Connecticut Supreme Court Affirms Continuous Trigger and Unavailability Exception, Makes First-In-The-Nation Law Regarding Occupational Disease Exclusion

Paul C. Fuener | K&L Gates | October 28, 2019

Introduction

Earlier this month, the Connecticut Supreme Court (the “Supreme Court”) finally issued its long-anticipated ruling regarding the Connecticut Appellate Court’s (the “Appellate Court”) landmark 2017 decision in R.T. Vanderbilt v. Hartford Accident and Indemnity Co. (the “2017 Appellate Court Decision”). [1] The Supreme Court adopted in its entirety the Appellate Court’s policyholder-favorable decisions regarding the application of the continuous trigger theory to long-tail asbestos-related bodily injury claims, the application of the unavailability-of-insurance rule to allocation of liability for such claims, and the inapplicability of the qualified pollution exclusion to asbestos-related bodily injury claims.

The Supreme Court’s opinion also contained a potentially problematic ruling for policyholders. Ruling on an issue of national first impression, the Supreme Court held that an occupational disease exclusion in certain of the policyholder’s policies applied not only to claims brought by the policyholder’s own employees but also to all underlying claimants alleging that they suffer from an occupational disease, even if they were employed by others.

The Supreme Court’s Vanderbilt Decision

The Connecticut Supreme Court considered four issues on appeal from the 2017 Appellate Court Decision. [2] Three of those issues were raised by the defendant insurers: (1) whether the continuous trigger theory was properly applied to long-tail asbestos claims under Connecticut law, (2) whether the unavailability-of-insurance rule should be applied to allocation of liability under Connecticut law for long-tail liability claims, and (3) whether under Connecticut law the pollution exclusion applied only to traditional environmental pollution or more broadly to asbestos bodily injury claims. [3]

The policyholder raised the final issue on appeal: whether the occupational disease exclusion was limited to claims brought by the policyholder’s own employees or had broader application. [4]

Trigger, Allocation, and the Qualified Pollution Exclusion

In its 2017 Appellate Court Decision, the Appellate Court placed Connecticut among those jurisdictions that apply the continuous trigger theory to long-tail claims. The Appellate Court’s decision reasoned that this theory best reflected the medical particularities of long-tail asbestos claims and was therefore the most fair and efficient way to distribute costs. [5]

The Appellate Court also adopted the “unavailability-of-coverage” rule to augment Connecticut’s pro rata allocation theory for long-tail claims. Under this rule, no amounts are allocated to a policyholder for years when the policyholder was unable to purchase insurance for third-party asbestos-related bodily injury claims because such insurance was unavailable in the market. [6] In adopting the “unavailability-of-coverage” rule, the Appellate Court rejected the insurers’ attempt to include an “equitable exception” to the rule that would have made the rule inapplicable to periods during which a policyholder sold allegedly asbestos-containing products. It also rejected the insurers’ suggestion that the alleged availability of coverage for asbestos liabilities under “claims-made” policies should be factored into the question of whether coverage for asbestos-related bodily injury claims was “available” in the market. [7]

Finally, the Appellate Court held that the so-called “qualified” pollution exclusion (also referred to as the “sudden and accidental” pollution exclusion) only applied to traditional environmental pollution. [8] The Appellate Court reasoned that the meaning of “environmental pollution” was clear at the time the insurers drafted the exclusion and referred to traditional methods of environmental pollution, such as unintentional migration of a pollutant through a water source. [9] The Appellate Court held, therefore, that this exclusion does not apply to asbestos-related bodily injury claims. [10]

On appeal, the Supreme Court agreed with the Appellate Court’s reasoning and conclusions with respect to these three issues and adopted in full the Appellate Court’s discussion of them without further elaboration. [11]

The Occupational Disease Exclusion

In considering the scope of the occupational disease exclusion, the Supreme Court, after summarizing the discussion of the issue below, began by making an independent inquiry into the plain meaning of the term “occupational disease.” [12]

Looking first to the language of the exclusion in the relevant policies, the Supreme Court noted that neither defined the term “occupational disease,” thus requiring the court to turn to the plain meaning of the term when the policies were written. [13]

