Hernandez v. Skybox Imaging, Inc.

Decision Date15 September 2021
Docket NumberH046076
PartiesANTHONY HERNANDEZ, Plaintiff and Appellant, v. SKYBOX IMAGING, INC., et al., Defendants and Respondents.
CourtCalifornia Court of Appeals Court of Appeals


Santa Clara County Super. Ct. No. 115CV283277



Plaintiff Anthony Hernandez was injured after falling from an elevated platform inside a commercial building. At the time of the accident, the commercial building was owned by defendant Rudolph Alfinito and occupied by defendant Skybox Imaging Inc. (Skybox). Skybox had hired plaintiff's employer Fibercom, to replace computer and phone cables inside the building. Plaintiff sued the property owner Alfinito and the occupant Skybox for premises liability. By special verdicts, the jury found in favor of both defendants, and a judgment was entered accordingly.

On appeal, plaintiff contends that the judgment must be reversed as to both defendants for the following reasons. First, under Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette), if an employee of an independent contractor is injured on the job, the employee generally cannot sue the hirer (here Skybox) of the independent contractor. In this case, plaintiff contends that the trial court erred by applying the Privette doctrine to partially shield the defendant property owner, Alfinito, from liability, as Alfinito did not hire the contractor Fibercom. Second, plaintiff argues that the court erred in making this determination about the applicability of the Privette doctrine in the context of defendants' motions in limine. Third, plaintiff contends that the court erroneously excluded expert testimony regarding defendants' violation of Cal-OSHA regulations (see Lab. Code, § 6300 et seq. [Cal. Occupational Safety & Health Act of 1973 (Cal-OSHA)]). Fourth, plaintiff argues that the court erred in failing to give certain jury instructions. Fifth, plaintiff contends that the special verdict contains contradictory findings and lacks evidentiary support.

For reasons that we will explain, we determine that the Privette doctrine does not apply to defendant Alfinito the property owner and, as a consequence, the trial court prejudicially erred in its rulings regarding evidence and jury instructions. We will therefore reverse the judgment and remand the matter for a new trial as to Alfinito. Regarding defendant Skybox, we determine that plaintiff fails to show prejudicial error, and therefore we will affirm the judgment as to Skybox.

A. The Pleadings

Plaintiff alleged three causes of action against defendants Alfinito and Skybox: (1) premises liability for a dangerous condition, specifically a plywood platform that lacked a barrier at the edge, inadequate lighting, and the absence of warnings; (2) premises liability for failure to warn about the dangerous condition associated with the plywood platform; and (3) negligent design, construction, renovation, modification, and/or maintenance of the work area. Alfinito and Skybox each filed an answer, alleging among other affirmative defenses that workers' compensation benefits were plaintiff's exclusive remedy.

B. The Jury Trial Proceedings
1. Pretrial Motions

Defendants filed pretrial motions in limine seeking: (1) to bifurcate the issue of whether the affirmative defense of workers' compensation exclusivity applied, based on Privette, supra, 5 Cal.4th 689 and other authorities, thereby precluding defendants' tort liability; (2) to bifurcate the issue of whether defendant Alfinito, as an “owner-out-of-possession” of the property, owed a legal duty to plaintiff; (3) to exclude evidence regarding any failure by Alfinito as an owner-out-of-possession to inspect the property; and (4) to exclude evidence of occupational safety and health standards to establish defendants' duty.

Plaintiff opposed the motions. Among other arguments, plaintiff contended that Privette and its progeny did not apply to defendant Alfinito, the property owner, because the doctrine only applied to the hirer of an independent contractor. In addition to opposing the motions on the merits, plaintiff contended that defendant Alfinito's motion in limine No. 2 was procedurally improper because Alfinito sought a finding that he, as a property owner, did not owe a duty to plaintiff. Plaintiff argued that the motion sought to dispose of his cause of action for premises liability against Alfinito and was essentially a dispositive summary judgment motion that failed to comply with the procedural requirements of the Code of Civil Procedure.

