In a certified published opinion with significant implications for premises liability, residential inspections, and the scope of the Privette doctrine, the California Court of Appeal affirmed summary judgment in favor of a homeowner whose property was the site of a work-related injury to an independent contractor's employee. Andrews v. Wagner confirms that homeowners may qualify as "hirers" for Privette purposes even when an inspection is arranged through an insurance carrier, and it reinforces the narrow application of the Kinsman concealed-hazard exception where the alleged danger is open, obvious, and within the scope of the contractor's work.
Background Facts
Robert Andrews was employed as a field inspector by Property and Casualty Surveys, Inc. (PCSI), an independent inspection company retained by the homeowner's insurance carrier to evaluate the condition and safety of Kathleen Wagner's single-family residence. Andrews had extensive experience, having conducted thousands of inspections, and his job routinely required him to assess unfamiliar environments and identify hazardous conditions.
While inspecting Wagner's property, Andrews exited the home into the backyard, where wooden railroad-tie steps were built into the ground. Andrews admitted that the steps were visible, that he was not paying attention to where he was stepping, and that had he looked down, he likely would not have fallen. He could not identify what caused him to slip and speculated it may have been water or moss. Andrews later acknowledged that the steps were part of the very property conditions he was assigned to inspect.
Andrews received workers' compensation benefits and later sued Wagner for negligence and premises liability. His wife asserted a derivative claim for loss of consortium. The trial court granted summary judgment for Wagner under the Privette doctrine, and the plaintiffs appealed.
Legal Framework
Under the Privette doctrine, a hirer of an independent contractor is generally not liable for injuries sustained by the contractor's employees in the course of their work, based on the presumption that responsibility for workplace safety is delegated to the contractor. Privette v. Superior Court (1993) 5 Cal.4th 689, 702.
The presumption may be overcome in limited circumstances, including when the hirer's retained control affirmatively contributes to the injury. Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, 210-213, or when the hirer fails to warn of a known concealed hazard that the contractor could not reasonably discover. Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 674-675.
Court's Analysis
The plaintiffs' primary argument was that Wagner could not invoke Privette because she did not directly hire PCSI; rather, her insurance carrier retained the inspection company. The Court of Appeal rejected this contention, holding that Wagner satisfied the hirer requirement as a matter of law.
The Court emphasized the practical realities of the insurance relationship. Paying premiums and consenting to the inspection was required to maintain coverage. Wagner effectively delegated responsibility for workplace safety to the independent contractor. The court concluded that, for Privette purposes, there was no meaningful legal distinction between the homeowner and her insurer as both fell within the "chain of delegation." Collins v. Diamond Generating Corp. (2024) 107 Cal.App.5th 1162.
The court expressly distinguished Gordon v. ARC Manufacturing, Inc. (2019) 43 Cal.App.5th 705, noting that Gordon addressed primary assumption of the risk, not the Privette doctrine, and concluded the two doctrines are analytically distinct. It also declined to extend Ramirez v. PK I Plaza 580 SC LP (2022) 85 Cal.App.5th 252, which involved a landlord-tenant relationship lacking the type of delegation present in the insurance-inspection context.
Rejection of the Kinsman Concealed-Hazard Exception
The court also rejected plaintiffs' reliance on the Kinsman exception. To invoke that exception, a plaintiff must show:
- The landowner knew or should have known of a concealed, preexisting hazard;
- The contractor could reasonably discover it; and
- The landowner failed to warn. Kinsman, supra, 37 Cal.4th at 675.
Here, the evidence failed on every element. Andrews admitted the steps were in plain sight, that he was responsible for identifying hazardous conditions, and that his fall resulted from inattention rather than concealment. Speculation that the steps may have been wet, or mossy was insufficient to create a triable issue of fact.
The gardener's testimony that the steps sometimes became slippery when wet and that Wagner could have warned him, did not establish a concealed hazard on the day of the incident or demonstrate that Andrews could not reasonably have identified the condition himself. Given Andrews's professional role and experience, the court concluded that the risk fell squarely with the contractor's delegated responsibility.
Conclusion and Takeaways
Andrews v. Wagner provides an important clarification on two recurring Privette issues. First, it confirms that homeowners may qualify as "hirers" even when an independent contractor is retained indirectly through an insurance carrier, reinforcing Privette' s policy favoring delegation of workplace safety.
Second, it underscores the narrow scope of the Kinsman concealed hazard exception, particularly where the alleged danger is visible, unspeculative, or part of the very condition the contractor was engaged to evaluate. For defense counsel, insurers, and property owners, the decision strengthens the viability of early summary judgment in contractor-injury cases tied to inspections and routine property conditions.