Citing an array of dictionaries and cases, the court found definitions such as “[a] disease caused by the condition or hazards of a particular occupation” [14] and “an illness caused by factors arising from one’s occupation.” [15] In light of these broad definitions, the Supreme Court rejected the policyholder’s argument that the term “occupational disease” belonged to the workers compensation domain and should therefore only apply in a workers compensation context to claims brought by the policyholder’s own employees. [16] The Supreme Court acknowledged that “the relationship between occupational disease and workers’ compensation is now a matter of black letter law….” [17] However, it found that:

the definitions on which Vanderbilt relies — including the definition in Black’s Law Dictionary — [do not] suggest[] in any way that the phrase “occupational disease” is a construct devoid of meaning outside the law of workers’ compensation, notwithstanding its obvious significance within that area of the law. Instead, we read those definitions only to highlight the availability of workers’ compensation as a common, legal remedy for claims arising from the underlying condition. [18]

The Supreme Court also found it significant that the relevant exclusions themselves, like the general definitions of “occupational disease” that it had considered, did not contain an express limitation to the policyholder’s own employees. [19] The Supreme Court contrasted the language of the relevant exclusions with that of certain other exclusions contained in the relevant policies that did expressly limit the exclusion’s scope, noting that “when the drafters of the policy desired to limit the application of an exclusion to a certain group of individuals, they did so.” [20]

The Supreme Court then rejected the policyholder’s argument that the relevant exclusions were ambiguous in the absence of limiting language. [21] It also held that the policyholder’s preferred interpretation would require adding nonexistent limiting language in violation of bedrock principles of contract interpretation. [22]

The Supreme Court also disagreed with the policyholder’s argument that a reference to “occupational diseases sustained by any employee of the assured” in the body of one of the relevant policies limited the scope of the occupational disease exclusion in that policy, which was found in an endorsement. [23] The Supreme Court held that this reference did not constitute a generally applicable definition of “occupational disease” and so was irrelevant to interpreting the scope of the exclusion found in an endorsement. [24]

Finally, the Supreme Court addressed the policyholder’s argument that interpreting the occupational disease exclusion without an own-employees limitation would render the relevant policies’ liability coverage meaningless. [25] The Supreme Court found this argument “tempting” but ultimately held that the facts in the record undercut its applicability to the case at bar. [26] In Vanderbilt, the parties had stipulated below that the underlying claims were all brought entirely by claimants who were not the policyholder’s own employees, and those claims could be classified into three categories: claims arising from workplace exposure, claims arising from both workplace and nonworkplace exposure, and entirely nonworkplace exposure claims. [27] The Supreme Court held that its interpretation of the occupational disease exclusion did not render the relevant policies’ liability coverage meaningless in these circumstances, since that interpretation did not affect coverage for claims in the second and third category. [28] Moreover, the Supreme Court noted that even a significant exclusion limiting available coverage does not mean that the insured did not get the coverage for which it bargained or that the “insurance policies are rendered meaningless by virtue of the denial of coverage.” [29]

In light of all these reasons, the Supreme Court concluded that the occupational disease exclusion was clear and unambiguous, and it applies to occupational disease claims brought by both a policyholder’s own employees and other individuals who contract occupational disease in the course of work for other employers. [30]

Notably, in explaining the import of is decision, the Supreme Court did acknowledge that although a “disease might well have been contracted during [the underlying claimant’s] employment, that fact does not, without more, render it occupational in nature.” [31] Although the Supreme Court did not describe in detail what was needed to render a disease “occupational in nature,” it did suggest that the relevant employment had to be in “an industry that had peculiar incidence of diseases occasioned by exposure to [whatever the underlying claimant was allegedly exposed to].” [32]

Conclusion

Policyholders facing third-party long-tail liabilities whose general liability policies may be governed by Connecticut law should take heart that Connecticut has now joined those jurisdictions applying the continuous trigger theory and the unavailability-of-coverage rule. The Supreme Court’s Vanderbilt opinion also brings Connecticut into the majority of jurisdictions that properly interpret the qualified pollution exclusion as having no application outside the realm of traditional environmental pollution.

However, policyholders also should carefully review their policies for any “occupational disease” exclusionary language, particularly if those policies may be governed by Connecticut law. Policyholders that are uncertain as to whether Connecticut law may apply to the interpretation of their policies may wish to seek advice from coverage counsel regarding the applicable choice of law and the potential implications of Vanderbilt to their general liability insurance program. While a general “occupational disease” exclusion of the kind at issue in Vanderbilt may not be widely found in general liability policies, Vanderbilt may embolden insurers nationally whose policies contain similar provisions to attempt to raise new coverage defenses to escape their coverage obligations for toxic tort claims. Policyholders should carefully evaluate any attempts by their insurers to raise previously unasserted “occupational disease” exclusions.

