delegated to Freeway the duty to ensure the safety of the area where that
work was performed. Even assuming, without deciding, that the roof was
reasonably included in that area, we reject the notion that a landowner may
absolve itself of liability for conditions in a space over which it retains
possession and control merely by assigning its tenant a task that could
involve that space.8
Application of the Privette doctrine is also not justified on a theory that
Kimco and Freeway’s relationship with regard to the sign removal was
analogous to an employer-independent contractor relationship. True, Kimco
purported to “control[] [only] the results of [the sign removal] and not the
means by which it [was] accomplished” (Kim v. Sumitomo Bank (1993)
17 Cal.App.4th 974, 983), which might otherwise suggest that Freeway
functioned like an independent contractor. But Freeway had no special
“ability to perform the contracted work safely and successfully” compared to
8 Although Freeway delegated to Ramirez any duty it had to ensure the
worksite’s safety, there is no rule against different parties holding
overlapping duties. The fact that Ramirez implicitly assumed a duty to take
precautions for his own safety when removing the sign might affect the
overall analysis of whether Kimco is liable, but it does not establish that
Kimco lacked a duty involving the worksite’s condition under Privette
specifically. If the law were otherwise, third-party tortfeasors with no
relationship to the contracted-for work could rely on Privette to avoid liability
merely because the injured party happened to be an independent contractor
or its employee.
18
Kimco, and such an ability is a “major principle” that underlies the
presumption that a hirer delegates responsibility for workplace safety to an
independent contractor. (Sandoval, supra, 12 Cal.5th at p. 269.) Nor was
Freeway in any business—whether as a general contractor, project manager,
or otherwise—that had anything to do with the work Ramirez was hired to
perform.9 Thus, even if an employer-independent contractor relationship can
coexist with a lessor-lessee relationship, one of the main “hallmarks of an
employer-independent contractor relationship”—that “the [lessor] hired [the
lessee] to perform work”—is missing. (Bostrom v. County of San Bernardino
(1995) 35 Cal.App.4th 1654, 1668–1669.)
More fundamentally, the sign benefited Freeway more than it did
Kimco, and Kimco did not directly or indirectly pay Freeway to install or
remove it. The lease explicitly provided that the sign’s installation would be
“at [Freeway’s] sole cost and expense” and that its removal was “the
responsibility of [Freeway].” It would be completely speculative to suppose
that the rent was nonetheless discounted to account for Freeway’s sign-
related expenses, much less that any such discount amounted to Kimco’s
indirect offsetting of the cost Freeway might incur should a worker be injured
while installing or removing the sign. (See Privette, supra, 5 Cal.4th at
p. 699.) Thus, Kimco did not effectively “hire” Freeway to perform the work
at issue.
The dissent disagrees, taking the view that “the signage provisions in
the lease are in substance a contract for the work, giving rise to presumptive
9The dissent cites a series of cases in which Privette applied where
there was a “contracting intermediary” between the original hirer and the
independent contractor. (Dis. opn. at pp. 5–6.) Unlike Freeway, the
intermediaries in those cases were hired by the original party to perform
services they were normally in the business of providing.
19
delegation, ultimately to the independent contractor [Ramirez], of the duty to
provide a safe workplace.” (Dis. opn. at p. 9.) But whether a lease or some
other non-work-specific agreement is “in substance” a contract to perform
work is an amorphous standard, and one that would create significant
uncertainty in an area where “clear rules about who’s responsible for
avoiding harm to workers” are needed. (Sandoval, supra, 12 Cal.5th at
p. 264.) Left unanswered is whether, for example, lease provisions like those
here that require tenants to keep the premises pest-free, maintain the
premises in “good and safe condition,” and “make all repairs, replacements
and alterations” necessary would be in substance contracts to perform work
for purposes of applying Privette. Despite addressing the Privette doctrine
numerous times, our state Supreme Court has never suggested that it applies
to a non-hirer, much less on the theory the dissent suggests.
