California Supreme Court Declines Request to Expand Exceptions to Privette Doctrine for Known Hazard
First things first. Happy New Year! Hope you had a good one.
To start things off in the new year we’ve got an employment-related case for you – Gonzalez v. Mathis, 12 Cal.5th 29 (2021) – a California Supreme Court case involving the Privette Doctrine. For those not familiar with the Privette Doctrine, the Privette Doctrine is named after the case Privette v. Superior Court, 5 Cal.4th 689 (1993), which held that project owners and higher-tiered contractors are not liable for workplace injuries sustained by employees of lower-tiered contractors. Since then, courts have carved out a few exceptions to the Privette Doctrine including the “retained control exception” (also known as the Hooker exception – that’s the name of the case not the occupation of the injured worker) whereby a “hirer,” that is, the higher-tiered party who hired the lower-tiered party whose employee is injured, can be held liable if the hirer: (1) retains control over any part of the lower-tiered party’s work; and (2) negligently exercises that control in a manner that affirmatively contributes to the worker’s injury.
Another exception is the “concealed hazard exception” (also known as the Kinsman exception) whereby a hirer can be held liable if: (1) the hirer knew, or should have known, of a concealed hazard on the property that the lower-tiered contractor did not know of and could not have reasonably discovered; and (2) the hirer railed to warn the lower-tiered contractor of that hazard.
In Gonzalez, the California Supreme Court was asked to create another exception to the Privette Doctrine and find that a landowner is liable for injuries sustained by an employee of a contractor where there is a known hazard on the property and there is no reasonable safety precautions that could have been adopted to avoid or minimize the hazard.
The Gonzalez Case
Defendant John Mathis lived in a one-story house with a flat, sand-and-gravel roof, with a large skylight covering an interior pool. Luis Gonzalez, an employee of Beverly Hills Window Cleaning, was a window washer who first started cleaning the skylight in the 1990s. In the mid-2000s, Gonzalez started his own professional window cleaning company. Gonzalez advertised his business as specializing in hard to reach windows and skylights and his marketing materials stated that he “trains his employees to take extra care . . . with their own safety when cleaning windows.”
In or around 2007, Mathis began regularly hiring Gonzalez’s company to clean the skylight. When cleaning the skylight, Gonzalez would climb a ladder affixed to the house to access the roof. Directly to the right of the top of the ladder, a three-foot-high parapet wall ran parallel to the skylight. Mathis constructed the parapet wall for aesthetic purpose to obscure air conditioning ducts and pipes from view. The path between the edge of the roof and the parapet wall was approximately 20 inches wide and Gonzalez would walk between the parapet wall and the edge of the roof and use a long, water-fed pole to clean the skylight. Gonzalez testified that he did not walk on the other side of the parapet wall (i.e., between the parapet wall and the skylight) because the air conditioning ducts, pipes, and other fixtures made the space too tight to navigate.
On August 1, 2012, at the direction of Mathis’s housekeeper, Gonzalez went up on to the roof to tell his employees to use less water while cleaning the skylight because water was leaking into the house. While Gonzalez was walking between the parapet wall and the edge of the roof on his way back to the ladder, he slipped and fell to the ground, sustaining serious injuries. Gonzalez did not have workers’ compensation insurance.
In the course of a lawsuit brought by Gonzalez, Gonzalez contended that the accident was caused by dangerous conditions on Mathis’s roof including: (1) Mathis’s lack of maintenance which caused the roof to have a very slippery surface made up of “loose rocks, pebbles, and sand”; (2) the roof contained no tie-off points from which to attach a safety harness; (3) the roof’s edge did not contain a guardrail or safety wall; and (4) the path between the parapet wall and the roof’s edge was unreasonably narrow and Gonzalez could not fit between the parapet wall and the skylight due to obstructing fixtures. Gonzalez testified that he knew of these conditions since he first started cleaning Mathis’s skylight although the roof’s condition became progressively worse and more slippery over time. Gonzalez also testified that he told Mathis’s housekeeper and accountant “months before the accident” that the roof was in a dangerous condition and needed to be repaired, though Gonzalez did not indicate that his work of cleaning the skylight could not be performed safely absent the roof’s repair.
Mathis later filed a motion for summary judgment under the Privette Doctrine which was granted by the trial court but later reversed by the Court of Appeal which held that a landowner may be liable to an independent contractor or its workers for injuries resulting from known hazards in certain circumstances. On petition to the Supreme Court, the Supreme Court granted review.
The Supreme Court Decision
The California Supreme Court, referencing its decision in Kinsman v. Unocal Corporation, 37 Cal.4th 659 (2005), noted that in Kinsman, which involved a concealed hazard rather than a known hazard, it had observed that “[t]here may be situations . . . in which an obvious hazard, for which no warning is necessary, nonetheless gives rise to a duty on the landowner’s part to remedy the hazard because knowledge of the hazard is inadequate to prevent injury.”
But, explained the Supreme Court, since Kinsman did not involve an obvious hazard, there was no need to address the question raised in Gonzalez whether a landowner is liable for injuries sustained when there is a known hazard on a property that the independent contractor cannot remedy or protect against through the adoption of reasonable safety precautions.
The Supreme Court, tracing a thread of reasoning in its decisions in Kinsman, Hooker v. Department of Transportation, 27 Cal.4th 198 (2002), and Seabright Ins. Co. v. US Airways, Inc., 52 Cal.4th 590 (2011), held that applying liability to a landlord for known hazards on a property, even where the independent contractor cannot remedy or protect against such hazards through the adoption of reasonable safety precautions, would turn the Privette Doctrine “on its head by requiring the landowner to affirmatively assess workplace safety”:
The landowner would need to determine whether the contractor is able to adopt reasonable safety precautions to protect against the known hazard and, if not, to remedy the hazard. This makes little sense given that a landowner typically hires an independent contractor precisely because of the contractor’s expertise in the contracted-for work and the hirer usually has no right to interfere with the contractor’s decisions regarding safety or otherwise control the contractor’s work.
While acknowledging that “financial and other real world factors” might make it “difficult for an independent contractor to raise safety concerns with the hirer or to simply walk away from a job it has deemed to be unsafe,” the Supreme Court noted that “independent contractors can typically factor the cost of added safety precautions or any increased safety risks into the contract price, that “[t]hey can also purchase workers’ compensation to cover any injuries sustained while on the job,” and that the Court’s holding “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.
Gonzalez establishes a bright line rule that landowners are not liable for injuries sustained by employees of independent contractors due to obvious hazards even if the independent contractor cannot remedy or protect against those hazards through reasonable safety precautions.