Opinion
F083594
02-21-2023
PHILLIP DELGADILLO, Plaintiff and Appellant, v. HILMAR CHEESE COMPANY, INC., Defendant and Respondent.
Law Offices of Steven A. Fabbro, Steven A. Fabbro; Law Office of Harold Selan and Harold Selan for Plaintiff and Appellant. Law Offices of John A. Biard, Susan F. Leonard and Suzanne Tollefson for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. CV-18-004481 Sonny S. Sandhu, Judge.
Law Offices of Steven A. Fabbro, Steven A. Fabbro; Law Office of Harold Selan and Harold Selan for Plaintiff and Appellant.
Law Offices of John A. Biard, Susan F. Leonard and Suzanne Tollefson for Defendant and Respondent.
OPINION
DE SANTOS, J.
Phillip Delgadillo, an employee of an independent contractor milk hauling company, was injured when he fell after stepping into a deep pothole while delivering a load of milk to Hilmar Cheese Company, Inc. (Hilmar). He brought an action for negligence and premises liability against Hilmar. The trial court granted summary judgment based on the Privette doctrine (Privette v. Superior Court (1993) 5 Cal.4th 689) (Privette), which holds a hirer of an independent contractor typically is not liable for the contractor's negligence. (Id. at pp. 691-692.) Delgadillo appeals, arguing there are triable issues of fact on whether the concealed hazard exception to the Privette doctrine applies. For the reasons below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Background
Hilmar produces natural cheeses utilized by private labels and national brands, as well as retail and foodservice companies, throughout the world. Hilmar contracts with various dairies in the Central Valley for the delivery of milk and milk ingredients to the Hilmar plant. The dairies contract with independent milk hauling companies to pick up and deliver the milk and milk ingredients to Hilmar. The milk hauling companies do not have contracts with Hilmar. Morris Farms Transport (MFT) is one of the haulers that makes daily deliveries to Hilmar from 18 dairies.
The milk delivery drivers are employees of the hauling companies, not Hilmar, and Hilmar does not supervise or direct their work in the milk delivery areas. The hauling companies are responsible for training their drivers and for ensuring their safety during the delivery of milk products to Hilmar. Hilmar does not make any promises or representations to the hauling companies that it will ensure the drivers' safety on Hilmar's premises.
Milk deliveries are made to the Hilmar facility 24-hours a day, seven days per week. During a typical milk delivery, the delivery driver enters the facility, shows a security card to gain access through the security gate, and proceeds to the weigh station. There, the driver is directed to get out of the truck, turn it off, and deliver his paperwork to the supervisor at the scale. Once the truck has been weighed in, the driver is allowed to get back into the truck and proceed to the milk delivery area.
Once in the milk delivery area, the driver directs his or her own work. The driver pulls into one of four unloading bays, choosing whichever bay is open, gets out of the truck and climbs to the top of the tanker to vent the tanks. The driver then waits for a Hilmar employee to unload the milk with a vacuum hose.
Sampling and testing of the milk are required by state law and Hilmar, and Hilmar controls the procedure. The driver takes the samples to Hilmar's office refrigerator, which is in a separate building across from the delivery bays. The driver decides when to deliver the samples. While Hilmar prefers drivers deliver the milk samples to the office before the product is unloaded, that is not required if the drivers do not have time.
Delgadillo's Fall
MFT employed Delgadillo as a truck driver. Delgadillo typically worked six days a week, with each shift from 2:00 a.m. to 2:00 p.m., and he picked up milk from local dairies and delivered it to Hilmar three times per day. Delgadillo had worked for MFT for seven years before his injury.
Delgadillo arrived at the Hilmar facility around 4:00 a.m. on February 25, 2018, to deliver a tanker full of milk. After checking in at the main gate, he drove to the receiving bays, which were full with trucks stacked behind each bay waiting for their turn to unload. Delgadillo decided to pull behind the truck that was waiting in the second delivery bay.
While Delgadillo was waiting, he decided to take his samples to the office refrigerator. He intended to get out of his cab, retrieve the milk samples from an ice chest underneath the tanker, and take the samples to the office. After Delgadillo stepped out of his truck and onto the asphalt, he took one step forward and his foot went into a "pothole." He fell forward, rolled his ankle, and fell onto his left hand. Delgadillo sprained his knee and fractured his wrist. Delgadillo could not see the asphalt under his feet when he exited the truck. It was dark and there was no light to highlight the ground; Delgadillo had never seen lighting in the area where he fell during his prior trips to Hilmar. As far as Delgadillo knew, no one witnessed his fall.