Finally, Kimco claims that “it would be ‘illogical and unfair’ to subject
[it] to significant liability simply because Freeway chose to handle the [sign]
removal itself instead of letting Kimco take care of it.” (Quoting Laico, supra,
123 Cal.App.4th at p. 668.) The dissent echoes this concern, perceiving “no
reason why the result should be different” based on whether the lease
requires a tenant to be responsible for work that an independent contractor
will do or whether the landlord hires the independent contractor itself. (Dis.
opn. at p. 14.) But the unfairness the Privette doctrine was originally
designed to avoid is “impos[ing] liability on [one entity] for an injury
attributable to [another entity], whose liability is limited by workers’
compensation insurance.” (Laico, at p. 668; Toland v. Sunland Housing
Group, Inc. (1998) 18 Cal.4th 253, 256; see Ruiz v. Herman Weissker, Inc.
(2005) 130 Cal.App.4th 52, 62 [policy aim is to ensure “the ultimate
responsibility for the injury will be borne by the person whose fault caused
20
that injury or, failing that, by the person who benefited from the work”].)
Here, Kimco retained possession and control of the roof, and if any entity
acted negligently with regard to the roof’s condition, it was Kimco, not
Freeway. Because Kimco did not delegate a duty involving the roof, the
Privette doctrine does not shield it from direct liability for any tortious breach
of that duty.
In closing, we reiterate that the Privette doctrine is not the only path by
which Kimco may ultimately avoid liability, or even the only path by which it
may be deemed to have owed no duty to Ramirez. We hold only that Kimco
cannot prevail based on this particular doctrine, which has never been
applied in circumstances such as these. If the doctrine is to be expanded as
the dissent contemplates, it should be the Supreme Court, not us, that does
so.
III.
DISPOSITION
The judgment is reversed, and the matter is remanded for further
proceedings consistent with this opinion. Appellants are entitled to their
costs on appeal.
21
_________________________
Humes, P.J.
I CONCUR:
_________________________
Wiss, J.*
*Judge of the Superior Court of the City and County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
Ramirez v. PK I Plaza 580 SC LP A162593
22
DISSENTING OPINION OF BANKE, J.
In my view this is a more complex case than the majority opinion
suggests, and I reach a different conclusion as to the applicability of the
Privette doctrine.1 I also conclude no triable issue exists as to whether the
Kinsman exception2 to the doctrine applies, and I therefore would affirm the
summary judgment.
In the “nearly three decades since” our Supreme Court “decided Privette,”
it has “repeatedly reaffirmed the basic rule that a hirer is typically not liable
for injuries sustained by an independent contractor or its workers while on
the job.” (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 41 (Gonzalez).) This rule,
commonly referred to as the Privette doctrine, applies to any person or entity
in the hiring chain. (Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th
256, 270, fn. 2 (Sandoval); Tverberg v. Fillner Construction, Inc. (2010)
49 Cal.4th 518, 528 (Tverberg).) Thus, an injured independent contractor, or
an injured employee of, or consultant to, an independent contractor, no
matter how far down the contracting chain, typically cannot sue either the
contractor that let the subcontract or hired the consultant, or the person or
entity for whom the work is being done. (Tverberg, at p. 528.)
With respect to injured employees of independent contractors, the
Supreme Court has grounded the Privette doctrine on the availability of
worker’s compensation. As the court explained in SeaBright Ins. Co. v. U.S.
Airways, Inc. (2011) 52 Cal.4th 590, 598–599 (SeaBright), “[i]n light of [the
workers’ compensation] limitation on the independent contractor’s liability to
1 Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette).
2 Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman).
1
its injured employee, Privette concluded that it would be unfair to permit the
injured employee to obtain full tort damages from the hirer of the
independent contractor. That was especially so because (1) the hirer likely
paid indirectly for the workers’ compensation insurance as a component of
the contract price [citations], (2) the hirer has no right to reimbursement
from the contractor even if the latter was primarily at fault [citations], and
(3) those workers who happen to work for an independent contractor should
not enjoy a tort damages windfall that is unavailable to other workers
[citations].”
