{"id":902038,"date":"2023-12-20T16:11:11","date_gmt":"2023-12-20T23:11:11","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=902038"},"modified":"2023-12-20T16:11:14","modified_gmt":"2023-12-20T23:11:14","slug":"privette-doctrine-hirer-not-liable","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/privette-doctrine-hirer-not-liable\/","title":{"rendered":"Hirer Not Liable Under Privette Doctrine Where Hirer Had Knowledge of Condition, but not that Condition Posed a Concealed\u00a0Hazard"},"content":{"rendered":"\n

Garret Murai | California Construction Law Blog<\/a><\/p>\n\n\n\n

The\u00a0Privette<\/em>\u00a0doctrine<\/a>, so-called because of a case of the same name,\u00a0Privette v. Superior Court<\/em><\/a>\u00a0, 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\u2019s employees gets injured while working on the property, there is a rebuttable presumption that the property owner is\u00a0not<\/strong>\u00a0liable for the employee\u2019s injuries, the rationale being that because the contractor is required to carry workers\u2019 compensation insurance the contractor is in the better position to absorb losses incurred a workplace injury.<\/p>\n\n\n\n

There are, however, two widely recognized exceptions to the\u00a0Privette<\/em>\u00a0doctrine. The first, is the\u00a0Hooker<\/em>\u00a0exception, again named after a case of the same name,\u00a0Hooker v. Department of Transportation<\/em><\/a>, 27 Cal.th 198 (2002), which provides that a hirer is liable for injuries to a hired parties\u2019 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\u2019s injury.<\/p>\n\n\n\n

The other exception is the Kinsman exception, named after the case\u00a0Kinsman v. Unocal Corporation<\/a>, 37 Cal.4th 659 (2005), which provides that a hirer is liable for injuries \u00a0to a hired parties\u2019 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.<\/p>\n\n\n\n

The next case, Blaylock v. DMP 260 Newport Center, LLC<\/a>, Case No. G063101, discussed the Kinsman<\/em> exception and under what circumstances a hiring party knew or should have known of a concealed hazard, specifically a \u201ctrap door.\u201d<\/p>\n\n\n\n

The Blaylock Case<\/h5>\n\n\n\n

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.<\/p>\n\n\n\n

The building\u2019s HVAC units were located on the roof and connected to ductwork that penetrates the roofline into a \u201cplenum\u201d 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\u2019s heating, ventilation, and air-conditioning ductworks. The plenum in DMP\u2019s building was about 44 inches tall and was accessible through a door on the roof.<\/p>\n\n\n\n

The \u201cfloor\u201d 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\u2019m 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.<\/p>\n\n\n\n

According to testimony from Blaylock\u2019s 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 \u201ccrawl on the beams, the trusses.\u201d<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

While inside the crawlspace, Blaylock used his iPhone as a flashlight, which he described as \u201cfairly bright.\u201d In addition, the crew used their own flashlights, plus \u201cthree magnetic lights to illuminate the crawl space.\u201d Two of the employees described the crawl space as `\u201dpretty well lit\u201d\u2018 while they were working.<\/p>\n\n\n\n

While Blaylock was inside the crawlspace he fell through the access panel which his counsel, as counsel are wont to do, described as a \u201ctrap door.\u201d 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 \u201ctippy-toes\u201d on one side of the duct while the others sat on the outside edge when Blaylock \u201cjust disappeared.\u201d 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.<\/p>\n\n\n\n

Blaylock later sued DMP. While the case was pending, DMP filed a motion for summary judgment, arguing that under the Privette<\/em> doctrine, the undisputed facts demonstrated that DMP did not know of and could not have reasonably discovered the hazardous condition (i.e., the \u201ctrap door\u201d). In his opposition, Blaylock argued that DMP\u2019s motion should be denied because there were triable issues of material fact as to whether DMP was liable under the Kinsman<\/em> 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\u2019s 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.<\/p>\n\n\n\n

