The Privette doctrine, so-called because of a case of the same name, Privette v. Superior Court , 5 Cal.4th 698 (1993), provides a rebuttable presumption that a hirer is not liable for workplace injuries sustained by employees of hired parties. In other words, if a property owner hires a contractor, and one of the contractor's employees gets injured while working on the property, there is a rebuttable presumption that the property owner is not liable for the employee's injuries, the rationale being that because the contractor is required to carry workers' compensation insurance the contractor is in the better position to absorb losses incurred a workplace injury.
There are, however, two widely recognized exceptions to the Privette doctrine. The first, is the Hooker exception, again named after a case of the same name, Hooker v. Department of Transportation, 27 Cal.th 198 (2002), which provides that a hirer is liable for injuries to a hired parties' employees, if the hirer retained control over the work being performed, negligently exercised that control, and the negative exercise of that control contributed to the employee's injury.
The other exception is the Kinsman exception, named after the case Kinsman v. Unocal Corporation, 37 Cal.4th 659 (2005), which provides that a hirer is liable for injuries to a hired parties' employees, if the hirer knew or should have known of a concealed hazard, the hired party did not know of and could not have reasonably discovered the hazard, and the hirer failed to warn the hired party of the hazard.
The next case, Blaylock v. DMP 260 Newport Center, LLC, Case No. G063101, discussed the Kinsman exception and under what circumstances a hiring party knew or should have known of a concealed hazard, specifically a "trap door."
The Blaylock Case
In June 2018, property owner DMP 250 Newport Center hired Air Control Systems, Inc. to address a problem in one of its suites that was not getting sufficient airflow. Travis Blaylock was employed by Air Control as a project manager.
The building's HVAC units were located on the roof and connected to ductwork that penetrates the roofline into a "plenum" crawl space between the roof and the ceiling of the floor below. The plenum is a separate crawl space between the structural roof joists above and the ceiling joists for the floor which provides room for the building's heating, ventilation, and air-conditioning ductworks. The plenum in DMP's building was about 44 inches tall and was accessible through a door on the roof.
The "floor" of the crawl space was constructed of gypsum wallboard panels, taped and mudded at the seams, that covered the ceiling joists below. However, an access panel, from a storage closet below, was not covered with gypsum, but rather a square plywood surface that sat below the ceiling joist that framed it on all four sides. I'm kind of thinking it looked like a large square cakepan. A large metal duct ran vertically, adjacent to the cut-away flooring and the access panel.
According to testimony from Blaylock's coworkers, Air Control trained its employees to check the flooring when working in a crawl space before putting their weight on it, to move around in a crawl space on all fours to distribute their weight rather than walking upright, and to "crawl on the beams, the trusses."
About a week before Blaylock came to site, another coworker had gone into the crawlspace with a flashlight and spent about 15 minutes investigating what needed to be done to make the return air opening sufficient. He said he examined the ductwork, did not notice any safety concerns, but nor did he look for any either.
Blaylock came to the site about a week later with three other employees. All four men went into the crawl space where Blaylock asked the others to help him count return air grilles to calculate the amount of return air flow. They were in the crawl space between 10 and 20 minutes. During that time, Blaylock acknowledged moving around the space in a posture that was closer to standing than crawling as he estimated the space was five to six feet tall. The others stayed entirely or primarily on their hands and knees while in the crawl space.
While inside the crawlspace, Blaylock used his iPhone as a flashlight, which he described as "fairly bright." In addition, the crew used their own flashlights, plus "three magnetic lights to illuminate the crawl space." Two of the employees described the crawl space as `"pretty well lit"' while they were working.
While Blaylock was inside the crawlspace he fell through the access panel which his counsel, as counsel are wont to do, described as a "trap door." Blaylock does not remember what happened just before he fell through the access panel. However, another employee recalled that seconds before Blaylock fell, everyone had been congregated around a duct shaft, figuring where to cut it, with Blaylock standing on a beam on his "tippy-toes" on one side of the duct while the others sat on the outside edge when Blaylock "just disappeared." The employees then crawled over to where Blaylock had been, looked down into a hole above a dark closet, and saw Blaylock laying on the floor below.
Blaylock later sued DMP. While the case was pending, DMP filed a motion for summary judgment, arguing that under the Privette doctrine, the undisputed facts demonstrated that DMP did not know of and could not have reasonably discovered the hazardous condition (i.e., the "trap door"). In his opposition, Blaylock argued that DMP's motion should be denied because there were triable issues of material fact as to whether DMP was liable under the Kinsman exception. The court ultimately ruled in favor of DMP finding that, while there was a triable issue of material fact as to whether DMP employee's knew or should have known there was an access door, there was no evidence that DMP employees knew the access door led to the crawl space or knew that it could present a hazard.
