Case Number: BC530939??? Hearing Date: April 25, 2016??? Dept: 97
28
ELMER DELEON,
Plaintiff,
v.
PERCY ADLON, et. al.,
Defendants.
AND CONSOLIDATED ACTION
RENE AQUINO,
Plaintiff,
v.
PERCY ADLON, et. al.,
Defendants.
Case No.: BC530939 (Lead Case)
[Consolidated with BC551817]
Hearing Date: April 25, 2016
[TENTATIVE] ORDER RE:MOTIONS FOR SUMMARY JUDGMENT BY DEFENDANTS PERCY ADLON AND ELEONORE ADLON
Facts Alleged
On August 7, 2012, Defendants Percy Adlon and Eleonore Adlon (the ?Adlons?) hired third party contractor Yes Construction to perform work on their home located at 1058 Vista Grande Drive in the Pacific Palisades (the ?Property?). (Percy Adlon Decl., ? 8.) While not expressly part of the contracted-for work, one aspect of the job was the painting of wooden shade slats in a cantilevered triangle that hung approximately 18 feet in the air above a concrete patio. (Id., ?? 9, 16; Exs. F-H.) The Adlons did not select, hire, or supervise any of Yes Construction?s employees and were told by Yes Construction?s Project Manager not to speak with its employees or instruct them on how to perform their work. (Id., ?? 10-12.) Yes Construction provided its workers with all of the tools and equipment necessary to complete their task. (Id., ? 11.)
On August 14, 2012, Plaintiff Elmer Deleon, an employee of Yes Construction, was working at the Property under the supervision of Plaintiff Rene Aquino. (Baurac Decl., Ex. C, p. 36.) Aquino instructed Deleon to stand on top of the cantilevered structure to paint the wood slats. (Id., Ex. C, p. 58.) While Deleon was doing so the structure collapsed, causing him to fall to the ground. (Deleon Complaint, p. 4; Baurac Decl., Ex. E, pp. 36, 48-49, 58.) Aquino was working underneath the structure and was also injured when Deleon fell. (Aquino Complaint, p. 4; Baurac Decl., Ex. E, pp. 60-61.)
Deleon and Aquino allege identical causes of action for premises liability and general negligence. Plaintiffs allege that the Adlons negligently owned, maintained, managed and operated their premises and failed to exercise reasonable care in the maintenance and repair of the exterior structure. (Complaints, pp. 4-5.)
Procedural History
Deleon filed his complaint on December 19, 2014. Aquino filed his complaint on July 17, 2014. On May 7, 2015, the Court ordered both cases consolidated with Deleon?s complaint (BC530939) acting as the lead case.
On January 20, 2016, Defendants filed separate motions for summary judgment. On April 11, 2016, the Court ordered the hearings on both motions to be consolidated. Because the motions for summary judgment are identical except for the names of the Plaintiff, the Court discusses them concurrently unless otherwise noted.
Discussion
A defendant moving for summary judgment has the burden of proving that a plaintiff will be unable to establish one or more element of a cause of action, or that a complete defense exists. CCP ?437c(p)(2). The Adlons move for summary judgment on the following issues: (1) Plaintiffs? causes of action for premises liability/negligence fail as a matter of law because the Adlons did not have a duty to step into the shoes of Yes Construction and protect them from the danger that caused them harm; (2) Plaintiffs? causes of action fail because the Adlons did not owe a duty to Plaintiffs; and (3) Plaintiffs? causes of action do not present a triable issue of material fact because they cannot establish that the Adlons retained control over their work or that any alleged control contributed to their injuries. Because all three of the Adlon?s issues essentially state that they did not owe a duty to Plaintiffs, the Court addresses that issue in a single combined section.
Issue- Duty
?Premises liability is a form of negligence based on the holding in Rowland v. Christian . . . and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.? (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) ?The elements of a negligence cause of action are duty, breach, causation and damages.? (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)
The Adlons state that they hired Yes Construction to complete the work on their Property and that Yes Construction was responsible for hiring and supervising the work. (Separate Statement of Undisputed Material Facts [SSUMF] 5-9.) The Adlons were specifically instructed not to speak to or direct Yes Construction?s employees and the Adlons did not give the employees any directions to complete the work. (SSUMF 10, 27.) Notably, it is undisputed that the Adlons were not given prior notice that one of the contractor?s employees would stand on the cantilevered shade structure in order to paint the wood slats and to their knowledge no one had ever stood on that structure before. (SSUMF 26-29.) There is no evidence showing that the cantilevered structure was negligently designed or maintained or that the collapse was caused by anything other than a person standing on the structure when it was not designed to support that much weight.