Blaylock appealed.<\/p>\n\n\n\n

The Appeal<\/h5>\n\n\n\n

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 \u201call of the evidence and all of the inferences drawn therefrom,\u201d that \u201c[t]the moving party\u2019s evidence is strictly construed, while the opponent\u2019s is liberally construed\u201d and \u201c[a]ll reasonable inferences must be drawn in favor of the opposing party and \u201csummary judgment cannot be granted when the facts are susceptible of more than one reasonable inference . . . .\u201d <\/p>\n\n\n\n

Discussing the Kinsman<\/em> exception, the Court of appeal explained that, with respect to whether a hirer knew of or could have reasonably discovered a concealed hazard:<\/p>\n\n\n\n

\n

The Supreme Court made clear that it is the landowner\u2019s knowledge of the hazardous condition, rather than the condition itself, that is relevant: \u201cthere 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.\u201d<\/p>\n\n\n\n

Based on those considerations, the Supreme Court held that a \u201clandowner may be independently liable to the contractor\u2019s 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.\u201d<\/p>\n<\/blockquote>\n\n\n\n

On appeal, Blaylock argued that DMP\u2019s 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 \u201ctrap door\u201d 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 \u201ctrap door\u201d 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.<\/p>\n\n\n\n

The Court of Appeal did not agree. Citing to \u201cseveral flaws in Blaylock\u2019s argument\u201d the Court explained:<\/p>\n\n\n\n

\n

First, the suggestion that the trap door was concealed because the lighting inside the crawl space was inadequate is not persuasive. As noted ante,<\/em> \u201cwhen there is a known safety hazard on a hirer\u2019s premises that can be addressed through reasonable safety precautions on the part of the independent contractor, a corollary of Privette<\/em> 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\u2019s employee if the contractor fails to do so.\u201d Inadequate lighting in the crawl space is the kind of known hazard that falls within that rule; it was ACS\u2019s responsibility to ensure the workspace was adequately lit to ensure worker safety.<\/p>\n\n\n\n

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 \u201ctrap door,\u201d 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.<\/p>\n\n\n\n

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 \u201ctrap door\u201d exposed in the crawl space as the wallboard \u201cfloor\u201d laid across the top of the joists was cut around it. That recognition might well have revealed the existence of the sealed \u201ctrap door.\u201d<\/p>\n\n\n\n

A reasonable inspection would have also revealed that the exposed plywood surface was attached to the bottom<\/em> 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.<\/p>\n\n\n\n

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 \u201cthrough the drywall or through the ceiling.<\/p>\n<\/blockquote>\n\n\n\n

Further, explained the Court of Appeal:<\/p>\n\n\n\n

\n

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\u2019s 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,<\/em> 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.<\/p>\n<\/blockquote>\n\n\n\n

Conclusion<\/h5>\n\n\n\n

So there you have it. Under the\u00a0Privette<\/em>\u00a0doctrine, a hirer will not be found liable under the\u00a0Kinsman<\/em>\u00a0exception 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.<\/p>\n\n\n\n

\n\n\n\n

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net<\/a>.<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Garret Murai | California Construction Law Blog The\u00a0Privette\u00a0doctrine, so-called because of a case of the same name,\u00a0Privette v. Superior Court\u00a0, 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… Continue reading Hirer Not Liable Under Privette Doctrine Where Hirer Had Knowledge of Condition, but not that Condition Posed a Concealed\u00a0Hazard<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","enabled":false},"version":2}},"categories":[14],"tags":[9895,9884],"class_list":["post-902038","post","type-post","status-publish","format-standard","hentry","category-construction-2","tag-advise-consult","tag-privette-doctrine","entry"],"jetpack_publicize_connections":[],"yoast_head":"\nHirer Not Liable Under Privette Doctrine Where Hirer Had Knowledge of Condition, but not that Condition Posed a Concealed\u00a0Hazard - 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