Safety, Technology Combine to Change the Construction Conversation

Neil Riddle and Brent Burger | Construction Executive | July 8, 2019

New technologies are redefining how to plan, build and deliver the full spectrum of construction projects. Automation, software and new processes are changing the construction industry in unprecedented ways, and construction management is evolving along with it. Construction companies are adapting—using innovative tools and resources, joined by more aggressive risk management and decision-making methods. All the while, safety remains at the heart of every successful new build.

ENVISIONING THE MODERN JOBSITE 

Productivity has increased by leaps and bounds as processes have gotten faster and cheaper. Twenty years ago, the industry looked completely different— a $500 million project would have taken four years to deliver; today, it can be done in 29 months. 

These new projects are becoming incredibly complex as new technologies change the size and scope, giving rise to more specialization and fragmentation. Building projects faster with fewer people requires a whole new level of preparation. This is where advanced planning and advanced work packaging can play a big role—by informing exactly how the material is going to arrive, how it will be staged, how it will be fabricated and how the area can be best managed to deliver the work. 

Automation also offers unprecedented promise. In construction, the safest hour is the one not worked. Relying on autonomous vehicles or modularization can reduce craftsman hours, which also reduces congestion and helps decrease safety incidents while improving productivity. These technologies are absolutely paramount to success.

The industry has made great strides in changing jobsite culture. Today, safety by design and safety by procurement are key to making jobsites safer than they have been in the past. Constructibility plays a big role in making man hours safer—for example, by having materials fabricated according to how the contractor wants to build them, rather than how the fabricator wants to send it. This might mean designing materials so that a field weld can be performed at waist level, rather than overhead or laying on the ground. 

On the field side, safety is set into action through daily safety toolbox meetings, which outline exactly what everyone is doing, the processes and the hazards, and how can they be mitigated to reduce risk. After that, it’s not just “fill out the paperwork and get to work”; rather, safety is discussed whenever anything changes. The focus has shifted to how tasks are performed more safely, which is a change that’s taken place over time.

Technology will also help evolve the work process. The University of Colorado created a tool that leverages a virtual twin. Workers stand a much better chance of actually being safe when they go out in the field if they can identify hazards and solve safety issues in a digitized virtual model. 

CHANGE COMES IN WAVES 

There is no doubt that technology has improved performance and increased efficiency. As recent as two or three years ago, surveyors would grid an area, then upload data at the end of the day. It was a time-consuming process. Today, drones and site mapping technology can upload and share data in real time, allowing the engineering team to begin design sooner. 

Yet many processes are still manual and time-consuming. Technology has primarily helped streamline the advance work—the planning and data collection—which can help shorten the overall schedule. Automation (automated welding, autonomous vehicles) can help reduce man hours, but a lot of processes are still done the traditional way. The tech advances are in the upfront planning and the preparation, and less on the actual work.

In this sense, technology is happening in two waves. The current wave is focused on discovering opportunities to automate or streamline existing processes. Take a group of masons who are using an automated brick laying machine to construct a wall. Using a robot allows the masons to hand off the more tedious work, letting them focus on the more intricate bricklaying.

The second wave will look at what is being built. Here the question becomes, are bricks even needed, or can the building or facility be constructed using packaged units or modules that snap together? There is a lot of opportunity in figuring out a different process. 

TECHNOLOGY AND THE NEW WORKFORCE 

It’s no secret that the workforce is aging and diminishing and fewer people are pursuing trade careers, making it a challenge to attract and train new workers. Members of this next generation of “digital native” workers have grown up with smartphones and iPads and are used to integrating advanced technology in their daily lives. This behavior translates to the jobsite, where these workers are eager for apps and programs that can be accessed with the swipe of a finger. 

To attract this workforce, the construction industry needs to pursue and integrate these technologies – from apps that connect an iPad to an advanced work package, or cloud-based software that sends real-time data to a mobile phone. 

One of the biggest potential gains in productivity comes down to reducing distraction and streamlining efforts to help keep the crew on their tools all day. Crews get misdirected and have to chase down different things; they get moved around and priorities change. They have to content with missing materials and tools. How can time on tools be maximized?