On the night of the incident Delgadillo took two photos of the area where he fell- they were taken when it was still dark, and the areas are partially illuminated. One shows two potholes with water in them and a river-like gully with water in it extending from one of the two potholes to a third pothole that also has water in it. The ground around the potholes and gully appears uneven. The second photo is a close-up of the pothole Delgadillo stepped in, which shows a small pothole filled with water. The depth of the potholes is not apparent. The photos show the potholes are not entirely filled with water as the sides of the potholes, which are sloped, are partially visible.
In the two months before his fall, Delgadillo had not noticed the condition of the asphalt in the area where he fell, as it was "just not something I really paid attention to." He assumed it was a safe place to walk because he had seen employees walk in the area and truck drivers get out of their trucks and put their samples away, which was a common practice. According to Elias Leon, a milk receiver at Hilmar, it was not uncommon for drivers to get out of their trucks and go to the break room or use the restroom while waiting for their turn to unload. Jose Vega, a Hilmar milk receiving supervisor, however, testified he had not seen a lot of drivers walking in the area where Delgadillo fell. There were no painted marks on the asphalt to indicate that people should not walk in the area.
Vega testified when Delgadillo told him where he had fallen, Vega asked what he was doing outside his truck, and Delgadillo responded that he was going for a walk to see how long it was going to take to unload. When Vega reported the incident, he stated Delgadillo "was getting off his truck and when he took a step on the pavement he stepped in a pothole and fell," which caused him to twist his left ankle and cut his left hand.
Condensation tanks were adjacent to the asphalt part of the milk delivery driveway, which were overflowing with condensate consisting of 160- to 180-degree water onto the asphalt. The Hilmar Safety Committee investigated Delgadillo's fall and issued a report on February 25, 2018, in which it stated it determined "continued drainage of hot condensate over the asphalt was creating deep gullies," and since it was dark and the truck in front of Delgadillo blocked light from the overhead light, Delgadillo did not see the hole before stepping out of his truck. The report listed prevention and discussion points, which included: (1) taking short-term actions of placing "metal covers over the gullies to provide a flat surface to walk and drive over" and submitting a notification for a cold patch of the asphalt; and (2) investigating redirecting condensate away from the asphalt. A photograph of the asphalt is included in the report, which appears to have been taken during daylight. It shows three deep potholes, with gullies running into and out of them that carry water; the potholes are partially filled with water and the asphalt in the area is uneven.
Johnny Morris, MFT's principal, testified during his deposition that he was not present when Delgadillo fell, and he was unaware of the exact location of the fall or the circumstances, except that he was "kind of stepping out of the truck." When asked if he had any recollection about the condition of the asphalt driveway while making deliveries in February 2018, before Delgadillo's injury, Morris testified: "There was potholes. I don't know exactly where throughout the plant. With hot water and heavy equipment, stuff starts to deteriorate on cement and asphalt. I don't recall that exact hole, where it was."
Morris was asked if he was aware "the asphalt was degraded in some areas at the plant." Morris responded: "I mean, you just go in that plant so often you just kind of get ... you just get used to it. You don't think of it, I guess. I don't know. That plant[']s so big and there's so many little things, you don't really think of what's what." While Morris was aware that hot water was running onto the asphalt in February 2018, he was not aware it was "eating the asphalt." When asked if he was concerned about the condition of the asphalt in the area where Delgadillo fell, Morris responded: "I was not worried of any-if there was any potholes. They were not to be worried-there weren't enough to be worried about." He never told Hilmar they should repair anything, as he wasn't worried about the potholes, stating "[t]hey didn't seem like anything out of the ordinary."
The Condensate Problem
Hilmar controls the maintenance and repair of the asphalt at its facility. Kelly Queen, Hilmar's facilities coordinator, was responsible for maintaining the asphalt that leads to the delivery bays. A milk supervisor may report a maintenance issue by completing a maintenance notification or work order. On December 1, 2017, Elio Luis, a Hilmar employee, prepared a written maintenance notice stating the asphalt in front of the milk unloading bays in central milk receiving needed to be repaired, as condensate was leaking in the area. The notice was a marked "priority" and the coding indicated Luis believed it was a safety issue, which gave the request priority. Queen received the request, and a repair was made in December 2017 using a "cold patch," which later washed out due to the condensate.
Queen explained that between December 1, 2017, and March 19, 2018, Hilmar was having multiple issues throughout the condensation system that was causing condensate to overflow onto the asphalt and degrade it. They would fix one issue, which would last a little while, then another issue would arise and "[i]t would wash out [the] cold patch." This resulted in further repairs being made to the system and replacing any eroded cold patches. Queen testified the depressions in the photos Delgadillo took on the night of his fall had worsened between February 5, 2018 and February 25, 2018, and showed degraded cold patch.
