Acosta v. MAS Realty, LLC

Filed 9/20/23 Certified for Publication 10/19/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

LOUIS ACOSTA, B316420

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC717512)
v.

MAS REALTY, LLC, et al.,

Defendants and Appellants;

HORIZON LIGHTING, INC.,

Cross-defendant and Respondent.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark V. Mooney, Judge. Reversed with
directions.
 Law Offices of Cleidin Z. Atanous, Cleidin Z. Atanous;
The Safarian Firm, Harry A. Safarian, and Christina S. Karayan
for Defendants and Appellants.
Kramer Trial Lawyers, Daniel K. Kramer, Teresa A.
Johnson; Esner, Chang & Boyer, Stuart Esner, Andrew N.
Chang, and Kevin K. Nguyen for Plaintiff and Respondent.
Horvitz & Levy, H. Thomas Watson, Jason R. Litt; Bremer
Whyte Brown & O’Meara and Daniel A. Crespo for Cross-
defendant and Respondent.

‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

Plaintiff Louis Acosta, an electrical technician, was injured
when a broken hatch providing access to the roof of a commercial
building slammed shut on his back, herniating several of his
discs. He sued the building’s owner and management company
for negligence and premises liability, contending that defendants
had failed either to repair a dangerous condition of which they
were aware or to warn him of it. A jury returned a special verdict
for Acosta and awarded him damages in excess of $12.6 million.
We reverse. As we discuss, under Privette v. Superior
Court (1993) 5 Cal.4th 689 (Privette) and its progeny, a property
owner who hires an independent contractor may be liable to the
contractor’s employee for injuries sustained on the job only if the
owner exercises retained control over any part of the contractor’s
work in a manner that affirmatively contributes to the worker’s
injuries, or the employee is injured by a concealed hazard that is
unknown and not reasonably ascertainable by the contractor. In
the present case, Acosta does not contend that defendants
exercised any retained control over the work site, and the

2
undisputed evidence established that Acosta and his employer
could reasonably have ascertained the hazardous condition of the
site—i.e., that the mechanism designed to hold the roof hatch
open was broken and the ladder that provided access to the hatch
did not reach all the way to the roof. Accordingly, we will direct
entry of judgment for defendants.
FACTUAL AND PROCEDURAL BACKGROUND
I. Background.
Defendant MAS Realty, LLC (MAS) owns a shopping center
called Arlington Plaza. Arlington Plaza is made up of one large
building and three smaller buildings, each of which is identified
by a letter. The building at issue in this case is referred to as
“Building A,” “Sector A,” or “Pad A.”
In 2014, MAS hired defendant Athena Property
Management, Inc. (Athena) to manage Arlington Plaza. The
same year, Athena hired a roofing company, The Roof Depot, Inc.
(Roof Depot), to inspect Arlington Plaza’s roofs and make any
necessary repairs. In September 2014, Roof Depot advised
Athena of two issues with the Building A roof access. First, the
roof access cover (also referred to as a “hatch” or “roof hatch”)
“ ‘does not close properly. Spring is broken making it heavy and
dangerous to open and close.’ ” Second, the “ ‘[r]oof ladder is too
short. Roof ladder stops two feet from the top of the roof hatch.
Does not meet OSHA specifications.’ ” Roof Depot advised that
the cost to repair these issues was $3,353. It is undisputed that
these repairs were not made.
II. The August 10, 2016 incident.
Acosta is an electrical technician. In 2015, he began
working for Horizon Lighting, Inc. (Horizon), which had

3
contracted with Athena to maintain the lights in Arlington
Plaza’s common areas, including the exterior and parking lot
lights.
On August 10, 2016, Arlington Plaza was the first stop on
Acosta’s maintenance route. Acosta noticed that the exterior
lights of Building A were still on, which he attributed to an
incorrectly set time clock or a malfunctioning photocell. A
security guard let Acosta into Building A’s locked electrical room.
Acosta attempted to switch on the room’s interior light but it did
not come on. There nonetheless was enough light in the room for
Acosta to “distinguish what was on the electrical panel” and to
“get around.” When Acosta did not find a time clock or circuit
breaker in the room, he decided to go onto the roof to inspect the
rooftop photocells.
Acosta saw a fixed ladder leading to the roof access, and
after tugging on it to be sure that it was firmly attached, he
began climbing the ladder. As he got near the top, he held onto
the top rung of the ladder with one hand and unlatched the hatch
with his other hand. After doing so, he realized that the ladder
did not reach all the way to the roof. He climbed one more step,
fully opened the hatch, and locked it into place. Acosta then
climbed to the top of the ladder, grabbed the frame of the hatch,
and swung one leg over the frame. As he pulled his other leg over
the frame, the hatch released and fell on him, pinning him
between the hatch and the frame. He felt a numbing sensation
on the right side of his body and almost fell to the ground. He
was able to maintain his grip, pushed the door back open, and
pulled himself onto the rooftop.
Acosta reported the accident to his supervisor, who asked
him to take photographs and try to determine why the hatch had

4
fallen on him. From the roof, Acosta opened the hatch with one
hand and unlatched the locking mechanism with his other hand.
As he did so, the hatch fell shut. Because there was no resistance
preventing the hatch from closing, Acosta believed that the
spring designed to hold the hatch open was either “ broken or
missing or wrong type of spring.” Acosta took pictures of the
area, climbed off the roof, closed the hatch, and climbed down the
ladder. As he descended, he noticed a handwritten note on the
wall that said, “HATCH BROKEN! WATCH FINGERS AND
HEAD ☹.” Acosta wished he had seen the handwritten warning
prior to ascending the ladder.
The day after the accident, Acosta prepared a written
statement for his employer describing the accident’s cause. His
statement said as follows: “On August 10, 2016, I arrived at
Arlington Plaza in Riverside at 6:20 a.m. I performed a survey
and had made several repairs throughout the property. I noticed
a set of lights that were still on and needed to replace a bad
photocell on the rooftop. At around 7:55 a.m. security had
unlocked the roof access and I began to go up the ladder. I
opened the roof hatch and noticed that the spring assist was
broken. I latched the bar that holds the hatch open and
proceeded to climb the last few steps of the ladder. The ladder
didn’t go all the way to the top like all other access ladders do,
this one was about 3 feet shorter. I needed to get on the last step
and throw my leg over [the] top of the hatch to get on the roof.
While doing this, one of the pockets of my tool belt had caught the
latch and caused the hatch to close and land on my back. My
body was partially out and the metal tab that is used for a
padlock had struck the right shoulder blade area and the rest of

5
the door had hit the upper middle back area. [¶] I put the hatch
back up and secured it, then got on the rooftop.”
Although Acosta was able to continue working immediately
after the accident, he felt worse as the day progressed and sought
medical care. Eventually, Acosta was diagnosed with ruptured
discs in his cervical and lumbar spine. He experienced pain,
numbness, and weakness in his neck, back, shoulders, and legs,
and ultimately underwent two spinal surgeries. Acosta continues
to experience chronic pain and has been unable to work regularly
since the accident.
III. The present action.
In August 2018, Acosta filed the present action against
MAS and Athena (collectively, defendants) for negligence and
premises liability. Defendants cross-claimed against Acosta’s
employer, Horizon, for contractual indemnity and declaratory
relief.1
IV. The cause of the accident and Acosta’s awareness of
the broken hatch.
A. The accident’s cause.
Acosta’s retained safety engineering expert, Brad Avrit,
testified that the accident occurred because the compression
cylinder designed to keep the roof hatch open was broken. Avrit
explained that a compression cylinder contains a spring that is
compressed when the hatch is closed. Once released, the spring
helps to push the hatch open and then holds the hatch in the

1 Horizon has represented that the trial on the cross-
complaint was to begin after the completion of the personal injury
trial; it remains pending before the superior court.