Engineering groups are becoming more engaged with OEMs than in the past. Typically, an operator purchases a piece of equipment, obtains the data and starts detail engineering. Productivity could increase if the OEMs have a better understanding of the constructibility aspect. It’s a common refrain that clients want a technology that can help reduce their labor – approaching it early is the only option, because once the engineering has started, labor hours begin to stack up.

The greatest problem for productivity is rework. If something is installed incorrectly and needs to be redone, that’s a huge productivity problem. To prevent this, contractors can become better at understanding the sequence of construction and ensuring that all the materials, companies and tools are available at the right times to do the work. This is where technology can really add value, by offering advances in sequence planning.

LOOKING AHEAD

Historically, jobsites accepted a certain level of risk. The old focus was on following the rules, but that didn’t guarantee safe behaviors that reduced risk to life and limb. Safety has evolved exponentially over the last few decades, gaining a new level of discipline and visibility. With the advent of today’s new technologies, the construction industry can deliver on a higher promise to safeguard health and safety while improving productivity and reducing delays, helping to evolve even more rapidly, ensuring a safer, more productive experience for all.

In Utah, It’s Obvious What’s Open and Obvious

Mark Morris | Snell & Wilmer | July 5, 2019

There is good news for contractors in Utah who take care to appropriately mark, sign and warn of hazards. Of course it does not mean they will avoid being sued. But in Coburn v. Whitacker Construction Co., 2019 UT 24, the Utah Supreme Court recently reaffirmed Utah’s embrace of the open and obvious danger rule, affirming a summary judgment in favor of a contractor whose warning signs and orange netting were consciously ignored by a plaintiff who tripped over them and suffered injuries.

In July 2018, a woman and her husband went for a walk on a trail in a recreational area. At the trail head, a contractor had posted a sign warning that there were construction activities in the area and that portions of the trail were closed. The contractor had also placed orange netting across the trail to deter people from accessing the construction site. The woman and her husband saw both the sign and the netting strung between two orange barrels. The woman chose to try to step over the netting, tripped, fell and injured her arm and shoulder.

The woman sued the contractor for negligence. After obtaining admissions that the woman had seen the sign, the barrels and the netting, the contractor filed a motion for summary judgment, claiming that the open and obvious danger rule in Utah barred such a suit. The trial court granted the motion for summary judgment, and on appeal the Utah Court of Appeals affirmed it. On a petition of certiorari to the Utah Supreme Court, the Utah Supreme Court affirmed Utah’s adoption of Section 343 and 343A of the Restatement (Second) of Torts. In short, “[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Resisting arguments that only a jury could decide what is open and obvious, and finding that the arguments to overturn precedent were unpersuasive, the Utah Supreme Court let the ruling stand. Of some import to the Court was the fact that the plaintiff and her husband were able to safely traverse the netting on the way back to their car, thus demonstrating that a “reasonable person exercising ordinary attention, perception and intelligence” could avoid the danger.

Construction can create hazards that may be unavoidable and thus need to be warned against. The irony in the Coburn case is that it was the warnings themselves, and not the dangers, that led to harm. But it is heartening that a contractor who conscientiously takes reasonable and visible steps to warn of those hazards can avoid liability, even if getting there may ultimately require three levels of judicial review.

Claims for Negligence? Duty to Defend Triggered

Michael S. Levine | Hunton Andrews Kurth | June 19, 2019

On June 17, 2019, the First Circuit held that an insurer’s duty to defend was triggered because the underlying complaint set forth claims that required a showing of intent as well as claims that sought recovery for conduct that “fits comfortably within the definition of an ‘accident.’” In Zurich American Ins. Co v. Electricity Maine, LLC, Zurich sought declaratory judgment that, under a D&O policy, it had no duty to defend the insured, Electricity Maine, an electrical utility company being sued in the underlying class action. Zurich argued it had no duty to defend because the underlying complaint failed to allege that Electricity Maine engaged in conduct that qualified as an “occurrence” or that caused “bodily injury” under the terms of the policy. The First Circuit disagreed.

The D&O policy stated that Zurich “has a duty to defend Electricity Maine against any lawsuit that seeks damages for ‘bodily injury’ caused by an ‘occurrence.’” The policy defined an “occurrence” as “an accident . . .” and under Maine law an accident is “commonly understood to mean . . . an event that takes place without one’s forethought or expectation . . . .” The Court held that, because the underlying complaint asserted claims for negligence and negligent misrepresentation, in addition to intentional torts, the conduct upon which recovery was sought fell within the definition of an “accident” and therefore qualified as an “occurrence” triggering the duty to defend. Second, the Court held that, although the underlying complaint did not allege that Electricity Maine’s conduct caused “bodily injury,” the complaint did not need to do so to fall within the risk insured and trigger a duty to defend. Instead, because the alleged conduct could result in bodily injury due to emotional distress, the allegations fell within the risk insured and Zurich has a duty to defend.

