Opinion
H046076
09-15-2021
ANTHONY HERNANDEZ, Plaintiff and Appellant, v. SKYBOX IMAGING, INC., et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 115CV283277
BAMATTRE-MANOUKIAN, J.
I. INTRODUCTION
Plaintiff Anthony Hernandez was injured after falling from an elevated platform inside a commercial building. At the time of the accident, the commercial building was owned by defendant Rudolph Alfinito and occupied by defendant Skybox Imaging, Inc. (Skybox). Skybox had hired plaintiff's employer, Fibercom, to replace computer and phone cables inside the building. Plaintiff sued the property owner Alfinito and the occupant Skybox for premises liability. By special verdicts, the jury found in favor of both defendants, and a judgment was entered accordingly.
On appeal, plaintiff contends that the judgment must be reversed as to both defendants for the following reasons. First, under Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette), if an employee of an independent contractor is injured on the job, the employee generally cannot sue the hirer (here Skybox) of the independent contractor. In this case, plaintiff contends that the trial court erred by applying the Privette doctrine to partially shield the defendant property owner, Alfinito, from liability, as Alfinito did not hire the contractor Fibercom. Second, plaintiff argues that the court erred in making this determination about the applicability of the Privette doctrine in the context of defendants' motions in limine. Third, plaintiff contends that the court erroneously excluded expert testimony regarding defendants' violation of Cal-OSHA regulations (see Lab. Code, § 6300 et seq. [Cal. Occupational Safety & Health Act of 1973 (Cal-OSHA)]). Fourth, plaintiff argues that the court erred in failing to give certain jury instructions. Fifth, plaintiff contends that the special verdict contains contradictory findings and lacks evidentiary support.
For reasons that we will explain, we determine that the Privette doctrine does not apply to defendant Alfinito the property owner and, as a consequence, the trial court prejudicially erred in its rulings regarding evidence and jury instructions. We will therefore reverse the judgment and remand the matter for a new trial as to Alfinito. Regarding defendant Skybox, we determine that plaintiff fails to show prejudicial error, and therefore we will affirm the judgment as to Skybox.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Pleadings
Plaintiff alleged three causes of action against defendants Alfinito and Skybox: (1) premises liability for a dangerous condition, specifically a plywood platform that lacked a barrier at the edge, inadequate lighting, and the absence of warnings; (2) premises liability for failure to warn about the dangerous condition associated with the plywood platform; and (3) negligent design, construction, renovation, modification, and/or maintenance of the work area. Alfinito and Skybox each filed an answer, alleging among other affirmative defenses that workers' compensation benefits were plaintiff's exclusive remedy.
B. The Jury Trial Proceedings
1. Pretrial Motions
Defendants filed pretrial motions in limine seeking: (1) to bifurcate the issue of whether the affirmative defense of workers' compensation exclusivity applied, based on Privette, supra, 5 Cal.4th 689 and other authorities, thereby precluding defendants' tort liability; (2) to bifurcate the issue of whether defendant Alfinito, as an “owner-out-of-possession” of the property, owed a legal duty to plaintiff; (3) to exclude evidence regarding any failure by Alfinito as an owner-out-of-possession to inspect the property; and (4) to exclude evidence of occupational safety and health standards to establish defendants' duty.
Plaintiff opposed the motions. Among other arguments, plaintiff contended that Privette and its progeny did not apply to defendant Alfinito, the property owner, because the doctrine only applied to the hirer of an independent contractor. In addition to opposing the motions on the merits, plaintiff contended that defendant Alfinito's motion in limine No. 2 was procedurally improper because Alfinito sought a finding that he, as a property owner, did not owe a duty to plaintiff. Plaintiff argued that the motion sought to dispose of his cause of action for premises liability against Alfinito and was essentially a dispositive summary judgment motion that failed to comply with the procedural requirements of the Code of Civil Procedure.
The trial court denied defendants' motion in limine No. 1, reserved ruling on No. 2, and granted Nos. 3 and 4. In making the rulings, the court indicated that Privette and its progeny applied to the property owner Alfinito and to the hirer Skybox. Regarding plaintiff's contention that a motion in limine was an improper vehicle to raise the Privette issue, the trial court disagreed, explaining that a court “on its own motion can raise these legal issues on a motion for judgment on the pleadings, which doesn't need to have any sort of evidence on the record. It's purely legal.” The court also indicated that the same legal issue would arise later with jury instructions, and that the issue did not need to be raised by a motion for summary judgment in that context. The court explained that it assumed all the facts recited by plaintiff in opposition to the motions were true, but that it disagreed with plaintiff on the law regarding premises liability. After further discussion with the parties, the trial court indicated that the jury instructions and special verdict forms would also conform to the court's ruling. The court, on its own motion, bifurcated the issues of liability and damages.
2. Evidence
The evidence at trial included the following.
We also observe that plaintiff's statement of facts in his opening brief on appeal includes purported facts that were not admitted into evidence at trial, including (1) plaintiff's counsel's factual assertions during the pretrial hearing on the motions in limine and (2) Tiffany Tran's testimony during trial, which the trial court struck in its entirety and told the jury to disregard. We observe that plaintiff's citations to the reporter's transcript do not comply with the California Rules of Court. The California Rules of Court require the parties to “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C), italics added.) Instead of citing the volume and page number of the reporter's transcript, plaintiff cites the date of the court proceeding and appears to use his own page numbering system, rather than citing the actual transcript page numbers. Plaintiff's counsel is advised to follow rule 8.204(a)(1)(C) of the California Rules of Court.
a. The elevated platform or “hard cap”
Plaintiff was injured inside a single story office building after falling from an elevated platform, or “hard cap, ” in the attic, through the ceiling tiles, and onto the linoleum floor. The ceiling tiles rested on a metal grid. The grid was suspended from above by metal wire, which is sometimes referred to as “stringers.” The ceiling tiles were not strong enough to support the weight of a person.
In a “janitorial closet” inside the building, there was a ladder bolted to the wall. The ladder provided access to the area above the ceiling tiles. In this upper workspace area, there was a “hard cap, ” which consisted of sheets of plywood that created a walking surface. The hard cap was adjacent to the ceiling tiles and did not cover the tiles. The hard cap was approximately 110 inches, or a little over nine feet, above the ground floor of the building. There were no lights on the hard cap, and the hard cap did not have any railings around its perimeter. The hard cap provided access to cables, electrical, and “HVAC” (heating and cooling) equipment.
b. Defendant Alfinito the building owner
Defendant Rudolph Alfinito owned the commercial building where plaintiff was injured. At the time of trial in 2018, Alfinito had owned the building for approximately 35 years. He was involved in the original construction of the building. Alfinito did not know, however, when the ladder was installed, who installed it, or when the elevated platform was built. He had not inspected the building at any time to determine whether there were any safety hazards.
c. Defendant Skybox the tenant
Defendant Skybox operated a business across the street from Alfinito's building. In 2013, Skybox “took... on” Alfinito's building so that it could expand its operations into Alfinito's building.
Prior to moving into the building, Skybox hired different contractors to perform work on the building. Those contractors included a demolition team, an electrical team, and painters. Skybox hired plaintiff's employer, Fibercom, for a communications cabling project, which involved installing new computer and phone cabling inside the building and removing old cabling.
Kris Gibbs Smith was the director of operations for defendant Skybox. He was in charge of day-to-day operations, construction projects, and expansions. Smith testified that he was not a foreman, and that he was not there to supervise anyone. Each trade “ha[d] their own bosses, ” and Smith “just ma[d]e sure the project [was] moving forward.”
d. Fibercom the employer of plaintiff
Fibercom was started by Jeff Baker, who was a licensed contractor at the time of the accident. Prior to the beginning of the job for Skybox, Baker had walked through the building to determine the amount of cable needed and to provide a price estimate. He typically did not go above the ceiling tiles, and he did not recall whether he had done so during the walk-through for this job.
Sometime after the accident, Fibercom became known as South Bay Communications, Inc. Throughout this opinion, we will refer to the entity as Fibercom.
Plaintiff was a technician in training for Fibercom and had been employed for about two and a half months prior to the accident. Plaintiff's job duties required him to spend almost all day on ladders and use flashlights because all the cabling was above the ceiling tiles.
Prior to the accident, plaintiff had worked in other commercial buildings that had a hard cap or elevated work platform. Plaintiff did not receive any training from Fibercom regarding working on hard caps or elevated platforms.
e. The accident
Fibercom's first day on the Skybox job was July 22, 2013. Plaintiff and Kurt Onstott, a lead technician for Fibercom, met at Fibercom's office before going to the Skybox jobsite. Baker showed Onstott a blueprint of the building and explained what needed to be done while plaintiff listened. Onstott and plaintiff loaded a van with the equipment they needed and drove to the Skybox job, where they would be removing old cables from the building for the first day on the job.
Plaintiff and Onstott had previously worked on at least 20 jobs that involved cabling and ceiling tiles. For this job, Onstott's role as the foreman included making sure that plaintiff, the apprentice, did not do something unsafe. Baker believed plaintiff was “capable enough to undertake the job” on the date of the accident.
Upon arriving at the jobsite, Skybox's director of operations, Smith, met with plaintiff and Onstott. Smith explained what he wanted them to do.
Plaintiff testified that Smith also showed them a “service closet” that they could use to access certain areas more efficiently than if they used their own ladders. There was a ladder bolted to the wall with a hatch at the top. Plaintiff “popped [his] head up” through the hatch and “looked around real quick” with his flashlight. Plaintiff testified that Smith said that “you can work here, or you should work here when you get to this area.” Plaintiff did not recall Smith ever saying that plaintiff “had to work” on the hard carp.