6
open position until it is actively pulled shut. The purpose of the
compression cylinder is to assist in opening the approximately
100-pound hatch and to keep it from falling shut when the
locking mechanism is released. Had the compression cylinder
worked as intended, the hatch would have immediately opened
six to 12 inches once it was unlocked and would have remained
open until it was actively pulled shut. In this case, however, the
cylinder was present, but the spring was missing. As a result,
when the locking mechanism was touched, “the roof hatch just
free falls down and closes.”
Avrit testified that a secondary cause of the accident was
that the top rung of the fixed ladder in the electrical room was
about 30 inches below the roof hatch. This violated OSHA
regulations, which require a fixed ladder to extend all the way to
the roof. Avrit opined that the short ladder contributed to the
accident because Acosta could not step from the top rung onto the
roof, but had to lift his leg up and over the hatch, increasing the
probability of coming into contact with the locking mechanism.
In Avrit’s opinion, the hatch was “absolutely not safe”
because “if the hold-open arm is just touched, . . . just a minimal
amount of pressure, that thing can come slamming down. . . .
And it’s—it’s unnecessarily not safe. All you need to do is install
those spring hinges and the lid will stay up. And it won’t be until
you pull on it that it will come down, and only come down as hard
as you pull on it.”
B. Acosta’s awareness of the broken hatch.
Acosta testified that he used roof hatches frequently,
typically several times a month, or about 650 times over the
course of his 13-year career. He considered himself an expert on

7
the operation and functionality of roof hatches “to a certain
extent.” He had never before encountered a broken roof hatch.
As noted above, in his written statement regarding the
accident, Acosta said that he noticed the spring assist was broken
as soon as he opened the roof hatch. When questioned at his
deposition about this statement, Acosta initially testified that he
knew the spring assist was broken before he climbed through the
hatch. He said: “ ‘When I had opened up the door, typically what
the spring assist is it has pressure to where opening up the door
would be assisted with the spring, so the entire weight of the door
is—is—wouldn’t be—how can I say this. The whole weight of the
door would be assisted in—in opening up by the spring so it
would—it would alleviate some of the weight off of the person
opening up the door. It’s kind of like a—just make[s] it easier to
open up.’ ”
After taking a break and conferring with his counsel,
Acosta clarified his deposition testimony as follows: “ ‘When I
stated I opened up the roof hatch and noticed that the spring was
broken, so at the time of the incident I only noticed that the roof
hatch was heavier than expected. At the time I didn’t realize it
was broken. The reason why I wrote it in this report is I just put
two and two together and figured out that [was] the reason why it
fell on me. At the moment of my exit or opening that door, I just
remember it was a little heavier than expected, but not being
able to see physically inside of the cylinder if the spring was
broken or not, I wasn’t able to really know that it was broken
until it actually fell on me.’ ”
In his direct testimony at trial, Acosta testified that before
the hatch fell on him, he did not “know for a fact” that the spring

8
was broken or missing. He also did not realize until after the
accident that the ladder was too short.
During cross-examination, defense counsel questioned
Acosta at length about the discrepancies between his initial and
subsequent deposition testimony and whether Acosta was aware
of the broken cylinder prior to the accident. The relevant
colloquy was as follows:
“Q: [W]e’ve discussed how the spring assist mechanism is
there so that the lid or the hatch opens up by itself a number of
inches once it’s unlocked, correct?
“A: Yes.
“Q: And that day once you unlocked it[,] it did not go up
by itself; is that correct?
“A: That is correct.
“Q: Having been through 650 hatches, you know that is
not normal behavior for a properly functioning hatch, correct?
“A: I’ve ran across a couple of hatches that were the same
way. . . .
“Q: And you know when you run across one that doesn’t
do that it’s not working properly, correct?
“A: It could be just some of the simple wear and tear also.
“Q: Okay. But you know it’s not normally functioning
how it should, correct?
“A: You could say that.
“Q: Okay. So before you go through the hatch, you know
it’s not functioning how it should, correct?
“A: Initially I just felt—like I said before, it just felt a
little bit heavier than usual. That’s the only thing that I was
thinking.

9
 “Q: I understand that. But that’s not how it should be
functioning based upon your 650 experiences approximately
going through roof hatches, correct?
“A: Yeah, you could say that.
“Q: Okay. So as you’re going through the hatch you know
it’s not working correctly, yes or no?
“A: Yes. . . .
“Q: Okay, now when you have a spring assisted hatch,
it’s effortless and all 60 pounds, assuming it weighed 60, would
open up by itself, correct?
“A: Typically, yes.
“Q: You used your left side, your nondominant side, that
day to open the hatch, correct?
“A: That is correct.
“Q: You pushed up with your nondominant side,
60 pounds of force, to open the hatch, correct?
“A: That is correct.
“Q: So you could easily tell the difference between an
automatically opening door versus a 60-pound weight that you’re
pushing, correct?
“A: Yes. [¶] . . . [¶]
“Q: . . . [I]f you’re pushing 60 pounds or so unassisted
without any spring mechanism versus something opening up by
itself, that is obvious to anyone, especially a trained expert like
you, correct?
“A: Yes.”
Acosta also acknowledged that he was aware the ladder did
not reach all the way to the hatch’s edge before he climbed
through the roof access.

10
 With regard to the handwritten warning on the wall of the
electrical room, Acosta testified that the room was sufficiently
well lit to see the warning, but he did not see it before climbing
through the roof hatch because he was looking up. He agreed
that he had been trained to inspect every rung before climbing a
ladder, and that had he done so, he would have seen the
handwritten warning. However, he said workers in his industry
did not typically check every rung on a ladder, especially if the
ladder was stored indoors where it would not be exposed to sun
damage.
Plaintiff’s expert, Avrit, testified that had the compression
cylinder worked as intended, the hatch would have sprung open
once it was unlocked and would have remained open even after
the hatch’s locking mechanism was released. He said that to
someone knowledgeable about roof hatches, once the hatch was
unlocked and did not lift several inches, it would be “plainly
obvious . . . that the spring assist is not doing what it’s supposed
to do” and was “not in good condition.” Avrit nonetheless opined
that Acosta had acted reasonably in accessing the roof through
the hatch: “He climbed up the ladder, he was asked to go up to
the roof to check on some lighting fixtures. He went up—the only
designated way to get up to the roof is through this ladder. He
got up to the top, he opened the hatch, he locked the arm, and
then did his best to try and crawl out. I didn’t see that he did
anything that was out of the ordinary or unreasonable.” Avrit
further testified that the handwritten warning was not adequate
to put Acosta on notice of the broken hatch because it did not
comply with OSHA, “looks like graffiti,” and “doesn’t stand out
from anything else that was written on the wall.” He agreed,

11
however, that Acosta should inspect a ladder before using it and
should “have good visual contact with each rung” while climbing.
Defendants’ safety expert, Gidon Vardi, testified that if the
spring assist had been functioning properly, it would “literally
create[ ] a nonresistant action, meaning it will spring up . . . by
itself.” If a spring assist were broken, a knowledgeable person
would be aware of the problem “almost instantaneously. It would
be immediate.” In the present case, Vardi said that when he
inspected the hatch, he could tell that the spring assist was not
completely operational even before he opened the hatch because
“[t]here was a missing spring that you could see that’s missing.”
It was also obvious that the ladder was short. And, Vardi opined
that while the handwritten warning was “not perfect,” it was
clearly visible—“literally in your face”—and was typical of
warnings often present on construction sites.
Vardi opined that when entering a job site, a worker is
“required, absolutely required to make [a] safety assessment of
the site. They have to make sure that the site is absolutely safe
for them to conduct their duties.” For an electrical technician
like Acosta, that includes making sure there is no active electrical
charge, and if it is necessary to ascend a ladder, “you have to
actually check every single rung, making sure you actually
physically make sure the ladder [is] attached and it’s secure.
And then you have to make sure that it goes all the way up to the
top so you can climb onto the roof properly without any hazards.
And then of course you would have to look at the hatch itself.”

