Oral Argument Scheduled on the Privette Doctrine and the Exception for Warning of Concealed Hazards

May 13, 2021

The Supreme Court of California placed Gonzalez v. Mathis, Case No. S247677 on the calendar for a June 1, 2021 9:00 a.m. oral argument in San Francisco, California. 

The Supreme Court is presented with the following issue:

Can a homeowner who hires an independent contractor be held liable in tort for injury sustained by the contractor’s employee when the homeowner does not retain control over the worksite and the hazard causing the injury was known to the contractor?

As discussed in Ericksen Arbuthnot’s August 3, 2020 article “Ten Significant Civil Cases for The California Supreme Court’s September 2020 Term,”[i] this case involves the employee of an independent contractor suing a homeowner in tort for failing to warn him about the condition of his roof, leading to the employee’s fall and injury.

Under the common law doctrine of “peculiar risk,” an individual who hires an independent contractor to do inherently dangerous work can be held liable for tort damages when the contractor causes injury to others by negligently performing the work.[ii]  The California Supreme Court limited the breadth of the peculiar risk doctrine in Privette v. Superior Court (1993) 5 Cal.4th 689, finding that it did not extend to the hired contractor’s employees since workers’ compensation already shielded independent contractors from the tort liability of its employees, so applying the peculiar risk doctrine to the hiring party would be unfair—that person did not create the risk that led to the injury, and therefore did not deserve to be subject to greater liability than the contractor.[iii]  This became known as the “Privette Doctrine.”

There are two exceptions to the Privette Doctrine: (1) when the hirer exercised control over the contractor’s work in a manner that had contributed to the injury, as discussed in Hooker v. Department of Transportation (2002) 27 Cal. 4th 198 (Hooker), and (2) when the hirer failed to warn the contractor of a concealed hazard on the premises, as discussed in Kinsman v. Unocal Corp. (2005) 37 Cal. 4th 659 (Kinsman).

Defendant homeowner John Mathis had an indoor pool with a skylight overhead.  Defendant’s housekeeper routinely hired plaintiff Luis Gonzalez’s company to clean the skylight.  One day, two of his employees were on the roof cleaning the skylight when the housekeeper informed Gonzalez that water from the roof was leaking into the house.  She instructed plaintiff to go onto the roof and tell them to use less water.  Plaintiff climbed onto the roof using the affixed ladder and walked along the roof ledge to speak to his employees.  As he was walking back to the ladder, he slipped and fell off of the roof.

Plaintiff sued defendant homeowner for negligence, claiming that loose rocks, pebbles and sand on the roof constituted a dangerous condition that led to his injury.  Specifically, plaintiff claimed that the construction of the parapet wall forced people who wanted to access the skylight to walk along an exposed two-foot ledge with no safety railing, that the roof shingles were dilapidated and loose, and that the roof lacked a tie-off that would enable those on the roof to secure themselves with ropes.

Defendant filed a motion for summary judgment, claiming that under Privette, plaintiff’s claims were precluded, and that plaintiff’s case did not meet the Hooker/Kinsman exceptions.  Plaintiff had admitted that he was not told how to clean the skylight, and that he was aware of the dangerous conditions on the roof.  The trial court granted summary judgment in defendant’s favor and plaintiff appealed.

California’s Second District Court of Appeal reversed the trial court’s decision.  The Court found a triable issue of material fact remained regarding whether plaintiff could have reasonably remedied dangerous conditions in the walkway by the skylight.

Webcasts of the Court’s live (available approximately 30 minutes before start) and archived oral arguments can be found here,[iv] the parties’ briefs can be found here,[v] and the Court’s general oral argument calendar is located here.[vi] 

Ericksen Arbuthnot is celebrating its 70th year of service to clients throughout California and its experienced civil litigators have extensive knowledge and skill handling matters in appellate, construction, employment, personal injury/premises liability, real estate, and many other practice areas. 

Andrew J. Chan is a Partner in Ericksen Arbuthnot’s Oakland/East Bay office, co-chair of the Firm’s Appellate Practice Group, and a California real estate broker.  Mr. Chan can be reached at (510) 832-7770 extension 108 or achan@ericksenarbuthnot.com.   

Gregory A. Mase is a Senior Counsel in Ericksen Arbuthnot’s Oakland/East Bay office and co-chair of the Firm’s Appellate Practice Group.  Mr. Mase can be reached at (510) 832-7770 extension 120 or gmase@ericksenarbuthnot.com


[ii] Gonzalez v. Mathis (2018) 20 Cal. App. 5th 257, 266 (citing Hooker v. Department of Transportation (2002) 27 Cal. 4th 198, 204).

[iii] Id. (citing Hooker, supra, 27 Cal. 4th at 204).