Privette Doctrine Doesn't Bar Contractor's Suit Over 'Dilapidated' Roof

“'Independent contractors take the risk of getting injured under normal circumstances. But when we’re talking about exceptions, I think it just goes to the facts,” Gurvey said. “If there are dangerous conditions on the property, you’d hope the landowner would be responsible.'”

A window cleaner who fell off a roof may proceed with his negligence lawsuit against a Los Angeles County homeowner, the 2nd District Court of Appeal decided Wednesday.

Independent contractors like Luis Gonzalez generally aren’t allowed to sue those who hire them. But California law recognizes two exceptions to the rule, and the 2nd DCA found that Gonzalez meets the criteria for one of them.

The 2nd DCA’s decision reversed the ruling of the Los Angeles County Superior Court, which had granted summary judgment in favor of the homeowner, John Mathis.

Mathis owns a home in Los Angeles County. Beginning in 2007, his housekeeper, Marcia Carrasco, periodically hired Gonzalez’s company, Hollywood Hills Window Cleaning Co., to do maintenance work.

On Aug. 1, 2012, two of Gonzalez’s employees were working on a skylight over Mathis’s indoor pool.

Carrasco noticed that water was leaking from the skylight into the pool area, and she asked Gonzalez tell his workers to use less water. Gonzalez climbed onto the roof to deliver the message, but he lost his footing while walking back to the ladder and fell off.

In April 2014, Gonzalez sued Mathis for negligence. He said the area of the roof that housed the skylight was ill-maintained and constructed in a way that posed hazards to workers.

In court, Gonzalez testified that he had told Carrasco the roof’s shingles were “dilapidated and slippery” before the incident, but nothing was done.

Mathis filed a motion for summary judgment, saying that the Privette doctrine prevented Gonzalez from suing.

The Privette doctrine refers to a legal theory advanced by the California Supreme Court in 1993’s Privette v. Superior Court. The theory holds that independent contractors cannot sue their hirers unless they meet certain criteria.

Case law went on to define that criteria. Now, independent contractors can sue property owners if their hirer “retains … control of any part of the work,” or if the hirer subjected them to “concealed hazards” or “known hazards the contractor could not have remedied through the adoption of reasonable safety precautions.”

Gonzalez argued that there was no way he could have avoided walking on a “slippery, unprotected and narrow catwalk” to reach the skylight, because ventilation pipes and mechanical equipment blocked the rest of the roof.

Mathis argued that Gonzalez actually could have avoided walking along the catwalk by taking another route across the roof. He showed a video, taken in 2015, of a person traversing the roof without using the catwalk.

The 2nd DCA said the video didn’t conclusively establish that Gonzalez could have walked a different way. After all, Gonzalez’s fall took place three years before the video was taken, Judge Laurie Zelon wrote for the unanimous court.

“Mathis has presented no evidence that the video, taken in 2015, accurately depicts the condition of the roof as it was at the time of the incident in 2012,” Zelon wrote. “Nor has Mathis presented evidence negating other factors that might have affected Gonzalez’s ability to traverse the area.”

Photographs and videos of different people traversing the roof three years after Gonzalez’s fall weren’t enough, on their own, “to prove as a matter of law that Gonzalez could have reasonably done the same,” Zelon wrote.

Zelon thus concluded that a triable issue of fact existed as to whether Mathis could be held liable for Gonzalez’s injuries. She reversed the Los Angeles County Superior Court’s decision, with Judges John Segal and Kerry Bensinger concurring.

Los Angeles attorney Scott Davenport, who has been on both sides of Privette cases, wasn’t a fan of the ruling.

He called Gonzalez v. Mathis a “straightforward case” to which the court should have applied the “bright-line rule” of the Privette doctrine, which tends to prevent cases like these from going to trial.

By allowing attorneys to quibble about the route Gonzalez took to cross the roof, the court opened the door for a trial on a case that would have been better off summarily adjudicated, Gonzalez said.

“Bright-line rules are important,” he said in an emailed comment. “They allow all parties an opportunity to fairly assess the viability of their claims. Inviting parties to inject artificial issues of fact into a straightforward case dilutes the impact of the rule and creates uncertainty in the law.”

Sherman Oaks applicants’ attorney Alan Gurvey, on the other hand, believes the court was right to “go to the facts” when making its decision on whether the Privette doctrine applied.

“Independent contractors take the risk of getting injured under normal circumstances. But when we’re talking about exceptions, I think it just goes to the facts,” Gurvey said. “If there are dangerous conditions on the property, you’d hope the landowner would be responsible.”

The Privette doctrine placed limits on the common-law “doctrine of peculiar risk.”

The doctrine of peculiar risk holds that “a person who hires an independent contractor to do inherently dangerous work can be held liable for tort damages when the contractor causes injury to others by negligently performing the work,” as the 2002 California Supreme Court case Hooker v. Department of Transportation puts it.

The Privette doctrine established that the doctrine of peculiar risk does not extend to a hired contractor’s employees. All employees of an independent contractor should be covered by the company’s workers’ compensation insurance plan, the California Supreme Court wrote in Privette v. Superior Court.

Gurvey said he understands the Privette doctrine’s intention to shield those who hire independent contractors from liability. And as long as an employer hasn’t misclassified its employee, the doctrine makes sense, Gurvey said.  

“If they qualify as an independent contractor … they’re responsible for obtaining their own benefits,” Gurvey said. “Where there’s a problem is if you have … dangerous conditions.” 

Published by WorkCompCentral,by Emily Brill