12
V. Trial and verdict.
A. Motion for nonsuit.
Defendants moved for a nonsuit at the conclusion of
plaintiff’s case. Defense counsel argued that under Kinsman v.
Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman), “[i]f the plaintiff
knows or could reasonably have known there was a defect with
the hatch, then the plaintiff assumes the risk[.] [I]t is the
plaintiff’s or his employer’s burden to inspect and eliminate the
risk. If the plaintiff encounters it knowing or should know that
there’s an issue, his claims are barred. The plaintiff just
acknowledged on the stand . . . [that] he knew the hatch was not
functioning properly.” Further, counsel said, “[t]he plaintiff
doesn’t need to know specifically what the defect is. He just
needs to know that there was a problem with the roof hatch. We
don’t need him to diagnose it. Once he realizes there’s a problem
with the hatch, then it’s over under Kinsman and plaintiff cannot
proceed any further.”
Acosta’s counsel disagreed, arguing that “counsel simply
misreads Kinsman. Kinsman is very clear that the knowledge of
the concealed condition has to be known by the contractor itself,
not the contractor’s employee. . . . It has to be that Horizon in
this case was aware the door was dangerous or that they were
properly warned of it. There’s . . . zero evidence of that here.”
The trial court denied the motion. It said: “What we’ve got
is a situation where we have Mr. Acosta testifying, yes, he was
having difficulty opening the latch. Does that equal an open and
obvious condition? I don’t think I can make that leap. All we
know is he’s having difficulty opening it. That’s not the same as
an open and obvious condition. So I think that’s a jury call.”

13
 B. Motion for a directed verdict.
At the close of trial, defendants moved for a directed
verdict. Defense counsel again urged the court that there were
no factual issues for the jury to decide because Acosta conceded
that he was aware of the unsafe condition of the hatch. The court
denied the motion, explaining: “I still think it’s a factual issue for
the jury to determine whether or not . . . Mr. Acosta appreciated
the severity of the dangerous condition. He was aware . . . that
the latch was difficult to raise. How dangerous was that, I don’t
know. That’s for the jury to decide whether he reasonably should
have known.”
C. Jury verdict.
The trial court adopted Acosta’s proposed special verdict
form, which was based on CACI No. 1009A. The jury returned a
special verdict for Acosta as follows:
1. Did Athena know or reasonably should have known
about a preexisting unsafe concealed condition on the property?
Yes.
Did MAS know or reasonably should have known about a
preexisting unsafe concealed condition on the property? Yes.
2. Did Horizon not know or could not have reasonably
known about the unsafe concealed condition? Yes.
3. Was the condition part of the work Horizon was hired
to perform? No.
4. Did Athena fail to warn Horizon about the condition?
Yes.
Did MAS fail to warn Horizon about the condition? Yes.
5. Was Acosta harmed? Yes.

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 6. Was Athena’s conduct a substantial factor in causing
harm to Acosta? Yes.
Was MAS’s conduct a substantial factor in causing
harm to Acosta? Yes.
7. What are Acosta’s total damages?
a. Past economic loss
Lost earnings: $266,000
Medical expenses: $606,238.75
Total past economic damages: $872,238.75
b. Future economic loss
Lost earnings: $1,500,000
Medical expenses: $450,000
Total Future Economic Damages: $1,950,000
c. Past noneconomic loss: $1,800,000
d. Future noneconomic loss: $8,000,000
TOTAL: $12,622,238.75
8. Was Acosta negligent? No.
9. Was Acosta’s negligence a substantial factor in
causing his harm? [Not answered.]
10. Was The Roof Depot negligent? No.
11. Was The Roof Depot’s negligence a substantial factor
in causing Mr. Acosta’s harm? [Not answered.]
12. What percentage of responsibility for Plaintiff Louis
Acosta’s harm do you assign to the following:
Athena Management, Inc.: 80%
MAS Realty: 20%
The Roof Depot: 0%
Louis Acosta: 0%
TOTAL: 100%

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 D. Judgment and post-trial motions.
Defendants filed motions for judgment notwithstanding the
verdict and for a new trial. The trial court denied both motions.
Defendants timely appealed from the judgment.
DISCUSSION
Defendants contend substantial evidence did not support
the jury’s verdict because the evidence was undisputed that
Acosta knew or reasonably should have known of the hazards—
i.e., that the roof hatch was broken and the ladder did not extend
to the roof—and there was a visible warning of the broken hatch.
In the alternative, defendants contend they are entitled to a new
trial because the trial court prejudicially misinstructed the jury,
there were errors in the special verdict form, and the damage
award was excessive, among other things.
As we discuss, under Privette and its progeny, a property
owner who hires an independent contractor may be liable to the
contractor’s employee for injuries sustained on the job only if the
owner exercises retained control over any part of the contractor’s
work in a manner that affirmatively contributes to the worker’s
injuries, or the employee is injured by a concealed hazardous
condition that is unknown and not reasonably ascertainable by
the contractor. In the present case, Acosta does not contend that
defendants exercised any retained control over the work site, and
the undisputed evidence established as a matter of law that
Acosta and his employer could reasonably have ascertained the
hazardous condition of the hatch and ladder. Accordingly, we
will direct entry of judgment for defendants.

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I. Standard of review.
“ ‘We will reverse a jury’s verdict only if it is unsupported
by any substantial evidence, meaning to prevail on appeal
defendants must show that the evidence was such as would
justify a directed verdict in their favor.’ ” (Kim v. TWA
Construction, Inc. (2022) 78 Cal.App.5th 808, 837.) Under this
standard, we consider “whether a reasonable trier of fact could
have found for the respondent based on the entire record.”
(Quigley v. McClellan (2013) 214 Cal.App.4th 1276, 1282.) In
doing so, we “consider the whole record, view the evidence in the
light most favorable to the judgment, presume every fact the trier
of fact could reasonably deduce from the evidence, and defer to
the trier of fact’s determination of the weight and credibility of
the evidence.” (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 614.)
II. Applicable law.
A. The Privette doctrine.
In Privette, supra, 5 Cal.4th 689, our Supreme Court
considered whether a landowner was liable for injuries sustained
by an independent contractor’s employee who fell off a ladder
while carrying hot tar up to a roof during a roof installation. The
court held that the common law doctrine of peculiar risk—which
provided that landowners were vicariously liable for injuries to
third parties resulting from the negligence of independent
contractors performing inherently dangerous work on the
landowners’ property—did not apply to injuries sustained by the
independent contractor’s own employees. (Id. at pp. 691–692.)
The court explained that the peculiar risk doctrine was meant to
ensure that third parties received compensation from the
landowner who benefitted from the work in the event the

17
independent contractor was insolvent. (Id. at p. 701.) The
availability of workers’ compensation, however, eliminated this
concern as to the contractor’s own employees by ensuring that
those employees will receive some compensation for their
injuries. (Id. at pp. 701–702.) Further, allowing a contractor’s
employees to sue the hirer would “produce[ ] the anomalous
result that a nonnegligent person’s liability for an injury is
greater than that of the [independent contractor] whose
negligence actually caused the injury.” (Id. at p. 698.)
Since Privette, our Supreme Court has “repeatedly
reaffirmed the basic rule that a hirer is typically not liable for
injuries sustained by an independent contractor or its workers
while on the job. [The] more recent cases emphasize delegation
as the key principle underlying this rule: Because the hirer
presumptively delegates to the independent contractor the
authority to determine the manner in which the work is to be
performed, the contractor also assumes the responsibility to
ensure that the worksite is safe, and the work is performed
safely. (SeaBright [Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th
590], 600 [(SeaBright)].) This rule applies even where the hirer
was at least partially to blame due to its negligent hiring
(Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1238) or its
failure to comply with preexisting statutory or regulatory
workplace safety requirements (SeaBright, at p. 594). It also
applies to a solo independent contractor who has no employees
and who has declined to obtain workers’ compensation insurance,
such that the contractor will receive no coverage for his or her
injuries. (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th
518, 521 (Tverberg).)” (Gonzalez v. Mathis (2021) 12 Cal.5th 29,
41–42 (Gonzalez).)