With respect to injured independent contractors or consultants,
themselves, the court has reached the same result but employed a different
rationale. (Tverberg, supra, 49 Cal.4th at pp. 527–529 [observing Privette
does not apply directly to independent contractors]; see Gonzales, supra,
12 Cal.5th at p. 42 [same result as “to a solo independent contractor who has
no employees and who has declined to obtain workers’ compensation
insurance”].) “Unlike a mere employee, an independent contractor, by virtue
of the contract, has authority to determine the manner in which . . . [the]
work is to be performed, and thus assumes legal responsibility for carrying
out the contracted work, including the taking of workplace safety
precautions.” (Tverberg, at p. 522.)
Thus, as the court observed in Gonzalez, supra, 12 Cal.5th at page 41, its
more recent cases “emphasize delegation as the key principle underlying [the
Privette doctrine]: Because the hirer presumptively delegates to the
independent contractor the authority to determine the manner in which the
work is performed, the contractor also assumes the responsibility to ensure
that the worksite is safe, and the work is performed safely.” This
“presumptive delegation” of the duty to provide a safe workplace (Sandoval,
2
supra, 12 Cal.5th at p. 271), in turn, insulates all those in the hiring chain
from tort liability for workplace injuries suffered by an independent
contractor or an employee thereof or consultant thereto. (Id. at p. 270, fn. 2;
Tverberg, supra, 49 Cal.4th at p. 528.)
The high court has identified only “two limited circumstances” in which
the presumption of delegation is overcome. (Gonzales, supra, 12 Cal.5th at
p. 38.)
The first was articulated in Kinsman, wherein the court held that a
landowner/hirer can be liable to an injured independent contractor or its
employees if the landowner (a) “ ‘knew, or should have known, of a latent or
concealed preexisting hazardous condition on its property,’ ” (b) “ ‘the
contractor did not know and could not have reasonably discovered this
hazardous condition,’ ” and (c) “ ‘the landowner failed to warn the contractor
about this condition.’ ” (Gonzalez, supra, 12 Cal.5th at p. 43, quoting
Kinsman, supra, 37 Cal.4th at p. 664.) This is a different, and more rigorous,
standard than is otherwise applicable in the context of a landowner’s common
law tort liability to third parties. (Id. at p. 674 [“the usual rules about
landowner liability must be modified, after Privette, as they apply to a hirer’s
duty to the employees of independent contractors”]; see Gonzalez, supra,
12 Cal.5th at p. 50 [refusing to impose on landowner, in Privette context,
common law tort duty to remedy obvious hazards on property].)
Thus, under the Privette doctrine as explicated in cases such as Kinsman
and Gonzales, a landowner has no obligation to remedy a latent or concealed
hazardous condition, but must simply provide sufficient warning of it. It is
then up to the independent contractor to decide how best to do the contracted
work in light of the warned of condition or decide not to proceed with the
work. (Gonzalez, supra, 12 Cal.5th at pp. pp. 51–52, 54; Kinsman, supra,
3
37 Cal.4th at p. 673 [having been warned, it is up to contractor to take
precautions]; McCullar v. SMC Contracting, Inc. (2022) 83 Cal.App.5th 197,
208 (McCullar); see Hooker v. Department of Transportation (2002)
27 Cal.4th 198, 215 (Hooker) [under Privette doctrine, hirer is not liable for
merely permitting a dangerous work condition or practice to exist].)
The landowner/hirer, likewise, has no obligation with respect to a
hazardous condition of which an independent contractor is aware, including a
condition the contractor “cannot remedy or protect against through the
adoption of reasonable safety measures.” (Gonzales, supra, 12 Cal.5th at
pp. 39, 45–51.) Again, it is up to the contractor to devise a means to do the
contracted work safely or refuse to perform it. (Id. at pp. 50–51, 54–55.)