Smith similarly testified that he “showed [plaintiff] how to get up to the ceiling area, ” walked with plaintiff on the hard cap with a flashlight, and had a “general conversation” about what Skybox wanted. Smith did not recall whether he also went onto the hard cap with Onstott. Smith testified that his “intention was to show [plaintiff] how to gain access to the hard cap” and “probably... to show him where to go....” Smith did not recall whether he discussed the configuration or the size of the hard cap.
Smith indicated that the ladder was already attached to the wall when Skybox took over the building and began its expansion project. Smith had been on the hard cap numerous times on previous occasions to assess “the HVAC” (heating and cooling) equipment that was on the hard cap and to assess other issues. Smith assumed the ladder and the hatch existed to allow workers to go onto the hard cap to service that equipment. Smith never recommended to anybody that railings be installed on the hard cap, nor did he ever recommend that lighting be installed. He did not warn the Fibercom employees that there were no railings on the hard cap because he believed it was obvious to anyone that went up there. Smith did not know whether anyone from Skybox had inspected the property to determine whether there was any hazardous condition on the property, and he had never been instructed to conduct such an inspection.
Fibercom's scope of work required it to remove wires from the entire building. The hard cap allowed access to only a small percentage of wires that Fibercom was going to remove. In areas where there was no hard cap, the wires could be accessed by using a regular ladder and pushing up the ceiling tile from below.
Plaintiff testified that he and Onstott started at the back of the building removing wires and worked their way to the front. To remove the wires, they climbed their ladders, lifted the ceiling tiles, and identified and cut the wires. Along the way, they removed the wires that Skybox's Smith wanted taken out, as well as doing what their Fibercom boss, Baker, had told them to do. Plaintiff testified that Baker “always” told employees “to satisfy the customer, ” such as installing an extra wall outlet that was not on the plans or “cut[ting] something in a certain way.”
Plaintiff started on his ladder to cut the wires around 8:30 a.m. After lunch, plaintiff and Onstott were working toward the hard cap area, which was near the front of the building.
Plaintiff testified that he and Onstott did not need to go on the hard cap to do their work because they had their own ladders. He went onto the hard cap, however, “[b]ecause [Smith] had told [plaintiff] to go up there when [plaintiff] was working on that area of the building.” With the ladder bolted to the wall, plaintiff believed it was “made for service.”
Plaintiff testified that, upon climbing the ladder and opening the hatch, it was too dark to see without a light. At trial, plaintiff testified that he had a light, but he could not recall whether he used a head lamp or a flashlight while on the hard cap. Standing on the hard cap, plaintiff saw “stringers, ” which supported the ceiling tile, in three directions-to the front, to the right, and behind him. Plaintiff knew not to walk in that area. To the left, where plaintiff needed to work, was a fire wall.
Onstott was on a ladder and above the ceiling tile on the other side of the fire wall. There was a conduit that had a bundle of about 20 wires going through the wall. Plaintiff and Onstott were trying to find the same wire on opposite sides of the wall. Plaintiff testified: “So as I'm listening to his voice, I'm making sure I don't hit my head on HVAC stuff, fire sprinklers, and stuff like that. So I'm kind of looking straight ahead and above my head, and I knew I'm walking on solid surface, I'm okay.... [¶] So I'm walking towards the pipe, I'm listening to his voice, and I get to like the sixth step, and I fall straight through” the ceiling tiles.
In the area where plaintiff fell, the end of the hard cap was three feet eight inches away from the fire wall. Between the hard cap and the fire wall were ceiling tiles. Each ceiling tile in that location was two feet by four feet. There were no stringers supporting the ceiling tile in that location.
Plaintiff testified that he fell because it was dark, there were no stringers in that location which would indicate the existence of ceiling tiles, and he did not know that the hard cap ended short of the fire wall. His “attention was on the pipe that went through the wall, ” and he did not see the ceiling tiles where he fell.
Plaintiff landed on the linoleum floor below, with his buttocks hitting the ground first. Smith, from Skybox, heard plaintiff fall through the ceiling but did not witness it. Plaintiff was embarrassed. He did not want to lose his job, and he did not want his boss to get in trouble. Plaintiff and Onstott went back to the Fibercom office to notify Baker. Plaintiff went home and later went to the hospital. Plaintiff suffered injuries as a result of the fall.
Onstott had been on the hard cap at some point during the day. According to Onstott, the perimeter of the hard cap could be seen, both he and plaintiff “knew the perimeters of the hard cap, ” and they “were aware that there was no wall touching the hard cap.” Onstott testified that he knew plaintiff was on the hard cap, but he did not know where plaintiff was standing prior to his fall. According to Onstott, plaintiff was on the hard cap for a period pulling out old cable before he fell. Onstott testified that the safest method would have been for plaintiff to use a ladder to access the cable.
The office manager for Fibercom testified that after the accident, she had a telephone conversation with plaintiff. Plaintiff told her that “he'd gone up into the ceiling, and he was rushing up there. It was towards the end of the day, and he was rushing up in the ceiling, and he didn't watch his step, and he stepped one too far, and he stepped down through the ceiling. He hit the ground, and he jumped back up. And he was embarrassed because he almost landed on the customer.”
Baker, of Fibercom, initially testified that he was also present at the building with plaintiff and Onstott on the morning when the project started, and that he warned plaintiff to be careful about stepping on the ceiling grid because the plywood did not extend all the way to the wall. However, Baker also testified that he was not sure whether he was present that day. Plaintiff testified that Baker was not present at the Skybox jobsite on the day plaintiff was injured.
Baker testified that he expected his employees to use their own eight-foot ladders during the entire time that they worked on the job. They did not need to use the hard cap in order to do their job. By using their own ladders, this would have avoided the risk of falling through the ceiling.
However, Baker also testified that he allowed his employees to work on the platform if they wanted to. Indeed, Baker himself used the platform, not a ladder, to work in the area where plaintiff fell. Specifically, sometime after the accident, Baker replaced the broken ceiling tiles and removed the wires that plaintiff had been attempting to cut when he fell. Baker used the platform and “was able to stand on a wall, ” meaning a doorway that was supported by beams on top, while taking the cables out. Baker used a head lamp or a flashlight.
Baker testified that it was not pitch black in the area above the dropped ceiling because light could be seen coming up through the tiles. According to Baker, the light coming up from under the ceiling tiles “would give them a visual clue that those were ceiling tiles.” However, the lights from below were triggered by a motion sensor and would only turn on if someone passed through the area.
f. Expert testimony
Gerald Fulghum, a “safety professional, ” testified as an expert (on behalf of plaintiff) regarding custom and practice in construction sites. He testified that industry custom and practice in California required illumination and guard rails for an elevated platform, and that the absence of those features were safety deficiencies regarding the hard cap. Fulghum believed that the property owner Alfinito, the tenant Skybox, and the employer Fibercom “shared responsibility” to ensure the existence of guard rails.
Steven Fisk, a licensed general contractor, testified as an expert (on behalf of defendants) regarding construction practices. Fisk testified that the employer is responsible to provide an employee with safety equipment, including lighting, and to make sure the work area is safe. The employer should teach a new employee how to do the work safely. At the same time, “the employee should talk to his supervisor before he deviates from a plan.” Fisk testified that the safest way to do the work in this case would have been to use a ladder and pop up the ceiling tile, and that the employer would be responsible for telling the employee to use this method. If an employee is working on the hard cap, the employer should add light and make the employee aware of where the edge is. The employer could also remove the ceiling tiles around the edge of the hard cap, which would make the risk of fall more evident. If there is a great risk of fall, then the employer should provide a harness and a lanyard to restrain the employee. Guard rails, yellow caution tape, or scaffolding around the edge of the hard cap could also be used, but the “most cost effective and surest way” would be “to tie [the employee] off.”
3. Special Verdicts and Judgment
The special verdict forms provided to the jury included questions regarding (1) knowledge of an unsafe concealed condition, (2) negligent exercise of retained control over safety conditions, and (3) active direction or interference regarding the contracted work. The jury found that defendant Alfinito owned, leased, occupied, or controlled the property, but that he did not know, nor reasonably should have known, of a preexisting unsafe concealed condition on the property. The jury similarly found that defendant Skybox owned, leased, occupied, or controlled the property, but that Skybox did not know, nor reasonably should have known, of a preexisting unsafe concealed condition on the property.
The jury found that defendant Skybox retained control over safety conditions at the worksite, but that Skybox did not negligently exercise its retained control over safety conditions at the worksite.
The jury found that neither Smith, nor any other employee of defendant Skybox, actively directed the manner of performance of the contracted work or directed that the contract work be done in a particular manner. However, the jury found that Smith, or another employee of Skybox, interfered with the means and methods by which the contracted work was accomplished, and that plaintiff was harmed, but that the conduct of Smith, or another employee of Skybox, was not a substantial factor in causing harm to plaintiff.
Plaintiff filed a motion for judgment notwithstanding the verdict and a motion for new trial. The trial court denied both motions. A judgment was entered in favor of defendants Alfinito and Skybox.
III. DISCUSSION
A. Whether the Privette Doctrine Applies to Defendant Alfinito
Plaintiff contends that the trial court erred by preventing him from asserting an “ ‘ordinary' premises liability” claim against defendant Alfinito and instead allowing claims only within the framework of Privette, supra, 5 Cal.4th 689 and its progeny. Plaintiff also argues that the trial court erred in making this decision based on an in limine motion by Alfinito, rather than by a dispositive motion.