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 Our high court has identified just two situations in which a
hirer may be liable to an independent contractor’s employees for
a workplace injury. In Hooker v. Department of Transportation
(2002) 27 Cal.4th 198, 202 and McKown v. Wal-Mart Stores, Inc.
(2002) 27 Cal.4th 219, 225, the court held that a hirer may be
liable if it exercises retained control over any part of the
independent contractor’s work in a manner that affirmatively
contributes to the worker’s injuries. Subsequently, in Kinsman,
supra, 37 Cal.4th 659, the court held that a landowner may be
liable for injuries to an independent contractor’s employee that
were caused by a concealed hazard. Since the concealed hazard
exception is a critical issue in this appeal, we will discuss it in
some detail.
Kinsman was brought by a plaintiff employed by an
independent contractor who performed scaffolding work at
defendant Unocal’s refinery. After developing mesothelioma as a
result of exposure to asbestos at the refinery, the plaintiff sued
Unocal for premises liability and negligent exercise of retained
control. (Kinsman, supra, 37 Cal.4th at pp. 664–665.) A jury
found for plaintiff on the premises liability theory only, and
Unocal appealed. (Id. at p. 666.) The Supreme Court granted
review and ordered a new trial. (Ibid.)
The Supreme Court explained that under common law
principles, a landowner can be liable for injuries to invitees
caused by a condition of the property of which the landowner is or
should be aware. (Kinsman, supra, 37 Cal.4th at p. 673.) Under
Privette, however, the hirer generally delegates to an
independent contractor the responsibility for supervising a job,
including taking proper precautions to protect against obvious
hazards. Thus, when there is a known safety hazard on a hirer’s

19
premises, “a corollary of Privette and its progeny is that the hirer
generally delegates the responsibility to take such precautions to
the contractor, and is not liable to the contractor’s employee if the
contractor fails to do so.” (Id. at pp. 673–674.) However, “if the
hazard is concealed from the contractor but known to the
landowner, the rule must be different. A landowner cannot
effectively delegate to the contractor responsibility for the safety
of its employees if it fails to disclose critical information needed
to fulfill that responsibility, and therefore the landowner would
be liable to the contractor’s employee if the employee’s injury is
attributable to an undisclosed hazard.” (Id. at p. 674, italics
added.) The court thus announced the following rule: “[T]he
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.”
(Id. at p. 675.)
As a corollary to this rule, the court explained that the
responsibility for job safety delegated to independent contractors
“may and generally does include explicitly or implicitly a limited
duty to inspect the premises.” (Kinsman, supra, 37 Cal.4th at
p. 677.) Accordingly, “the landowner would not be liable when
the contractor has failed to engage in inspections of the premises
implicitly or explicitly delegated to it. Thus, for example, an
employee of a roofing contractor sent to repair a defective roof
would generally not be able to sue the hirer if injured when he
fell through the same roof due to a structural defect, inasmuch as
inspection for such defects could reasonably be implied to be

20
within the scope of the contractor’s employment. On the other
hand, if the same employee fell from a ladder because the wall on
which the ladder was propped collapsed, assuming that this
defect was not related to the roof under repair, the employee may
be able to sustain a suit against the hirer. Put in other terms,
the contractor was not being paid to inspect the premises
generally, and therefore the duty of general inspection could not
be said to have been delegated to it. Under those circumstances,
the landowner’s failure to reasonably inspect the premises, when
a hidden hazard leads directly to the employee’s injury, may well
result in liability.” (Id. at pp. 677–678.) The court noted,
moreover, that there was no reason to distinguish conceptually
between premises liability based on a hazardous substance that
is concealed because it is invisible to the contractor and known
only to the landowner and premises liability based on a
hazardous substance that is visible but is known to be hazardous
only to the landowner. It explained: “If the hazard is not
reasonably apparent, and is known only to the landowner, it is a
concealed hazard, whether or not the substance creating the
hazard is visible.” (Id. at p. 678.)
Applying these principles to the case before it, the court
held that the jury had not been properly instructed. (Kinsman,
supra, 37 Cal.4th at p. 681.) The trial court had instructed the
jury pursuant to BAJI No. 8.01 that the owner of the premises is
under a duty to exercise ordinary care in the use and
management of the premises, and that failing to do so is
negligence. (Kinsman, at p. 681.) The Supreme Court held that
this instruction, while an accurate statement of premises liability
generally, “is partly erroneous when applied to the present
situation.” It explained: “[T]he landowner who has delegated job

21
safety to the independent contractor only has a duty to the
employee if the condition is concealed. Because the general
premises liability instruction given does not make clear that the
hazard must have been unknown and not reasonably
ascertainable to the independent contractor that employed
Kinsman and to other contractors working contemporaneously on
the premises—the jury instruction was in error.” (Id. at p. 682.)
Further, the court said, the instructional error was prejudicial:
“Although the jury, in finding Unocal negligent under a premises
liability theory, implicitly found that Unocal knew or should have
known of the hazard of asbestos dust on its property, it made no
finding about whether Kinsman’s employer . . . knew or should
have known of the hazard . . . . As discussed, a finding that [the
employer] did know that the dust in the refinery was asbestos
and was hazardous to an employee like Kinsman, would, under
the principles articulated in the Privette line of cases and in this
opinion, completely relieve Unocal of liability for any resultant
employee injury. [¶] Whether a hazard is concealed is a factual
matter, and the record before us is inconclusive on this issue. On
the one hand, there is no evidence in the record before us
regarding whether [Kinsman’s employer] knew about the hazards
of asbestos or even whether asbestos was present. . . . [¶] On the
other hand, the various reports issued to the oil industry in the
1930’s and 1940’s, from which Unocal obtained its knowledge,
were not secret or classified, and there was a limited public
knowledge about the health hazards of asbestos dust.” (Id. at
pp. 682–683.) In short, “a properly instructed jury may have
concluded, based on the record before us, that the contractors
knew or should have known about the airborne asbestos hazard,
which would have meant a verdict in Unocal’s favor. But the

22
evidence does not compel that conclusion. Because the evidence
is capable of inferences in both Kinsman’s and Unocal’s favor,
and because the concealed hazards issue was never properly
submitted to the jury, it is appropriate to reverse the judgment
and to remand for a new trial on that issue.” (Id. at p. 683.)
The Supreme Court considered a related issue in Gonzalez,
supra, 12 Cal.5th 29. There, the plaintiff, a professional window
washer, was seriously injured while cleaning skylights on a
homeowner’s roof. The plaintiff sued the homeowner, claiming
the accident happened because the roof lacked a guardrail and
the homeowner failed to properly maintain the roof. (Id. at
pp. 39–40.) The plaintiff conceded that he knew of these
conditions before beginning the job, but he said he had previously
reported the roof’s dangerous condition to the homeowner, who
had not repaired it. (Id. at p. 40.)
The Supreme Court affirmed the grant of summary
judgment for the homeowner. It explained that once an
independent contractor becomes aware of a hazard on a property
owner’s premises, the responsibility for employee safety is
delegated to the contractor as a matter of law, and the owner has
no duty to protect the employee if the contractor fails in that
task. (Gonzalez, supra, 12 Cal.5th at p. 45, citing Kinsman,
supra, 37 Cal.4th at p. 674.) This was so, the court said, even
where the property owner was aware of the hazard and there
were no reasonable safety precautions the contractor could have
adopted to protect against the hazard. (Gonzalez, at p. 45.) The
court explained: “A rule establishing landowner liability for a
known hazard where there were no reasonable safety precautions
the contractor could have adopted to protect against the hazard
would turn Privette’s presumption of delegation on its head by

23
requiring the landowner to affirmatively assess workplace safety.
The landowner would need to determine whether the contractor
is able to adopt reasonable safety precautions to protect against
the known hazard and, if not, to remedy the hazard. This makes
little sense given that a landowner typically hires an independent
contractor precisely because of the contractor’s expertise in the
contracted-for work and the hirer usually has no right to
interfere with the contractor’s decisions regarding safety or
otherwise control the contractor’s work. [Citations.] Our
conclusion in Kinsman that a landowner delegates all
responsibility to independent contractors to ‘ “protect themselves
against” ’ a known hazard (Kinsman, at p. 674, italics omitted),
coupled with the principles underlying Privette’s straightforward
rule that a hirer of an independent contractor delegates to the
contractor all responsibility for workplace safety (see Privette, at
p. 693; SeaBright, supra, 52 Cal.4th at p. 597), leads us to reject a
rule that would allow a contractor to recover in tort so long as it
proves it was unable to adopt reasonable safety precautions in
the face of a known hazard.” (Gonzalez, at pp. 45–46.)
In so concluding, the Supreme Court rejected the plaintiff’s
contention that the Privette doctrine applies only where the
independent contractor is specifically tasked with repairing the
hazard or where the hazard was created by the work for which
the contractor was retained. The court explained: “Gonzalez’s
argument goes well beyond the rule adopted by the Court of
Appeal and fails on its merits for at least two reasons. First,
Gonzalez’s view of the risk inherent to his work is overly narrow:
It cannot be seriously disputed that cleaning a skylight will
always entail at least some risk of falling off a roof. Second,

