California Supreme Court Rejects Third Exception To Privette Doctrine

• Published date: 26 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Lewis Brisbois Bisgaard & Smith LLP
• Author: Brad J. Vornholt and Joelle Nelson

Walnut Creek, Calif. (May 25, 2022) - In Gonzalez v. Mathis (August 19, 2021) 12 Cal. 5th 29, the California Supreme Court considered whether to create a third exception to the Privette Doctrine specific to known hazards on a worksite, when a contractor cannot remedy the hazard by taking reasonable safety precautions to protect against it.

Privette Background

Under the Privette Doctrine, the hirer of an independent contractor generally cannot be liable for injuries sustained by the independent contractor or its employees while on the job. This is due to the "strong presumption" that the hirer delegates all responsibility for workplace safety to the independent contractor. See Privette v. Superior Court (1993) 5 Cal. 4th 689. Since the Privette ruling in 1993, the California Supreme Court has identified two circumstances in which the presumption may be overcome. First, the hirer may be liable when it retains control over any part of the independent contractor's work and negligently exercises that retained control in a manner that affirmatively contributes to the injury. Hooker v. Dept. of Transportation (2002) 27 Cal. 4th 198, 213. Second, a landowner who hires an independent contractor may be liable if the landowner knew, or should have known, of a concealed hazard to the property that the contractor did not know of and could not have reasonably discovered, and the landowner failed to warn the contractor of the hazard. Kinsman v. Unocal Corp. (2005) 37 Cal. 4th 659, 664. Here, in the Gonzalez case, the court considered whether a landowner could be liable for known hazards on the property.

Facts of the Case

In Gonzalez, the defendant was a residential property owner whose home had a flat sand-and-gravel roof with a large skylight. The roof had a three-foot high parapet wall between the skylight and the edge of the roof. The area between the parapet wall and edge of the roof was approximately 20 inches wide. The plaintiff was a professional window washer, who had been cleaning the skylight since the 1990s, and did so regularly since 2007. To clean the skylight, the plaintiff would climb onto the roof and work from the 20-inch space between the parapet wall and roof's edge. The plaintiff testified that he did not work from the other side of the parapet wall (i.e. between the wall and the skylight) because it was obscured with ducts, pipes, and other permanent fixtures. It was undisputed that the 20-inch space between the parapet wall and roof edge was...