As we will explain, we determine that the Privette doctrine does not apply to defendant Alfinito in this case. Further, as we will explain in connection with other contentions raised by plaintiff in this appeal, the trial court's application of the Privette doctrine to Alfinito resulted in the erroneous exclusion of evidence and improper jury instructions, requiring reversal of the judgment as to Alfinito. In view of this determination, we do not reach the issue of whether the trial court erred in deciding the Privette issue on a motion in limine.
1. General Legal Principles
a. Premises liability
Civil Code section 1714, subdivision (a) sets forth the basic policy of this state that “[e]veryone is responsible... for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person....” (See Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 672 (Kinsman).) The elements of a premises liability claim are the same as for a negligence claim: “a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.]” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) The test for premises liability is “ ‘whether in the management of [the] property [the person] has acted as a reasonable [person] in view of the probability of injury to others....” [Citations.] ‘This requires persons “to maintain land... in a reasonably safe condition. [Citations.]” [Citation.]' [Citation.]” (Laico v. Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649, 659 (Laico).) Generally, property owners may be liable if they “were negligent in failing to discover [a] dangerous condition... and to either correct it or adequately warn... of it.” (Markley v. Beagle (1967) 66 Cal.2d 951, 956 (Markley).)
b. Leased property
In general, “ ‘property owners are liable for injuries on land they own, possess, or control.' [Citation.]” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162 (Alcaraz).) The California Supreme Court has emphasized that “the phrase ‘own, possess, or control' is stated in the alternative. [Citation.] A defendant need not own, possess and control property in order to be held liable....” (Ibid.) “In determining if there is a basis for tortious liability for conditions on land, California courts modernly ‘have placed major importance on the existence of possession and control' [citations], because this factor is relevant in determining if the landlord acted reasonably under the circumstances. It would not be reasonable to charge a lessor with liability if the lessor did not have the power, opportunity and ability to eliminate the danger. [Citation.]” (Mora v. Baker Commodities (1989) 210 Cal.App.3d 771, 779-780 (Mora).)
“However, ... a commercial landowner[] cannot totally abrogate its landowner responsibilities merely by signing a lease. As the owner of property, a lessor out of possession must exercise due care and must act reasonably toward the tenant as well as to unknown third persons. [Citation.]” (Mora, supra, 210 Cal.App.3d at p. 781; see Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134 [lessor's duty of care may extend to the public depending on the circumstances]; Markley, supra, 66 Cal.2d at p. 955 [property owners owed a duty of reasonable care to business invitee].) “At the time the lease is executed and upon renewal a landlord has a right to reenter the property, has control of the property, and must inspect the premises to make the premises reasonably safe from dangerous conditions. [Citations.]” (Mora, supra, 210 Cal.App.3d at p. 781; see CACI No. 1006.) “However, the landlord's responsibility to inspect is limited.... [T]he duty to inspect charges the lessor ‘only with those matters which would have been disclosed by a reasonable inspection.' [Citations.]” (Mora, supra, 210 Cal.App.3d at p. 782; see CACI No. 1006.)
We understand plaintiff to contend that defendant Alfinito was also liable for injuries occurring in “ ‘common areas under [his] control,' ” and that in this case, the area above the ceiling where the hard cap was located was such a common area. Plaintiff does not point to any evidence establishing that Alfinito had control of this area pursuant to a lease for example, or that it was a common area under his control as a matter of law. Plaintiff cites Markley, supra, 66 Cal.2d 951 in support of his contention that common areas may include areas where service personnel must access utilities such as refrigeration or wiring. In Markley, however, the California Supreme Court did not expressly address whether the location, or give adequate warning of anything that could be reasonably expected to harm others. [¶] In deciding whether Skybox Imaging and Rudolph Alfinito used reasonable care, you may consider, among other factors, the following: [¶] (a) The location of the property; [¶] (b) The likelihood that someone would come on to the property in the same manner as Anthony Hernandez did; [¶] (c) The likelihood of harm; [¶] (d) The probable seriousness of such harm; [¶] (e) Whether Skybox Imaging and Rudolph Alfinito knew or should have known of the condition that created the risk of harm; [¶] (f) The difficulty of protecting against the risk of such harm; and [¶] (g) The extent of Skybox Imaging and Rudolph Alfinito's control over the condition that created the risk of harm.”
c. Liability to an independent contractor's employees under the peculiar risk doctrine
“At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work. [Citations.] Central to this rule of nonliability was the recognition that a person who hired an independent contractor had ‘ “no right of control as to the mode of doing the work contracted for.”' [Citations.] The reasoning was that the work performed was the enterprise of the contractor, who, as a matter of business convenience, would be better able than the person employing the contractor to absorb accident losses incurred in the course of the contracted work. This could be done, for instance, by indirectly including the cost of safety precautions and insurance coverage in the contract price. [Citations.]” (Privette, supra, 5 Cal.4th at p. 693.)
“For various policy reasons..., courts have severely limited the hirer's ability to delegate responsibility and escape liability.” (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 526 (Tverberg).) One of these exceptions “is commonly referred to as the doctrine of peculiar risk.” (Privette, supra, 5 Cal.4th at p. 693.) “Under the peculiar risk doctrine, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor's negligent performance of the work causes injuries to others.” (Id. at p. 691.) A peculiar risk “is a special or recognizable danger inherent in the work itself, and that arises ‘either from the nature or the location of the work and “ ‘against which a reasonable person would recognize the necessity of taking special precautions.' ”' [Citation.]” (Tverberg, supra, at p. 524.) Through the peculiar risk doctrine, which is an “exception to the general rule of hirer nonliability, courts sought to ensure that ‘a landowner who chose to undertake inherently dangerous activity on his land should not escape liability for injuries to others simply by hiring an independent contractor to do the work.' [Citation.] Thus, ‘innocent third parties injured by the negligence of an independent contractor hired by a landowner to do inherently dangerous work... would not have to depend on the contractor's solvency in order to receive compensation for the injuries.' [Citation.]” (Tverberg, supra, at pp. 524-525.) “It was believed that as between two parties innocent of any personal wrongdoing-the person who contracted for the work and the hapless victim of the contractor's negligence-the risk of loss occasioned by the contracted work was more fairly allocated to the person for whose benefit the job was undertaken. [Citation.]” (Privette, supra, at p. 694.) “[L]iability imposed under the peculiar risk doctrine is vicarious, meaning that the liability of a person hiring a contractor to perform inherently dangerous work derives not from any negligence by the hirer but from the injury-causing negligence of the hired contractor. [Citation.]” (Tverberg, supra, at p. 525.)
“At first, the doctrine of peculiar risk was applied to subject a landowner to liability only to certain third parties-either bystanders or neighboring property owners-who were injured by the work performed by the hired contractor. [Citation.] But over time some courts expanded the doctrine's reach to include another category of third parties-employees of an independent contractor hired by the property owner to perform work that is inherently dangerous, thus subjecting the landowner to vicarious liability for such employees' on-the-job injuries. [Citation.]” (Tverberg, supra, 49 Cal.4th at p. 525.)
d. The Privette doctrine
“In Privette, supra, 5 Cal.4th 689, 702, [the California Supreme Court] rejected that expansion of the peculiar risk doctrine.” (Tverberg, supra, 49 Cal.4th at p. 525.) Under the Privette rule, “[g]enerally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work. [Citation.]” (SeaBright Ins. Co. v. U.S. Airways, Inc. (2011) 52 Cal.4th 590, 594 (SeaBright).) The Privette rule is based on the fact that “work-related injuries are compensable under our state's Workers' Compensation Act (§ 3200 et seq.). [Citation.]” (SeaBright, supra, at p. 598.) “That statutory scheme, which affords compensation regardless of fault, advances the same policies that underlie the doctrine of peculiar risk. Thus, when the contractor's failure to provide safe working conditions results in injury to the contractor's employee, additional recovery from the person who hired the contractor-a nonnegligent party-advances no societal interest that is not already served by the workers' compensation system.” (Privette, supra, 5 Cal.4th at p. 692.)
“Moreover, [the Workers' Compensation Act] affords ‘ “the exclusive remedy... for injury or death of an employee”' against an employer who obtains workers' compensation insurance coverage. [Citation.] In light of that limitation on the independent contractor's liability to its injured employee, Privette concluded that it would be unfair to permit the injured employee to obtain full tort damages from the hirer of the independent contractor. That was especially so because (1) the hirer likely paid indirectly for the workers' compensation insurance as a component of the contract price [citation], (2) the hirer has no right to reimbursement from the contractor even if the latter was primarily at fault [citations], and (3) those workers who happen to work for an independent contractor should not enjoy a tort damages windfall that is unavailable to other workers [citation].” (SeaBright, supra, 52 Cal.4th at pp. 598-599.)
The California Supreme Court has explained that “the concept of delegation is helpful to understanding Privette[]” and subsequent decisions. (Tverberg, supra, 49 Cal.4th at p. 526; accord, SeaBright, supra, 52 Cal.4th at p. 600.) These decisions “were grounded on a common law principle ‘that when a hirer delegated a task to an independent contractor, it in effect delegated responsibility for performing that task safely, and assignment of liability to the contractor followed that delegation.' [Citation.] For ‘policy reasons, '... ‘courts have severely limited the hirer's ability to delegate responsibility [to a contractor] and escape liability' to a bystander who is injured by the contractor's negligence. [Citation.] But, ... if the injured party is the contractor's employee, and therefore entitled to workers' compensation benefits, those policy concerns do not apply. Hence, ... a hirer is presumed ‘to delegate to an independent contractor the duty to provide the contractor's employees with a safe working environment.' [Citation.]” (SeaBright, supra, at p. 600.) “The Privette line of decisions... establishes that an independent contractor's hirer presumptively delegates to that contractor its tort law duty to provide a safe workplace for the contractor's employees.” (Ibid.)