On March 19, 2018, Byron Bird, Hilmar's Maintenance Planning Supervisor, emailed Troy Roos, Hilmar's construction manager, concerning asphalt repairs that were needed in the milk receiving area following Delgadillo's fall from stepping "into a hole." Bird stated there were holes at the entrance to the truck bays, with condensate leaking into the area, and they had metal plates over them so no one else could step into them. Bird asked Roos to suggest a repair. Roos responded that Queen had quotes for fixes, "but the first step was to fix the root cause," namely, "the flows from tanks and heat exchangers, that are creating the eroded asphalt." Roos stated maintenance was getting close to resolving the flows so a cold or hot patch could be successfully installed that would last. Eventually, Hilmar ordered parts to fix the condensate tank and pump, and it diverted the overflow away from the asphalt to a storm drain so the asphalt could be repaired before the parts arrived.
The Present Action and Hilmar's Summary Judgment Motion
Delgadillo sued Hilmar for negligence and premises liability, alleging Hilmar improperly maintained the driveway, allowing it to become severely degraded, thereby creating a dangerous condition that caused him to fall and sustain serious injury. Hilmar answered the complaint with a general denial of all allegations.
Zenith Insurance Company, MFT's workers compensation insurer, filed a complaint in intervention against Hilmar seeking recovery of workers compensation benefits paid to Delgadillo. Although Zenith filed its own opposition to the summary judgment motion, Zenith dismissed its complaint in intervention after the trial court granted the motion. Zenith is not a party to this appeal.
Hilmar moved for summary judgment on Delgadillo's complaint, arguing it could not be liable to Delgadillo under Privette and its progeny. Specifically, Hilmar argued the negligence claim failed because the Privette presumption of nonliability for hirers of independent contractors governed, as Delgadillo was employed by an independent contractor, MFT, who was aware of the condition of the premises yet failed to warn Delgadillo, and Hilmar did not direct Delgadillo's work. Hilmar contended the premises liability claim failed because, while a premises owner may be liable to an independent contractor or its employees for injuries resulting from latent hazardous property conditions, this exception to Privette, as articulated in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman), only applies if there was a concealed hazardous condition on the premises that the plaintiff did not know of and could not reasonably ascertain. Hilmar asserted this exception did not apply because the asphalt's condition was open and obvious, and MFT knew of the potholes and did not warn its employees about them.
In opposing the motion, Delgadillo only challenged the application of the Kinsman concealed hazard exception, arguing the motion must be denied because Hilmar failed to meet its initial burden as to the elements of the exception. Delgadillo asserted there were disputed factual issues on whether the pothole was a concealed hazardous condition as: (1) the hazardous condition was not visible since the area was dark and Delgadillo could not see the gully in the asphalt when he stepped out of the truck; and (2) its dangerousness was not readily apparent to a reasonable person, as the condensate in the pothole obscured its existence and depth. Delgadillo further asserted there were issues of fact on each element of the concealed hazard exception: (1) whether Hilmar knew or should have known of the unsafe condition; (2) whether MFT knew or should have known of the depth and dangerousness of the potholes and whether it had a duty to inspect the asphalt; and (3) whether Hilmar warned of the unsafe condition.
In reply, Hilmar argued the gullies and ruts were plainly visible in the asphalt driveway and were not concealed because they were readily observable. Hilmar further argued that even if the pothole Delgadillo stepped in was not visible the night of the incident, the condition existed for several months, Morris was aware of some potholes and degraded asphalt prior to Delgadillo's fall, and there was nothing preventing Delgadillo from observing the asphalt's condition in the months prior to his fall. Hilmar further argued that once Morris knew about the asphalt's condition, it had no duty to warn Delgadillo.
The trial court continued the hearing on its own motion and ordered the parties to brief the applicability of Gonzalez v. Mathis (2021) 12 Cal.5th 29 (Gonzalez), which was decided while the motion was pending. Hilmar argued Gonzalez was directly applicable and because the hazard of the potholes was a known, open, and obvious danger, it owed no duty to warn Delgadillo of the hazard. Delgadillo argued Gonzalez was distinguishable because it did not involve the concealed hazard exception, but instead focused on whether there was a known hazard.
After receiving the supplemental briefs, the trial court issued a tentative ruling to grant the motion. Following a hearing at which the parties presented arguments, the trial court took the matter under submission and subsequently issued a minute order confirming its tentative ruling and granting the motion. The trial court found Hilmar was entitled to a presumption of the Privette doctrine, as it showed it hired Delgadillo's employer as an independent contractor for service on the day of Delgadillo's injury, which placed the burden on Delgadillo to show the Kinsman concealed hazard exception to Privette applied.
The trial court concluded Delgadillo did not meet that burden, as he failed to submit evidence on the exception's second and third factors "largely because" Delgadillo improperly focused "on the particular hole in which he fell rather than the general condition of the parking lot." On the second Kinsman factor-that the contactor did not know and could not reasonably ascertain the concealed condition-the trial court found Morris's testimony that there were potholes but not enough to be worried about showed "the contractor was able to 'ascertain' the existence of the 'hazardous condition,' which from the standpoint of workplace safety was the presence of potholes, and the contractor chose to take no corrective action," such as refusing the job or demanding that Hilmar fix the potholes.