24
Gonzalez’s position is contrary to our holdings in Tverberg[2] and
Kinsman. We recognized in Tverberg that the bollard holes that
caused the independent contractor’s injury were wholly unrelated
to his task of constructing a metal canopy. (Tverberg, supra,
49 Cal.4th at p. 523 [‘The bollards had no connection to the
building of the metal canopy, and [the independent contractor]
had never before seen bollard holes at a canopy installation’].)
The contractor also did not create the hazard; the holes were dug
by a different subcontractor for a different purpose. (Id. at
p. 522.) Nevertheless, we determined that the doctrine of
peculiar risk does not apply when an independent contractor
‘seeks to hold the general contractor vicariously liable for injuries
arising from risks inherent in the nature or the location of the
hired work over which the independent contractor has, through
the chain of delegation, been granted control.’ (Id. at pp. 528–
529, italics added.) Since the proximity of the bollard holes to the
location where the canopy was to be constructed made ‘the
possibility of falling into one of those holes . . . an inherent risk
of” the contractor’s work, the contractor—and not the hirer—was
responsible for protecting himself against that risk. (Id. at
p. 529.) Similarly, in Kinsman, the independent contractor was
hired to install scaffolding and not to remove or remediate the
asbestos hazard. (Kinsman, supra, 37 Cal.4th at p. 664.) The
plaintiff’s exposure to asbestos was also not caused by his work;
instead, the work of other contractors generated asbestos dust

2 Tverberg was an action by the employee of a subcontractor
hired to erect a metal canopy over fuel-pumping units at a
commercial fuel facility. The employee was injured when he fell
into a large hole dug to erect a concrete post called a “bollard.”
(Tverberg, supra, 49 Cal.4th at pp. 522–523.)

25
and debris to which the plaintiff was exposed. (Ibid.) We did not
hold that the landowner in Kinsman could be liable because the
hazard was not inherent to the contractor’s work. Instead, we
held that the landowner could be liable if the asbestos hazard
was unknown to and undiscoverable by the contractor and the
landowner failed to warn of it, irrespective of the fact that the
contractor did not create the hazard and was not hired to
remediate the hazard. (Id. at pp. 675, 683.) As these and our
other Privette cases make clear, a hirer presumptively delegates
to an independent contractor all responsibility for workplace
safety, such that the hirer is not responsible for any injury
resulting from a known unsafe condition at the worksite—
regardless of whether the contractor was specifically tasked with
repairing the unsafe condition and regardless of whether the
danger was created by the work for which the contractor was
retained.” (Gonzalez, supra, 12 Cal. 5th at pp. 51–52.)
Applying these principles, the court held that summary
judgment had properly been granted for the homeowner:
“Gonzalez contends that Mathis’s roof was hazardous because the
skylight could only be cleaned while walking along an
unreasonably narrow path between the parapet wall and the
roof’s exposed edge and, due to Mathis’s years-long failure to
maintain the roof, this path was slippery and covered in loose
sand, gravel, and rocks. Gonzalez additionally argues that he
was not hired to and lacked the expertise necessary to repair the
roof or change the permanent fixtures on the roof such that he
and his workers could clean the skylight safely. Thus, Gonzalez
concludes, Mathis’s duty to maintain the roof in a reasonably safe
condition was never delegated to him. But while Mathis may not
have delegated any duty to repair the roof or make other

26
structural changes to it, Mathis did delegate to Gonzalez a duty
to provide a safe workplace to his workers and to perform the
work for which he was retained in a safe manner. This
encompassed a duty on Gonzalez’s part to assess whether he and
his workers could clean the skylight safely despite the existence
of the known hazardous conditions on the roof. It would be
contrary to the principles underlying Privette to hold that Mathis
also had a duty to determine whether the work could be
performed safely absent remediation of a known hazard.
Landowners, like Mathis, hire independent contractors precisely
because of their expertise in the contracted-for work. This
expertise puts contractors in a better position to determine
whether they can protect their workers against a known hazard
on the worksite and whether the work can be performed safely
despite the hazard.” (Gonzalez, supra, 12 Cal.5th at p. 54.) The
court noted, however, that this holding “applies only to hazards
on the premises of which the independent contractor is aware or
should reasonably detect. [Citation.] Although we recognized in
Kinsman that the delegation of responsibility for workplace
safety to independent contractors may include a limited duty to
inspect the premises ([Kinsman, supra, 37 Cal.4th] at p. 677), it
would not be reasonable to expect Gonzalez to identify every
conceivable dangerous condition on the roof given that he is not a
licensed roofer and was not hired to repair the roof (see id. at
pp. 677–678). Here, however, it is undisputed that Gonzalez was
aware of the roof’s dangerous conditions. Consequently, Gonzalez
had a duty to determine whether he and his workers would be
able to clean the skylight safely despite the known dangerous
conditions.” (Gonzalez, at pp. 54–55, italics added.)

27
 B. Subsequent appellate decisions.
Two recent appellate decisions provide additional guidance
about the application of the Privette doctrine in the context of an
allegedly concealed hazard. In Johnson v. The Raytheon Co., Inc.
(2019) 33 Cal.App.5th 617 (Johnson), the plaintiff was employed
by an independent contractor that provided maintenance
engineering for defendant Raytheon. The plaintiff was seriously
injured on Raytheon’s premises when he fell from a ladder he had
climbed to investigate a low-water alarm in one of Raytheon’s
cooling towers. (Id. at p. 621.) The ladder had been left behind
by another contractor; it was the upper half of an extension
ladder and contained a warning label that said: “ ‘CAUTION’
and ‘THIS LADDER SECTION IS NOT DESIGNED FOR
SEPARATE USE.’ ” (Id. at p. 622.) The plaintiff did not see the
warning and was injured when the ladder slipped out from under
him. (Id. at pp. 622–623.)
The plaintiff sued Raytheon, among others, for negligence
and premises liability. (Johnson, supra, 33 Cal.App.5th at
p. 623.) The trial court granted summary judgment for
Raytheon, and the Court of Appeal affirmed. It noted that under
Kinsman, a hiring defendant is liable only if (1) it knew, or
should have known, of a latent or concealed preexisting condition
on its property; (2) the independent contractor did not know and
could not reasonably have discovered the hazardous condition;
and (3) the hirer failed to warn the contractor about the
condition. (Id. at p. 631.) In the case before it, the court held
that the plaintiff could not establish the second factor—that
plaintiff’s employer could not have reasonably discovered the
hazardous condition. The court noted that the ladder was clearly
marked with a “ ‘caution’ ” sticker, which identified it as a partial

28
extension ladder not to be used without the other part. (Id. at
p. 632.) Further, although it was dark, the plaintiff had a
flashlight, and “[i]f he had inspected the ladder, he would have
discovered the danger it presented.” (Ibid.)3 Finally, the court
rejected the plaintiff’s contention that his own failure to use due
care would be relevant only to comparative negligence and would
not absolve Raytheon of liability. The court explained that the
case on which the plaintiff relied involved the dangerous
condition of public property and was not a Privette/Kinsman
case. Under Kinsman, the relevant test is whether the
independent contractor could reasonably have discovered the
latent hazardous condition—a test that “[is] defeated where, as
here, there is undisputed evidence that the hazard could
reasonably have been discovered (by inspecting the ladder) and,
once discovered, avoided (by getting another ladder).” (Johnson,
at p. 632.)
The court reached a similar result in Blaylock v. DMP 250
Newport Center, LLC (2023) 92 Cal.App.5th 863 (Blaylock).
There, the plaintiff was employed by an independent contractor
hired to maintain and service HVAC equipment on the roof of a
commercial building owned by the defendant. The HVAC
equipment was connected to ductwork that penetrated the roof

3 The court rejected plaintiff’s contention that the warning
was inadequate because it did not notify him that the extension
ladder posed a safety hazard. It explained: “[T]he caution label
states, ‘CAUTION. THIS LADDER SECTION IS NOT
DESIGNED FOR SEPARATE USE.’ To the extent Johnson
suggests that the label must specifically warn of serious bodily
injury, we disagree.” (Johnson, supra, 33 Cal.App.5th at p. 632,
fn. 10.)