Alarm Cries Wolf in California Case Involving Privette Doctrine

Garret Murai | California Construction Law Blog | April 17, 2019

It’s one of the most quoted phrases in legal history: “Shouting fire in a [crowded] theater.”

It comes from the U.S. Supreme Court’s landmark 1919 decision in Schenck v. U.S. and has come to stand for the proposition that not all speech, in particular dangerous speech, is protected by the First Amendment.

The next case also involves a false alarm. But not of the First Amendment kind.

In Johnson v. The Raytheon Company, Inc., California Court of Appeal for the Second District, Case No. B281411 (March 8, 2019), a false alarm investigated by maintenance engineering staff led to a Privette Doctrine claim against a property owner when a ladder on which the maintenance staff was standing slipped on wet flooring.

Johnson v. Raytheon

Lawrence Johnson worked as a maintenance engineer for ABM Facilities Services, Inc. ABM was hired by Raytheon Company, Inc. to staff the control room at one of Raytheon’s facilities in Southern California. Among other things, control room staff monitored water cooling towers owned by Raytheon to ensure that the water in the cooling towers were maintained at minimum levels.

Johnson worked the graveyard shift. At 2:50 a.m. on February 20, 2013, Johnson received a low water level alarm. He called his supervisor who, as one might expect someone to do when awakened at 3:00 a.m. in the morning,  told Johnson to do whatever he thought he should do.  In other words, Johnson was alone.

At the time, Raytheon was undergoing a renovation project involving the removal and replacement of its water towers. System XT was the general contractor on the project, and two of its subcontractors, Brownco Construction Company, Inc. and Power Edge Solutions, Inc., were responsible for concrete work and the installation of electronic monitoring, respectively.

Johnson, unable to resolve the alarm, walked outside to the water tower in question where he saw an extension ladder left by Brownco leaning against the cooling tower wall. The cooling tower used to have a platform ladder for access but it had been removed during the renovations. Oh, and also, it had been raining, so the ground was wet.

I know what you’re thinking. It’s like the scene in pretty much any horror movie where the creepy music cues and you’re nearly yelling at the screen, “don’t open that door!,” or in this case, “don’t climb that ladder!” Well, we all know what happens next.

Johnson climbed the ladder even though (camera pan in) there was a sign on the ladder in all capital letters stating “CAUTION” and “THIS LADDER SECTION IS NOT DESIGNED FOR SEPARATE USE.” Because it was dark, Johnson didn’t see the warning.

Johnson made his way up the ladder. When he took a look over the 8-foot wall of the cooling tower … wait for it … there was no problem with the water level. However, as he made his way down the ladder, it slid, causing Johnson to come tumbling down on top of the ladder where he sustained serious injuries.

An investigation conducted after the accident revealed that the water level sensor installed by Power Edge had corroded and had to be replaced. That’s luck for you.

Johnson later sued Raytheon and Systems XT, alleging that Raytheon was liable because it retained control of the premises and that Systems XT ,as the general contractor, was liable for: (1) Power Edge’s failure to properly install the water level sensor to prevent it from becoming corroded; and (2) Brownco’s negligence in leaving its ladder out rather than putting it away.  Both Raytheon and Systems XT filed motions for summary judgment, which were granted by the trial court, and Johnson appealed.

The Appeal

On appeal, the 2nd District Court of Appeal noted that the Privette Doctrine, named after the case in which it was first elucidated, Privette v. Superior Court (1993) 5 Cal.4th 689, stands for the general principal that “a hirer of an independent contractor was not liable for the negligence of the independent contractor.”

However, also noted the Court, the Privette Doctrine has given way to several exceptions including the following:

  1. Negligent Exercise of Retained Control: Under the negligent exercise of retained control exception, a hirer is liable for injuries sustained by an employee of an independent contractor if: (1) the hirer retains control over any part of the work; (2) the hirer negligently exercises that control; and (3) the hirer does so in a manner that affirmatively contributes to the employee’s injury.” Hooker v. Department of Transportation (2002) 27 Cal.4th 198.
  2. Hazardous Conditions on Property: Under the hazardous conditions on property exception, a hirer is liable for injuries sustained by an employee of an independent contractor if: ” [(1)] the landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, [(2)] the contractor did not know and could not have reasonably discovered this hazardous condition, and [(3)] the landowner failed to warn the contractor about this condition.” Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659.