On the third factor-whether Hilmar warned Delgadillo's "employer about the condition of the driving bays and/or parking lot"-the trial court found the evidence Delgadillo cited did not show Hilmar failed to warn Morris about the presence of potholes but rather showed Morris was aware of some potholes but did not deem them of much concern and he was not aware of the specific place where Delgadillo fell. With Gonzalez's emphasis on delegation in mind, the trial court found this evidence was insufficient to meet Delgadillo's burden on this factor. Because Delgadillo failed to meet his burden to show an exception to Privette applied, the trial court granted the motion.
The parties submitted objections to each other's evidence. The trial court did not issue rulings on each objection, but rather stated it overruled them all either on the merits or because they do not pertain to evidence that was essential to its analysis. The parties do not challenge the trial court's decision to overrule the objections on appeal.
A written order granting the motion and a judgment in Hilmar's favor subsequently were entered.
DISCUSSION
I. The Privette Doctrine
The "workers' compensation scheme 'is the exclusive remedy against an employer for injury or death of an employee.'" (Privette, supra, 5 Cal.4th at p. 697.) In Privette, the Supreme Court held that" 'an independent contractor's employee should not be allowed to recover damages from the contractor's hirer, who "is indirectly paying for the cost of [workers' compensation] coverage, which the [hired] contractor presumably has calculated into the contract price." '" (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 640 (Alvarez).) Thus, the Privette doctrine bars an employee of an independent contractor from recovering damages from the hirer of the contractor for a worksite injury. (SeaBright Ins. Co. v. U.S. Airways, Inc. (2011) 52 Cal.4th 590, 594 (SeaBright).) In other words, an independent contractor's employee injured on the job is generally entitled to no greater damages than a similarly situated employee of the hirer- both are limited to workers' compensation benefits.
Over time, our Supreme Court has "recast [the] primary rationale for the Privette doctrine in terms of delegation rather than workers' compensation." (Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 270 (Sandoval); Gonzalez, supra, 12 Cal.5th at p. 41 ["[o]ur more recent cases emphasize delegation as the key principle underlying this rule"].) Since contractors typically are expected to perform the contracted work more safely than hirers, the Supreme Court has "endorsed a 'strong policy' of presuming that a hirer delegates all control over the contracted work, and with it all concomitant tort duties, by entrusting work to a contractor." (Sandoval, supra, 12 Cal.5th at p. 270.) As a result, "[t]here is a strong presumption under California law that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety." (Gonzalez, at p. 37; Sandoval, at p. 271 ["[a] presumptive delegation of tort duties occurs when the hirer turns over control of the worksite to the contractor so that the contractor can perform the contracted work"].)
The Privette doctrine has exceptions, however, which "apply where delegation is either ineffective or incomplete." (Sandoval, supra, 12 Cal.5th at p. 271.) The exception at issue in the instant case-the concealed hazard exception-applies when the delegation is incomplete, such as when "a hirer intends to delegate its responsibilities to the contractor in principle but, by withholding critical safety information, fails to effectively delegate its responsibilities in practice." (Ibid.)
The exception that applies in the situation where the delegation is incomplete is known as the "retained control" exception, which applies when "the hirer retains control over any part of the work and actually exercises that control so as to affirmatively contribute to the worker's injury." (Sandoval, supra, 12 Cal.5th at p. 271, citing Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202.) For example, the hirer of an independent contractor may be liable for providing unsafe equipment that contributes to an injury to the contractor's employee. (McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225.) Delgadillo does not contend this exception applies in the instant case.
The Supreme Court recently explained the concealed hazard exception as follows: "In Kinsman we recognized that a landowner-hirer cannot effectively delegate its duties respecting a concealed hazard without disclosing that hazard to the contractor. (See Kinsman, supra, 37 Cal.4th at p. 674.) In this context, a 'concealed' hazard means something specific: a hazard that the hirer either knows or reasonably should know exists, and that the contractor does not know exists and could not reasonably discover without the hirer's disclosure. (Id. at p. 675.) We draw no distinction between a hazard whose very existence is concealed and a hazard which is in some way apparent but whose dangerousness is concealed. (Id. at p. 678.) The sufficiency of the hirer's disclosure is 'measured by a negligence standard,' that is, a standard of reasonable care. (Id. at p. 680.) If the hirer does not sufficiently disclose the concealed hazard, the hirer retains its tort duties owed to the contract workers respecting that hazard. A contrary conclusion would cut against the rationale justifying Privette's presumption of delegation. A contractor is not best situated to perform work safely when the contractor lacks critical information about relevant hazards. (Kinsman, supra, 37 Cal.4th at p. 679; see Hooker, supra, 27 Cal.4th at p. 213.) Nor is there any unfairness in holding the hirer liable where only the hirer possessed that critical knowledge." (Sandoval, supra, 12 Cal.5th at pp. 271-272.)
