Independent contractor injured in fall sues for negligence

Defendants say they delegated duty to take proper precautions to protect against workplace hazards

Independent contractor injured in fall sues for negligence

The doctrine in the case of Privette v. Superior Court (1993) is grounded on the presumption that an independent contractor’s hirer generally delegates to the contractor responsibility for supervising the job, including the duty to look after employees’ safety.

Kimco Realty Corporation and its subsidiary, PK 1 Plaza 580 SC, LP (collectively, Kimco) – the defendants in the case of Ramirez et al. v. PK 1 Plaza 580 SC, LP et al. – owned and operated a shopping center. One of the tenants, Freeway Insurance Services, Inc., vacated the suite that it was leasing.

Under the lease, the tenant was responsible for removing an exterior sign from the suite. The tenant chose to hire the plaintiff, a self-employed contractor, to remove the sign. As the plaintiff was in the roof area to search for the sign’s electrical box, he fell through an opening and had serious injuries.

The plaintiff and his wife filed a tort action against Kimco. They made claims for general negligence, premises liability, negligence per se, and negligent infliction of emotional distress.

Kimco filed a motion for summary judgment. The defendants argued that it owed no duty of care to the plaintiff, that it delegated to him its duty to take proper precautions to protect against obvious workplace hazards in line with the Privette Doctrine, and that the roof’s opening was not a concealed condition or unascertainable to the plaintiff.

The trial court granted summary judgment in Kimco’s favor. It found that Kimco had no duty to ensure the plaintiff’s safety and that the Privette Doctrine applied though Kimco did not directly hire the plaintiff.

The California Court of Appeal for the First District reversed the judgment and returned the matter to the trial court for further proceedings. The trial court improperly granted summary judgment in Kimco’s favor since the Privette Doctrine was inapplicable, the appellate court said.

Since Kimco did not hire the tenant or the plaintiff to remove the sign, it did not delegate its responsibility for the roof’s condition to the plaintiff through an employment relationship in accordance with the Privette Doctrine, the Court of Appeal found. Kimco did not delegate its duty to ensure the worksite’s safety, the appellate court said.

Kimco argued that it delegated to the tenant the duty involving the roof’s condition through the landlord-tenant relationship and through the lease’s particular terms, which made the tenant responsible for the sign’s removal. The appellate court disagreed.

Kimco did not delegate to the tenant a general duty of reasonable care relating to dangerous conditions on the roof, given that under the lease Kimco retained possession and control of the roof, including the responsibility for its maintenance, the Court of Appeal said.

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