The trial court denied defendants' motion in limine No. 1, reserved ruling on No. 2, and granted Nos. 3 and 4. In making the rulings, the court indicated that Privette and its progeny applied to the property owner Alfinito and to the hirer Skybox. Regarding plaintiff's contention that a motion in limine was an improper vehicle to raise the Privette issue, the trial court disagreed, explaining that a court “on its own motion can raise these legal issues on a motion for judgment on the pleadings, which doesn't need to have any sort of evidence on the record. It's purely legal.” The court also indicated that the same legal issue would arise later with jury instructions, and that the issue did not need to be raised by a motion for summary judgment in that context. The court explained that it assumed all the facts recited by plaintiff in opposition to the motions were true, but that it disagreed with plaintiff on the law regarding premises liability. After further discussion with the parties, the trial court indicated that the jury instructions and special verdict forms would also conform to the court's ruling. The court, on its own motion, bifurcated the issues of liability and damages.

2. Evidence

The evidence at trial included the following.[1]

a. The elevated platform or “hard cap”

Plaintiff was injured inside a single story office building after falling from an elevated platform, or “hard cap, ” in the attic, through the ceiling tiles, and onto the linoleum floor. The ceiling tiles rested on a metal grid. The grid was suspended from above by metal wire, which is sometimes referred to as “stringers.” The ceiling tiles were not strong enough to support the weight of a person.

In a “janitorial closet” inside the building, there was a ladder bolted to the wall. The ladder provided access to the area above the ceiling tiles. In this upper workspace area, there was a “hard cap, ” which consisted of sheets of plywood that created a walking surface. The hard cap was adjacent to the ceiling tiles and did not cover the tiles. The hard cap was approximately 110 inches, or a little over nine feet, above the ground floor of the building. There were no lights on the hard cap, and the hard cap did not have any railings around its perimeter. The hard cap provided access to cables, electrical, and “HVAC” (heating and cooling) equipment.

b. Defendant Alfinito the building owner

Defendant Rudolph Alfinito owned the commercial building where plaintiff was injured. At the time of trial in 2018, Alfinito had owned the building for approximately 35 years. He was involved in the original construction of the building. Alfinito did not know, however, when the ladder was installed, who installed it, or when the elevated platform was built. He had not inspected the building at any time to determine whether there were any safety hazards.

c. Defendant Skybox the tenant

Defendant Skybox operated a business across the street from Alfinito's building. In 2013, Skybox “took... on” Alfinito's building so that it could expand its operations into Alfinito's building.

Prior to moving into the building, Skybox hired different contractors to perform work on the building. Those contractors included a demolition team, an electrical team, and painters. Skybox hired plaintiff's employer, Fibercom, for a communications cabling project, which involved installing new computer and phone cabling inside the building and removing old cabling.

Kris Gibbs Smith was the director of operations for defendant Skybox. He was in charge of day-to-day operations, construction projects, and expansions. Smith testified that he was not a foreman, and that he was not there to supervise anyone. Each trade “ha[d] their own bosses, ” and Smith “just ma[d]e sure the project [was] moving forward.”

d. Fibercom the employer of plaintiff

Fibercom was started by Jeff Baker, who was a licensed contractor at the time of the accident.[2] Prior to the beginning of the job for Skybox, Baker had walked through the building to determine the amount of cable needed and to provide a price estimate. He typically did not go above the ceiling tiles, and he did not recall whether he had done so during the walk-through for this job.

Plaintiff was a technician in training for Fibercom and had been employed for about two and a half months prior to the accident. Plaintiff's job duties required him to spend almost all day on ladders and use flashlights because all the cabling was above the ceiling tiles.

Prior to the accident, plaintiff had worked in other commercial buildings that had a hard cap or elevated work platform. Plaintiff did not receive any training from Fibercom regarding working on hard caps or elevated platforms.

e. The accident

Fibercom's first day on the Skybox job was July 22, 2013. Plaintiff and Kurt Onstott, a lead technician for Fibercom, met at Fibercom's office before going to the Skybox jobsite. Baker showed Onstott a blueprint of the building and explained what needed to be done while plaintiff listened. Onstott and plaintiff loaded a van with the equipment they needed and drove to the Skybox job, where they would be removing old cables from the...

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