Nor does the landowner/hirer have an obligation to warn of a hazardous
condition of which the contractor reasonably should have been aware. “[T]he
responsibility for job safety delegated to independent contractors may and
generally does include explicitly or implicitly a limited duty to inspect the
premises as well.” (Kinsman, supra, 37 Cal.4th at p. 677.)
The second exception was articulated in Hooker, wherein the high court
“held that a hirer will be liable where it exercises retained control over any
part of the contractor’s work in a manner that affirmatively contributes to
the worker’s injuries.” (Gonzalez, supra, 12 Cal.5th at p. 42.) Retained
control over the safety conditions of the worksite, in and of itself, is
insufficient to establish liability. (Ibid.) “[U]nless 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
[citation], it will not be liable to an independent contractor or its workers.”
(Id. at p. 38, italics added; accord, Sandoval, supra, 12 Cal.5th at pp. 274–279
4
[discussing Hooker exception in further detail]; McCullar, supra,
83 Cal.App.5th at pp. 205–207 [same].)
Thus, “this exception to Privette is not met solely because a hirer is aware
that there is an unsafe condition on the worksite or knows that the contractor
is engaging in an unsafe work practice. [Citation.] 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 accomplished.” ’ ” (Gonzales, supra, 12 Cal.5th at p. 42;
Sandoval, supra, 12 Cal.5th at p. 276 [“Contract workers must prove that the
hirer both retained control [of the contracted work] and actually exercised
that retained control in such a way as to affirmatively contribute to the
injury.”]; see McCullar, supra, 83 Cal.App.5th at pp. 205–207.) Accordingly,
merely providing plans and specifications to a contractor does not trigger the
application of Hooker and Sandoval.
There is no question in the instant case that had the landowner/lessor
hired the plaintiff, an independent electrical contractor, to remove the
departing lessee’s sign, the Privette doctrine, as it has been developed with
respect to independent contractors who are, themselves, injured, would apply.
I also think there is little doubt that would be the case had the
landowner/lessor entered into a separate contract with the lessee for removal
of the sign, with the lessee thus becoming the contracting intermediary
between the landowner/lessor and the independent contractor. (See
Sandoval, supra, 12 Cal.5th at pp. 265–266 [landowner hired electrical
engineering service, which, in turn, hired specialist consultant]; Tverberg,
supra, 49 Cal.4th at pp. 528–529 [general contractor hired subcontractor,
which, in turn, hired independent contractor]; Ruiz v. Herman Weissker, Inc.
5
(2005) 130 Cal.App.4th 52, 56, 62 (Ruiz) [landowner’s “contract
administrator” not in direct hiring chain and responsible for monitoring work
for safety and contract compliance not liable to injured employee of
independent contractor; “the policies enunciated in Privette . . . are equally
applicable in determining the liability of the hirer’s agent”]; Zamudio v. City
and County of San Francisco (1999) 70 Cal.App.4th 445, 447, 451 (Zamudio)
[landowner hired construction manager, which, in turn, hired specialty
subcontractor; “principles of Privette and Toland . . . are crafted to insulate
an owner and general manager from tort liability arising from a
subcontractor’s acts which caused injury to its employee”].) Upon entering
into a separate contract with the lessee for the work, the landowner/lessor
would presumptively delegates its duty to provide a safe workplace for that
work to the lessee, and the lessee, in turn, could, and likely would, hire a
specialty independent contractor to perform the work, as the lessee did here.
In fact, the lease in question expressly contemplated the lessee would hire a
contractor to do the work of installing and removing the signage.
I also cannot agree with the majority’s statement that “[e]ven assuming”
the roof and unlocked cupola were, in this case, “reasonably included” in “the
area where [the] work was performed,” the landowner/lessor cannot “absolve
itself of liability for conditions in a space over which it retains possession and
control merely by assigning its tenant a task that could involve the space.”