29
into a crawl space between the roof and the ceiling of the floor
below. The “floor” of the crawl space was wallboard panels that
covered the ceiling joists below, and was partially covered by
plywood. The “floor” also contained an access panel (referred to
in the opinion as a “trap door”) that permitted access from the
crawl space to a utility room below. From the crawl space, the
access panel presented as a square plywood surface that sat
below the ceiling joists that framed it on all four sides. Plaintiff
and his coworkers were not aware of the access panel. While
working in the crawlspace, the plaintiff fell through the access
panel onto the floor below, suffering a serious injury. (Id. at
pp. 866–867, 872.)
The plaintiff sued the building owner for premises liability
and negligence. The trial court granted summary judgment for
the building owner, and the plaintiff appealed, urging that there
were triable issues of material fact about whether the access
panel qualified as a hazard that was concealed from workers
inside the crawl space. (Blaylock, supra, 92 Cal.App.5th at
pp. 868–869, 872.) Specifically, the plaintiff asserted that the
access panel could not be seen from inside the crawl space
because it was covered with the same plywood that covered most
of the crawl space floor; the crawl space was dimly lit; the access
panel’s hinge was not visible from within the crawl space; and
none of the contractor’s employees, including the plaintiff,
recognized it as an access panel. (Id. at p. 872.)
The Court of Appeal affirmed the grant of summary
judgment for the building owner. It explained: “First, the
suggestion that the trap door was concealed because the lighting
inside the crawl space was inadequate is not persuasive. As
noted ante, ‘when there is a known safety hazard on a hirer’s

30
premises that can be addressed through reasonable safety
precautions on the part of the independent contractor, a corollary
of Privette and its progeny is that the hirer generally delegates
the responsibility to take such precautions to the contractor, and
is not liable to the contractor’s employee if the contractor fails to
do so.’ (Kinsman, supra, 37 Cal.4th at pp. 673–674.) Inadequate
lighting in the crawl space is the kind of known hazard that falls
within that rule; it was [the contractor’s] responsibility to ensure
the workspace was adequately lit to ensure worker safety.
“Second, the fact that neither [plaintiff] nor his coworkers
noticed any safety concerns in the crawl space, and none had
recognized the panel [plaintiff] fell through as a ‘trap door,’ is not
sufficient to suggest the trap door was concealed from the
perspective of [the contractor]. [The contractor] had a duty to
inspect the work premises for potential safety hazards; [plaintiff]
offers no evidence that any such inspection occurred.
“The photographs in our record demonstrate that, had [the
contractors’] employees engaged in a safety inspection of the
premises, they would have seen the plywood panel which turned
out to be the sealed ‘trap door’ exposed in the crawl space as the
wallboard ‘floor’ laid across the top of the joists was cut around it.
That recognition might well have revealed the existence of the
sealed ‘trap door.’
“A reasonable inspection would have also revealed that the
exposed plywood surface was attached to the bottom of the joists,
rather than the top of them. The [contractor’s] employees would
thus have recognized the plywood functioned as part of the
ceiling of the room below, rather than part of the floor of the
crawl space.

31
 “Third, [plaintiff] ignores the undisputed evidence which
reflected that the [contractor’s] employees were trained that
when working in a crawl space between the roof of a building and
the ceiling of the interior space below, they could not assume the
surfaces below them would hold their weight. They were trained
to check any flooring before putting their weight on it, to move
around on all fours as much as possible to distribute their weight,
and to do their best to stay on top of the floor joists . . . because
stepping onto other surfaces would risk going ‘through the
drywall or through the ceiling.’ [Fn. omitted.]
“Based on that undisputed evidence, we conclude, as a
matter of law, if [the contractor] (i.e., [plaintiff] and his
coworkers) inspected the premises for safety issues, they would
have recognized that the access panel which appeared to be part
of the ceiling below the joists, was unsafe to walk on.
[Fn. omitted.]
“We consequently reject [plaintiff’s] contention there is a
triable issue of fact about whether the plywood panel’s status as a
‘trap door’ was concealed from [the contractor] and its employees.
Whether or not it could be readily identified as a ‘trap door,’ its
hazardous nature was not concealed from the workers in the
crawl space.” (Blaylock, supra, 92 Cal.App.5th at pp. 872–873.)
With these principles in mind, we now turn to the facts of
the present case.
III. The jury’s verdict is not supported by substantial
evidence because the hazardous condition of the roof
hatch and ladder were not concealed as a matter of
law.
Defendants contend that under the cases discussed above,
the hazard presented by the roof hatch and ladder were not

32
concealed as a matter of law. For the reasons that follow, we
agree.
As discussed above, under Kinsman, a landowner may be
liable for an injury to an independent 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.) In other words, a landowner who fails to
warn a contractor of a known hazardous condition on its property
can be liable to the contractor’s employee only if the contractor
does not know and cannot reasonably ascertain the condition.
Further, a contractor has a duty to inspect the work site to
identify safety hazards before beginning work. (Id. at p. 677 [“the
responsibility for job safety delegated to independent contractors
may and generally does include explicitly or implicitly a limited
duty to inspect the premises”]; Gonzalez, supra, 12 Cal.5th at
p. 54 [“the delegation of responsibility for workplace safety to
independent contractors may include a limited duty to inspect the
premises”]; Blaylock, supra, 92 Cal.App.5th at p. 873 [contractor
“had a duty to inspect the work premises for potential safety
hazards”].)
In the present case, it is undisputed that the hazardous
condition of the ladder—that it did not reach all the way to the
roof—was not concealed. Acosta admitted that he perceived the
ladder was short once he opened the hatch, and his expert, Avrit,
conceded that it would be apparent before climbing from the
ladder onto the roof “that there [is] a two-foot gap between the
ladder and roof.” Accordingly, the undisputed evidence

33
established both that Acosta knew of the ladder’s condition before
he climbed onto the roof and that the condition was reasonably
discoverable.
With regard to the hazardous condition of the roof hatch,
although the evidence was disputed as to whether Acosta actually
knew the compression cylinder was broken before he began
climbing onto the roof, the undisputed evidence compels the
conclusion that the condition was reasonably ascertainable. Both
Acosta and his expert testified that if the compression cylinder
had been working properly, it would have pushed the hatch open
six to 12 inches once the hatch was unlocked. A properly
functioning compression cylinder would also have borne some or
most of the weight of the 100-pound hatch. In this case, however,
the hatch did not open by itself once it was unlocked and, by
Acosta’s own admission, it felt “heavier than expected” or
“heavier than usual.” As a result, Acosta was aware that the
hatch was “not working correctly.”
Even more significantly, although the broken spring inside
the compression cylinder was not visible, the hatch’s dangerous
condition—that is, the fact that the hatch comes “slamming
down” if “the hold-open arm is just touched”—was readily
apparent upon inspection. Acosta testified that immediately
after the accident his supervisor asked him to try to determine
why the hatch had fallen. After confirming that the cylinder was
in place, Acosta opened the hatch from the roof and released the
locking mechanism. As soon as he did so, “the full weight of the
door came all the way down.” Because “[t]here was no resistance
on that door shutting,” Acosta believed “there was either a
broken or missing or wrong type of spring that was mounted on
[the hatch].” Indeed, Acosta said, although he could not tell