II. The Standard of Review
A trial court properly grants summary judgment when there are no triable issues of material fact, and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) "A defendant may establish its right to summary judgment by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the moving defendant has satisfied its burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to each cause of action. [Citation.] A triable issue of material fact exists where 'the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.'" (Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 967.)
"In evaluating the propriety of a grant of summary judgment our review is de novo, and we independently review the record before the trial court." (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. omitted.) We may affirm the judgment "on any correct legal theory, provided the opposing party had the opportunity to address it below." (Vallely Investments v. BancAmerica Commercial Corp. (2001) 88 Cal.App.4th 816, 821.) In our review "we must consider all of the evidence and all of the inferences reasonably drawn therefrom, and we must view such evidence in the light most favorable to the opposing party." (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139.) This means we accept as true the facts shown by the evidence offered in opposition to summary judgment and the reasonable inferences that can be drawn from them. (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1385.) "A material issue of fact may not be resolved based on inferences, if contradicted by other inferences or evidence." (Alexander v. Codemasters Group Limited, at p. 139.)" '[T]he court may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as the trier of fact,' but must determine the question of law of 'what any evidence or inference could show or imply to a reasonable trier of fact. '" (Ibid.)
"[A] defendant moving for summary judgment is' "entitled to the benefit of any relevant presumptions...." '" (Alvarez, supra, 13 Cal.App.5th at p. 642.) A presumption affecting the burden of producing evidence shifts the burden on summary judgment to the opposing party to show there are triable issues of material fact. (Ibid., citing Security Pacific National Bank v. Associated Motor Sales (1980) 106 Cal.App.3d 171, 179-180.) If the established facts and relevant presumption entitle the defendant to a directed verdict at trial, the defendant is entitled to summary judgment. (Security Pacific National Bank v. Associate Motor Sales, at p. 180.) Thus, where the defendant establishes the presumption applies and the plaintiff offers no evidence to contradict the presumption, the presumption justifies a summary judgment. (Ibid.)
In Alvarez, the appellate court concluded the Privette presumption affects the burden of producing evidence; therefore, a moving defendant need only show it is entitled to the benefit of the presumption to shift the burden of proof to the opposing plaintiff to show there are triable issues of fact. (Alvarez, supra, 13 Cal.App.5th at pp. 643-644.) Once the defendant hirer establishes the foundational facts for the Privette presumption to apply-that the defendant hired the plaintiff's employer to perform work on the jobsite and the plaintiff was injured while working at the site-the burden shifts to the plaintiff to raise a triable issue of material fact. (Alvarez, at p. 644.) The plaintiff may do so by presenting evidence that an exception to Privette may apply. (Alvarez, at pp. 644-646.) If the defendant "provided sufficient evidence to trigger the Privette presumption and [the] plaintiff d[oes] not raise a triable issue of fact," the defendant is entitled to summary judgment. (Alvarez, at p. 646.)
Here, the trial court applied the Alvarez burden shifting analysis. Delgadillo contends Alvarez does not provide guidance on what may be required to rebut the Privette presumption in a concealed hazard exception case because Alvarez involved the retained control exception. But he does not assert that the burden shifting set forth in Alvarez does not apply in the instant case, other than to argue that if Hilmar was moving for summary judgment on the third element of the concealed hazard exception-that the hirer failed to warn the contractor of the concealed hazard-the motion failed because Hilmar did not offer any evidence it warned MFT there was a deep gully near the delivery bays. Under Alvarez, however, it was not Hilmar's burden to produce evidence on this element of the exception; rather, once Hilmar showed the Privette presumption applied, the burden shifted to Delgadillo to produce evidence that Hilmar failed to warn MFT of the concealed hazard. Since Delgadillo does not contend Alvarez was wrongly decided or that the burden shifting should not apply in this case, we will follow Alvarez.
II. Analysis
Hilmar established it was entitled to the presumption of delegation under the Privette doctrine, as it presented evidence it hired Delgadillo's employer, MFT, to deliver milk products to the Hilmar facility, and Delgadillo was injured while performing that work for MFT. This evidence "sufficiently] ... established] that the Privette presumption applied and, therefore, shifted the burden to plaintiff to raise a triable issue of fact." (Alvarez, supra, 13 Cal.App.5th at p. 644.)