(Maj. opn. ante, at p. 18.) If the landowner/lessor had contracted directly
with the electrical contractor or if, as is my view, the landowner/lessor and
lessee had entered into a separate contract for the work, whether the
property owner “retained possession and control” over the roof would, under
Privette, be immaterial.
6
In fact, that was the situation in Gonzalez, where an independent
contractor hired to clean skylights on the homeowner’s roof slipped and fell
on an allegedly unsafe, poorly maintained part of the roof. (Gonzalez, supra,
12 Cal.5th at p. 40.) The owner clearly “retained control” of the roof, but that
was immaterial since workplace safety had presumptively been delegated to
the contractor. It was therefore the contractor’s responsibility to determine
how to perform the work safely in light of the hazardous condition of the roof,
or to refuse to do the work. (Gonzalez, at pp. 51–52, 54; see Gravelin v.
Satterfield (2011) 200 Cal.App.4th 1209, 1212–1213 (Gravelin) [property
owner not liable for injuries sustained by employee of contractor hired by
satellite company to install satellite dish who attempted to access roof by
using a small roof extension that collapsed; owner clearly retained possession
and control of the roof and extension, but it was the contractor’s
responsibility to determine how to safely do the contracted work].)
Further, the court in Gonzales expressly rejected the independent
contractor’s argument that the owner had never delegated to him the owner’s
“duty to maintain the roof in a reasonably safe condition.” (Gonzales, supra,
12 Cal.5th at p. 54.) The court explained that “while [the owner] may not
have delegated any duty to repair the roof or make other structural changes
to it, [the owner] did delegate to [the independent contractor] a duty to
provide a safe workplace to his workers and to perform the work for which he
was retained in a safe manner.” (Ibid.) “This encompassed a duty on [the
contractor’s] part to assess whether he and his workers could clean the
skylight safely despite the existence of the known hazardous conditions on
the roof.” (Ibid.) Accordingly, whether or not the landowner/lessor delegated
any responsibility for the maintenance of the roof here is, under Privette,
irrelevant.
7
In my view the salient inquiry in this case is whether the fact that the
request that the lessee both install and remove the electrical signage
(through the anticipated hiring of an independent contractor to perform the
work) was included in the lease, rather set forth in a separate contract,
removes this case from the ambit of the Privette doctrine. The lease
provisions in this regard are detailed and set forth in several paragraphs of
“Rider B” and a three-page “Exhibit C” that collectively set forth a variety of
detailed specifications and approval requirements pertinent to the work.3 It
seems too simple to say that because the parties are denominated “lessor”
and “lessee,” this forecloses any other legal relationship. (See Bostrom v.
County of San Bernardino (1995) 35 Cal.App.4th 1654, 1668 [presuming a
lessor-lessee relationship and an employer-independent contractor
relationship “are not mutually exclusive” and that “a lease could give rise to
an employer-independent contractor relationship”].)
If in substance the provisions of a lease call for the lessee to do work that
will be performed by a specialized independent contractor, it would seem to
be the height of form over substance to say the Privette doctrine does not
apply and the independent contractor can sue the landowner/lessor under
common law premises liability principles, which, of course, the contractor
could not do if the landowner/lessor, rather than the lessee, hired the
contractor directly or if the landowner/lessor entered into a separate contract
with the lessee for the work.
3 Thus, I cannot agree with the majority that the landowner had “no
relationship to the contracted-for work.” (Maj. opn. ante, at p. 18, fn. 8.) To
the contrary, the landowner/lessor requested that the work be performed and
provided the specifications for it.
