Harry v. Ring the Alarm, LLC, B286084

• Decision Date: 25 April 2019
• Docket Number: B286084
• Citation: 34 Cal.App.5th 749,246 Cal.Rptr.3d 471
• Court: California Court of Appeals Court of Appeals
• Parties: Edward HARRY, Plaintiff and Appellant, v. RING THE ALARM, LLC, et al., Defendants and Respondents.

34 Cal.App.5th 749

246 Cal.Rptr.3d 471

Edward HARRY, Plaintiff and Appellant,

v.RING THE ALARM, LLC, et al., Defendants and Respondents.

B286084

Court of Appeal, Second District, Division 4, California.

Filed April 25, 2019

Lederer & Nojima, David J. Lederer, Los Angeles, CA, Casey A. Hultin ; Esner, Chang & Boyer, Holly N. Boyer and Shea S. Murphy, Pasadena, CA, for Plaintiff and Appellant.

Friedenthal, Heffernan & Brown, Kevin N. Heffernan, Jay D. Brown, Pasadena, CA, for Defendant and Respondent James Goldstein.

COLLINS, J.

INTRODUCTION

Appellant Edward Harry worked as a site representative during an event at a noted architectural residence owned by respondent James Goldstein. While giving a tour during the event, Harry fell from a platform suspended over a hillside, sustaining serious injuries. Harry sued Goldstein and Ring the Alarm, LLC, the entity that hired him and hosted the party.

Harry's claims against Goldstein for negligence and premises liability proceeded to trial. At the close of evidence, Goldstein asserted a defense under the "firefighter's rule," a subset of the doctrine of primary assumption of risk. The trial court agreed that the defense was applicable and instructed the jury accordingly. The jury found in Goldstein's favor.

On appeal, Harry contends the trial court erred in determining that the firefighter's rule applied. We agree. The circumstances presented in this case do not fit under the primary assumption of risk doctrine, as Harry was not expressly hired to manage the hazardous condition that injured him. Nor do we find any public policy in favor of applying such a bar. As such, the court erred in instructing the jury on this issue and in including the defense as the first two questions on the special verdict. The jury's findings for Goldstein on this defense, which barred all liability, compel reversal and remand for a new trial.

FACTUAL AND PROCEDURAL HISTORY

Harry filed his complaint in May 2015, asserting claims for negligence and premises liability against Ring the Alarm and Goldstein. The court granted summary judgment in favor of Ring the Alarm in November 2016. In August 2017, the case proceeded to jury trial on Harry's claims against Goldstein.

I. Evidence at Trial

A. The Sheats-Goldstein House

The incident occurred at the Sheats-Goldstein House, a residence in Beverly Hills designed by architect John Lautner. Goldstein purchased the house in 1972. He began renovating the house in 1979; he testified that construction to the house and property has been ongoing ever since. Goldstein worked with Lautner to restore the house to its original design. After Lautner died in 1994, Goldstein worked with Lautner's former assistant, Duncan Nicholson. Nicholson acted as the architect on the house until he died in about 2015.

Goldstein began to add structures and improvements to the property in the 1990s, including the platform at issue here. The concrete platform, designed by Nicholson, is cantilevered out from the hillside below the house, and is designed to look as if it is floating. The platform has a diamond shaped piece of glass at the tip, set into the concrete structure. To reach the platform, one descends a set of cantilevered stairs from the main house. From the landing of the platform, visitors can view the glass "art piece" and look out over the hillside to views of the city. From the platform landing, a pathway continues through the garden to the James Turrell Skyspace, a concrete bunker with a light installation by artist James Turrell.

Goldstein testified that he had never discussed the subject of placing railings on the stairs or platform with Nicholson. He stated that the stairs and platforms were designed to be beautiful, and adding railings would have "made it look ugly." He also testified he did not think the platform was dangerous: "if someone is careful and watches where they're going, there's no danger." Goldstein stated that he walked around the property at least weekly, to see if anything looked out of place or needed repair, such as light bulbs needing to be replaced.

Harry Ernst, who worked construction on the property for 20 years, including construction of the platform, testified that he did not think the platform was safe due to the lack of railings.