Delgadillo relies on the concealed hazard exception to rebut the Privette presumption to raise a triable issue of fact. He argues a reasonable jury could find each element of the exception based on the evidence presented, specifically that (1) Hilmar knew, or should have known, of a latent or concealed preexisting hazardous condition on its property; (2) MFT did not know and could not reasonably have discovered the hazardous condition; and (3) Hilmar failed to warn MFT about the hazardous condition. (Kinsman, supra, 37 Cal.4th at p. 675.) The undisputed facts, however, demonstrate the hazardous condition was not concealed; therefore, the exception does not apply even if we assume Hilmar knew of the hazardous condition and failed to warn MFT.
"[A] 'concealed' hazard means something specific: a hazard that the hirer either knows or reasonably should know exists, and that the contractor does not know exists and could not reasonably discover without the hirer's disclosure." (Sandoval, supra, 12 Cal.5th at p. 272, italics added; see Kinsman, supra, 37 Cal.4th at p. 664 [describing concealed hazard as one that is hidden].) If the hazard is "reasonably ascertainable" to the independent contractor, the hazard is not concealed, and the hirer is not liable. (Kinsman, at p. 682.)
Delgadillo asserts the hazard was the "deep gully that was created" in the asphalt by the overflow of condensate and because the overflow filled the gully, the gully's depth and dangerousness were not reasonably ascertainable. In support, Delgadillo cites cases where courts determined a hole or depression that caused the plaintiff's injury could be found not to be open and obvious because water concealed its true depth and size. (See, e.g., Dupree v. City of New Orleans (La. 2000) 765 So.2d 1002, 1005-1006, 1013-1015 [affirming judgment in favor of driver injured when he drove into an apparent puddle which actually was a large cave-in that was completely filled with water; lack of adequate warning of street cave-in created a hazardous condition because the water masked the cave-in's true depth and size]; Johnson v. Speedway, LLC (D. Mass. Dec. 28, 2017, Civ. Action No. 16-11810) 2017 U.S. Dist. LEXIS 212583, p. *5 [truck driver injured when he stepped into a depression in the asphalt that was covered by a puddle; district court denied landowner's summary judgment motion where "puddle's concealment of the depression could be found to have concealed the hazard"]; Smith v. K-Mart Discount Stores (Ohio Ct.App. 1992) 1992 Ohio App. LEXIS 5024, p. *7 [reversing summary judgment for store where the plaintiff was injured when she stepped into a water-covered pothole in the parking lot that appeared to be a shallow surface puddle; the plaintiff could not appreciate the danger the pothole presented]; Schrader v. City of Cleveland (Ohio Ct.App. 2008) 2008 Ohio App. LEXIS 5248, p. *11 [reversing summary judgment for landowner where excavation hole that was filled with water and which was not marked to warn of the excavation zone was not open and obvious].)
Pointing to California cases which state the question of whether a particular danger was so apparent that the plaintiff may reasonably expect to discover it is a question of fact for the jury, Delgadillo asserts "a reasonable juror could conclude that the deep gully, created by continually leaking condensate that ate away the cold patch and the asphalt and filled it with liquid, was not reasonably apparent."
These cases include: Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 25 [summary judgment improper where "reasonable minds could differ as to whether this defect was ... open and obvious"]; Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 36 ["trier of the fact must determine any conflict as to whether or not the danger was obvious to the invitee"]; Henderson v. McGill (1963) 222 Cal.App.2d 256, 261-262 [jury verdict for plaintiff may not be reversed where it cannot be said as a matter of law that danger "was so obvious that it could be reasonable to assume that persons using the [premises] would necessarily observe it"]; Merrill v. Buck (1962) 58 Cal.2d 552, 557-558 [affirming jury verdict for plaintiff where jury could find basement stairs immediately behind inward swinging basement door with no landing or handrail was a concealed hazard].)
Hilmar responds that Delgadillo cannot establish the asphalt's condition was concealed, as the record shows: (1) the condition existed for several months before Delgadillo fell; (2) Delgadillo drove on the driveway three times per day, six days per week, giving him ample opportunity to observe the asphalt; and (3) the potholes and gullies were visible to the naked eye. Hilmar asserts any reasonable person observing potholes and ruts on the asphalt where delivery drivers were free to walk would understand the potential hazard; while Delgadillo testified he did not pay attention to the asphalt's condition, he never testified the potholes were concealed; and Morris's testimony that he was aware of potholes and degraded asphalt on the premises undermines Delgadillo's argument the asphalt's condition was concealed.
Viewing the potholes and gullies in the context of the surrounding circumstances, we cannot conclude a trier of fact reasonably could find the depth of the potholes was not reasonably ascertainable to Morris had he looked at the asphalt in the driveway. We have examined the photographs in the appellate record of the area of the asphalt with the potholes and gullies caused by the leaking condensate. (Kasparian, supra, 156 Cal.App.4th at p. 15 [reviewing court examines photographs de novo; summary judgment cannot be based on photographs where reasonable minds might differ regarding "whether the photographs conclusively establish the defect was open and obvious"].)