On the other hand, “when the hirer does not fully delegate the task of providing a safe working environment, ... the hirer may be liable in tort to the employee.” (Kinsman, supra, 37 Cal.4th at p. 671.) For example, “an independent contractor's employee can sometimes recover in tort from the contractor's hirer if the hirer retained control of the contracted work and ‘ “fail[ed] to exercise his control with reasonable care....”' [Citation.]” (SeaBright, supra, 52 Cal.4th at p. 600, citing Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 206 (Hooker).) Under this exception, the hirer is liable “if it ‘exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor's employee.' [Citation.]” (SeaBright, supra, at p. 600, italics omitted.)
Further, “the hirer as landowner may be independently liable to the contractor's employee, even if it does not retain control over the work, if: (1) it knows or reasonably should know of a concealed, preexisting hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor.” (Kinsman, supra, 37 Cal.4th at p. 675, fn. omitted.)
2. Analysis
As reflected in our summary of the law leading to Privette, the (1) common law rule regarding “hirer nonliability, ” (2) the peculiar risk doctrine as an “exception to the general rule of hirer nonliability, ” and (3) “Privette... [which] rejected [an] expansion of the peculiar risk doctrine” all arise in the context of hiring a contractor and address whether the hirer has a tort law duty to the contractor's employees. (Tverberg, supra, 49 Cal.4th at pp. 524, 525.) The California Supreme Court has explained that Privette and its progeny are understood within the “ ‘framework of delegation.' ” (SeaBright, supra, 52 Cal.4th at p. 600; accord, Tverberg, supra, 49 Cal.4th at p. 526.) Specifically, “[t]he Privette line of decisions... establishes that an independent contractor's hirer presumptively delegates to that contractor its tort law duty to provide a safe workplace for the contractor's employees.” (SeaBright, supra, at p. 600, italics added.)
In this case, regarding the property where plaintiff's injury occurred, both defendant Alfinito, who was the owner out of possession, and defendant Skybox, which was in possession of the property, generally owed a duty of care based on their ownership, possession, or control of the property. (Alcaraz, supra, 14 Cal.4th at p. 1162; Mora, supra, 210 Cal.App.3d at p. 782; see SeaBright, supra, 52 Cal.4th at p. 600; Kinsman, supra, 37 Cal.4th at p. 675.) The latter defendant, Skybox, who hired plaintiff's employer Fibercom, “presumptively delegate[d] to that contractor its tort law duty to provide a safe workplace for the contractor's employees” under the Privette line of decisions. (SeaBright, supra, at p. 600.) While Skybox delegated its tort law duty based on the Privette doctrine, no similar delegation of tort law duty occurred by Alfinito, who did not hire an independent contractor to which a tort law duty could be delegated.
Our interpretation is consistent with Gordon v. ARC Manufacturing, Inc. (2019) 43 Cal.App.5th 705 (Gordon). In Gordon, the plaintiff, who was a roofer, fell “through a ‘camouflaged hole' in a warehouse roof he was inspecting.” (Id. at p. 708, fn. omitted.) The roofer had been hired by a prospective buyer of the warehouse. (Ibid.) The jury awarded the plaintiff damages against the commercial building's owner. (Ibid.) The owner appealed and invoked Privette, supra, 5 Cal.4th 689, which “holds that as a general rule, the hirer of an independent contractor is not liable for on-the-job injuries to the independent contractor's employees. [Citation.]” (Gordon, supra, at p. 717.) The appellate court rejected the application of Privette, explaining that “the fundamental problem is that [the building owner] did not hire [the roofer].” (Gordon, supra, at pp. 718-719.)
To the contrary is Lopez v. University Partners (1997) 54 Cal.App.4th 1117 (Lopez). In Lopez, the injured plaintiff worked for an excavation company that was hired to do work on a property. (Id. at p. 1120.) The excavation company had been hired by a company who leased the property. (Ibid.) The plaintiff sued both the lessee in possession of the property and the lessor (property owner). (Id. at pp. 1120, 1121.) On summary judgment, the trial court found in favor of the lessee and the lessor based on Privette. (Lopez, supra, at pp. 1120, 1121.) The plaintiff appealed, and the appellate court concluded that the lessee and lessor were entitled to summary judgment under Privette. (Lopez, supra, at p. 1125.) The plaintiff in Lopez, however, never challenged the application of the Privette doctrine to the lessor/property owner on the ground that the lessor/property owner did not hire the independent contractor. We therefore do not find Lopez persuasive or conclusive on this point.
Defendant Alfinito, in support of the contention that Privette applies to him as a property owner notwithstanding the fact that he did not hire the contractor Fibercom, primarily relies on three cases: Kinsman, supra, 37 Cal.4th 659, Zamudio v. City and County of San Francisco (1999) 70 Cal.App.4th 445 (Zamudio), and Laico, supra, 123 Cal.App.4th 649. None of these cases, however, support the contention that Privette may apply based solely on property ownership and without regard to whether the property owner actually hired the contractor.
In Kinsman, for example, the California Supreme Court addressed “when, if ever, ... a landowner that hires an independent contractor” may be liable. (Kinsman, supra, 37 Cal.4th at p. 664, italics added; see id. at pp. 674 [the duty of a “landowner/hirer”], 675 [“the hirer as landowner”].) In this case, defendant Alfinito was not “a landowner that hire[d] an independent contractor.” (Id. at p. 664.)
Similarly, in Zamudio, supra, 70 Cal.App.4th 445, although the owner of the construction project did not directly hire the contractor whose employee was injured, the project owner was in the chain of hiring. Specifically, the City and County of San Francisco (San Francisco) was the owner of a construction project for a new parking garage. (Id. at p. 448, 447.) San Francisco contracted with another party to be the construction manager of the project. (Id. at pp. 447, 448.) The construction manager, in turn, subcontracted with a concrete company to perform the concrete work. (Id. at p. 447.) An employee of the concrete company was injured during the concrete pouring and sued (1) the concrete company that he worked for, (2) the project manager, and (3) San Francisco. (Id. at pp. 447, 448) The appellate court held that summary judgment was properly granted in favor of the employer (the concrete company) because workers' compensation was the plaintiff employee's exclusive remedy. (Id. at pp. 447, 449.) The appellate court also concluded that summary judgment was properly granted in favor of the project manager and San Francisco based on Privette and its progeny. (Zamudio, supra, at pp. 447, 450-451.)
The result in Zamudio is consistent with the California Supreme Court's reliance on “the concept of delegation” in explaining the Privette doctrine. (Tverberg, supra, 49 Cal.4th at p. 526.) The California Supreme Court has explained that the delegation of control may be direct or indirect: “When an independent contractor is hired to perform inherently dangerous construction work, that contractor... receives authority to determine how the work is to be performed and assumes a corresponding responsibility to see that the work is performed safely. The independent contractor receives this authority over the manner in which the work is to be performed from the hirer by a process of delegation. This delegation may be direct, when the hirer has contracted with the independent contractor, or indirect, when the hirer contracts with another contractor who then subcontracts the work to the independent contractor. [Citations.]... [W]hen the hirer of an independent contractor delegates control over the work to the contractor, the hirer also delegates ‘responsibility for performing [the] task safely.' [Citation.]” (Id. at p. 528, italics added.)
The result in Zamudio, in which the appellate court applied the Privette doctrine to bar liability against the project owner, thus falls within this framework of the delegation of control. Specifically, the project owner San Francisco “contract[ed] with another contractor [(the project manager)] who then subcontract[ed] the work to the independent contractor” (the concrete company). (Tverberg, supra, 49 Cal.4th at p. 528.) As San Francisco, the project owner, had indirectly delegated control to the concrete subcontractor, San Francisco could not be held liable in tort for the injuries of the concrete subcontractor's employee. (See ibid.) In contrast, in the present case, defendant Alfinito did not hire any contractor with respect to the construction work that was occurring on his property, and therefore he could not and did not delegate, either directly or indirectly, his tort duties as a property owner under the Privette doctrine.
This court's decision in Laico, supra, 123 Cal.App.4th 649 likewise does not advance defendant Alfinito's position. Laico involved the issue of whether a landowner (Chevron), which allowed another company to operate a petrochemical research laboratory on Chevron's property, could be held liable for injuries sustained by an employee of the research company. (Id. at pp. 654, 659.) As summarized by this court, “[t]his case involves hazardous conditions created by the functioning of the business that operated on the premises, not a danger existing on the land independently of the occupant's activity.” (Id. at p. 660.)
This court concluded that there was no basis for finding premises liability on the part of Chevron. (Laico, supra, 123 Cal.App.4th at p. 670.) This court explained that there was no dangerous condition of land owned by Chevron or under its control. (Ibid.) “[I]nstead, the danger consisted of hazardous conduct by the occupant of that land through its employees.” (Ibid.) The injured plaintiff “failed to establish [Chevron's] knowledge of the danger, the right to inspect, or the ability to discover and remedy hazards of the workplace.” In this regard, this court explained that “there is no evidence defining the relationship between [Chevron] and [the research company], whether landlord-tenant or otherwise; we therefore are unable to determine when and to what extent [Chevron] was entitled to enter the property and inspect [the research company's] facilities.” (Id. at p. 664.) Given the absence of relevant evidence, “[Chevron's] duty of care as a landowner did not encompass a duty to oversee the testing performed by the premises occupant....” (Id. at p. 670.) Within this court's analysis of Chevron's duty of care as a property owner, this court found Privette and its progeny to “provide a useful analogy to the issues presented.” (Laico, supra, at p. 668.)
