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

,

P laintiff and Respondent

,

v.

MAS REALTY, LLC , et al.

,

Defendant s and Appellants ;

HORIZON LIGHTING, INC.,

Cross

- defendant and Respondent

. B 316 420

(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. Atano u s , Cleidi n Z. Atanous;
The Safarian Firm, Harry A. Safarian, and Chri s tina S. Karayan
for Defendants and Appellant s

. Kramer Trial Lawyers, Daniel K. Kramer, Teresa A. Johnson; Esner, Chang & Boyer, Stuart Esner, Andrew N. Chang, and Kevin K. Nguyen for Plaintiff and Respondent

. Horvitz & Levy, H. Thomas Watson, Jason R. Litt; Bremer Whyte Brown & O’Meara and Daniel A. Crespo for Cross

defendant and Respondent.

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳

Plaintiff Louis Acosta , an electrical technician, was injured
when a broken hatch providing access to the roof of a commercial building slammed shut on his back, herniating several of his
dis cs. He sued the building’s owner and management company for negl igence 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 the3

undisputed evidence established that Acosta and his employer could reasonably have ascertain ed 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, M AS 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 roof s 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 m eet 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 a n electrical technicia n. In 201 5 , he began working for Horizon Lighting , Inc. (Horizon), which had4

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 att empted to switch on the room’s interior light but it did

not come on. There n onetheless 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
breake r in the room, he decided to go onto the roof to inspect the rooftop photocells.
Acosta saw a fixed ladder leading to the roof acc ess, 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 ro of. 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

. A s 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 pull ed himself onto the rooftop.
Acosta reported the accident to his supervisor , who asked him to take photographs and try to determine why the hatch had5

fallen on him

. From the roof, Acosta opened the hatch with one hand and unlatched the locking mechanism wi th his other hand. As he did so, the hatch fell shut. Because the re 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, “H ATCH BROKEN! WATCH FINGERS AND
HEAD ☹ .” Acosta wished he had seen the handwritten w arning prior to asce nding 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 t he last few steps of the ladder. The ladder didn’t go all the way to the top like all other acce ss 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 an d 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 of6

the door had hit the upper middle back area. [¶] I put the hatch back up and secured it, then got on the r ooftop.” 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
dis c s 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

I V

. 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

compresse d when the hatch is closed . O nce released, the spring helps to push the hatch open and then holds the hatch in the

1 Horizon has represented that the trial on the cross

compla int 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 active ly pulled shut

. In this case, however, the cylinder was present, but the spring was missing. As a result, when the locking mechanism wa s 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

t hose 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, typ ically several times a month , or about 650 times over the
course of his 13

- year career

. He considered himself an expert on8

the operation and functionality of roof hatches “to a certain
extent.” He had never before encountered a broken roof hatch.
As note d 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 spri ng, 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
bro ken or not, I wasn’t able to really know that it was broken
until it actu ally 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 spring9

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 wa s 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 [,] i t 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 sa y 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 cor rectly, 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

automa tically 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 bef ore climbing a ladder, and that had he done so, he would have seen the handwritten warning. However, h e 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 ch e ck 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 i nspect a ladder before using it and should “have good visual contact with each rung” while climbing

. Defendant s’ safety expert, Gidon Vardi, testified that if th e spring assist had been functioning properly, it would “literally create[ ] a non resistant 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 tha t 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 m issing.”
I t 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 Acost a, that includes making sure there is no active electrical charge, and if it is necess ary 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 y ou 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 u nder 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, th en 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 k now that there’s an issue, his claims are barred. The plaintiff just acknowledged on the sta nd . . . [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 hi m 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. T here’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 hav e 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? Y es

. 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 dam ages?

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%
MA S Realty: 20% The Roof Depot: 0% Louis Acosta: 0% TOTAL: 100%16 D

. Judgment and p ost

- trial motions.

D efendants filed motions for judgment notwithstanding the
verdict and for a new trial . The trial court denied both motions.
D efendants 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 hazard s

— 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

, the re 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 a scertainable 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 establishe d as a matter of law that Acosta and his employer could reasonably have ascertain ed 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
standa rd, 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 provide d that landowners were vicariously liable for injuries to third parties resulting from the negligen ce 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 p p

. 691

– 692.)
The court explained that the peculiar risk doctrine wa s meant to ensure that third parties received compensation from the
landowner who benefitted from the work i n the event the18

independent contractor was insolvent. ( Id . at p. 701.) The availability of workers’ compensation, however, eliminate d this

concern as to the contractor ’s own employees by ensuring that
th ose employees will receive some compensation for their injuries. ( Id . at pp. 701

– 702.) Further, allowing a contractor ’ s

em ployees to sue the hirer would “ produce[ ] t he 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 t ypically 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 [( Sea B right )] .) 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 r egulatory 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 indep endent contractor’s employees for a workplace injury. I n 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 tha t a landowner may be
liable for injur ies 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 develop ing mesothelioma as a result of expos ure to asbestos at the refinery , the plaintiff sued Unocal for premises liability and negligent exercis e of retained
control . (

Kinsman

, supra , 37 Cal.4th at p p. 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 e xplained that under common law principles, a landowne r 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.) U nder
Privette

, however, t he 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’s20

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.) Howeve r , “ 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 informatio n 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 premis es; (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 ro of due to a structural defect, inasmuch as inspection for such defects could reasonably be implied to be21

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 p ropped 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 an d 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 t he jury pursuant to BAJI No. 8.01 that the owner of the premises is under a duty to exercise ordinary ca re 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 instruct ion, 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 job22

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 prejudici al:

“ 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 o f 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 i n 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 the23