On appeal, the 4th District Court of Appeal explained that when appealing a ruling on a summary judgment motion, the Court of Appeal reviews the matter on a de novo basis considering "all of the evidence and all of the inferences drawn therefrom," that "[t]the moving party's evidence is strictly construed, while the opponent's is liberally construed" and "[a]ll reasonable inferences must be drawn in favor of the opposing party and "summary judgment cannot be granted when the facts are susceptible of more than one reasonable inference . . . ."
Discussing the Kinsman exception, the Court of appeal explained that, with respect to whether a hirer knew of or could have reasonably discovered a concealed hazard:
The Supreme Court made clear that it is the landowner's knowledge of the hazardous condition, rather than the condition itself, that is relevant: "there is no reason to distinguish conceptually between premises liability based on a hazardous [condition] that is concealed because it is invisible to the contractor and known only to the landowner and premises liability based on a hazardous [condition] that is visible but is known to be hazardous only to the landowner. If the hazard is not reasonably apparent, and is known only to the landowner, it is a concealed hazard, whether or not the [condition] creating the hazard is visible."Based on those considerations, the Supreme Court held that a "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 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."
On appeal, Blaylock argued that DMP's motion for summary judgment should have been denied because there was a triable issue of material fact as to whether DMP knew or could have reasonably discovered the concealed hazard. In support of this argument he pointed out that the "trap door" was not discernible from inside the crawl space because it was covered in the same plywood that covered most of the floor, was not easily visible due to the dim lighting in the crawl space, and that its hinge was not visible from within the crawl space, but that the "trap door" was visible from inside the storage closet because it was painted a different color than the rest of the ceiling, was surrounded by trim, and had an obvious hinge.
The Court of Appeal did not agree. Citing to "several flaws in Blaylock's argument" the Court explained:
First, the suggestion that the trap door was concealed because the lighting inside the crawl space was inadequate is not persuasive. As noted ante, "when there is a known safety hazard on a hirer's premises that can be addressed through reasonable safety precautions on the part of the independent contractor, a corollary of Privette and its progeny is that the hirer generally delegates the responsibility to take such precautions to the contractor, and is not liable to the contractor's employee if the contractor fails to do so." Inadequate lighting in the crawl space is the kind of known hazard that falls within that rule; it was ACS's responsibility to ensure the workspace was adequately lit to ensure worker safety.Second, the fact that neither Blaylock nor his coworkers noticed any safety concerns in the crawl space, and none had recognized the panel Blalock fell through as a "trap door," is not sufficient to suggest the trap door was concealed from the perspective of ACS. ACS had a duty to inspect the work premises for potential safety hazards; Blaylock offers no evidence that any such inspection occurred.The photographs in our record demonstrate that, had ACS employees engaged in a safety inspection of the premises, they would have seen the plywood panel which turned out to be the sealed "trap door" exposed in the crawl space as the wallboard "floor" laid across the top of the joists was cut around it. That recognition might well have revealed the existence of the sealed "trap door."A reasonable inspection would have also revealed that the exposed plywood surface was attached to the bottom of the joists, rather than the top of them. The ACS employees would thus have recognized the plywood functioned as part of the ceiling of the room below, rather than part of the floor of the crawl space.Third, Blaylock ignores the undisputed evidence which reflected that the ACS employees were trained that when working in a crawl space between the roof of a building and the ceiling of the interior space below, they could not assume the surfaces below them would hold their weight. They were trained to check any flooring before putting their weight on it, to move around on all fours as much as possible to distribute their weight, and to do their best to stay on top of the floor joists (sometimes referred to as the beams or trusses) because stepping onto other surfaces would risk going "through the drywall or through the ceiling.
Further, explained the Court of Appeal:
To be clear, we agree with the trial court that there is a triable issue of fact about whether DMP should have known of the access panel's existence because it is visible from inside the storage room that DMP used. But knowing the condition exists is not the same as knowing or suspecting it could create a hazard for ACS employees inspecting the air conditioning. For example, in Kinsman, it was undisputed Unocal was aware asbestos was present in the area where Kinsman worked at the Unocal refinery. What was disputed was whether Unocal knew or should have known that asbestos created a hazard for workers like Kinsman. In this case, Blaylock offers no evidence DMP knew or should have known the access panel, which had been screwed shut, was hazardous to the ACS workers.
So there you have it. Under the Privette doctrine, a hirer will not be found liable under the Kinsman exception simply because the hirer knows of the existence of a condition, but must know or reasonably should have discovered that the condition posed a concealed hazard.