In contrast to Laico, however, the allegedly hazardous condition in this case-the hard cap without a railing or warning-apparently did not come into existence as a result of activity by the occupant of the property, but rather preexisted on defendant Alfinito's property before defendant Skybox occupied the building. In this regard, Skybox's director of operations, Smith, indicated that the ladder was already attached to the wall when Skybox took over the building and began its expansion project. Further, as we have explained, Alfinito, even as the owner out of possession and/or lessor, had a duty to make a reasonable inspection “[a]t the time the lease [was] executed and upon renewal....” (Mora, supra, 210 Cal.App.3d at p. 781; see id. at p. 782.) We therefore do not find Laico determinative of the issues in this case.
In sum, we conclude that the Privette doctrine does not apply to plaintiff's premises liability claim against defendant Alfinito. The trial court's conclusion to the contrary-that the Privette doctrine applied to Alfinito-affected its rulings regarding the admissibility of evidence and jury instructions. We next turn to the question of whether the trial court's erroneous application of the Privette doctrine, which affected its evidentiary rulings and jury instructions, warrants reversal of the judgment that was entered in favor of Alfinito.
B. Exclusion of Evidence Regarding Violation of Cal-OSHA Regulations
Plaintiff contends that the trial court erred in excluding testimony by his expert witness, Fulghum, regarding Cal-OSHA violations. We understand plaintiff to argue that defendants Alfinito and Skybox were negligent per se based on violations of Cal-OSHA regulations that required safety features for elevated work platforms. We also understand plaintiff to contend that Alfinito, as a property owner, was negligent per se based on building code violations. Plaintiff further argues that the trial court erred in excluding the evidence by way of defendants' motion in limine.
Defendants contend that the trial court properly excluded evidence of alleged violations of Cal-OSHA and building code provisions, and that a motion in limine was the proper method by which to exclude the evidence.
1. Proceedings Below
In a trial brief, plaintiff contended that defendant Alfinito was negligent per se based on violations of building codes, and that defendant Skybox was negligent per se based on violations of Cal-OSHA regulations. According to plaintiff, the building codes required guardrails for elevated platforms, and the Cal-OSHA regulations required guardrails, a safe platform, and adequate lighting. Plaintiff explained that his expert witness, Fulghum, would testify about the code and regulatory violations.
In a pretrial motion in limine, defendants sought to exclude evidence of state and federal occupational safety and health standards. Defendants contended that the standards could not be used to establish their duty or the standard of care, including negligence per se under Evidence Code section 669, because any tort law duty to comply with the standards was delegated to the independent contractor Fibercom, who was plaintiff's employer.
Plaintiff opposed the motion. He contended that Cal-OSHA regulations could be used to establish the duty or the standard of care in a negligence action, including to establish negligence per se. In addition to Cal-OSHA regulations regarding lighting and fall protection, plaintiff indicated that there were building code requirements concerning the platform.
The trial court granted defendants' motion in limine. In making its ruling, the court indicated that based on Privette and its progeny, the violation of a statute or regulation could not be used to hold the property owner Alfinito and the hirer Skybox liable for an injury suffered by plaintiff, an employee of the independent contractor Fibercom. Rather, “the employer [Fibercom]... has the duty to make the premises safe” and plaintiff's remedy was limited to workers' compensation.
2. The Standard of Review
“ ‘The trial court has broad discretion to determine the relevance of evidence [citation], and we will not disturb the court's exercise of that discretion unless it acted in an arbitrary, capricious or patently absurd manner....' [Citation.]” (Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1213; accord, City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900 [relevance determination reviewed for abuse of discretion].) Further, “[a] judgment of the trial court may not be reversed for the erroneous... exclusion of evidence unless the error was prejudicial, resulting in a miscarriage of justice. [Citations.]” (Ajaxo, Inc. v. E*Trade Financial Corp. (2020) 48 Cal.App.5th 129, 185.) “ ‘[A] “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence, ” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.] ‘... [A] “probability” in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citation.]” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 (Cassim).)
3. Negligence Per Se and Elsner v. Uveges (2004) 34 Cal.4th 915
“Statutes may be borrowed in the negligence context for one of two purposes: (1) to establish a duty of care, or (2) to establish a standard of care. [Citations.]” (Elsner v. Uveges (2004) 34 Cal.4th 915, 927, fn. 8 (Elsner).) “Evidence Code section 669 allows proof of a statutory violation to create a presumption of negligence in specified circumstances. It codifies the common law doctrine of negligence per se, pursuant to which statutes and regulations may be used to establish duties and standards of care in negligence actions.” (Id. at p. 927, fn. omitted.)
“The provisions of Cal-OSHA are intended to ‘assur[e] safe and healthful working conditions for all California working men and women by authorizing the enforcement of effective standards, assisting and encouraging employers to maintain safe and healthful working conditions, and by providing for... enforcement in the field of occupational safety and health.' [Citation.]” (Elsner, supra, 34 Cal.4th at p. 926.) Prior to 2000, former Labor Code section 6304.5 barred the admission of Cal-OSHA provisions in employee negligence actions against nonemployers. (Elsner, supra, 34 Cal.4th at pp. 923, 924.) After amendment, Labor Code section 6304.5 now states in part: “Sections 452 and 669 of the Evidence Code shall apply to this division and to occupational safety and health standards adopted under this division in the same manner as any other statute, ordinance, or regulation.” In Elsner, the California Supreme Court held that amended Labor Code section 6304.5 “restore[d] the common law rule and allow[ed] use of Cal-OSHA provisions to establish standards and duties of care in negligence actions against private third parties.” (Elsner, supra, at p. 924.) In other words, “[i]n general, plaintiffs may use Cal-OSHA provisions to show a duty or standard of care to the same extent as any other regulation or statute, whether the defendant is their employer or a third party.” (Id. at pp. 935-936.)
Plaintiff contends that pursuant to Elsner, Cal-OSHA regulations establish the standard of care for defendants Alfinito and Skybox, and that the trial court erred in refusing to allow the use of the regulations.
In Elsner, the defendant general contractor hired a roofing company. The roofing company's employee (the plaintiff) was injured by scaffolding that had been provided by the general contractor. (Elsner, supra, 34 Cal.4th at p. 924.) The general contractor (the hirer) “acknowledged that he was directly responsible for supervising and controlling the work in order to ensure required safety practices were followed.” (Ibid.) The case proceeded to trial “on a single theory: [the general contractor / hirer] negligently furnished unsafe scaffolding that contributed to” the injury of the independent contractor's employee. (Id. at p. 937.) The California Supreme Court observed that “ ‘[w]hen a hirer of an independent contractor, by negligently furnishing unsafe equipment to the contractor, affirmatively contributes to the injury of an employee of the contractor, the hirer should be liable to the employee for the consequences of the hirer's own negligence.' (McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225.)” (Ibid.) The court ultimately concluded that the judgment in favor of the injured employee had to be reversed, because (1) the former version of Labor Code section 6304.5 applied to the case, (2) the “use of Cal-OSHA provisions to establish the standard of care and to shift the burden of proof to defendant was an impermissible retroactive application of the amendment, and [(3)] the error was not harmless.” (Elsner, supra, at p. 924.)
The California Supreme Court's decision in Elsner did not expressly address the effect the Privette doctrine may have on the admissibility of Cal-OSHA regulations to establish the duty or standard of care in a negligence action by the employee of an independent contractor against the hirer. Moreover, the California Supreme Court in Elsner, supra, 34 Cal.4th at page 937, as we have recited above, quoted from McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219 (McKown), which is one of “a series of decisions, ” along with Privette, that “delineate[s] the circumstances under which the employee of an independent contractor who is injured on the job may sue the hirer of that contractor” (Kinsman, supra, 37 Cal.4th at p. 664). (See also SeaBright, supra, 52 Cal.4th at p. 604 & fn. 2 (conc. opn. of Werdegar, J.) [characterizing McKown, where the “hirer furnishes unsafe equipment, ” as one of the “exceptions” to Privette].) In other words, the theory on which the plaintiff proceeded to trial in Elsner is a recognized exception to the Privette doctrine. Thus, we do not interpret Elsner as holding that Cal-OSHA regulations may always be used, without regard to the Privette doctrine, by the employee of an independent contractor seeking to establish a negligence per se claim against the hirer. We therefore return to Privette and its progeny for guidance on whether the Cal-OSHA provisions were properly excluded in this case.
4. The Privette Doctrine and the Nondelegable Duty Doctrine
As we set forth above, the California Supreme Court has explained that “the concept of delegation is helpful to understanding Privette[]” and subsequent decisions. (Tverberg, supra, 49 Cal.4th at p. 526; accord, SeaBright, supra, 52 Cal.4th at p. 600.) “The Privette line of decisions... establishes that an independent contractor's hirer presumptively delegates to that contractor its tort law duty to provide a safe workplace for the contractor's employees.” (SeaBright, supra, at p. 600.) These decisions “were grounded on a common law principle ‘that when a hirer delegated a task to an independent contractor, it in effect delegated responsibility for performing that task safely, and assignment of liability to the contractor followed that delegation.' [Citation.] For ‘policy reasons, '... ‘courts have severely limited the hirer's ability to delegate responsibility [to a contractor] and escape liability' to a bystander who is injured by the contractor's negligence. [Citation.] But, ... if the injured party is the contractor's employee, and therefore entitled to workers' compensation benefits, those policy concerns do not apply. Hence, ... a hirer is presumed ‘to delegate to an independent contractor the duty to provide the contractor's employees with a safe working environment.' [Citation.]” (Ibid.)
