Gonzalez v. Mathis

• Citation: 20 Cal.App.5th 257,228 Cal.Rptr.3d 832
• Decision Date: 06 February 2018
• Docket Number: B272344
• Court: California Court of Appeals
• Parties: Luis GONZALEZ, Plaintiff and Appellant, v. John R. MATHIS et al., Defendants and Respondents.

20 Cal.App.5th 257

228 Cal.Rptr.3d 832

Luis GONZALEZ, Plaintiff and Appellant,

v.John R. MATHIS et al., Defendants and Respondents.

B272344

Court of Appeal, Second District, Division 7, California.

Filed February 6, 2018

Evan D. Marshall, for Plaintiff and Appellant.

Latham & Watkins, Marvin S. Putnam, Jessica Stebbins and Robert J. Ellison, Los Angeles for Defendants and Respondents.

ZELON, Acting P.J.Luis Gonzalez, a professional window washer, filed a premises liability action against John Mathis. Mathis moved for summary judgment, arguing that Gonzalez's status as an independent contractor precluded his claims. The trial court granted the motion. We reverse, concluding there are triable issues of fact whether Mathis can be held liable for Gonzalez's injuries.

FACTUAL BACKGROUND

A. Summary of Mathis's Property

Defendant John Mathis owned a residence that contained an indoor pool. The pool was located in the northwest corner of the home, and covered by a large, rounded skylight that protruded through the flat roof. The section of roof located to the west of the skylight was divided by a three-foot-high parapet wall that ran parallel to the skylight. The area of roof between the skylight and the east side of the parapet wall was partially obstructed by a series of ventilation pipes and mechanical equipment. The area of roof on the west side of the parapet wall consisted of an exposed ledge, approximately two feet in width. Mathis had constructed the parapet wall to screen from view the piping and mechanical equipment positioned next to the skylight.

A ladder affixed to the west side of the house provided access to the roof. The top of the ladder was located near the beginning of the parapet wall.

B. Gonzalez's Accident

Plaintiff Luis Gonzalez owned and operated Hollywood Hills Window Cleaning Company, which advertised itself as a specialist in "hard to reach windows and skylights." Beginning in 2007, Mathis's housekeeper, Marcia Carrasco, regularly hired Gonzalez's company to wash the skylight and perform other services on the property.

On August 1, 2012, two of Gonzalez's employees were on the roof cleaning the skylight when Carrasco informed him water was leaking into the house. Carrasco instructed Gonzalez to go on the roof, and tell his employees they should use less water. Gonzalez climbed onto the roof using the affixed ladder. He then walked along the ledge on the west side of the parapet wall, and spoke with his employees. While walking back toward the ladder along the ledge, Gonzalez lost his footing, and fell off the roof.

C. Trial Court Proceedings

1. Summary of complaint and Gonzalez's deposition

In April of 2014, Gonzalez filed a negligence action against Mathis asserting that "loose rocks, pebbles and sand on the roof of the property" constituted a "dangerous condition" that had caused Gonzalez to fall. In a subsequent interrogatory response, Gonzalez clarified he was seeking damages for three dangerous conditions on the roof. First, he alleged that the construction of the parapet wall forced persons who needed to access the skylight and other parts of the roof to walk along the exposed two-foot ledge, which had no safety railing. Second, he contended the roofing shingles were dilapidated, resulting in slippery and loose conditions. Third, he asserted the roof lacked "tie-off" points that would enable maintenance workers to secure themselves with ropes or harnesses.

At his deposition, Gonzalez testified that he had been on Mathis's roof many times, and had always used the ledge along the west side of the parapet wall to access the skylight. Gonzalez further testified that he knew the roof shingles were dilapidated and slippery, and had told Carrasco the shingles should be replaced. Gonzalez also admitted he knew the ledge lacked any protective features, and that the roof had no tie-off points.

When asked why he had chosen to walk along the ledge outside the parapet wall, rather than in the area inside the wall, Gonzalez explained that the ledge was "the only way to get through because you have the AC equipment [on the other side]." Gonzalez later clarified that he was unable to walk in the area of roof inside the parapet wall because "there was a lot of equipment," and he "couldn't fit in there." Gonzalez also testified that he and his employees had always walked along the ledge, rather than inside the parapet wall, and that he had never seen anyone walk inside the wall.