8
The Supreme Court has consistently pointed out in reaffirming and
refusing to constrict the Privette doctrine, that if it did not apply, it would
lead to the anomalous result that the plaintiff contractor/employee would be
able to seek a tort recovery, while other contractors/employees performing the
same work, could not. (E.g., Gonzalez, supra, 12 Cal.5th at p. 51 [court’s
holding that independent contractor cannot sue landowner/hirer “avoids the
unfair ‘tort damages windfall’ that would result from adopting a rule that
allows independent contractors and their workers to obtain tort damages
from the landowner while the landowner’s own employees are limited to
workers’ compensation”]; Seabright, supra, 52 Cal.4th at p. 603 [“it would be
unfair to permit the injured employee to obtain full tort damages from the
hirer of the independent contractor—damages that would be unavailable to
employees who did not happen to work for a hired contractor”]; Tverberg,
supra, 49 Cal.4th at p. 528 [“[i]t would be anomalous to allow an independent
contractor to whom responsibility over the hired work has been delegated to
recover against the hirer on a peculiar risk theory while denying such
recovery to an independent contractor’s employee, a person who lacks any
authority over the hired work”]4.)
So, as I see it the question here is whether the signage provisions in the
lease are in substance a contract for the work, giving rise to presumptive
delegation, ultimately to the independent contractor, of the duty to provide a
safe workplace. Were there a provision that the lessee was to be paid,
credited, or reimbursed for this work (as there is for other work the lessee
4Thus, the majority’s suggestion that the existence of workers’
compensation for workplace injuries is no longer of concern to the Supreme
Court in applying the Privette doctrine (see maj. opn. ante, at pp. 9, 15),
appears unwarranted.
9
might do), it would seem evident that the request that the work be done
would in substance be a contract for the work.
However, as the majority opinion points out, the lease states the signage
is to be constructed and installed at the tenant’s expense. Should this make
a difference?
This is a perplexing question given that the Privette doctrine,
particularly as applied to independent contractors, themselves, is grounded
on presumptive delegation, which is not tied to any contractual relationship
between the landowner that requests the work and the contractor that
ultimately performs it. Otherwise, the doctrine would not apply where there
are intermediaries, no matter how long the string, between the landowner
requesting the work and the independent contractor performing it. Nor
would it apply in cases such as Ruiz, where the defendant was not in the
contracting chain at all, but instead was considered the “agent” of the
landowner in seeing that the work was done per contract specifications.
In this case, the landowner/lessor specified (in considerable detail) the
work, and the lessee was responsible for having it done. I see no reason why
the result here should be different than where a property manager or
contract administrator sees to it that requested work is performed.
Similarly, if in Gravelin, for example, the defendant that purchased the
residential satellite service had been a renter, rather than the homeowner,
should that difference have enabled the injured employee of the independent
contractor hired by the satellite company to install the satellite dish, to sue
the landowner/lessor for damages? If so, that would result in a profound
difference in terms of recovery based on a happenstance of which the
independent contractor likely was wholly unaware—the work, the conditions,
10
and the independent contractor’s responsibility for workplace safety
otherwise being identical.
Moreover, regardless of whether a landowner pays the first link in the
chain of presumptive delegation for the specified work, the specialty
contractor that actually performs the work is paid and thus “is not, in the
words of Privette . . . , a ‘hapless victim’ of someone else’s misconduct. In that
situation, the reason for imposing vicarious liability on a hirer—
compensating an innocent third party for injury caused by the risks inherent
in the hired work—is missing.” (Tverberg, supra, 49 Cal.4th at p. 528.) Here,
too, the electrical contractor was not an “innocent third party.” Rather,
having contracted with the lessee to perform the requested work, he was
delegated, and, in turn, assumed, the responsibility for workplace safety and,
absent an exception to the Privette doctrine, had to decide how to safely
perform the contracted work or, if he determined that was not feasible, to
decline to do the work. (See Gonzalez, supra, 12 Cal.5th at pp. 50–51, 54;
Kinsman, supra, 37 Cal.4th at pp. 673–674.)
