In Blaylock v. DMP 250 Newport Center, the court upheld the long-standing Privette doctrine. In its analysis it found that the employee of a contractor who failed to properly inspect the worksite in accordance with industry standards could not later recover from the owner of the building for his injuries sustained while performing his work.
A Look at the Background Facts
DMP 250 Newport Center, LLC (DMP) retained Air Control Systems, Inc. (ACS) to provide maintenance and service for its HVAC system. Blaylock was the project manager for ACS. DMP contacted Blaylock to let them know that one of the suites in the building was not receiving proper airflow. The HVAC units for this particular building were housed on the roof and accessed by a "plenum" crawl space between that roof and ceiling of the floor beneath. DMP's HVAC crawlspace was accessible from a door located on the roof. The floor of the crawlspace was made of gypsum wallboard panels that covered ceiling joists below. There was also some plywood panels scattered over the wall board, but it was not attached.
Testimony revealed that ACS trained employees to check the flooring when working in a crawl space and to use caution before putting their full weight on it. They also advised employees to crawl on all fours rather them walk upright in the crawl space.
On the day of the accident, Blaylock and three other ACS employees checked in with DMP to let them know they were there and proceeded to go up on the roof where the HVAC units were located. DMP told them to take the stairs up to the roof and gave them the roof access code. All four men went into the crawlspace. At some point during this process, Blaylock fell through the access panel. The other three observed him fall and saw him lying on the floor of a storage room below when they looked through the hole in the flow. Although the access door is distinguishable in the room below the crawl space, it was not so in the crawlspace. In addition, the workers were using iPhone flashlights as well as other flashlight so the ability to see clearly was diminished. DMP had no knowledge of the existence of the access panel.
Blaylock's fall resulted in significant injury. He brought suit against DMP alleging premises liability and negligence. DMP moved for summary judgment based on the Privette doctrine and the trial court granted the motion.
Definition and Applicability of the Privette Doctrine
The Privette doctrine comes from Privette v. Superior Court (1993) 5 Cal.4th 689. In essence, it limits a property owner's liability for injuries that the employees of an independent contractor suffers while doing work on the property. The holding of Privette states, "When the owner retains no control over the mode of work, the work performed was the enterprise of the contractor, who, as a matter of business convenience, would be better able than the person employing the contractor to absorb accident losses incurred in the course of the contracted work." Privette at 693.
The exception to the Privette doctrine comes into play when:
- The property owner knows or reasonably should know of a concealed, pre-existing hazardous condition on its premises;
- The contractor does not know and could not reasonably ascertain the condition; and
- The landowner fails to warn the contractor." Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675.
Blaylock asserted that there was a triable issue of fact as to whether DMP knew or should have known of the hazardous condition posed by the access panel in the floor of the crawlspace. Blaylock alleged that this was a concealed hazardous condition. Specifically, Blaylock alleged that “the trap door cannot be discerned from inside the crawl space” due to the fact its “crawl space side was covered with the same plywood that covered most of the crawl space floor—and was not easily visible in the dim lighting of the crawl space.” He further notes that the trap door’s hinge was not visible from within the crawl space, and none of the four ACS workers (including Blaylock) recognized it as a trap door. He argued that DMP should have known of the danger and the issue rose to the level of a triable issue of fact. He supported this contention by the noting that DMP had owned the building since 2012, controlled the space continuously since then, and continued to control it on the day the accident occurred in October, 2018.
In its analysis, however, the court landed on the fact that the responsibility of supervising the work site generally falls to the contractor in charge of the job. "The hirer generally delegates to the contractor responsibility for supervising the job, including responsibility for looking after employee safety. When the hirer is also a landowner, part of that delegation includes taking proper precautions to protect against obvious hazards in the workplace… Thus, 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 owner 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." Kinsman, supra, 37 Cal.4th at 673-74. Part of this duty placed on the contractor is to inspect the premises.
It is only when the hazard is concealed from the contractor, but known by the landowner that the exception to Privette would come into play. This occurs when the contractor is unable to take adequate safety precautions to protect its workers. "It is the landowner's knowledge of the hazardous condition, rather than the condition itself, that is relevant." Kinsman at 678.
In the case at hand, Blaylock's suggestion that the trap door was concealed due to inadequate lighting in the crawlspace was not persuasive to the court. Those working on HVAC units and often utilizing crawlspaces know that it is important to bring the proper lighting in the form of flashlights or headlamps to ensure sufficient lighting to safely move about. "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, 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." Kinsman, supra, 37 Cal.4th at 673. Providing adequate lighting in crawlspaces is a responsibility that would fall squarely on the shoulders of the contractor and not of the owner.
In addition, the fact that ACS employees failed to see the trap door does not mean it was concealed. The contractor had a duty to inspect the space to make sure it was safe for the workers to proceed with the task at hand. Blaylock did not offer any evidence that ACS conducted such an inspection or took efforts on this front to ensure the safety of its employees at the DMP worksite. Based on photographs presented into evidence, the court determined that the trapdoor is something that ACS would have discovered if it had conducted a proper inspection. 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.
Finally, ACS employees were trained to assume that the surfaces below them could not hold their weight. They were taught to test and check any footing before putting their weight on it. They were also instructed to move around on all fours as much as possible to distribute their weight more evenly. For these reasons, the court disagreed with Blaylock's contention that a triable issue of fact exists in this case.
Although there may be a triable issue of fact regarding whether or not DMP should have known the of access panel's existence, given that it was visible from the room below, is not the same as knowing it could be hazardous to ACS' team working in the crawlspace. Blaylock did not offer evidence that DMP knew how the access panel appeared to someone in the crawlspace or that it might be "concealed." He also did not point the court to any authority that stated that ACS had a duty to inspect the crawlspaces of its building, or that it could have reasonably assessed that the area could be hazardous.
For these reasons, the Kinsman rule is inapplicable and the Privette rule stands, The owner of the building was not liable to the contractor's worker who suffered injuries in the fall. The judgment of the lower court was affirmed.