Does the Privette doctrine, which applies when hiring independent contractors, have exceptions?

An injured employee and his coworkers would have recognized that it was unsafe to walk on the access panel of a crawl space if they inspected the premises for safety issues, the California Court of Appeal recently said.

In 2018, DMP 250 Newport Center, LLC hired Air Control Systems, Inc. (ACS) as an independent contractor to maintain and to service its heating, ventilation, and air conditioning (HVAC) equipment. ACS employed the plaintiff as a project manager.

One day, DMP’s property manager told the plaintiff that one of the building’s suites was not receiving sufficient airflow. She informed him that the HVAC units were on the roof along with the rooftop access point into the crawl space.

The plaintiff and three other ACS employees went to the crawl space, which was well-lit, and stayed there for about 10 to 20 minutes. The plaintiff was almost standing, while the other men were mostly positioned on their hands and knees.

The plaintiff ended up falling through the access panel into a storage room. The fall caused him significant injury. He sued DMP based on negligence and premises liability.

DMP filed a summary judgment motion. It cited the case of Privette v. Superior Court (1993), which limited a property owner’s potential liability for on-the-job injuries suffered by an independent contractor’s employees.

Read more: If you hire independent contractors, you need to know the Privette Doctrine

Kinsman v. Unocal Corp. (2005) provided an exception to the Privette doctrine for cases with the following conditions: the property owner knew or reasonably should know of a concealed, pre-existing hazardous condition on its premises; the contractor did not know and could not reasonably ascertain the condition; and the landowner failed to warn the contractor.

DMP argued that it owed the plaintiff no duty of care in connection with his work for ACS, that it did not know about any alleged hazardous condition, that the access panel was not a concealed hazardous condition, and that ACS and its employees reasonably could have discovered the panel.

Privette doctrine’s exception inapplicable

The trial court issued summary judgment in DMP’s favor. It accepted that there was a triable factual issue about whether DMP employees knew or should have known that there was a “hatch door” in the ceiling of the storage room.

However, the trial court found that the Kinsman exception to the Privette doctrine did not apply. There was no evidence that the DMP employees knew that the hatch could have been an access point to the crawl space or could pose a hazard to the ACS employees, the trial court said.

In the case of Blaylock v. DMP 250 Newport Center et al, the California Court of Appeal for the Fourth District, Third Division affirmed the trial court’s judgment, which found the Kinsman exception inapplicable. The evidence might show that DMP should have known about the access panel’s existence, the appellate court acknowledged.

However, the evidence did not create triable factual issues on whether DMP knew or reasonably should have known that the access panel’s status as a trapdoor amounted to a concealed hazard for the ACS workers on its premises or whether ACS reasonably could have discovered that hazard, the appellate court added.

The access panel’s hazardous nature was not concealed from the workers in the crawl space regardless of whether it was easily identifiable as a trapdoor, the appellate court concluded.