2. Mathis's motion for summary judgment

Mathis filed a motion for summary judgment arguing that Gonzalez's claims were precluded under the rule set forth in Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 ( Privette ) and its progeny, which generally prohibits an independent contractor or his employees from suing the hirer of the contractor for workplace injuries. (See SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594, 129 Cal.Rptr.3d 601, 258 P.3d 737 ["Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work"]; Tverberg v. Fillner Const., Inc. (2010) 49 Cal.4th 518, 521, 110 Cal.Rptr.3d 665, 232 P.3d 656 ( Tverberg ) [the hiring party is generally not liable for workplace injuries suffered by an independent contractor or the contractor's employees].)

Mathis argued there were only two exceptions to the Privette rule: when the hirer exercised control over the contractor's work in a manner that had contributed to the injury (see Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081 ( Hooker ),) and when the hirer failed to warn the contractor of a concealed hazard on the premises. (See Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 36 Cal.Rptr.3d 495, 123 P.3d 931 ( Kinsman ).) Mathis contended neither exception applied because Gonzalez had specifically admitted that he was not told how to clean the skylight, and that he was aware of the dangerous conditions on the roof.

In his opposition, Gonzalez acknowledged he was an independent contractor, but argued there were triable issues of fact pertaining to both Privette exceptions. First, Gonzalez asserted there were "disputed issues of material fact as to whether [Mathis] retained control over the worksite." Gonzalez cited evidence showing Carrasco had directed him to perform various cleaning tasks in a specified order, and had also ordered him to get on the roof to tell his employees to use less water. Gonzalez also argued Mathis had retained control because he was the only party who had authority to fix the dangerous conditions on the roof.

Alternatively, Gonzalez argued there were triable issues of fact whether Mathis was liable under the hazardous condition exception set forth in Kinsman , supra, 37 Cal.4th 659, 36 Cal.Rptr.3d 495, 123 P.3d 931. Gonzalez contended that, contrary to Mathis's assertion, Kinsman permitted hirer liability for concealed hazards, as well as open or known hazards the contractor could not have remedied through the adoption of reasonable safety precautions. Gonzalez further asserted that although he was aware of the dangerous conditions on the roof (namely, the exposed ledge and dilapidated shingles), there were disputed issues of fact whether he could have reasonably avoided those hazards. In support, he cited to his deposition testimony that he had walked along the ledge outside the parapet wall because the piping and mechanical equipment positioned next to the skylight prevented him from walking inside the wall. According to Gonzalez, these statements raised triable issues of fact whether he was required to "access the skylights [by] ... walk [ing] across the slippery, unprotected and narrow catwalk," or whether it was "feasible to go [along the other side of] the wall."

In his reply brief, Mathis argued that Carrasco's statements to Gonzalez were insufficient to show Mathis had retained control over the manner in which Gonzalez cleaned the skylight. Mathis also argued that merely retaining the authority to remedy the conditions on the roof, without actually exercising that authority in some manner that contributed to Gonzalez's injury, was insufficient to impose liability pursuant to the retained control theory.

Mathis disputed the assertion that Kinsman permits hirer liability for open hazards. He also argued that even if Kinsman did extend to open hazards the contractor could not have remedied through reasonable safety precautions, the evidence showed Gonzalez could have avoided the dangerous conditions on the roof by walking inside the parapet wall. In support, Mathis submitted photographs and a video that had been taken during an inspection of Mathis's roof. The visual evidence showed multiple people climb the ladder attached to the west side of the house, and then traverse the section of roof inside the parapet wall by stepping over and around the ventilation pipes and other mechanical equipment. According to Mathis, "[t]he video and photographic evidence conclusively establish[ed]" that Gonzalez's statements that he was required to walk along the ledge were false, and should be disregarded.

At the hearing, the court informed the parties that its tentative ruling was to grant the motion for summary judgment pursuant to Privette, supra, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721, and Kinsman, supra, 37 Cal.4th 659, 36 Cal.Rptr.3d 495, 123 P.3d 931. The court explained that the evidence showed Mathis's agent had "told" Gonzalez "to clean the skylight and to access the roof by way of the ladder. The agent also told [him] there had been leaks on the roof. These instructions or statements by the agent do not establish that [Mathis] had control over the worksite. Gonzalez had walked on the narrow walkway many times before the fall.... [He] knew of the [dangerous] conditions on the roof.... None of the conditions were concealed to [him]."

Gonzalez's counsel argued that the court's...