In SeaBright, supra, 52 Cal.4th 590, the California Supreme Court specifically addressed the violation of Cal-OSHA regulations in the circumstance where the Privette doctrine applied. In Seabright, the defendant airline used a conveyor to move luggage at the airport. (Id. at p. 594.) The airport was the actual owner of the conveyor, but the airline used the conveyer under a permit and had responsibility for its maintenance. The airline hired an independent contractor to maintain and repair the conveyor. The airline did not direct or have its employees participate in the independent contractor's work. (Ibid.)
The independent contractor's employee was injured when his arm got caught in the conveyor's moving parts while conducting an inspection. (SeaBright, supra, 52 Cal.4th at p. 594.) The conveyor did not comply with Cal-OSHA regulations requiring safety guards. (SeaBright, supra, 52 Cal.4th at pp. 594, 595.) The employee of the independent contractor sued the airline. (See id. at pp. 594-595.)
The California Supreme Court explained that “the issue here turns on whether [the airline] could and did delegate to [the] independent contractor... any duty it owed to [the independent contractor's] employees to comply with the safety requirements of Cal-OSHA.” (SeaBright, supra, 52 Cal.4th at p. 597.) In answering this question, the court first discussed Privette and its progeny, which “recognize a presumptive delegation of responsibility for workplace safety from the hirer to the independent contractor, and a concomitant delegation of duty.” (SeaBright, supra, at p. 597.) In other words, “[t]he Privette line of decisions... establishes that an independent contractor's hirer presumptively delegates to that contractor its tort law duty to provide a safe workplace for the contractor's employees.” (Id. at p. 600.)
The California Supreme Court next considered “whether the hirer can be liable to the contractor's employees for workplace injuries allegedly resulting from the hirer's failure to comply with safety requirements of Cal-OSHA and its regulations. That raises the question whether the tort law duty, if any, to comply with Cal-OSHA and its regulations for the benefit of an independent contractor's employees is nondelegable....” (SeaBright, supra, 52 Cal.4th at p. 600.) The court explained that “[t]he nondelegable duties doctrine prevents a party that owes a duty to others from evading responsibility by claiming to have delegated that duty to an independent contractor hired to do the necessary work. The doctrine applies when the duty preexists and does not arise from the contract with the independent contractor. [Citations.]” (Id. at pp. 600-601.)
The California Supreme Court “reject[ed] the premise that the tort law duty, if any, that a hirer owes under Cal-OSHA and its regulations to the employees of an independent contractor is nondelegable.” (SeaBright, supra, 52 Cal.4th at p. 601.) The court explained that “[w]hen in this case [the defendant airline] hired [the] independent contractor... to maintain and repair the conveyor, [the airline] presumptively delegated to [the independent contractor] any tort law duty of care the airline had under Cal-OSHA and its regulations to ensure workplace safety for the benefit of [the independent contractor's] employees. The delegation-which... is implied as an incident of an independent contractor's hiring-included a duty to identify the absence of the safety guards required by Cal-OSHA regulations and to take reasonable steps to address that hazard. [¶]... [P]rivette, supra, 5 Cal.4th 689, and its progeny recognize a presumption that an independent contractor's hirer delegates to that contractor the responsibility to perform the specified work safely. The policy favoring ‘delegation of responsibility and assignment of liability' is very ‘strong in this context' [citation], and a hirer generally ‘has no duty to act to protect the [contractor's] employee when the contractor fails in that task...' [citation].” (Id. at pp. 601-602, italics added.)
The California Supreme Court proceeded to address an error in the Court of Appeal's reasoning. The California Supreme Court explained that “[i]n trying to fit this case within the nondelegable duties doctrine, the Court of Appeal here distinguished between those Cal-OSHA requirements that arise from the work performed by the independent contractor and those that predate the contractor's hiring and apply to the hirer ‘by virtue of [its] role as property owner.' In the view of the Court of Appeal, the latter requirements are nondelegable. Conversely, tort law duties that ‘only exist because construction or other work is being performed' can be delegated to the contractor hired to do the work. We acknowledge the distinction, but for the reasons given below, we conclude that the Court of Appeal did not apply the distinction correctly.
“Before hiring [the] independent contractor..., [the defendant airline] owed its own employees a duty to provide a safe workplace. We do not suggest that defendant could delegate that preexisting duty to [the independent contract] (such that defendant could avoid liability if the conveyor had injured defendant's own employee). But under the definition of ‘employer' that applies to California's workplace safety laws (see [Lab. Code, ] § 6304), the employees of an independent contractor... are not considered to be the hirer's own employees, and the issue here is whether [the defendant airline] implicitly delegated to [the] contractor... the tort law duty, if any, that it had to ensure workplace safety for [the contractor's] employees. The latter duty did not predate defendant's contract with [the independent contractor]; rather, it arose out of the contract. Any tort law duty [the defendant airline] owed to [the independent contractor's] employees only existed because of the work (maintenance and repair of the conveyor) that [the independent contractor] was performing for the airline, and therefore it did not fall within the nondelegable duties doctrine.” (SeaBright, supra, 52 Cal.4th at pp. 602-603, some italics added.)
The principles articulated in SeaBright were subsequently applied in two appellate court decisions that we find relevant here.
First, in Tverberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439 (Fillner), the defendant general contractor for a project to expand a commercial fuel facility hired a subcontractor, who in turn delegated work to another subcontractor, who in turn hired the plaintiff, who himself was an independent contractor. (Id. at p. 1442.) The plaintiff acted as foreperson for the latter subcontractor's two-person crew to construct a metal canopy over fuel-pumping units. (Ibid.) The defendant general contractor also hired another subcontractor, a concrete company, to install concrete posts, called “bollards, ” on the property to prevent vehicles from colliding with the fuel dispensers. (Ibid.) The concrete subcontractor dug holes for the bollards next to the area where the plaintiff would be erecting the metal canopy. (Id. at pp. 1442-1443.) “The bollards had no connection to the building of the metal canopy-in fact, [the plaintiff] had never seen bollard holes at a canopy installation site.” (Id. at p. 1443, italics added.) The plaintiff was injured when he fell into a bollard hole while walking from his truck to the canopy. (Ibid.)
The appellate court rejected the plaintiff's contention that the defendant general contractor/hirer was liable for the breach of a nondelegable duty. The plaintiff argued that the hirer “was responsible for ensuring compliance with applicable safety regulations-most notably, the Cal-OSHA... requirement that all pits be barricaded or securely covered. [Citations.]” (Fillner, supra, 202 Cal.App.4th at p. 1445.) Citing SeaBright, the appellate court explained that “[w]hen a hirer delegates contracted work to an independent contractor, it also impliedly delegates its duty to provide a safe workplace to that contractor. In these circumstances, the hirer has no duty and the contractor may not recover from the hirer for his or her injuries.” (Fillner, supra, at p. 1445.) Applying these principles to the case before it, the appellate court concluded that the defendant general contractor/hirer had “delegated its obligation to comply with Cal-OSHA workplace regulations, ” and that summary judgment was therefore properly granted on the “breach of regulatory duty theory of recovery.” (Ibid.)
Second, in Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078 (Delgadillo), the owner of a three-story commercial building hired a contractor to wash the building's windows. (Id. at p. 1081.) An employee of the contractor fell to his death while washing windows. (Id. at pp. 1080, 1082.) The employee had rappelled off the building from the roof to wash windows, and the building's bracket to which he had attached his line failed. (Id. at p. 1082.) The decedent's family sued the building owner for negligence and negligence per se, alleging that the owner did not have roof anchors which violated Cal-OSHA provisions, among other statutory and municipal code provisions. (Id. at pp. 1081, 1090.)
The appellate court concluded that, based on Privette and its progeny, summary judgment was properly granted in the building owner/hirer's favor. (Delgadillo, supra, 20 Cal.App.5th at p. 1080.) Relevant here, the court determined that “under SeaBright, supra, 52 Cal.4th 590, [the building owner/hirer's] tort law duty to decedent to provide a safe workplace was delegated to [the contractor] as a matter of law, and thus [the building owner/hirer] is not liable to plaintiffs for damages caused by [the building owner/hirer's] failure to install statutorily required roof anchors.” (Id. at p. 1088.) The court explained that “SeaBright compels the conclusion that when [the building owner] hired... [the] independent contractor[] to provide window-washing services, it delegated to [the contractor] its duty to provide a safe workplace for [the contractor's] employees. Accordingly, [the building owner/hirer's] alleged breach of a statutory duty to provide safety anchors did not give rise to liability to decedent or his survivors.” (Ibid.)
The appellate court in Delgadillo also rejected the plaintiffs' argument that their case was “distinguishable from SeaBright because their claims ‘[were] not exclusively based upon OSHA violations.' ” (Delgadillo, supra, 20 Cal.App.5th at p. 1090.) The appellate court explained: “SeaBright holds that by hiring an independent contractor, a hirer implicitly delegates to the contractor the tort law duty the hirer owes to the contractor's employees ‘to comply with applicable statutory or regulatory safety requirements' to ensure workplace safety-including a duty to ‘identify the absence of the safety guards' and ‘take reasonable steps to address that hazard.' [Citation.] Although the specific regulations at issue in SeaBright arose under Cal-OSHA, nothing in the court's analysis or reasoning suggests its holding is limited to Cal-OSHA ‘statutory or regulatory safety requirements.' Rather, its expansive language indicates that the high court intended its holding to extend to all statutory or regulatory safety requirements. Accordingly, we conclude that under SeaBright, [the building owner] implicitly delegated to [the contractor] its duties under Cal-OSHA and non-Cal-OSHA sources to provide a safe workplace for decedent.” (Id. at pp. 1090-1091.)