34
precisely what was wrong with the compression spring, it was
“obvious[ ]” that “that spring” was the cause of the accident.
The present case thus is analogous to Blaylock and
Johnson. In Blaylock, the hazard was neither obvious nor known
to the employee: The access panel was “ ‘covered with the same
plywood that covered most of the crawl space floor’ ”; the panel’s
hinge was not visible from within the crawl space; and none of
the contractor’s four workers recognized it as an access panel.
(Blaylock, supra, 92 Cal.App.5th at p. 872.) Similarly, in
Johnson, the ladder that caused the plaintiff’s injury was easily
mistaken for a straight ladder, and plaintiff was unaware the
ladder was not designed to be used alone. (Johnson, supra,
33 Cal.App.5th at p. 622.) Nonetheless, the courts held in both
cases that the plaintiffs were barred from recovering because
they would have discovered the hazards had they or their
employers inspected the premises for safety issues. (Blaylock, at
p. 873 [“we conclude, as a matter of law, if [the contractor] (i.e.,
Blaylock and his coworkers) inspected the premises for safety
issues, they would have recognized that the access panel which
appeared to be part of the ceiling below the joists, was unsafe to
walk on”]; Johnson, at p. 632 [“If [plaintiff] had inspected the
ladder, he would have discovered the danger it presented.”].)
The present case is analogous. There is no evidence that
Horizon or Acosta conducted a safety inspection of the worksite,
and the undisputed evidence demonstrates that an inspection
would have revealed its hazardous condition—that is, that the
hatch slammed shut as soon as it was unlocked. Accordingly,
whether or not Acosta actually knew that the roof hatch was
broken, its hazardous condition was reasonably discoverable as a

35
matter of law. Under Kinsman, Gonzalez, Johnson, and Blaylock,
therefore, defendants were entitled to judgment.
None of Acosta’s contrary contentions persuades us
otherwise.4 First, Acosta contends that neither he nor Horizon
had a duty to inspect the roof hatch because it was not within the
scope of the work Horizon was hired to do.5 He notes that the
duty to inspect under Kinsman and Gonzalez is limited, and he
suggests that it would not have been reasonable to expect him to
identify “every conceivable dangerous condition of the hatch
leading to the roof given that he is not a licensed hatch repairer
and was not hired to repair the hatch.” Thus, he urges, “[t]he
hazardous condition of the hatch, which simply provided access to
plaintiff’s work site, was not delegated to Horizon simply by
reason of the fact that he was to work on lighting which might
require access to the roof.”

4 Because Acosta’s and Horizon’s interests are aligned for
purposes of this appeal, we will not distinguish between the
appellate arguments made by each of them.
5 Acosta also contends that defendants waived this issue
because they withdrew their request that the trial court instruct
the jury that Acosta had a duty to inspect. Not so. “Generally,
issues not raised in the trial court cannot be raised on appeal.
‘The contention that a judgment is not supported by substantial
evidence, however, is an obvious exception to the rule.’ ” (In re
Javier G. (2006) 137 Cal.App.4th 453, 464, italics added, quoting
Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17; see
also Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 1119, 1136
[same].) Defendants’ withdrawal of their proposed jury
instruction, therefore, did not forfeit their appellate contention
that the judgment is not supported by substantial evidence.

36
 We do not agree that the duty to inspect is as limited as
Acosta suggests. He is correct that an independent contractor
does not have a duty to inspect all of the landowner’s property or
to identify hazards wholly outside his area of expertise.
(See Gonzalez, supra, 12 Cal.5th at pp. 54–55 [“it would not be
reasonable to expect Gonzalez to identify every conceivable
dangerous condition on the roof given that he is not a licensed
roofer and was not hired to repair the roof” or to protect himself
against “a known hazard on the premises that is not located on or
near the worksite”]; Kinsman, supra, 37 Cal.4th at p. 678
[“the contractor was not being paid to inspect the premises
generally, and therefore the duty of general inspection could not
be said to have been delegated to it”].) But a landowner who
hires an independent contractor “presumptively delegates to that
contractor its tort law duty to provide a safe workplace for the
contractor’s employees” (SeaBright, supra, 52 Cal.4th at p. 600),
and thus the independent contractor has a duty to determine
whether its employees can safely perform the work they have
been hired to do (Gonzalez, at p. 55). That includes a duty to
inspect not only the worksite itself, but the “means to access the
worksite.” (Ibid.) Thus, for example, the court rejected the
plaintiff’s claim in Gonzalez that he was not responsible for
ensuring the safety of the area of the roof abutting the skylights
the plaintiff had been hired to clean. The court explained:
“Gonzalez argues that the path between the parapet wall and the
edge of the roof was just a means to access the worksite, as
opposed to being a part of the worksite, but this is belied by the
undisputed evidence in the record. The path ran parallel to the
skylight and Gonzalez testified that he utilized it while cleaning
the skylight. Moreover, even if it were true that Gonzalez was

37
required to traverse the path just to get to the skylight, it still
would have constituted an inherent risk in the job for which he
was hired.” (Id. at p. 55.) Similarly, in Tverberg, the court held
that the plaintiff could not recover for injuries he suffered when
he fell into a hole dug in the area adjacent to where he had been
hired to erect a metal canopy. It explained: “Because the bollard
holes were located next to the area where Tverberg was to erect
the metal canopy, the possibility of falling into one of those holes
constituted an inherent risk of the canopy work.” (Tverberg,
supra, 49 Cal.4th at p. 529, italics added.) And, in Blaylock, the
court held the plaintiff’s employer had a duty to inspect not
merely the ducts it was hired to repair, but the crawl space
through which the ducts were accessed. (Blaylock, supra,
92 Cal.App.5th at pp. 866, 872–873.)
In the present case, although Acosta’s employer, Horizon,
was not hired to inspect or repair the roof hatch, the electrical
work for which it was hired required roof access. Because
Horizon, through Acosta, chose to access the roof through the roof
hatch by means of the fixed ladder, the roof hatch and ladder
necessarily were part of the worksite and were within Horizon’s
duty to inspect. (See Gonzalez, supra, 12 Cal.5th at p. 48 [“even
where an unsafe condition exists on the premises due to the
landowner’s failure to comply with specific statutory and
regulatory duties, the landowner is not liable because it is the
contractor who is responsible for its own workers’ safety”],
italics added.) Further, while it “would not be reasonable to
expect [Horizon] to identify every conceivable dangerous
condition on the roof given that [it] is not a licensed roofer and
was not hired to repair the roof” (see id. at pp. 54–55), under the
cases discussed above, the law attributes to Horizon knowledge of

38
those hazards that a reasonable inspection by a non-roofer would
have revealed. As we have discussed, the broken condition of the
hatch, and the fact that the ladder did not reach all the way to
the roof, were not concealed and would have been apparent had
Acosta or Horizon inspected the hatch and ladder. Thus, Horizon
is deemed as a matter of law to have been aware of the condition
of the hatch and ladder.
Next, Acosta contends that the defect was hidden because
the broken spring was not readily visible. Not so. As Kinsman
explained, the relevant inquiry is whether “the hazardous
condition” is known or reasonably knowable. (Kinsman, supra,
37 Cal.4th at p. 675, italics added.) In the present case, the
“hazardous condition” was that the roof hatch would slam shut
immediately upon being released. The broken spring was the
cause of the hazardous condition, but was not itself hazardous.
Because a reasonable inspection would have revealed the unsafe
condition of the hatch, the hazard was not “concealed,” even
though the cause of the hazardous condition was not readily
apparent.
Third, Acosta contends that even if he became aware that
the hatch was broken when he began opening it, “any such
knowledge [was] not instantaneously imputed to Horizon”
because “ ‘a principal is not affected by the knowledge of an agent
until it is communicated to him or until the one having the
knowledge has committed a fault either in transacting something
for the principal or in failing to communicate it to others who are
to act upon it.’ ” (Kelley v. British Commercial Ins. Co. (1963)
221 Cal.App.2d 554, 561.) As a result, Acosta suggests, because
he had no meaningful opportunity to communicate his knowledge