B. Site Rentals

Goldstein began renting the property in the 1990s for events such as parties, architectural tours, photography, and movie shoots. The rental contract between Goldstein and the renter included a number of event rules, including a requirement that two site representatives must be present at all events. The site representative acted as a site manager and a liaison between the property owner and the renter. Goldstein did not employ the site representatives directly. Instead, through his assistant, he provided renters with a list of approved representatives, and the renter was responsible for hiring the site representatives for the event. The list of approved site representatives was ranked by longevity, so the representative who had been working with the property the longest got the first call for a job.

New site representatives were trained by the more senior site representatives. David Steel, who worked as the lead site representative at the property for over a decade, testified that there was a lot of training involved due to the "unique" features of the property. When training other representatives, Steel would talk about the house and point out "certain hazards of the house, of the property." Neither Goldstein nor his assistant, Roberta Leighton, did any of the training.

Goldstein testified that the job of the site representative during events was "to ensure safety of the house.... To make sure that, for example, drinks aren't brought in the house that might be spilled, smoking won't take place in the house, that people won't walk into the glass walls. Anything that could be harmful to the house needs to be watched over carefully." He noted that if someone walked into one of the glass walls, it could harm both the glass and the person. Leighton agreed that site representatives "are there to protect the house."

Goldstein restricted access to the garden and surrounding structures during events. He allowed tours to the Turrell building only by request, and with his approval. The tours were given by the site representative. Generally, a tour to the Turrell building would include a stop at the cantilevered platform, where the site representative would talk about the platform. Then the group would continue down the pathway to the Turrell building. On a rare occasion, a docent from a museum or architecture firm would give an architectural tour; Harry testified that they were given talking points for these tours, and were instructed to be careful.

Harry began working as a site representative at the house in 2006 and became the lead after Steel's departure at the beginning of November 2014. Harry testified that his duties as a site representative were to let the renters do what they contracted to do at the property and "protect the property per the house rules," as well as to "keep everyone happy ... keep everything flowing." He also gave tours to the Turrell building, which usually included 10 to 12 people, but no more than 15 people at a time.

Prior to the accident, Harry had given over 200 tours to the Turrell building, including over 100 tours at night. He testified that the site representatives conducted the tours because "we generally don't let people go down into the gardens on their own. It's dangerous." Harry stated that the main focus of his job was protecting the house from damage. When asked about his duties on the platform, he gave the following responses:

"Q: When you're on the platform, you keep people away from the edges, correct?

"A: I don't let them fall on purpose, of course, but ...

"Q: ... Is that part of your job?

"A: I would warn them that the place is dangerous.

"Q: ... When you did the tours of the platform, is one of your duties as a site rep to warn them to stay away from the edges?

"A: I tell them to be careful.

"Q: ... So that they don't fall over the edges?

"A: Yes.

Q: Okay. And that's part of what you do as a site rep, correct?

"A: A part of it."

Harry also testified that he would warn people on the tour to be careful because there were no railings.

C. The Accident

On November 6, 2014, Harry was working as a site representative at the house for a record label launch party thrown by Ring the Alarm. The event had been approved for a "limited amount of tours" to the Turrell building. According to Harry, he conducted tours from about 7:00 p.m. to 9:00 p.m. Then he took a break and complained to the head of security, Chris Ramirez, that the "security guards hadn't been controlling the flow" of people on the tours. Around 11:00 p.m., the event host asked Harry to give one more tour. Harry agreed.

Harry testified that as he reached the platform, he turned around and saw a "never-ending line of people" coming down the stairs and onto the platform. During tours, he usually stands on the left side of the platform so that he does not block the view. However, in that instance, because of the crowd, he decided to stand on the right side of the platform, because it was closer to the steps and pathway where the tour would continue. Harry explained he was concerned that if he stood where he normally did, "with all these people, I would have to split the crowd and force people towards the edge" to get to the pathway. As the platform kept filling up, he noticed "this is not safe. There is [sic ] too many people." The entire platform was full of standing people, except for the glass tip. Harry finished his talk and started to move to the pathway. He testified that he stepped to the right as he always did (when he stood on the left side), without looking down, and fell off the platform to the hillside below. Harry claimed the platform was very dark that night and he thought one of the lights might have been out. But he...