The Adlons argue that they did not owe Plaintiffs any duty of care because they were not exposed to an unreasonable risk of harm by the state of their property; i.e., the cantilevered structure was not unreasonably dangerous. Further, because the Adlons had no control over Plaintiffs? work and had no reason to believe that anyone would walk on the cantilevered structure to complete the work, they claim that no duty existed to prevent Plaintiffs from being injured on that structure. The Adlons also contend that they did not have a duty to supervise Plaintiffs? work because they had delegated this duty to their contractor, Yes Construction, and did not retain any authority to control or supervise Plaintiffs? activities.
The Court finds that the Adlons have demonstrated that there is no triable issue of material fact on the duty element of Plaintiffs? causes of action. In general, a property owner that hires an independent contractor to perform work on his or her property is not liable to the contractor?s employees for injuries that occur on the jobsite. (Privette v. Superior Court (1993) 5 Cal.4th 689, 693.) There are many exceptions to this general rule, but none of these exceptions apply here. (See Kinney v. CSB Const. (2001) 87 Cal.App.4th 28, 32 [noting that the general rule of nonliability for property owners is primarily important as a preamble to a catalogue of exceptions.].) It is undisputed that the Adlons hired Yes Construction to perform the work on their Property and it was the contractor that selected the workers, instructed them on how to perform the work, and provided them with all of their tools and equipment. The Adlons state, and Plaintiffs do not dispute, that the Adlons did not retain any authority to supervise or instruct Plaintiffs. Indeed, they were specifically told not to do so and the evidence shows that they complied with these instructions.
Moreover, the Adlons have established that they did not have a more general duty to warn Plaintiffs about the risk that the cantilevered structure could collapse. ?Because [a property owner] is not the insurer of the visitor?s personal safety, the owner?s actual or constructive knowledge of the dangerous condition is a key to establishing its liability. [Citations]. In the absence of actual or constructive knowledge of the dangerous condition, the owner is not liable.? (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476, internal citations omitted; see also Mata v. Mata (2003) 105 Cal.App.4th 1121, 1131-1132 [?[B]efore liability may be thrust on a landlord for a third party?s injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.?, disapproved of on other grounds in Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224].)
Here, the Adlons had no duty to Plaintiffs? because they had no reason to know that the cantilevered structure was a potentially unsafe condition. First, they had no experience with persons walking on the structure and no reason to suspect that doing so would be dangerous. Indeed, to the Adlon?s knowledge no one had ever walked on the structure. Since it was 18 feet above ground and not adjacent to any walkway or other area where people could access, they also had no reason to inspect it to ensure that it could support a person?s weight. Simply put, the fact that an overhang structure existed that could not support a person?s weight does not mean that the Adlon?s had a duty to strengthen the structure or prevent someone from walking on it without their knowledge. (See Bisetti v. United Refrigeration Corp. (1985) 174 Cal.App.3d 643, 650 [mere presence of dangerous condition?in this case, acid vats?on leased premises did not create liability for landowners].)
Second, the Adlons did not have reason to suspect that Plaintiffs would walk onto the cantilevered structure. Given the nature of the contracted for work and the availability of ladders and other tools it was not clear that standing on the structure was necessary or foreseeable to complete the contracted-for work. Aquino instructed Deleon to stand on the cantilevered structure to paint the wood slats, supervised him while he did so, and otherwise placed Deleon in a position where he was unexpectedly relying on the structure for support. The Adlons did not retain any control of Deleon?s movements and could not foresee that he would stand on the structure to paint the wood slats.
Finally, any duty to warn is further negated by the fact that the potentially dangerous condition of the structure was open and obvious. The area where the accident occurred juts out above a concrete patio without supports of any kind. While Plaintiffs might not have been able to tell what type of framing held up the cantilevered structure, they could see that it did not have supports and that the area was not designed for people to walk on. The Adlons did not have a duty to warn Plaintiffs about a danger that should have been open and obvious to them. (Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 121.)
Accordingly, there is no triable issue of fact on the issue of duty. Because this conclusion negates both of Plaintiffs? causes of action, the Court does not address the Adlon?s alternative arguments.
Conclusion and Order
For all the reasons discussed above, the Adlon?s motions for summary judgment are granted. The Adlons are ordered to lodge with the Court and serve a proposed judgment within twenty days and to provide notice of this order.