Additionally, nearly all of the other of the policy reasons the court has
articulated with respect to Privette’s application to independent contractors
focus on the independent contractor, not the entity or person who asks that
the work be done. Independent contractors “can typically factor the cost of
[any] added safety precautions or any increased safety risks into [their]
contract price.” (Gonzalez, supra, 12 Cal.5th at p. 51.) “They [independent
contractors] can also purchase worker’s compensation to cover any injuries
sustained while on the job.” (Ibid., italics added.) “[A]n independent
contractor, by virtue of the contract, has authority to determine the manner
in which . . . [the] work is to be performed, and thus assumes legal
responsibility for carrying out the contracted work.” (Tverberg, 49 Cal.4th at
11
p. 522, italics added.) And, applying the Privette doctrine “avoids the unfair
‘tort damages windfall’ ” that would inure to the independent contractor solely
because of the manner in which the landowner requested the work, while had
the work been done by the landowner’s own employees, any workplace injury
would be compensated through the workers’ compensation system. (Ibid.)
It is true that in Privette, the court also observed that the “hirer”
indirectly pays into the workers’ compensation system. (Privette, supra,
5 Cal.4th at pp. 698–699; see SeaBright, supra, 52 Cal.4th at p. 599, citing to
Privette.) However, this point is scarcely mentioned in the court’s more
recent cases focusing on the presumptive delegation of workplace safety.
Understandably. The hirer only pays indirectly if the independent contractor
includes this in the contract price. So whether, and the extent to which, the
hirer may indirectly pay is not a matter as to which the hirer has any
obligation or control. Further, presumptive delegation may extend down a
long line of contractors, subcontractors, and consultants. Thus, any “indirect”
payment by the initial hirer may be of infinitesimal consequence to the
contractor or consultant who ultimately performs the work.
I agree with the majority (maj. opn. ante, at p. 20) that our Supreme
Court has never decided—in fact, never considered—whether Privette applies
in a situation like that presented here, where a lease obligates a lessee to
have work done on the property and expressly contemplates that work will be
performed by an independent contractor.
The majority acknowledges, however, that in Lopez v. University
Partners (1997) 54 Cal.App.4th 1117 (Lopez), the Court of Appeal, on similar
facts, held Privette applied. (Maj. opn. ante, at p. 15.) In that case, an
employee of an independent contractor sued the University (the
landowner/lessor) and its lessee for injuries sustained while doing work
12
pursuant to a contract between the lessee and his employer. (Id. at p. 1120.)
The trial court granted summary judgment to the University and its lessee
on the basis of Privette. (Ibid.)
On appeal, the employee maintained Privette did not apply to the lessee
because it did not hire his employer “as an ‘owner’ of the subject construction
site,” but rather, hired his employer as a “general contractor” that assertedly
was not entitled to the protection of Privette. (Lopez, supra, 54 Cal.App.4th
at pp. 1122–1123.) The appellate court disagreed, stating a person who hires
a contractor “could be an owner, a lessee or a general contractor.” (Id. at
p. 1123.) Furthermore, there was no evidence the lessee was acting as a
“general contractor.” (Ibid.) The employee made a similar, unsupported
claim that the University was acting as a “general contractor,” which the
appellate court also rejected. (Id. at pp. 1124–1125.) And, indeed, as the
Supreme Court has since made clear, any entity or person in the contracting
chain, including a general contractor, comes within Privette. The employee
further maintained the University and its lessee owed him nondelegable
duties to provide a safe workplace. The appellate court again disagreed,
stating an owner or general contractor may be liable for injuries to an
employee of a subcontractor where the owner or general contractor “retain[s]
sufficient control over the subcontractor’s work,” but there was no evidence
the University or its lessee did so. (Id. at pp. 1125–1126.) As the Supreme
Court has, again, made clear, such control must be both extensive and
actually exercised.
The majority dismisses Lopez on two grounds—the appellate court did
“not explain” why Privette applied to the University (the landowner/lessor),
and the opinion “was issued before the Supreme Court emphasized that
delegation, not the availability of workers’ compensation, is the primary
13
rationale for the doctrine.” (Maj. opn. ante, at p. 15.) As to the first ground, I
suggest the Lopez court shared the same pragmatic views I have articulated.