5. Analysis
Regarding defendant Alfinito, the property owner, the trial court granted his motion in limine and excluded evidence of any regulatory or statutory violation by him, including violation of Cal-OSHA regulations and building code provisions, on the ground that the Privette doctrine applied to him. As we have explained above, the Privette doctrine does not apply to Alfinito, and therefore the court erred in excluding evidence regarding his regulatory or statutory violations on this basis. The court's ruling eliminated from plaintiff's case the question of whether Alfinito was negligent based on his failure to comply with regulatory and/or statutory requirements, and the ruling eliminated the presumption of negligence under Evidence Code section 669 for the regulatory and/or statutory violation. Alfinito makes no contention that the Cal-OSHA regulations and building code provisions relied on by plaintiff do not apply to Alfinito (aside from the Privette argument), or that his building complied with the provisions. Under these circumstances, we determine that “ ‘it is reasonably probable that a result more favorable to [plaintiff] would have been reached in the absence of the error' ” regarding Alfinito's liability for negligence or negligence per se. (Cassim, supra, 33 Cal.4th at p. 800.)
Regarding defendant Skybox, who hired plaintiff's employer Fibercom, we determine that the Cal-OSHA provisions that plaintiff contends apply in this case were not admissible to establish a negligence or negligence per se claim against Skybox based on SeaBright (Cal-OSHA conveyor safety regulations), Fillner (Cal-OSHA pit safety regulation), and Delgadillo (Cal-OSHA roof anchor provisions and other statutory and municipal code provisions). (SeaBright, supra, 52 Cal.4th at p. 595; Fillner, supra, 202 Cal.App.4th at p. 1445; Delgadillo, supra, 20 Cal.App.5th at pp. 1081, 1090.) When Skybox hired plaintiff's employer Fibercom, Skybox “presumptively delegated to [Fibercom] any tort law duty of care [Skybox] had under Cal-OSHA and its regulations to ensure workplace safety for the benefit of [Fibercom's] employees. The delegation-which... is implied as an incident of an independent contractor's hiring-included a duty to identify the absence of the safety [features] required by Cal-OSHA regulations and to take reasonable steps to address that hazard. [¶]... [P]rivette, supra, 5 Cal.4th 689, and its progeny recognize a presumption that an independent contractor's hirer delegates to that contractor the responsibility to perform the specified work safely.” (SeaBright, supra, at pp. 601-602.)
It is unclear from plaintiff's opening brief on appeal whether he contends that, in addition to Cal-OSHA regulations, various building code provisions establish a duty of care that defendant Skybox owed to him and established a standard of care that Skybox breached. In this regard, plaintiff fails to provide legal authority or persuasive argument establishing that building code provisions establish Skybox's duty or the requisite standard of care in relation to plaintiff.
Regarding the application of SeaBright to preclude evidence of Cal-OSHA violations by defendant Skybox, we understand plaintiff to contend that SeaBright is distinguishable from the instant case. We understand him to argue that Cal-OSHA regulations are inadmissible against the hirer due to the delegation of duties to the independent contractor only when those regulations concern “the precise subject matter of the contract” between the hirer and the independent contractor. (SeaBright, supra, 52 Cal.4th at p. 594.)
Although this was the particular factual circumstance before the court in SeaBright, that is, the defendant airline hired the independent contractor to maintain and repair the luggage conveyor, the conveyor lacked safety guards required by applicable regulations, and the plaintiff was injured when his arm got caught in the conveyor's moving parts while inspecting the conveyor (SeaBright, supra, 52 Cal.4th at p. 594), the court's holding in SeaBright was broad: “By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor's employees to ensure the safety of the specific workplace that is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor's employees to comply with applicable statutory or regulatory safety requirements.” (Ibid., italics added & omitted, fn. omitted.)
In this case, the “specific workplace that [was] the subject of the contract” (SeaBright, supra, 52 Cal.4th at p. 594) between Skybox and Fibercom was the area above the ceiling where the relevant wires or cables were located. The Cal-OSHA regulations relied on by plaintiff, concerning lighting and an elevated platform, pertained to the “safety of [this] specific workplace that [was] the subject of the contract.” (SeaBright, supra, at p. 594.) Baker, who was the “boss” at Fibercom, testified that although his employees did not need to use the hard cap to do their job, he allowed them to work on the hard cap if they wanted to.
Contrary to plaintiff's contention, the California Supreme Court did not merely “h[o]ld that the airline had delegated its duties to ensure compliance with the conveyor regulations to the independent contractor.” (Italics added.) Rather, the California Supreme Court in Seabright held that the airline “presumptively delegated to [the independent contractor] any tort law duty of care the airline had under Cal-OSHA and its regulations to ensure workplace safety for the benefit of [the independent contractor's] employees. The delegation-which... is implied as an incident of an independent contractor's hiring-included a duty to identify the absence of the safety guards required by Cal-OSHA regulations and to take reasonable steps to address that hazard.” (SeaBright, supra, 52 Cal.4th at p. 601, italics added.) In other words, the “duty to identify the absence of the safety guards required by Cal-OSHA regulations and to take reasonable steps to address that hazard” was “included” within the delegation of “any tort law duty of care the airline had under Cal-OSHA and its regulations to ensure workplace safety for the benefit of [the independent contractor's] employees.” (Ibid., italics added.) Indeed, the court later stated that “[a]ny tort law duty [the defendant airline] owed to [the independent contractor's] employees only existed because of the work (maintenance and repair of the conveyor) that [the independent contractor] was performing for the airline, and therefore it did not fall within the nondelegable duties doctrine.” (Id. at p. 603, italics added.) Likewise, here, “[a]ny tort law duty [defendant Skybox] owed to [independent contractor Fibercom's] employees only existed because of the work... that [the contractor Fibercom] was performing for [Skybox], and therefore it did not fall within the nondelegable duties doctrine.” (Ibid., italics added.)
Our interpretation of SeaBright is consistent with Fillner, supra, 202 Cal.App.4th 1439. In Fillner, the plaintiff was injured when he fell into a bollard hole, which “had no connection to the building of the metal canopy, ” which was the subject of the contract involving plaintiff. (Id. at p. 1443, italics added; see id. at p. 1442.) The plaintiff argued that the defendant general contractor/hirer “was responsible for ensuring compliance with applicable safety regulations-most notably, the Cal-OSHA... requirement that all pits be barricaded or securely covered. [Citations.]” (Fillner, supra, 202 Cal.App.4th at p. 1445.) The appellate court, applying SeaBright, held that the defendant general contractor/hirer had “delegated its obligation to comply with Cal-OSHA workplace regulations, ” and that summary judgment was therefore properly granted on the “breach of regulatory duty theory of recovery.” (Ibid.) Likewise, in this case, when Skybox “delegate[d] contracted work to [the] independent contractor [Fibercom], it also impliedly delegate[d] its duty to provide a safe workplace to that contractor.” (Ibid.) As a result, evidence regarding “the breach of a regulatory duty theory of recovery” (ibid.), such as violations of Cal-OSHA regulations, were irrelevant and inadmissible against Skybox.
We also understand plaintiff to contend that defendant Skybox was liable for negligence per se for Cal-OSHA violations based on Labor Code section 6400, subdivision (b), a provision indicating that Cal-OSHA requirements apply to “multiemployer worksites.” Although plaintiff's argument is not well-developed in this regard, he appears to raise a similar issue that was raised and rejected by the majority in SeaBright.
In a concurrence in SeaBright, Justice Werdegar, who agreed with the majority that the defendant airline was properly granted summary judgment but disagreed with the majority's reasoning, contended that Cal-OSHA obligations were nondelegable, as Labor Code section 6400, subdivision (b) indicated an intent by the Legislature that “the employer's Cal-OSHA duties at multiemployer worksites would extend not just to the employer's own employees, but also to those of other employers.” (SeaBright, supra, 52 Cal.4th at pp. 606-607 (conc. opn. of Werdegar, J.); see also id. at p. 604 (conc. opn. of Werdegar, J.).)
Justice Werdegar's view was not adopted by the majority in SeaBright. (See SeaBright, supra, 52 Cal.4th at p. 604 (conc. opn. of Werdegar, J.).) To the contrary, the majority explained: “We are only discussing the delegation of any tort law duty the hirer might have. The concurring opinion argues that the delegation-of-duty issue we decide here is ‘at least partly a function of legislative intent,' because the hirer's tort law duty, if any, is one based on a statute. [Citation.] We see no indication, however, ‘that the Legislature intended to bring about a sweeping enlargement of the tort liability of those hiring independent contractors by making them civilly liable for Cal-OSHA or other safety violations resulting in injuries to the contractors' employees.' [Citation.] We agree that [the defendant airline's] tort law duty, if any, to [the independent contractor's] employees is one derived by the courts from a statute. Nevertheless, it remains a tort law duty, and whether it is delegable is a common law question. Here, the statute only comes into play by way of the common law doctrine that permits courts to use a statute to establish the existence of a tort law duty of care. [Citations.]” (Id. at p. 597, fn. 4; see also id. at p. 594, fn. 1 [“Not present here is a situation in which the relevant statutes or regulations indicate an intent to limit the application of Privette, supra, 5 Cal.4th 689, or preclude delegation of the tort law duty, if any, that the hirer owes to the contractor's employees”].)
