Open & Known Hazards Under the Kinsman Exception to Privette

Gonzalez v. Mathis, 2018 WL 718528 confirms the difficulties a defendant will face when trying to overcome the Kinsman exception to the Privette doctrine on a dispositive motion when dealing with an open and obvious hazard. There, a professional window washer fell off a roof while walking along a parapet wall constructed by the owner of a home.

The window washer filed suit against the homeowner and alleged three dangerous conditions on the roof: (1) the parapet wall forced those who needed to access a skylight to walk along an exposed two-foot ledge that lacked a safety railing; (2) dilapidated and slippery roof shingles; and (3) the lack of tie off points that would allow maintenance workers to secure themselves with ropes or harnesses. The homeowner filed a motion for summary judgment under Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny which prohibits an independent contractor from suing his or her hirer for workplace injuries (“Privette doctrine”).

There are two exceptions to the Privette doctrine. First, a hirer cannot avoid liability when he or she exercises control over the manner and means in which a contractor does his or her work and that control contributes to the injuries sustained – known as the “Hooker exception” (premised on the holding of Hooker v. Department of Transportation (2002) 27 Cal.4th 198). Second, a hirer may be found liable if he or she fails to warn the contractor of a concealed hazard on the premises – known as the “Kinsman exception” (premised on the holding of Kinsman v. Unocal Corp. (2005)).

The owner sought to overcome the Kinsman exception in his motion for summary judgment by pointing to the window washer’s own testimony attesting to the open and obvious nature of the alleged dangerous conditions existing on the roof at the time of the fall. Since the conditions were not “concealed,” the homeowner believed the Kinsman exception did not apply. The window washer opposed the motion by arguing that in addition to concealed hazards, the Kinsman exception applies to open or known hazards a contractor is not able to remedy through the adoption of reasonable safety precautions. In particular, the window washer asserted he could not have reasonably avoided the dangerous ledge on the roof because there was piping and mechanical equipment preventing him from using an alternate route when leaving the roof. In reply, the owner submitted a video to the trial court showing several individuals avoiding the alleged dangerous condition by walking inside the parapet wall, as opposed to the two-foot ledge. The owner believed this was sufficient evidence to prove, as a matter of law, that the window washer could have remedied the open and obvious hazard by taking otherwise reasonably safe precautions.

The Court of Appeal reversed the trial court’s order granting the homeowner’s motion and reaffirmed the Kinsman exception as applied to open and obvious conditions. Although most courts have discussed the Kinsman exception in terms of concealed hazards, the Court of Appeal acknowledged the separate duties owed by a hirer for open or known hazards. Under these less common circumstances, a hirer may also be held liable when “he or she exposes a contractor (or its employees) to a known hazard that cannot be remedied through reasonable safety precautions.”

Since the reasonableness of a person’s actions are generally questions of fact for a jury to decide, the question of whether the window washer’s failure to walk on the inside of the parapet wall was reasonable, was one that could not be determined on a motion for summary judgment. The Court of Appeal found this to be particularly true since the homeowner failed to demonstrate the video accurately depicted the condition of the roof at the time of the incident and failed to consider other factors that could have affected the window washer’s ability to walk across the inside portion of the parapet wall (e.g. his size in relation to the other persons in the video or whether he was required to carry equipment rendering the pathway impassable).

According to Gonzalez v. Mathis, the Kinsman exception is two-fold. First, did the hirer fail to warn of a concealed hazard and second, did the contractor take reasonable safety precautions to avoid any open and known hazards? It seems that with respect to any alleged open and known hazards, the chances of succeeding on a dispositive motion for a hirer defendant will drastically decrease as the standard involves factual considerations which generally fall within the province of a jury.

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February 12, 2018