The photographs show uneven asphalt with gullies running from one pothole to another and potholes that appear to have more depth than a surface pothole. The water does not completely fill the potholes so the water is even with the surrounding asphalt, which might mask the potholes as Delgadillo asserts; rather, the photos show depressed potholes partially filled with water and it is apparent the potholes are deeper than "ordinary" potholes. Therefore, Delgadillo's reliance on the out-of-state and federal cases he cites is misplaced, as in those cases, the water masked the depth of the depression or pothole. While the exact depth of the potholes is not apparent from the photographs, given the number of potholes in the area, the presence of the gullies, and the uneven asphalt, a fact finder could not reasonably conclude the danger presented by the potholes' depth was concealed.
Delgadillo argues there is an issue of fact as to whether MFT could have reasonably ascertained the danger the potholes presented because Hilmar's "own safety protocol to inspect the area to discover 'safety issues' and the[n] make immediate repairs of those conditions in the area failed to discover[] the dangerous nature of the unsafe condition under Kinsman." Delgadillo asserts the evidence shows Hilmar had a protocol for routinely inspecting the milk receiving area to discover safety hazards and because Hilmar's inspectors did not discover or report the existence of the gullies after the asphalt was repaired with a cold patch in December 2017, a reasonable juror could draw the inference that the dangerous condition was not reasonably ascertainable.
In support, Delgadillo cites Cring v. BFS Retail &Commercial Operations, LLC (E.D. Va. Oct. 28, 2008) 2008 U.S. Dist. LEXIS 88125. There, the plaintiff was injured when she stepped in a pothole in a store's parking lot that allegedly was covered by shadows of parked cars on either side of the pothole, which was the same color as the surrounding blacktop. (Id. at pp. *2-4, 11.) Although the store manager personally checked the parking lot every morning for broken glass and walked the parking lot in the evenings up to three times per week to check for trash and debris, and employees, who were in and out of the store all day, would take care of anything they saw, the store did not know about the pothole. (Id. at pp. *11-12.) The district court agreed with the plaintiff it was ironic that the store, which moved for summary judgment on plaintiff's premises liability claims, would assert the pothole was open and obvious as a matter of law when its employees did not discover the pothole when they actively inspected for hazards in the area. (Id. at pp. *12-13.) Based on this fact alone, the district court found reasonable minds could differ on whether the pothole was an open and obvious hazard, which precluded summary judgment in the store's favor. (Id. at p. *13.)
This case is distinguishable, however, as here Hilmar knew the condensate was degrading the asphalt before Delgadillo fell. That the degrading asphalt was reasonably ascertainable is shown by Luis seeing and reporting the problem in December 2017, when he happened to walk by the area. While apparently no one reported that the cold patch that was applied in December 2017 to fix the initial problem had washed away, Hilmar was aware the condensate continued to leak and degrade the asphalt, as Queen testified there were multiple problems with the condensation station from December 2017 to February 25, 2018, that caused the condensate to leak, which they were trying to repair, and the condensate would wash out the cold patch, which they would have to replace.
This is not a situation as in Cring v. BFS Retail &Commercial Operations, LLC, where the landowner did not know of the pothole and active inspections failed to disclose its presence. Rather, Hilmar knew the asphalt had degraded and tried to repair it, and knew the condensate continued to leak and wash out the repairs. Moreover, it is not clear that Hilmar's employees actively inspected the asphalt in the area where Delgadillo fell- while Queen testified milk supervisors would report things they noticed while going through their areas, there is no evidence of how often a milk supervisor walked by the area where Delgadillo fell. Even if Hilmar's employees failed to identify the deep gully as a safety hazard after the cold patch washed away, when Hilmar's ability to identify the problem is considered with the photographs of the potholes and gullies, reasonable minds could not differ on whether the hazard presented by the pothole was reasonably ascertainable.
Delgadillo next asserts that while his position is that the hazard was not reasonably apparent regardless of the lighting, triable issues exist on "whether the lighting itself was a concealed dangerous condition." Pointing to the evidence it was dark and another truck was blocking the overhead light so he could not see the pothole when he stepped out of the truck, Delgadillo appears to argue that even if the unsafe condition-the depth of the pothole-was apparent to a reasonable person when illuminated, it was not apparent that night due to the blocked light, which transformed the hazard from an obvious one to a concealed one.
As we have stated, a concealed hazard is a hazard that the contractor "could not reasonably discover without the hirer's disclosure." (Sandoval, supra, 12 Cal.5th at p. 272.) That the area where Delgadillo fell may have been dark at the time does not establish that Morris could not reasonably discover the potholes unless Hilmar pointed them out-all he had to do was look at the asphalt driveway when he made deliveries to Hilmar before Delgadillo's injury in February 2018.