Raytheon Was Not Liable Under Hooker

The Court of Appeal, focusing on the third factor of the negligent exercise of retained control exception, whether the hirer “affirmatively contribute[d]” to the employee’s injury, held that Johnson had failed to show that Raytheon affirmatively contributed to his injuries because the evidence presented to the trial court was that Raytheon provided ABM employees with access to numerous other safe ladders that Johnson did not choose to use on the night in question:

After Raytheon pointed out the availability of other ladders in its respondent’s brief, Johnson argued, in reply, that he had believed the ladder he found at the wall had been left by Raytheon, so had assumed it was safe, and that the area was not sufficiently well lit for him to have appreciated the danger posed by the partial extension ladder. While these arguments go some way to explaining why Johnson chose to use the partial extension ladder he discovered at the wall, they do not raise a triable issue of fact as to Raytheon’s affirmative contribution to his injury. Raytheon did not represent that the partial extension ladder was a safe replacement for the platform ladder, nor did Raytheon promise to provide ABM employees with light fixtures at the water cooling tower – and Johnson cannot suggest for the first time in its reply brief on appeal that it did.

Raytheon Was Not Liable Under Kinsman

The Court of Appeal, focusing on the second factor of the hazardous conditions on property exception, that the contractor did not know and could not have “reasonably discovered” the hazardous condition, held that Johnson could have reasonably discovered the hazard posed by the partial extension ladder by simply inspecting the ladder, and, once discovered, could have avoided the injury by using a different and safer ladder:

As we have discussed above in connection with the Hooker exception, it is undisputed that there were A-frame ladders available to Johnson. Thus, if the Brownco partial extension ladder were to be considered an obvious hazard, it cannot give rise to Raytheon’s liability because knowledge of the hazard is not inadequate to prevent injury. Anyone with actual knowledge of the hazardous could have avoided it by obtaining an A-frame ladder instead.

In other words, Johnson should have read the warning signs on the ladder.

Systems XT Was Not Liable For Negligence

Johnson’s claim against Systems XT was for negligence rather than an exception to the Privette Doctrine. Negligence, explained the Court of Appeals, involves the following: “(1) a legal duty to use due care; (2) a breach of that duty; and (3) the breach as the proximate or legal cause of the resulting injury.”

Johnson alleged that Systems XT breached two duties, namely, that Systems XT failed to ensure that Power Edge installed a water level sensor that would not create false alarms and  that System XT failed to ensure that Brownco safely secure its equipment including the partial extension ladder.

However, explained the Court of Appeals, while Johnson supported his allegation with contractual provisions contained in the various contracts and subcontracts between the parties, including a statement of work stating that the water cooling plant “must be a 24 x 7 ‘Fail-Safe’ operation,” general provisions providing that “contractors are responsible for keeping their work areas orderly and neat . . and free of . . . hazardous,” as well as specific provisions concerning ladders, which provided that “[w]hen not in use, store the ladder in an appropriate storage place,” Johnson had not shown that any of these contractual provisions created a duty owed by Systems XT to Johnson as a third-party beneficiary under these contractual provisions.

Conclusion

Johnson is an interesting case for reasons I think might surprise you. I believe the facts and law could have been interpreted and applied differently, fairly easily, by a different court. Instead of “Johnson should have just read the dang warning signs on the ladder,” I could see another court finding that the ladder shouldn’t have been there in the first place, and because the cooling towers were still “on line” Raytheon should have provided some means to provide safe access to them (after all, they had a platform ladder at one time, ostensibly for this very purpose). I could also see another court finding that  Systems XT did in fact breach a duty to Johnson because the safety provisions in the contracts was not intended to benefit some amorphous entity (i.e., Raytheon),  but among others, the employees of Raytheon who were working alongside an ongoing construction project.

But here’s the thing. It wasn’t another court. It was the 2nd District Court of Appeals. And in the last few years, the 2nd District Court of Appeals has come out with decisions scaling back exceptions to the Privette Doctrine, including last year’s Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078 case, and Khosh v. Staples Construction Company, Inc. (2016) 4 Cal.App.5th 712 case decided two years earlier.

Perhaps we have an appellate court split in the making?