Plaintiff also contends that SeaBright is distinguishable because it “precluded the application of General Industry Safety Orders to establish liability under the non-delegable duties doctrine, ” whereas plaintiff “sought to apply Construction Safety Orders in conjunction with the Labor Code to establish negligence per se.”
Plaintiff fails to persuasively articulate the distinction between these two types of safety orders and why the purported distinction is relevant to this case. More fundamentally, the Cal-OSHA regulations that plaintiff in his opening brief on appeal contends were violated in this case, including California Code of Regulations, title 8, sections 3210, 3212, 3270, and 3317, are found within the General Industry Safety Orders. (See Cal. Code Regs., tit. 8, § 3201 et seq.)
We are also not persuaded by plaintiff's contention that SeaBright, supra, 52 Cal.4th 590, and Delgadillo, supra, 20 Cal.App.5th 1078, are distinguishable because those cases did not involve the hirer's affirmative contribution to the injury or a concealed condition as argued by plaintiff in this case. The circumstance of the hirer's affirmative contribution, or the existence of a concealed condition, pertain to whether the hirer may be liable to the employee of an independent contractor for negligence, not whether Cal-OSHA regulations are admissible to establish negligence per se. (See, e.g., SeaBright, supra, 52 Cal.4th at p. 600 [explaining Hooker, supra, 27 Cal.4th 198 and a hirer's liability for negligently exercising control in a way that affirmatively contributes to the injury of the contractor's employee]; Kinsman, supra, 37 Cal.4th at p. 675 [explaining a hirer's liability for a concealed hazardous condition].) Plaintiff proceeded to trial on the negligent exercise of control/affirmative contribution theory and the concealed condition theory whereas, as we have explained, the Cal-OSHA regulations were inadmissible to establish negligence per se against defendant Skybox.
Lastly, plaintiff contends that the trial court erred procedurally in granting defendants' motion in limine to exclude Cal-OSHA regulations because defendants should have raised the issue by a “dispositive” motion instead. Plaintiff characterizes the effect of defendants' motion in limine as “summarily adjudicating [his] claim for negligence per se based on violations of Cal-OSHA regulations.”
We are not persuaded by plaintiff's contention. Negligence per se is a “common law doctrine” under which “statutes and regulations may be used to establish duties and standards of care in negligence actions.” (Elsner, supra, 34 Cal.4th at p. 927, fn. omitted.) “[T]he doctrine of negligence per se is not a separate cause of action.” (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353, fn. 2 (Millard).) Plaintiff proceeded to trial on a negligence/premises liability cause of action. Defendants appropriately sought to exclude certain evidence, such as evidence of Cal-OSHA regulatory violations, by way of a motion in limine. The court did not err in granting the motion as to Skybox although, as we have explained, on substantive grounds the motion should not have been granted as to defendant Alfinito.
C. Jury Instructions
Plaintiff contends that the trial court prejudicially erred by failing to give 12 jury instructions that he proposed: CACI Nos. 418, 419, 424, 1000, 1001, 1003, 1004, 1006, and 1011, and BAJI Nos. 13.22, 8.20.1, and 8.21. Of those 12 jury instructions, he expressly argues that five instructions were relevant to two of his legal theories: (1) negligence per se based on regulatory violations, citing CACI Nos. 418 and 419, and (2) defendants' duties relating to premises liability, particularly defendants' duty to inspect for unsafe conditions, citing CACI Nos. 1001, 1006, and 1011.
Before we consider the substance of plaintiff's contentions, we first address the fact that plaintiff did not provide this court with the packet of jury instructions given by the trial court. “An appellant arguing instructional error must ensure that the appellate record includes the instructions given and refused and the court's rulings on proposed instructions. [Citations.]” ((Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 678, fn. omitted & italics added (Bullock).) Not only are the written instructions that the trial court read to the jury absent from the appellate record, but the reporter's transcript of the trial also does not include the instructions as actually given by the trial court to the jury. Instead, the parties below agreed to have “the court reporter record the title of each instruction but not the body of the instruction.” Without providing the actual instructions given by the trial court to the jury, it is unknown to what extent a particular jury instruction may have been modified, including regarding bracketed language in a given CACI instruction. To facilitate review of his claims on appeal, and to demonstrate reversible error, plaintiff should have provided this court with the complete written packet of jury instructions actually given by the trial court.
Nevertheless, based on the title of the jury instructions identified in the reporter's transcript, it does not appear that the jury was instructed regarding negligence per se or regarding a duty to inspect by defendants, and defendants do not contend otherwise in their respondent's brief. We therefore turn to the substance of plaintiff's claim of instructional error.
1. General Legal Principles Regarding Jury Instructions
“A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) “ ‘The propriety of jury instructions is a question of law that we review de novo. [Citation.]' [Citation.] When the contention on appeal is that the trial court failed to give a requested instruction, we review the record in the light most favorable to the party proposing the instruction to determine whether it was warranted by substantial evidence. [Citation.]” (Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 475.)
When a jury instruction was erroneously refused, the judgment will not be reversed “ ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' [Citation.]” (Soule, supra, 8 Cal.4th at p. 580.) “Instructional error in a civil case is prejudicial ‘where it seems probable' that the error ‘prejudicially affected the verdict.' [Citations.]” (Ibid.) “A ‘reasonable probability' in this context ‘does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citation.]” (Kinsman, supra, 37 Cal.4th at p. 682, italics omitted.) The “determination depends heavily on the particular nature of the error, including its natural and probable effect on a party's ability to place his full case before the jury, ” and requires an evaluation of “(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled.” (Soule, supra, at pp. 580-581, fn. omitted.)
2. CACI Nos. 418 and 419 (Both Defendants)
CACI No. 418 addresses negligence per se, and CACI No. 419 addresses negligence per se when only causation is at issue. Based on CACI Nos. 418 and 419, plaintiff proposed instructions regarding various California regulations and building code provisions in relation to defendants Alfinito and Skybox.
As we have explained, the Privette doctrine does not apply to defendant Alfinito, and therefore that doctrine did not provide a proper basis for the trial court to exclude evidence regarding regulatory or building code violations by Alfinito. We have further concluded that this constituted reversible error. We reach a similar conclusion regarding the court's failure to instruct regarding negligence per se, based on regulatory or building code violations, with respect to Alfinito.
On the other hand, as we have explained regarding defendant Skybox, the Privette doctrine applied to it. Skybox “presumptively delegated to [Fibercom] any tort law duty of care [Skybox] had under Cal-OSHA and its regulations to ensure workplace safety for the benefit of [Fibercom's] employees, ” including plaintiff. (SeaBright, supra, 52 Cal.4th at p. 601.) Thus, evidence regarding violation of those regulations was inadmissible, and instructions concerning negligence per se based on those regulatory violations were not warranted. Therefore, as to Skybox, the trial court did not err in refusing to instruct with CACI Nos. 418 and 419.
3. CACI No. 1006 and BAJI No. 8.20.1 (Defendant Alfinito)
The evidence at trial indicated that the allegedly hazardous condition-the hard cap without a railing or warning-existed on defendant Alfinito's property before Skybox took over the property. At trial, Alfinito testified that he did not know when the elevated platform was built. He also testified that he had not inspected the building at any time to determine whether there were any safety hazards.
Based on the trial court's erroneous conclusion that the Privette doctrine applied to the premises liability claim against defendant Alfinito, the trial court refused to instruct the jury regarding, for example, Alfinito's duty as a landlord to conduct a reasonable inspection at the time a lease was executed and upon renewal, as stated in CACI No. 1006. (See Mora, supra, 210 Cal.App.3d at p. 781; see id. at p. 782.) Thus, while the jury was asked on the special verdict form whether Alfinito knew, or reasonably should have known, of a preexisting unsafe concealed condition on the property, the jury was never instructed that Alfinito had a duty to make a reasonable inspection.
Based on the evidence at trial, the jury could reasonably conclude that the ladder and the platform were installed on the property at some point before Skybox took over the property from defendant Alfinito. Smith of Skybox indicated that the ladder was already attached to the wall when Skybox took over the building and began its expansion project. Property owner Alfinito testified that he had not inspected the building for safety hazards and did not know when the ladder or the elevated platform was built.
In the absence of an instruction regarding defendant Alfinito's duty to inspect, including inspecting the property before leasing or allowing Skybox to occupy the building, the jury might have decided there was no basis for concluding that defendant Alfinito should have known about an unsafe condition on the property. If, however, the jury was expressly instructed pursuant to CACI No. 1006 that, “[b]efore giving possession of leased property to a tenant or on renewal of a lease..., a landlord must conduct a reasonable inspection of the property for unsafe conditions, ” the jury may have determined, in accordance with this instruction, that Alfinito should have inspected the property before leasing or allowing Skybox to occupy the building. The jury may have further determined that, in order to discharge his duty to conduct a “reasonable inspection, ” Alfinito should have ascended the ladder, given that it was affixed to a wall in his building, and that he should have discovered the elevated platform without railings in the unlit attic, which potentially posed a risk of fall by a contractor doing work up there, including a person installing, repairing, or removing the cables or wires above the ceiling tiles. (CACI No. 1006.)
Therefore, in the absence of an instruction regarding the duty to inspect, we believe there is a “a reasonable chance” (Kinsman, supra, 37 Cal.4th at p. 682, italics omitted) that “the error ‘prejudicially affected the verdict' ” regarding defendant Alfinito. (Soule, supra, 8 Cal.4th at p. 580; see id. at pp. 581-582 [trial court's refusal of proposed instruction along with absence of other instructions covering a party's theory “may weigh in favor of a finding that prejudice occurred”].)