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 p rofessional 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 fail ed 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 o nce an independent contractor becomes aware of a hazard on a property owner’s premises, the responsibilit y for employee safety is delegated to the contracto r 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 ha za rd 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 by24

requiring the landowne r 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 t hat 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 c ontractor ’ 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 underl ying 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

a lways 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 unrel ated 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 in to a large hole dug to erect a concrete post called a “bollard

. ” ( Tverberg

, supra , 49 Cal.4th at p p

. 522

– 523 .)26

and debris to which the plaintiff was exposed. ( Ibid .) We did not
hold that the landowner in Kinsman could b e 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 t he fact that the
contractor did not create the hazard and was not hired to
remediate the hazard. ( Id . at p p . 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

roo f’ 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 other27

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 contr actors 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, tha t 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 cont ractors 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 p p. 54

– 55, italics added .)28 B. Subsequent appellate decisions.
Two recent appellate decision s 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 p laintiff 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

c limbed 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 t he upper half of an extension
lad der and contained a warning label that said: “ ‘ CAUTION ’
and ‘ THIS LADDER SECTION IS NOT DESIGNED FOR
SEPARATE USE. ’ ” ( Id. at p. 622.) The p laintiff 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 di d 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 i t
, 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 identif ied it as a partial29

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 wher e, 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. D MP 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 penetrate d 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 DES IGNED 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 cov ered by plywood . Th e “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, t he

access panel presented as a square plywood surface tha t 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

p p

. 86 6

– 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

p p. 868

– 869, 872.) S pecifically, 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 ’ s31

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 contra ctor 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 ensu re 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.

“ T he 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 undisput ed 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 woul d 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
h ave 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 p p

. 872

– 873 .) With these principles in mind, we now turn to the facts of the present case.

I I I. 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
la w . Defendants contend that under the cases discussed above,
the hazard presented by the roof hatch and ladder were not33

concealed as a matter of law. For the reasons that follow, w e
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 k now 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 employe e only if the contractor
does not know and can not reasonably ascertain th e 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. 8 73 [contractor

“ had a duty to inspect the work premises for potential safety
hazards ” ].) In the present case, it is undisputed that t he 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 evidence34

established both that Acosta knew of the ladder’s condition before
h e 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 ope n 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 immedi ately
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 th at 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 tell35

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 recog nized it as a n 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 un aware 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
the y w ould 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 acces s 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 evid ence that
Horizon or Acosta conducted a safety inspection of the worksite,
and t he undisputed evidence demonstrates t hat an inspection
would have revealed its hazardous condition

— that is, that the
hatch slam med shut as soon as it was unlocked

. Accordingly

, whether or not Acosta actually kn e w that the roof hatch was broken, its hazardous condition was reasonably discoverable as a36

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 hat ch because it was not within the scope of the work Hori zon 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 fac t 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 f orfeit 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 prope rty 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

ro ofer 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 th e
contractor ’ s employees ” ( SeaBright

, supra , 52 Cal.4th at p. 600 )

, and thus the independent contractor has a duty to d etermine whether its employees can safe l y perform the work they have
been hired to do ( Gonzalez , at p. 55 ). That include s 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 t his 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 was38

required to traverse the path just to g et to the skylight, it still would have constituted an inherent risk in the job for which he
was hired. ” ( Id. at p. 5 5 .) 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 p lai ntiff’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 of39

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
Acos ta or Horizon inspected the hatch and ladder . Thu s , 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 hazard ous condition ” is known or reasonably knowable. ( Kinsman

, supra , 37 Cal.4th at p. 675 , italics added .) In the present case, the

“ hazardous condition ” was t hat the roof hatch would slam shut immediately upon being released . T he broken spring was the

cause of the hazardous condition

, but was not itself hazardous.
B ecause a reasonable inspection would have revealed th e 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 be came 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 w ho 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 knowledge40

to Horizon prior to his injury, “there necessarily can b e 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 emp loyee 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 pl aintiff could not recover for his injuries because he “cannot establish that [ his employer] could not reasonably have discovered the ha z ardou s 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 par t 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 workpla ce 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 with41

knowledge that the hatch was hazardous. Again, this contention
misunderstands Privette and its progeny. Acosta is correct that under the relevant cases, including Bl aylock

, “ 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 reasonabl e inspection would
have revealed. Because a reasonabl e inspection would have revealed not only that the hatch was heavier than ex pected 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 “t he plaintiff has not presented substantial
evidence to establish a cause of action .” ( Fountain Valley
Chateau Blanc Homeowner ’ s A ssn. 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, 43 5 , 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 her42

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 Joh nson 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 con founds the analytically separate doctrines of negligence and peculiar risk. T he court explained in Kinsman
that a n instruction that a landowner was responsible for taking “reasonable” safety precautions , “while an accurate statement of premise s 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 conditio n 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 i njury.” ( 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 dut ies (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 negligen t if they failed to use reasonable care
to prevent harm to Acosta, (2) MAS had a nondelegable duty to keep A rlington Plaza in a safe condition, and (3) defendants could be liable to Acosta only if they knew or reasonably should have known of a n unsafe concealed condition at Arlington Plaza , and Hor izon neither knew nor reasonably could be expected to know of th at 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 indepe ndent 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 decision s , 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 grante d, 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 co ntentions, including that substantial evidence did not support the jury’s finding s 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 DISPOSITIO N
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

,

P laintiff and Respondent

,

v.

MAS REALTY, LLC , et al.

,

Defendant s and Appellants ;

HORIZON LIGHTING, INC.,

Cross

- defendant and Respondent

. B 316 420

(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 b e 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 actio n 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.