As to the second ground, Lopez was a quintessential Privette case because the
plaintiff was an employee of an independent contractor and therefore
Privette’s workers’ compensation rationale squarely applied. It was not until
our high court concluded the same outcome should apply to an injured
independent contractor that the court turned to a delegation rationale. Thus,
Lopez cannot be discounted because it predates application of the Privette
doctrine to injured independent contractors.
I am ultimately persuaded Privette should apply here since nearly every
policy reason on which the high court has relied applies, and given the court’s
emphasis on the unfairness of the disparity in outcomes if the Privette
doctrine does not apply. I see no reason why the result should be different
where, as here, a lease requires the lessee to do work on the property that the
parties contemplate will be done by an independent contractor, than where
the landowner/lessor, itself, hires the independent contractor or enters into a
separate contract with the lessee to arrange for the work to be done by an
independent contractor. In each of these scenarios, the independent
contractor has been presumptively delegated the duty for workplace safety
and it is up to the independent contractor to make a reasonable inspection of
the portions of the property that will be accessed in performing the work and
either take precautions in light of those conditions or elect not to do the work.
The majority says applying the Privette doctrine in cases like this one
would result in “significant uncertainty” in the application of the doctrine.
(Maj. opn. ante, at p. 20.) However, I fail to see why there should be any
difficulty in determining whether a lease, like the lease here, is the first link
in a “contracting chain” that contemplates, and results in, the hiring of an
14
independent contractor to do the work. The court had no difficulty, for
example, in Ruiz in determining that a “contract administrator”—that was
not even in the hiring or contracting chain—came within the Privette
doctrine. (Ruiz, supra, 130 Cal.App.4th at pp. 56, 62; see Zamudio, supra,
70 Cal.App.4th at p. 447 [construction manager came within doctrine].)
Because the majority concludes the Privette doctrine does not apply, it
does not consider whether the Kinsman exception applies. As recited above,
this exception requires the plaintiff to prove that the landowner (a) “ ‘knew,
or should have known, of a latent or concealed preexisting hazardous
condition on its property,’ ” (b) “ ‘the contractor did not know and could not
have reasonably discovered this hazardous condition,’ ” and (c) “ ‘the
landowner failed to warn the contractor about this condition.’ ” (Gonzalez,
supra, 12 Cal.5th at p. 43, quoting Kinsman, supra, 37 Cal.4th at p. 664.)
Plaintiff’s case indisputably falters as to the second requirement—that
he did not know or could not have known of the allegedly hazardous
condition. Plaintiff opened the cupola access door and entered the area. Nine
feet from the access door, the cupola’s floor “transitions to an opening with
[two foot by six foot] joists,” which are two feet apart from one another.
Plaintiff traveled twelve feet into the cupola before he fell between the joists
and through the floor. Therefore, he plainly was aware of the assertedly
hazardous condition. As Kinsman and Gonzalez make clear, once plaintiff
became aware of the allegedly hazardous condition, even if it could not be
rectified, it was his responsibility to take steps to complete the work safely in
light of the hazardous condition, or to refuse to do the work. (Gonzales,
supra, 12 Cal.5th at pp. 39, 45–51, 54; see Gravelin, supra, 200 Cal.App.4th
at pp. 1216–1217 [roof extension that contractor stepped on and fell through
15
was not a concealed hazard; its flimsiness and lack of structural strength
were obvious].)
I would therefore affirm the summary judgment.
16
I dissent:
_________________________
Banke, J.
Ramirez v. PK I Plaza 580 SC LP A162593
17
Trial Court:
Superior Court of the County of Alameda
Trial Judge:
Hon. Evelio M. Grillo
Counsel for Plaintiffs and Appellants:
Michael Alder, Samantha Hernandez-Ortega, Alder Law, P.C.; Brooke
L. Bove, Bove Law Group
Counsel for Defendants and Respondents:
W. Eric Blumhardt, Jessica Pliner, Lewis Brisbois Bisgaard & Smith
LLP
Ramirez v. PK I Plaza 580 SC LP A162593
1