Based on the photographs, there clearly were potholes and gullies in the asphalt that presented a hazard. Morris had been making deliveries to Hilmar in February 2018 and knew there were potholes, although he did not know exactly where throughout the plant, and he knew that "hot water and heavy equipment" would cause "stuff" to start "to deteriorate on cement and asphalt." While Morris was aware hot water was running onto the asphalt, he was not aware it was "eating the asphalt." Morris was familiar with the general area where the incident occurred, though he was not familiar with the exact hole Delgadillo stepped in, and he was not worried "if there was any potholes" in that area, as "there weren't enough to be worried about." Morris did not think about whether the asphalt was degraded in some areas of the plant, as he went to the plant so often, he got "used to it" and did not think about it.
The parties disagree on what can be inferred from Morris's testimony. Delgadillo asserts a reasonable juror could infer Morris was unaware of any potholes where Delgadillo fell but, if there were any, they were not of the type or size to put him on notice of any conceivable hazard to his drivers. Delgadillo argues there was nothing about the driveway's general condition that would lead to only one inference-that Morris could have reasonably expected or ascertained a "dangerous deep gully" had been created which was concealed by leaking condensate. Hilmar, however, asserts a reasonable juror would infer Morris was aware there were potholes on the asphalt driveway, although he did not know exactly where they were or the hole Delgadillo fell into, the degraded asphalt was likely caused by the combination of hot water and heavy equipment, and he was not concerned about the asphalt's condition even if there were potholes.
Making all inferences from Morris's testimony in Delgadillo's favor, as we must, Morris was not aware of the deep potholes but knew there were potholes present in the area where Delgadillo fell. (Caliber Paving Co., Inc. v. Rexford Industrial Realty &Management, Inc. (2020) 54 Cal.App.5th 175, 190 ["we must draw from the evidence all reasonable inferences in the light most favorable to the party opposing summary judgment"].) While Delgadillo asserts it can be inferred from Morris's testimony that he did not know there were potholes in the area where the incident occurred, Morris testified he was not "worried ... if there was any potholes," because "there weren't enough to be worried about." This testimony shows he knew there were potholes but believed there were not enough to worry about.
Morris's inattention to the potholes does not mean they were not reasonably ascertainable. The potholes and gullies caused by the condensate were near where drivers unload their trucks and the potholes, gullies, and uneven pavement were visible. Morris also knew hot water was leaking onto the asphalt, which he knew could create potholes. He easily could have examined the potholes and determined their dangerous nature. Even if Morris was unaware of the pothole Delgadillo stepped in, Morris's knowledge provided ample notice of a potentially dangerous condition of the potholes and suggested the need to investigate further or request repairs and take safety precautions.
Delgadillo asserts a reasonable juror could find MFT would not expect a pothole that presented a hazard where MFT's drivers walked because Hilmar had a policy of immediately repairing potholes. The testimony he cites, however, does not establish such a policy. Queen testified that if an area of the asphalt was bad enough that it required immediate repair, they would contact the on-site contractor to get it fixed as soon as they could. But Queen did not testify the asphalt was checked regularly for potholes and if any were found, they were repaired as soon as possible. Moreover, there is no evidence Morris was aware of such a policy or relied on the policy in considering the safety of MFT employees. As Hilmar asserts, the record is silent on Morris's alleged understanding that Hilmar would fix potholes right away and such an inference is inconsistent with his testimony that he was aware of potholes and was not concerned about them. Moreover, even if he believed such a policy existed, it does not mean he could not reasonably ascertain the presence of these potholes, which were in plain sight.
Finally, Delgadillo asserts Morris could not reasonably discover the potholes because Hilmar failed to disclose "critical safety information" that the leaking condensate was degrading the asphalt and a cold patch repair was made, but the hot condensate continued to degrade the asphalt and eat away at the cold patch, which created a deep gully filled with condensate. But as we have explained, the alleged hazard created by the deep gully was not concealed and Morris and MFT could have reasonably discovered it without Hilmar's disclosure. Therefore, any failure by Hilmar to tell Morris about the problem with the condensate and the resulting degradation in the asphalt is immaterial.
Delgadillo also contends the Privette presumption is rebutted when critical safety information is not disclosed about a concealed condition and once that showing is made, the burden shifts back to the moving party, citing Sandoval, supra, 12 Cal.5th at pp. 271272. Since we have determined the hazard was not concealed and was reasonably ascertainable to MFT, we do not reach this issue.
Because the alleged hazard was not concealed and was reasonably ascertainable to MFT and Morris, the concealed hazard exception does not apply. Instead, the Privette presumption remains unrebutted, and Hilmar delegated to MFT any duty it had to protect Delgadillo from hazards associated with walking on the asphalt while in the course of delivering milk to Hilmar.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Hilmar.
WE CONCUR: PENA, Acting P. J. SMITH, J.