39
to Horizon prior to his injury, “there necessarily can be no
effective delegation to the contractor to correct that condition.”
Acosta’s contention misunderstands the nature of the
contractor’s duty under Privette and its progeny. As we have
discussed, Horizon, as the independent contractor hired by
defendants, had a duty to ensure a safe workplace for its
employees and is deemed to have been aware of any hazards that
a reasonable inspection of the workplace would have revealed.
Whether the independent contractor actually inspected, or
whether an employee of the independent contractor actually
communicated an unsafe condition to the contractor, is
irrelevant—what matters is whether the hazard would have been
revealed by a reasonable inspection. Thus, for example, the court
in Johnson held that the plaintiff could not recover for his
injuries because he “cannot establish that [his employer] could
not reasonably have discovered the hazardous condition.”
(Johnson, supra, 33 Cal.App.5th at p. 632.) Similarly, the
Blaylock court held that the plaintiff could not recover because
the undisputed evidence established that “if ACS (i.e., Blaylock
and his coworkers) inspected the premises for safety issues, they
would have recognized that the access panel which appeared to
be part of the ceiling below the joists, was unsafe to walk on.”
(Blaylock, supra, 92 Cal.App.5th at p. 873.) Similarly here, the
information that would have been revealed if Acosta or any other
Horizon employee conducted a reasonable inspection of the
workplace is attributed to Horizon as a matter of law, regardless
of Acosta’s actual knowledge or ability to transmit that
knowledge to Horizon.
Fourth, Acosta contends that even if he was aware that the
hatch was heavier than expected, he cannot be charged with

40
knowledge that the hatch was hazardous. Again, this contention
misunderstands Privette and its progeny. Acosta is correct that
under the relevant cases, including Blaylock, “knowing [a]
condition exists is not the same as knowing or suspecting it could
create a hazard.” (Blaylock, supra, 92 Cal.App.5th at p. 874.)
But as we have said, the relevant inquiry is not what Acosta
actually knew, but rather what a reasonable inspection would
have revealed. Because a reasonable inspection would have
revealed not only that the hatch was heavier than expected but
also that the hatch, once unlocked, would come “slamming down”
if the hold-open arm was touched, the distinction between
knowledge of a condition and knowledge of a hazard is not
relevant to our analysis.
Fifth, Acosta contends that defendants’ reliance on
Blaylock and other cases disregards the applicable standard of
review—that is, that because Blaylock and Johnson were appeals
from grants of summary judgment, they are irrelevant to the
present appeal from the grant of judgment following a jury trial.
Not so. The standards applicable to nonsuit, directed verdict,
and judgment notwithstanding the verdict “are analytically the
same and governed by the same rules”—that is, they may be
granted only if “the plaintiff has not presented substantial
evidence to establish a cause of action.” (Fountain Valley
Chateau Blanc Homeowner’s Assn. v. Department of Veterans
Affairs (1998) 67 Cal.App.4th 743, 750.) A substantial evidence
challenge to a verdict following a trial raises the same issues and
is subject to the same standard of review. (Padideh v. Moradi
(2023) 89 Cal.App.5th 418, 435, fn. 11.) And, a defense motion for
summary judgment may be granted only if “the plaintiff has
substantiated, or can substantiate, the elements of his or her

41
cause of action with evidence that, if believed, would justify a
favorable verdict.” (Kinsella v. Kinsella (2020) 45 Cal.App.5th
442, 455.) In short, the standard of review in each case is
essentially the same: Whether there is evidence sufficient to
support a judgment in the plaintiff’s favor. The courts’
conclusions in Blaylock and Johnson that the plaintiffs’ evidence
would not support verdicts in their favor, thus, is equally
relevant here.
Finally, Acosta contends that the jury’s verdict must be
upheld because substantial evidence “amply supported the jury’s
finding that Acosta acted reasonably and was not at fault.” This
contention confounds the analytically separate doctrines of
negligence and peculiar risk. The court explained in Kinsman
that an instruction that a landowner was responsible for taking
“reasonable” safety precautions, “while an accurate statement of
premises liability[6] generally,” was erroneous when applied to the
case at hand because “the landowner who has delegated job
safety to the independent contractor only has a duty to the
employee if the condition is concealed.” (Kinsman, supra,
37 Cal.4th at p. 682.) In other words, under Privette the relevant
question is not whether the plaintiff acted reasonably, but
whether the hazard was known or reasonably discoverable by the

6 “The elements of a negligence claim and a premises liability
claim are the same: a legal duty of care, breach of that duty, and
proximate cause resulting in injury.” (Kesner v. Superior Court
(2016) 1 Cal.5th 1132, 1158.)

42
plaintiff or his employer. The jury’s finding that Acosta acted
reasonably, therefore, is wholly irrelevant to our analysis.7
For all the foregoing reasons, we conclude that substantial
evidence did not support the jury’s finding that the roof hatch’s
hazardous condition could not reasonably have been discovered

7 Although not relevant to our analysis, we note that the
trial court instructed the jury on negligence (CACI No. 400–411),
landowners’ nondelegable duties (CACI No. 3713), and
landowner liability to employees of independent contractors for
unsafe concealed conditions under Privette/Kinsman (CACI
No. 1009A). In other words, the jury was instructed that
(1) defendants were negligent if they failed to use reasonable care
to prevent harm to Acosta, (2) MAS had a nondelegable duty to
keep Arlington Plaza in a safe condition, and (3) defendants could
be liable to Acosta only if they knew or reasonably should have
known of an unsafe concealed condition at Arlington Plaza, and
Horizon neither knew nor reasonably could be expected to know
of that unsafe concealed condition. The jury was not told how the
separate concepts of negligence, nondelegable duty, and peculiar
risk relate to one another for purposes of determining defendants’
liability, and the CACI use notes do not appear to give trial
courts any guidance about whether negligence and/or
nondelegable duty instructions should be given in peculiar risk
cases. Further, CACI No. 1009A does not include a description of
the independent contractor’s duty to inspect for safety issues, as
described in Kinsman, Gonzalez, Johnson, and Blaylock. We urge
the Judicial Council and its Advisory Committee on Civil Jury
Instructions to consider CACI No. 1009A and its use notes in
light of recent decisions, including Gonzalez, Johnson, and
Blaylock.

43
by Horizon.8 Because this is an essential element of Acosta’s
claim, the absence of evidence of this element is dispositive of the
appeal. We therefore will reverse the judgment and direct entry
of judgment for defendants. (Code Civ. Proc., § 629, subd. (c)
[“If the motion for judgment notwithstanding the verdict is
denied and if a new trial is denied, the appellate court shall, if it
appears that the motion for judgment notwithstanding the
verdict should have been granted, order judgment to be so
entered on appeal from the judgment or from the order denying
the motion for judgment notwithstanding the verdict.”]; Bank of
America v. Superior Court (1990) 220 Cal.App.3d 613, 624 [“The
effect of [Code of Civil Procedure] section 629 is that a reversal on
appeal for insufficiency of the evidence concludes the litigation
just as it would have been concluded if the trial court had
correctly entered judgment notwithstanding the verdict.”].)

8 Having so concluded, we need not consider defendants’
other contentions, including that substantial evidence did not
support the jury’s findings that defendants were aware of the
hazard posed by the roof hatch and that defendants did not fail to
warn Horizon of the hazard.

44
 DISPOSITION
The judgment is reversed, and the trial court is directed to
enter judgment for defendants on the complaint. Defendants are
awarded their appellate costs.

EDMON, P. J.

We concur:

LAVIN, J.

EGERTON, J.

45
Filed 10/19/23
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

LOUIS ACOSTA, B316420

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC717512)
v.
ORDER MODIFYING AND
MAS REALTY, LLC, et al., CERTIFYING OPINION FOR
PUBLICATION [NO CHANGE IN
Defendants and Appellants; JUDGMENT]

HORIZON LIGHTING, INC.,

Cross-defendant and Respondent.

THE COURT:
The opinion in the above-entitled matter filed on
September 20, 2023, was not certified for publication in the
Official Reports. For good cause, it now appears that the opinion
should be published in the Official Reports.
 It is ordered that the opinion be modified as follows: The
final sentence on page 41 is omitted and replaced with the
following: And, a defense motion for summary judgment may be
granted only if the plaintiff has not, or cannot, “substantiate[] the
elements of his or her cause of action with evidence that, if
believed, would justify a favorable verdict.” (Kinsella v. Kinsella
(2020) 45 Cal.App.5th 442, 455.)”

[There is no change in judgment.]

____________________________________________________________
EDMON, P. J. LAVIN, J. EGERTON, J.

2