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,

Plaintiff and Respondent,

v.

MAS REALTY, LLC, et al.,

Defendants and Appellants;

HORIZON LIGHTING, INC.,

Cross-defendant and Respondent.

B316420

(Los Angeles County

Super. Ct. No. BC717512)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Mark V. Mooney, Judge. Reversed with 

directions.
2

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 Crossdefendant 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 
3

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 
4

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 
5

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 
6

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 crosscomplaint was to begin after the completion of the personal injury 

trial; it remains pending before the superior court.
7

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 
8

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 
9

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. 
10

“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.
11

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, 
12

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.”
13

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.”
14

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.
15

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%
16

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.
17

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 
18

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).) 
19

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 
20

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 
21

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 
22

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 
23

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 
24

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, 
25

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.)
26

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 
27

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.)
28

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 
29

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.)
30

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 
31

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.
32

“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 
33

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 
34

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 
35

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 
36

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.
37

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 
38

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 
39

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 
40

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 
41

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 
42

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.)
43

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. 
44

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.
45

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.
Filed 10/19/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

LOUIS ACOSTA,

Plaintiff and Respondent,

v.

MAS REALTY, LLC, et al.,

Defendants and Appellants;

HORIZON LIGHTING, INC.,

Cross-defendant and Respondent.

B316420

(Los Angeles County

Super. Ct. No. BC717512)

ORDER MODIFYING AND 

CERTIFYING OPINION FOR 

PUBLICATION [NO CHANGE IN 

JUDGMENT]

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.
2

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.